NICN RECENT RULING ON JUTH CALLS FOR CELEBRATION
I was elated when I read the court judgement involving the management of Jos University Teaching Hospital (JUTH) and the Medical Laboratory Scientists. To me, that judgement has brought to an end the incessant physical assaults of our resident pathologists by their supposed neighbours in their working places. If there is anything I like judicial officers for, it is their professional use and choice of words. Surprisingly those not well grounded in English language have started celebrating when the fight is about to start. The order made by Justice Nkechi Esewe of the National Industrial Court of Nigeria (NICN) was for a department of medical laboratory science to be CREATED not to be RESTRUCTURED. One can only CREATE what has never been in existence while one can only restructure anything not properly constituted. The Medical Laboratory Science Council of Nigeria Act Cap. I14 Laws of the Federation of Nigeria 2004, and for related matters empowers the Medical Laboratory Science Council of Nigeria to regulate the practice of Medical Laboratory Science but not Clinical laboratory science.
By this judgement, the court recognizes that the existing laboratories in our tertiary hospitals, headed by pathologists, are CLINICAL laboratories hence they must not be headed by laboratory scientists in consonance with the Medical and Dental Practitioners Act Cap. 221, Law of the Federation of Nigeria 1990 (as amended) which empowers the Medical and Dental Council of Nigeria to make regulations for the operation of CLINICAL Laboratory Practice in the field of Pathology and its sub-specialties hence only professionals whose certificates are registrable with MDCN can head our clinical laboratories. For those still ignorant of who a pathologist is, a pathologist is not only the specialist doctor (the Histopathologist) who performs an autopsy, but also can be a Medical microbiologist, Haematologist/Immunologist or a Chemical pathologist. This recent NICN judgement is the best judgement I have ever seen in recent years. If our current clinical laboratories were not properly constituted, the judge would order for the immediate restructuring of the clinical laboratories so that medical laboratory scientists would head them.
Meanwhile, a judge is trained to pass a judgement after reviewing the arguments made by different parties before the court. In view of this gate-man who wants to share bed with his master will never drag his master to court over his master’s refusal to allow him commit adultery with madam of the house. However, if the gate-man hires a good lawyer, such an ulterior motive may be restructured as a Human Rights Suit for the enforcement of the gate-man's rights to dignity, personal liberty ,privacy and freedom of conscience as contained in sections 34,35,37 and 38 of our Nigerian’s constitution (as amended) respectively . Regrettably, there is no judge that will not pass a judgement that these inalienable rights of the gate-man be upheld. Thereafter, the gate-man will unleash his ulterior motive. Although, the gate man may secure a judgement in the court but the onus lies on the owner of the house to determine if the services of the gate-man in the house are still needed or not.
However, another part of the judgement that is of great interest to me and that may be a subject of further litigation is where the judge said that in the new department to be created, the medical laboratory scientists will be allowed to discharge their duties freely as a distinct department without being directed by a doctor. I have gone round the Act establishing the Medical Laboratory Science as a profession to see if there is a place where a medical laboratory scientist is allowed to run any laboratory test without a request made by a medical doctor. So if medical laboratory scientists cannot run laboratory tests without instructions/commands in the form of laboratory request forms from the doctors then the medical laboratory scientists are still under the control of the doctors even if another department is created for them millions of miles away from the doctors because it is not only unethical but also criminal for a Medical Laboratory Scientist to initiate or order a laboratory investigation without a doctor's command or instruction. Such instruction/control is medical practice, reserved for only medically qualified personnel. Every doctor practising in Nigeria is bound by the Medical and Dental Council of Nigeria (MDCN) Act hence we are answerable to the MDCN panel/tribunal which is at the status of a High Court just like NICN. Sequel to this, every doctor in Nigeria must follow the instructions made by the MDCN Act. There are three ways to get justice; the law, the people and God. Let us discuss them one after the other with respect to the recent judgement by NICN.
JUSTICE BY THE LAW
The last time I checked, judgement made by NICN cannot be appealed unless where there is breach of fundamental human rights. The rights of the medical doctors and the patients are at stake in this judgement because when the medical laboratory scientists can run tests for patients without being requested by the doctors then the management of the patients is in jeopardy. If medical laboratory scientists go on to run such tests without doctors’ instructions, will the doctors be expected to interpret the laboratory results they never requested for and if the management of such patients goes awry, who is to be held responsible? Another breach of fundamental human rights in the judgement is where the judge wants the management of JUTH to create a department of medical laboratory science within 30 days. Can a building be completed before the 30-days ultimatum? Can such a project be started without being captured in the budget for the fiscal year or pass through Due process? This and many grey areas in the judgement, of course ,will be a ground for appealing the judgement.
JUSTICE BY THE PEOPLE
This is the justice I so much trust because it is very customized and brief. In my village, there is this rich man who has all the connections anybody could think of. Any little thing he would arrest people and sent them to jail. It continued until a point when the whole village came together to take a decisive decision on the man and his family. Instructions were passed to everybody not to associate with the man or his family and anybody that faltered would be sanctioned. From that point nobody could visit the man and the man could not visit anybody in the village. He or any member of his family could not buy anything from the village market because nobody could sell to them and there is no Nigerian law that says a seller must sell to every buyer. The man was living alone in the village and new visitors who visited him would be embarrassed because any villager they asked for direction to the man's house would either keep mum or ran away from the new visitor. It got to a point that when the man's mother died, nobody from the village attended the burial except friends and well-wishers from other villages. It was after that incident that the man understood what the lawyers called Justice by the people and justice by the law through the court. Nobody told the man to come and beg the entire village for forgiveness and for him to use his so-called connections to release those people unjustly awaiting trial.
To me, let JUTH and other hospital managements create a separate department for the laboratory scientists. If a doctor fills a laboratory request form and addresses it to a specific pathologist (like 'Haematologist attention required' et cetera), will a laboratory scientist touch the form? If the new department to be created does not run any test for a whole year because the tests are channeled to our clinical laboratories, and the new department is to pay her workers and sustain itself from the laboratory generated revenue, the next thing is it not to pack up and for the laboratory scientists to run back to our Clinical laboratories and beg the pathologists for forgiveness in order to be reabsorbed like the biblical prodigal son ? The Nigeria doctor seems not to recognize his central role in the hospital because the patient first visits the doctor and the decision to send the patient to our existing clinical laboratories or yet to be created laboratories manned by scientists is that of the doctor’s. The doctors have the proverbial yam and sauce,if they give you,you eat but if they refuse to give you,you need no prophet to tell you that starvation is imminent. No conventional court has original jurisdiction to try a doctor over his decision with respect to his profession except the Medical and Dental Practitioners' Investigating Panel which is a court of first hearing in matters of alleged infamous conduct in professional respects as contained in s28(1a) of the Code of Medical Ethics in Nigeria and subsection 2a of the same section confers the status of a High Court to the Medical and Dental Practitioners' Disciplinary Tribunal hence any judgement from the tribunal can only be appealed in the appellate courts.
I need not stress on the issue of jurisdiction in our courts because any judgement that emanates from a court that has no jurisdiction to try a matter is declared null and void. I still wonder why biochemists, microbiologists, and anatomists cannot work in our hospital laboratories in line with the international best practices. These medical laboratory scientists evicted the biochemists, microbiologists and anatomists from our hospital laboratories and now they think it will be easy to remove our pathologists from our clinical laboratories. As they move to their new department where 'apoptosis' is waiting for them, I call for immediate recall of biochemists, microbiologist and anatomists to our clinical laboratories to assist the pathologists in line with international best practices. I equally call for a one year compulsory internship programs for these professionals. Go to different departments of Microbiology in our varsities, you will see a unit for medical microbiology and other units like Bacteriology,Virology,Mycology ,Parasitology et cetera which are equally found in our clinical laboratories in our hospitals. There is no law in Nigeria ,that will ever prevent such professionals from practising what they studied since their units are equally found in our clinical laboratories. Also, the Biochemists should be allowed to work in our chemical pathology units. I therefore challenge all the Microbiologists,Biochemists and Anatomists to come under one umbrella to sponsor a bill that will enable them work in our hospitals' laboratories and that will equally enable them to be captured under the one year compulsory internship programme.
JUSTICE BY GOD
I will not waste any time here because God is all-knowing and has not forgotten His own personal experience when Lucifer who was supposed to be under Him surprisingly revolted against God and we heard of the war that broke out in heaven and how Lucifer was finally forced down to the earth. God would agree with me that if there was NICN in heaven Lucifer might equally have dragged Him there for a separate kingdom to be created for Lucifer where it would rule without instructions from God.
Dr Paul John, Port Harcourt,[email protected],