ASSESSMENT OF PATIENT’S RIGHT IN NIGERIA (COMPARATIVE STUDY WITH SOUTH AFRICA)

INTRODUCTION

The term “human rights” has become one of the most fashionable buzzwords of our contemporary world. The “era of human rights” is fast becoming the preferred term for describing the current times, and this makes any dis-cussion on human rights so apt and relevant in this age. With the passing of the Universal Declaration of Human Rights, 1948 and signing of the International Covenants on Civil and Political Rights, 1966 and the Economic, Social and Cultural Rights, 1966, there has been a global emphasis on human rights.1 The issue of patients’ rights has also been brought to prominence with the advent of modern technology and the availability (and use) of artificial measures to prolong life; the evolution of legal rights and duties of patients, an increased concern for the rights of the patients, the increase in number of people affected by HIV/Aids, and a growing population

1 The Universal Declaration of Human Rights (UDHR) 1948, the International Covenants on Civil and Political Rights (ICCPR) 1966 and the International Covenants on Economic, Social and Cultural Rights (ICESCR) 1966, constitute the International Bill of Rights population of elderly patients.2

However, apart from those international instruments setting out human rights, most national Constitutions have equally set out fundamental rights of individual. In this category is the Constitution of the Federal Republic of Nigeria, 1999 which sets out fundamental human rights enjoyable by everyone (any patient inclusive) within the territory of the country.3 The larger group of rights as pro-vided for in the Constitution and the International Bill of Rights will not be discussed in this paper. The discussion in this article is, however limited to those rights that centre on the relationship of a patient and his/her health care providers, specifically, the rights of a surgical patient in relation to his/her medical doctors, nurses, other health personnel and health institutions. The relationship of a patient with her health care providers is contractual and is to some extent governed by the contract law, and in many more respects, also by the law of torts and criminal law. Bearing in mind the topic of this paper which bothers on legal rights; those other areas of law are therefore out-side the scope of the paper but shall receive attention as they become relevant.

2 See Slabbert and Van der Westhuizen when submitting in a similar respect on the issue of euthanasia. See Slabbert, M & Van der Westhuizen, C “Death with Dignity in lieu of Euthanasia” 2007 22(2) SAPR/Public Law366; see also, Straus “The ‘Right to die’ or ‘Passive euthanasia’: two important decisions, one American and the other South African” 1993 (6) SACJ 196-208.

3 See Chapter IV of the Constitution which provides for the various rights

The point of departure in this article is the Constitution being the supreme law; everything and everybody is sub-ject to the Constitution.4 The Constitution is the source of the citizens’ rights and sets out catalogue of rights. However, those rights relevant to this topic are: the right to life;5 the right to human dignity;6 the right to freedom from discrimination;7 the right to personal liberty;8 the right to freedom of thought, conscience and religion.9 Apart from the Constitution, other sources of a patient’s rights in Nigeria include the Common Law, International Convention and Professional Code of conduct, in particular medical profession code of conduct. In as much as the article does not pretend to lay claim to an exhaustive discussion on all legal issues and rights of a patient vis-à-vis his/her health care providers, this paper shall, however, endeavour to provide a catalogue of a patient’s rights under the Nigerian laws. The article shall also attempt providing guidance to the health care providers in order not to run fowl of the law of the land or breach the fundamental rights of their patients.

This article is divided into five parts. Following this introduction, the article consists of the following parts: Part two discusses the meanings of the major terms used in this article. Part three examines the legal rights of patients in Nigeria. In this part, the right to life, the right to human dignity, the right to personal liberty, the right of a patient to give an informed consent to treatment and the rights to privacy and self-determination are discussed. In part four, the article discusses the vexed question of whether the rights of a surgical patient include the right to die while conclusion forms the fifth part.