It is no longer news that the Ebola Virus Disease (“EVD”) is ravaging certain countries in West Africa. Sierra Leone and Liberia have been chiefly affected. While Guinea and Nigeria are battling with a few cases. The virus is deadly and takes hold of its victims as fast. Some victims have indeed recovered like an American doctor that was flown back to the United States from Liberia and a few other Nigeria victims.
One cannot help but admire the courage of these medical personnel attending to the EVD victims. Despite this praise and courage, as we will soon show below, these patients still have rights that must be respected by those involved in the treatment even in these circumstances. In other words medical personnel involved in their treatment and the society at large have legal duties and responsibilities to these persons. The rights of patients stem from both the Constitution (both Chapter II and IV) and common law principles applicable in the Nigerian legal system. We will be considering the rights of patients and potential victims and the ethical standards required of medical personnel treating these patients and potential victims. We will also briefly comment on the role of the society.
RIGHTS OF (POTENTIAL) VICTIMS
The first issue we will consider is the rights of persons under quarantine.
Rights of Persons under Quarantine
Usually because of the infectious nature of EVD, persons who tested positive to the virus are placed under quarantine so that there will not be any further spread through them. A quarantine, according to the Oxford Dictionary, is a period of isolation for people or animals that have or may have a disease. So these persons under quarantine will be isolated from other humans as much as possible to avoid any form of contact. This is ordinarily against their right to freedom of movement and freedom from discrimination but because of the possible danger they pose to the right to life of other humans, a derogation from their rights is well permissible under the law of Nigeria. However, they still retain some rights. For example, the right to life. As long as they have not yet been killed by the disease they still retain their right to live. They cannot be forcefully killed by a medical practitioner. Mercy killing is not legalized in Nigeria. Also killing a person because he or she is infected by a deadly disease is not one of the circumstances under which the right to life can be derogated from as provided by the Nigerian Constitution. They still have right of access to the basic necessities of life like food and shelter.
Right of persons under surveillance
Because a person may not know that he has contacted the disease except with the benefit of a medical test, he may have come in contact with several persons prior to being tested or testing positive to the virus, the known contacts of a patient are put under surveillance or ‘close observation’. Short of testing positive, they have a right not to be put under quarantine except they have tested positive to the virus even if they are manifesting some symptoms akin to the virus. This point I believe is supported by S. 35(1)(e) which is to the effect that a person can only be denied of his personal liberty if he or she is ‘suffering from’ an infectious or contagious disease. As long as it is not medically confirmed that the person is suffering from the disease, the person cannot legally speaking be quarantined. There is however difficulty in determining whether such a person’s right to freedom of movement can be legally limited. For example, can he or she be asked to only stay within a geographical location like only within a state or only within a local government area? It is my opinion that a person under surveillance can have his or her right to movement limited to a location as long as the purpose is to ensure effective ‘close supervision’. They retain their rights to freedom from discrimination and movement, albeit under close supervision. They can however be called in for tests sporadically as the exigencies of the situation demands.
Right to freedom from discrimination and stigmatization after recovery
Persons who have recovered from the disease or have been released from quarantine/surveillance are deemed to have been passed medically free from the disease. As such, such persons have a right not to be discriminated as though they were still carrying the ailment. The Constitution preserves their right to personal dignity, freeing them from any form of inhumane treatment from care givers and the general populace. I think that one of the major challenge such people may face is in their workplace. Some employers may ignorantly be reluctant to treat them as their usual self. Some employees too may want to stigmatize them. That would no doubt be illegal and unconstitutional. A worse case scenario will be where stigmatization or discrimination come from medical caregivers. The law places a higher standard on this latter category of persons.
The second major area we will consider is the equally important aspect of medical ethics. What should we expect of medical personnel treating the virus?
By medical negligence we mean that any medical personnel treating a victim or suspected victim, has a duty to use reasonable care and skill, and where such personnel fail to exercise such care and skill in handling the patient, such personnel can be held liable in negligence. The standard of care and skill required is that of a reasonable medical personnel of the same or similar qualification. That is, what would a reasonable medical practitioner with equal or similar qualification be required to do in such circumstances. This brings to mind a rather unfortunate case that was reported in the media about a pregnant woman who went to the hospital here in Nigeria for a routine medical check-up and was unfortunately infected with the virus by a nurse who had contact with the index case (the Liberian Patrick Sawyer). Assuming the situation were true as I have stated it here, the nurse can be held liable for medical negligence. Why? Simply because of the principle we have stated above. There is a standard of care and skill required to be exercised by the nurse in handling patients- more so in the knowledge of her possible contact with the disease. A reasonable nurse is expected not to have physical contact with a patient and if she must, such contact should be minimal and she must endeavour to cloth herself in protective apparel. This is so even if she had not tested positive but had possible contact with the index case. The standard of care is especially high seeing that other persons who had contact with the index case had broken down with the disease. It is my view that the superiors of that nurse can even be held vicariously liable in case the nurse is not healthy enough to face an action. However the nexus has to he drawn that she was under their express or apparent instructions to handle the pregnant woman.
Medical personnel are aware of the high standard of care placed upon them and even if they were not aware, ignorance will not be an excuse. This is more so when they are dealing with patients that have highly contagious diseases.
This is another important area under consideration. Before now the generally held belief was that EVD has no medical cure. However the media is just now awash with news that there is an experimental drug developed by scientists in the United States that has the potency to cure and or suppress the virus. Some in Nigeria have even dubiously claimed that frequent or continuous ingesting of bitter kola can cure the disease. Whatever be the case, before any victim can be treated with the experimental drug, such person must give consent to the treatment. By consent we mean that the person must give express permission to such treatment either verbally or in writing. The consent would be given on the basis of a clear explanation to the patient by a medical personnel. Anything short of this, would not do. Where the patient is not in a state to give express permission, the consent can be given by the patient’s guardian (in the case of a minor) or the patient’s spouse (in the case of a married person). Failure to obtain consent can be a ground for medical negligence. So I would say, doctors beware.
Protection of Medical Personnel
Medical personnel working with patients and potential patients have certain rights. I would not include basic employment entitlements (like pay, pensions and life insurance) because I believe those are basic across board. They have a right to all required facilities for patient treatment and handling. Treating infectious and contagious disease of this nature requires more than just the usual medical facilities available in any hospital. Special protective instruments must be made available. Quarantine wards must be specially fortified to serve their purpose of eliminating transmission of the disease. All category of staff must be afforded these facilities (and any special one they may require) from the primary care and treatment givers to the cleaners and even security personnel protecting these facilities. The media was recently agog with a case where armed bandits broke into a quarantine facility in Liberia, freed some patients and made away with some items including materials containing patients fluid. No matter how pathetic that may sound to a right-thinking man, the truth is that adequate facilities must be provided with adequate security to ensure that medical personnel treating these patients are able to do their job. Whether inadequate facilities or lack thereof can be a ground for declining to treat patients and do so within the required ethical standards can be a ground for the medical personnel to down tools is an issue for another day.
For now, it must be noted by all that though the EVD is deadly and contagious, its victims’ right must continue to be respected. Medical personnel who treat them must take heed to the required ethical standards expected of them else liability will ensue.
Y D Amakiri practices law in Nigeria both as a employment and health rights solicitor.