⦿ CASE SUMMARY OF:
Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001) – SC
by PaulPipar
⦿ PARTIES
APPELLANT
Medical And Dental Practitioners Disciplinary Tribunal
V.
RESPONDENT
Dr. John Emewulu Nicholas Okonkwo
⦿ CITATION
(2001) LPELR-SC.213/1999;
(2001) 6 NWLR (Pt.710);
(2001) 3 S.C 76;
(2001) All N.L.R 305;
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Emmanuel Olayinka Ayoola, JSC
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– G. A. Adetola-Kazeem, Esq.
FOR THE RESPONDENT
– N. Odibe
⦿ FACT
The respondent was arraigned before the Medical and Dental Practitioners Disciplinary Committee, and was charged for murder of Mrs. Okorie.
Mrs. Okorie was a patient of the respondent; while at the respondent’s hospital, she refused the transfusion of blood or any bloody material to her body, and she signed an undertaken that no matter what happens, that blood should not be transfused to her. This was the same thing she did in the first hospital before she was subsequently transferred to the respondent’s hospital. The respondent accepted her undertaken and refused to transfer blood to her, subsequently she then died.
The mother and uncle of the deceased then charged the respondent before the Medical and Dental Practitioners’ Tribunal.
⦿ ISSUE
(1) Whether the Tribunal had no jurisdiction to try count 1 because it disclosed allegation of criminal offences?
(2) Whether in regard to both counts the proceedings are a nullity in that particulars of Code of Ethics that the respondent was alleged to have infringed were not disclosed in the charge?
(3) Whether there was a failure to understand the charge itself by the Tribunal; and, the issue tried by the Tribunal by the court below?
⦿ HOLDING & RATIO DECIDENDI
APPEAL DISMISSED
1. The Supreme Court held that the Tribunal had Jurisdiction because the count 1 does not disclose a criminal allegation.
The charge is:
(a) although it was clear from the referral letter from Kenayo specialist Hospital, Onitsha, where the patient had been previously admitted that the patient was severely anaemic, which said diagnosis you confirmed upon the patient being admitted in your Hospital, you nevertheless made no plans and infact failed to transfuse blood to the patient until she died on 22/8/91;
RATIO:
i. The mere mention of negligence in the charge does not reasonably lead to the inference [Criminal Allegation] which the Court below strained to put on the charge.
2. For issue 2, the Supreme Court gave judgement in favour of the Appellant. It stated, “I cannot see how any miscarriage of justice had been occasioned to the respondent who had not shown that he was misled by the charge.”
RATIO:
i. The law is clear that conviction on a charge which states a known offence with incomplete particulars can be upheld where the defence was not misled and no substantial miscarriage of justice has taken place.
ii. The respondent did not complain at the trial about any deficiency in the particulars supplied. Even if the charge should have specified, but had omitted to specify, the rule breached, the court below should have regarded such defect in the charge as an irregularity and determine whether it had occasioned a substantial miscarriage of justice.
3. The Supreme Court held issue 3 in favour of the respondent.
RATIO:
i. In these circumstances, it is clear that the Court of Appeal was right when it concluded that the measures which the Tribunal held the respondent should have adopted had not been part of the rules or code of conduct. It is evident that the Rules of Professional Conduct which the Tribunal appeared to have relied heavily on did not offer much guidance in answering the question which the Tribunal considered central to the case, namely: what course of action should a practitioner who has been denied informed consent to carry out a medical life saving measure take?
ii. Its’ decision in the case, however, progressed into error when it deviated from the correct path into ignoring the concomitants of the right of the patient to reject medical treatment or blood transfusion on religious grounds, and concluded that the respondent was guilty of infamous conduct “for holding onto the patient knowing fully well that the correct treatment cannot be given in the face of failure to obtain consent.”
iii. There is no doubt that the Tribunal came to a wrong conclusion by its misplaced emphasis on the respondent’s belief rather than the patient’s belief. It ignored the respondent’s evidence that notwithstanding his belief he had transfused blood to consenting patients before. It misinterpreted the respondent’s rightful regard for the patient’s wishes as collusion. It failed to give adequate regard to the conduct of the respondent in the light of accepted principles of law enjoining medical practitioners to respect a competent adult patient’s refusal of medical treatment, including blood transfusion, for religious reasons. It ignored the choice made by the patient and her husband of where she would be treated and the evidence that the patient and her husband rejected an offer of discharge. All these considerations were implicit in the judgment of the Court of Appeal.
⦿ REFERENCED
⦿ SOME PROVISIONS
Section 303 of the Criminal Code provides as follows: “It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person to have reasonable skill and to use reasonable care in doing such act; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.”
Rule 9 of the Rules of Professional Conduct as follows: “All registered doctors and dental surgeons shall in all areas of their professional conduct, practice and comportment, in professional and other relationships with patients and other persons be guided and bound by the rules contained in these codes. Any registered practitioner who after investigation and trial during which he is given every opportunity to defend his actions and conduct is found to have contravened these rules by the Disciplinary Tribunal of the Medical and Dental Council of Nigeria shall be guilty of professional misconduct,”
⦿ NOTABLE DICTA
** PROCEDURAL
A ground of appeal involves a question of law alone when the complaint of the appellant in that ground can be dealt with without resort to determination of any question of fact, that is to say, when the facts are agreed or admitted, or, when determination of the ground is not dependent on any fact to be proved. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
The important consideration in the determination of the nature of a ground of appeal is not the form of the ground but the question it raises. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
It is not part of our system of criminal justice that the contents of a charge should be subject of speculation and inference. The law is clear beyond peradventure that the essential elements of the offence should be disclosed in the charge. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
Where a charge before a disciplinary tribunal is, as framed, adequate for the purpose of the disciplinary proceedings and contains enough-information for the purpose of such proceedings, it is not right to impute an intention in the framers of the charge to charge an offence not expressly mentioned in the charge. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
** SUBSTANTIVE
It is an acceptable principle of interpretation that, “Where there is an enactment which may entail penal consequences, you ought not to do violence to the language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it by express language.” (See Rumball v. Schmidt (1882) 8 QBD 603, 608: Cited in Craies on Statute Law (7th Edn) p.532). – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
If the respondent was to incur a penalty on the ground that he had been guilty of infamous conduct by reason of a breach of the rules of conduct, it must be shown that those rules expressly prohibited what he did. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
The liberty which the law permits a competent adult to determine what would be done with or to his own body, when exercised by the competent adult, cannot be regarded as an unjust and immoral course. Rule 18 provided that “Other instances as they arise may justify withdrawal”. That leaves the judgment, primarily, to the practitioner. If he made an error of judgment, that cannot be regarded as infamous conduct. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
Rule 5 does not enjoin the practitioner to refer a patient who has refused medical treatment for religious reasons to another doctor or health institutions. The situation envisaged in rule 5 is one in which an examination or treatment is beyond that practitioner’s capacity. Where a patient refuses medical treatment for religious reasons the professional capacity of the practitioner is not called into question by that fact alone. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
It is expedient at the outset to recognise that a consideration of a religious objection to medical treatment involves a balancing of several interests, namely: the constitutionally protected right of the individual; state interest in public health, safety and welfare of society; and, the interest of the medical profession in preserving the integrity of medical ethics and, thereby, its own collective reputation. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
The patient’s constitutional right to object to medical treatment or, particularly, as in this case, to blood transfusion on religious grounds is founded on fundamental rights protected by the 1979 Constitution as follows: (i) right to privacy: section 34; (ii) right to freedom of thought, conscience and religion: section 35. All these are preserved in sections 37 and 38 of the 1999 Constitution respectively. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
The right to privacy implies a right to protect one’s thought, conscience or religious belief and practice from coercive and unjustified intrusion; and, one’s body from unauthorised invasion. The right to freedom of thought, conscience or religion implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary to one’s religious belief. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
The limits of these freedoms, as in all cases, are where they impinge on the rights of others or where they put the welfare of society or public health in jeopardy. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
The sum total of the rights of privacy and of freedom of thought, conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
The courts are the institution society has agreed to invest with the responsibility of balancing conflicting interests in a way as to ensure the fullness of liberty without destroying the existence and stability of society itself. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
Since the patient’s relationship with the practitioner is based on consensus, it follows that the choice of an adult patient with a sound mind to refuse informed consent to medical treatment, barring state intervention through judicial process, leaves the practitioner helpless to impose a treatment on the patient. That helplessness presents him with choices. He could terminate the contract, and, I would say, callously, force the patient out of his clinic or hospital; he could continue to give him refuge in his hospital and withdraw any, form of treatment; he could do the best he could to postpone or ameliorate the consequences of the patient’s choice. To a large extent the practitioner should be the judge of the choice that may be better in the circumstances. The choices become a question of personal attitude rather than one of professional ethics. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
A charge of infamous conduct must be of a serious infraction of acceptable standard of behaviour or ethics of the profession. It connotes conduct so disreputable and morally reprehensible as to bring the profession into disrepute if condoned or left unpenalised. Although the medical profession is the primary judge of what is infamous conduct, it cannot do so without paying attention to what the law permits, either of the patient or of the practitioner. From the facts as found by the Court of Appeal it is difficult to see anything that is infamous in the conduct of the respondent. – Ayoola, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
I am completely satisfied that under normal circumstances no medical doctor can forcibly proceed to apply treatment to a patient of full and sane faculty without the patient’s consent, particularly if that treatment is of a radical nature such as surgery or blood transfusion. So the doctor must ensure that there is a valid consent and that he does nothing that will amount to a trespass to the patient. Secondly, he must exercise a duty of care to advise and inform the patient of the risks involved in the contemplated treatment and the consequences of his refusal to give consent. – Uwaifo, JSC. Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001)
