Recommendations of JOHESU on the Proposed MDCN Act 2020

 Functions of the Medical & Dental Council of Nigeria

Section 4 (9) in the Bill states inter alia “Notwithstanding the provision of any other Act to the contrary, the Council shall to the exclusion of any other person or body, perform the following functions:

Making regulations for the operation and management of clinical diagnostic centers for the practice of Pathology or Radiology and other branches of Medicine and Dentistry determined by Council, provided that the regulations shall provide for fully registered practitioners to manage the diagnostic centers.

Recommendation

Expunge Section 4(9) completely.

Justification

2. In line with the existing rules of the proceedings of the National Assembly not to consider legislating on matters before the court, we draw the attention of the Senate Committee on Health to the fact that the issue of the Regulatory Agency which has powers to regulate and control Clinical/Medical Laboratory practice in the field of Pathology is an on-going suit at the Court of Appeal which is expected to determine the Regulatory Agency in Healthcare which has a specific approbation in law to regulate and control Clinical/Medical Laboratory practice in Nigeria. For the records, the NICN in Suit no. NICN/ABJ/284/2014 had ruled that MLSCN has such powers in Nigeria.
3. The National Assembly must avoid the reality of chaos in the Health System by reckoning with the fact that the proposed Section 4(9) of the MDCN Bill is in direct conflict with Section 4(b) and Section 29 of the MLSCN Act CAP 525 LFN 2004. Section 4(b) states to wit “The functions of the Board is to regulate the practice of Medical Laboratory Science in Nigeria”.

Section 19(d) of the same MLSCN Act further amplifies this function of the MLSCN by declaring that “the Board may make rules for the maintenance of good standard Medical Laboratory practice and services.

The Committee is further enjoined to note the interpretation of Medical Laboratory Science in Section 29.

Medical Laboratory Science means “The practice involving the analysis of human or animal tissues, body fluids, excretions, production of biological design and fabrication of equipment for the purpose of Medical Laboratory diagnosis, treatment, and research and includes Medical Microbiology, Clinical Chemistry, Chemical Pathology, Haematology, Blood transfusion, Science, Virology, Histopathology, Histochemistry, Immunology, Cytogenetic, Exfoliative Cytology, Parasitology, Forensic Science, Molecular Biology, Laboratory management or any other related subject as may be approved by the Council.

Section 42(1) Subject to subsection (4) of this section, no person other than a registered medical practitioner shall

(b)        take or use the title of physician, surgeon, doctor or licentiate of medicine, medical practitioner, or apothecary

42(2) subject to section (4) of this section, no person other than a registered dental surgeon shall

(b) take or use the title of a dental surgeon, doctor, dentist, dental officer, or dental practitioner.

Amend section 42(1) b to read

1. b) take or use the title of physician, surgeon, or licentiate of medicine or medical practitioner

Amend Section 42(2) b to read

1. b) take or use the title of a dental surgeon, dentist, dental officer, or dental practitioner.

Justification

In tandem with the due process, it is the NUC by virtue of its enabling act that has powers to draw and approve the curriculum of all Academic programs n Nigeria.  If the NUC has graciously approved Doctor of Pharmacy, Doctor of Optometry, Doctor of Physiotherapy, and related programs in the Health Sector, the MDCN has no statutory powers to decree that holders of these degrees and titles cannot bear the title of doctors neither can such constitute an offense within the purview of the law.

There is a legion of undergraduate programs globally today where appropriate authorities have approved titles including Doctor of Law, Doctor of Theology, Doctor of Arts, etc.

In the Health sector, it is important to stress that Doctor based programs are professional degrees and not doctorate.

For emphasis, the word doctor is derived from the Latin verb “docere” meaning to teach or a scholar.  Only University dons with a doctoral degree normally teach in the universities.

The Ph.D. or Doctor of Philosophy is the highest graduate degree awarded by universities and in the most ideal of situations remains the cadre that should use the title Dr. exclusively.

The term apothecary in ancient times referred to a person who prepared and sold medicines/drugs.

Apothecary shops sold ingredients and medicines they prepared to other practitioners as well as dispensing the medicines to patients.

In more contemporary times, an Apothecary is the very epitome of an organic pharmacy.  An Apothecary is a person who prepares and sells, compounds for medicinal purposes … open to the public.

The modern apothecary specializes in preparing high-quality professional-grade supplements, produced with only the best quality ingredients, and tested for potency and purity.  From the above, it is clear that the Pharmacist who prepares, sells, and dispenses drugs within the purview of law in Nigeria is the modern-day Apothecary.

An Apothecary is the identification of an establishment or individual who dispenses medical materials.  This way, an apothecary is the old form of a pharmacy.  The Apothecaries exist as a predecessor to a modern-day pharmacy like CVS, Walgreen, and Walmart.

An Apothecary serves to dispense and formulate medications that are identical to a large extent to a pharmacy.

Part V Miscellaneous

Section 45(3)(d) Only a Registered Pharmacist shall dispense medicines prescribed by a Registered Medical Practitioner or Dental Surgeon.

Section 45(3)(e) Nothing in the foregoing shall preclude a Registered Medical Practitioner or Dental Surgeon or a Registered Nurse under the supervision of a Doctor or Dentist from providing medicines in the absence of a Registered Pharmacist.

Recommendation

Expunge Section 45(3)(e) completely.

 Justification

1. The spirit of the relevant Pharmacy Acts vis the Poison & Pharmacy Act in Part III Sections 7 & 8 and the PCN Act CAP P.17 LFN 2004 in Section 1(1)(d) which gives the PCN a specific approbation in law to regulate and control Pharmacy practice in all its aspects and ramifications in

The Federal High Court, Lagos in a landmark ruling in October 2007 affirmed the powers of the PCN as the ONLY body that can regulate Pharmacy Practice at both the private and public sector levels in Nigeria. The MDCN logically cannot, therefore, exercise the powers of the PCN to regulate Pharmacy practice through the back door.

The fall–out of this suit is also pending at the Court of Appeal.

2. Healthcare remains a global and internationally driven practice. One of the golden rules and norms in the prescribing and dispensing of drugs is that both the prescriber and the dispenser of medicines are forbidden to have pecuniary interest or gain so that the patient enjoys the best clinical decision that must be made by the prescriber.

It is interesting that in the MDCN draft bill, no consideration or thought was put in print for the next line of action in the absence of the Medical Doctor or Dentist.

Specifically, there was no clause to allow Nurses or any other practitioner to step in the shoes of the Doctor/Dentist which would have been within the jurisdiction of the MDCN. Rather strangely, the MDCN bill seeks to give Doctors/Dentists a loophole in the private sector especially to continue the many years of reckless use of drugs through untrained hands.

This draft cannot legitimize the unlawful act of sales and dispense of drugs by Doctors under whatever guise.

3. The scenario in (2) above is what has entrenched and formalized quackery in the health system in Nigeria because private hospitals promote quackery through a periodic discharge of untrained elements. Such undesirable characters evolve as Auxiliary Nurses, Dispensing Assistants/Clerks, etc.
4. Section 45(3)(e) in its totality will encourage the continued exploitation of the Nigerian people because WHO studies confirm pecuniary indulgences of private hospital facilities in the sales and dispensing of drugs. The study declares that prices of drugs in private hospitals is 184% above baseline prices in public hospital pharmacy and 192% above what is obtainable in private pharmacies. It is this huge profit that has always incentivized private hospital facilities to unlawfully stock drugs when they also fail to engage Pharmacists.

Moving forward, the way out remains that Doctors and private hospitals that cannot afford to engage Pharmacists should send their prescriptions to Community Pharmacies that are registered by PCN.

Section 45(9): No person shall hold the post of Medical Officer of Health (MOH) unless the person is registered as a Medical Practitioner as the case may be.

Recommendation

Expunge completely.

Justification

Any Health Professional can be designated as Medical Health Officer (MOH) especially in rural areas where a dearth of Doctors remains a reality.

Section 47: Under Interpretation Clause

Recommendation

Delete/Expunge the definition of:

1. Clinical or Medical Laboratory

Justification

It is inconsistent with the definition in an existing Act of Parliament. Section 29 of MLSCN Act S.25 LFN 2004.

1. “Medically qualified” means a person registered fully as a Medical Practitioner or Dental Surgeon by the Council.

Recommendation

Expunge completely.

Justification

There is a pending court case on who is a “Medically Qualified” personnel in Nigeria. A notable case is at the Court of Appeal Ibadan in Appeal No. CA/IB/M.92/18 flowing from Suit No.NICN/05/03/2014.

Conclusion

JOHESU strongly canvasses the full implementation of the National Health Act as a panacea to avoid a grab-grab syndrome by respective professions and regulatory agencies in Health in the dispensation of professional privileges and rights in Nigeria.

Tertiary Hospital Development Tax Fund

Justification

This allows State Governments and Federal Medical Centres to benefit from this Act of parliament e.g TETFUND.

Section 2: The source of funding for the Fund shall be 1% of…

Recommendation

Add 7 Banking Tax and 8 Insurance Tax, 9 Multinational Construction Companies

Justification

These giant institutions of the Financial Sector are easily the most lucrative and profitable segment of the Nigerian economy that should assist in these major strategic endeavors.

Section 5(1)ai

Recommendation

A Chairman who shall be a seasoned administrator or manager of cognate experience with a bias for Healthcare Administration and Management.

Section 5(f)

Recommendation

Amend Chief Managing Director to Managing Director (MD)

Justification

Managing Director (MD) appears to be the norm in business nomenclature. This becomes apt because Section 9 already clarifies without ambiguity that the Managing Director is the Chief Executive Officer (CEO) and Chief Accounting Officer of the Fund.

Section 5(g)

1. h) Representatives of Organised Labour (NLC/TUC)

Justification

The interest of workers in the dispensation of the Development Tax Fund will be protected especially in the envisaged training programs of the different cadres of personnel in tertiary health institutions.

Section 9(1)(c)

Recommendation

There shall be for the Fund a Managing Director who shall be a seasoned administrator or manager of cognate experience with a bias for Healthcare Administration and Management.

Justification

For 5(1)(a) and 9(1)(c), The draft bill must clarify without ambiguity that premium condition precedent to emerge as Chairman and Managing Director of the Fund has grounded in a solid background of administration and management in Health inclined endeavors.

Section 19(f) Interpretation

Amend to “Tertiary Teaching Hospital” means a Federal and State Tertiary Health Institutions for the purpose of teaching, learning research, and health services.

Conclusion

We advocate a diligent execution of this noble agenda, but on a broad spectrum, template inculcating states tertiary health institutions for maximum impact and benefit to consumers of health.

Federal University of Health Science, Otukpo

Recommendation

Delete in the entire draft all the references to allied disciplines to Medicine e.g. Section 2(b)(d)

Justification

It is contrary to Section 42 A and B of the 1999 Constitution which prohibits discrimination against citizens of the Federal Republic of Nigeria.

Conclusion

It is imperative to sound it loud and clear that a need arises to promote the strong evolution of the different professions in the Health Sector as this guarantees harmony in foreseeable future.

National Maternal & Perinatal Death Surveillance & Response Bill

Matters pertaining to the National Maternal and Perinatal Death Surveillance and Response are germane in healthcare policy and planning. However, setting up statutory structures to drive this as an autonomous agenda under the FMOH does not look too strategic in view of the many bureaucratic appendages that will be associated with such endeavors.

The National Assembly must set the right examples in legislating because Government cannot be conveying the impression that there is a paucity of funds to cater for existing statutory MDAs but still attempts to create new structures that must be funded.

We suggest albeit very strongly that this bill be stepped down and that the good work already articulated be used as a stepping stone and working document to set up appropriate committees under the Primary Healthcare Development Agency which is our primary option because it is the ideal template to drive this function.

Conclusion

A need arises to activate the National Health Act and the National Primary Healthcare Development Agency Act to redress the challenges identified in the National Maternal and Parental Death surveillance and response bill.

Advanced Healthcare Development Fund Bill (AHDF)

The bill takes us back to the military era where privileges were reserved for one profession in a multidisciplinary sector contrary to Section 42A and B of the 1999 Constitution.

The AHDF bill seeks to maintain infrastructures in tertiary healthcare service delivery which is also one of the functions of the Tertiary Healthcare Institution Committee set up in Section 9 of the National Health Act.

Most of the responsibilities being canvassed in the bill have been and can be merged with the proposed Federal Tertiary Teaching Hospital Development Tax Fund Bill.

Conclusion

In view of a dire need to reduce public expenditure on unnecessary bureaucratic structure, we strongly recommend that this bill be stepped down.