Guest Columnist Law and Medicine Law and Technology Legal Articles

TELEMEDICINE AND LAW IN NIGERIA: NEED FOR PROPER LEGAL FRAMEWORK – D. A. ADEOYE ESQ

ABSTRACT
The worldwide progress in the Information Communication Technology (ICT) industry continues to transform how life is lived. It intermingles with virtually all lines of work and positively improves the patterns and rates at which projects are carried out. Just a click, the shackles of distance and ignorance are broken, opening new landscapes for opportunities.

Just a few years ago, technology and AI were topics preached like the Biblical Ark of Noah – get in and own the future or risk the converse. Today, the future of Medicine is inseparable from Technology. As a matter of fact, the future is more than just within touching distance; it touches our life paths day after day. This ‘future’ is Telemedicine, which, in fuller terms, is referred to as ‘Technological Medicine’. It is medicine ‘at a distance’, medical services at ‘individuals’ comfort and consultation at ease from any place and with anyone in real-time.

In Nigeria, the importance of Telemedicine cannot be overstretched. The challenges of insufficient medical personnel, dilapidated hospitals, emasculated medical aids and life-threatening road networks in most rural areas, and difficulty in accessing hospitals in cities due to constant traffic congestion are rife. To achieve a telemedicine system in Nigeria that meets the high standards of conventional medicine, proper legal framework and guidelines must be laid down by appropriate bodies and government agencies. This is crucial because Telemedicine encompasses general legal matters like data protection, consent, informed consent, privacy, medical negligence, contracts, medical ethics; and more specific medico-legal and ethical concerns like e-advising, e-consultation, e-prescribing, e-dispensing and e-consent.

This Article is therefore aimed at enlightening the public and more importantly, pointing gaps in Nigerian legislations to relevant authorities, concerned regulatory bodies and other stakeholders in order to formulate a proactive policy for telemedicine in Nigeria.

OVERVIEW OF TELEMEDICINE
Telemedicine, which is also referred to as ‘e-health‘ or ‘telehealth‘, means the use of information and telecommunication technologies to provide medical information and services at a distance. According to the American Telemedicine Association,

‘telemedicine is the remote delivery of health care services and clinical information using telecommunications technology. This includes a wide array of clinical services using internet, wireless, satellite and telephone media.’

Meanwhile, recognizing that there is no one-fits-all definition, the World Health Organization, has described telemedicine as ‘the delivery of health services, where distance is a critical factor, by all healthcare professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of health providers, all in the interest of advancing the health of individuals and their communities’.

Telemedicine may be as simple as two health professionals discussing a case over the telephone, or as extensive as using satellite technology and video-conferencing equipment to conduct an instantaneous consultation between medical specialists or between a Medical Expert and a patient in two different countries.

TREATMENT MODALITIES COVERED BY TELEMEDICINE
Telemedicine extends the capacity and services coverage for healthcare providers through the following means:

  • Real Time/Live Audio-video which involves live consultation and/interactive sessions from a distance like video-conferencing.
  • Mobile Health is a feature that aids the physical delivery of medication or services in case of urgency.
  • Store-and-Forward is the process of keeping patients’ medical history or personal information properly stored by the telemedicine providers and forwarded on request by appropriate individuals.
  • Remote Patient Monitoring enables the providers to comfortably monitor their clients’ health condition from a long distance, among others.

It must be pointed out that as technology evolves, the modalities adopted by telemedicine increases as well.

REGULATORY BODIES AND AGENCIES FOR TELEMEDICINE IN NIGERIA
It is worth mentioning that there is no regulatory body or agency specially formed to regulate telemedicine-related matters in Nigeria.

Nevertheless, there are government agencies indirectly responsible for regulating some of the issues that arise under telemedicine. These regulatory bodies include National Information Technology Development Agency, Nigerian Communications Commission, Federal Competition and Consumer Protection Commission, National Agency for Food and Drug Administration and Control, Standard Organization of Nigeria, Medical and Dental Council of Nigeria are some of the regulatory bodies whose functions intersect with telemedicine services in Nigeria.

LAWS AND GUIDELINES OF PRACTICE IN PLACE FOR TELEMEDICINE IN NIGERIA
Telemedicine does not simply cut across areas of our national lives, but it further goes beyond the boundaries of our national borders. This therefore makes it even more imperative for proper guidelines to be created to regulate its activities as it involves international affairs as well. As earlier mentioned, there are no specific laws regulating Telemedicine activities in Nigeria however, there are several related laws that are applicable to some issues under telemedicine. As there are many laws that intersect with telemedicine activities across-the-board, the following laws are the main legislations connected with telemedicine in Nigeria:

  1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
  2. National Information Technology Development Agency (NITDA) Act 2007
  3. Nigerian Communications Act of 2007
  4. Federal Competition and Consumer Protection Act, 2018
  5. Medical and Dental Practitioners Act, Cap M8, Laws of the Federation of Nigeria 2004.
  6. Evidence Act, 2011 (as amended)
  7. National Agency for Food and Drug Administration and Control Act
  8. Standards Organization of Nigeria Act of 2015

The QUESTION
From the foregoing, a question readily comes to mind; “How does the Nigerian Constitution and the afore-stated legislations regulate the subject of Telemedicine?

Telemedicine cuts through national issues like healthcare, telecommunications, privacy matters, data protection and so on. Thus, while there is no concise policy or guidelines in place, laws available for these other areas may be utilized in part. The following provisions drive home this point:

The Constitution of the Federal Republic of Nigeria of 1999 (as amended), provides for the right to health and guarantees privacy of Nigerians in section 17 and Section 37 respectively. Section 17(3)(c) states that;

‘The State shall direct its policy towards ensuring that there are adequate medical and health facilities for all persons’.

Section 37 also safeguards the privacy of citizens, their homes, correspondences, telephone conversations and telegraphic materials.

National Information Technology Development Agency created under the National Information Technology Development Agency (NITDA) of 2007 is empowered through Section 6(c) to;

‘develop guidelines for electronic governance and monitor the use of electronic data interchange and other forms of electronic communication transactions as an alternative to paper based methods in government, commerce, education, and the public and private sectors, labour, and other fields, where the use of electronic communication may improve the exchange of data and information’.

Paragraph 11 of the Nigerian Communications Commission Guidelines for the provision of Internet services (2007) published pursuant to section 70(2) of the Nigerian Communications Act of 2003 similarly has relevant provision. In terms of this provision, a service provider can escape liability as content intermediaries under certain circumstances.

Paragraph 12 of the Nigerian Communications Commission guidelines further states:

‘Internet Service Providers must have in place a procedure for receiving and promptly responding to content related complaints, including any notice to withdraw or disable access to identified content issued by the Commission or other legal authority.’

The Medical and Dental Practitioners Act likewise controls activities like licensing, registration, standard of practice and punitive actions, of the Nigerian healthcare providers as contained in Sections 8, 15, 16, 17 of the Act respectively. It is worthy of note that the Act provided for unexpected circumstances as stated in Section 19(1) (a) and (b):

‘…for such incidental and supplementary matters as the authority making the instrument considers expedient for the purposes of the instrument;

And

‘make different provisions for different circumstances.’

But it never made provisions for the invasion of technology in the health space. It therefore leaves out numerous gaps in the currents trends in our health sector.

The Nigerian Evidence Act also boosts the legitimacy of telemedicine by the providing that consent can be obtained electronically as contained in Section 84(1) of the Act that;

‘In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible.’

National Agency for Food and Drug Administration and Control Act empowers the National Agency for Food and Drug Administration and Control (NAFDAC) by section 5 Act to create policies for quality criteria, information management and sale of medicines and regulated health products.

The Standards Organization of Nigeria established and empowered by Standards Organization of Nigeria Act of 2015 also has it as one of its general purposes to set standards for Medical device technologies produced and imported into the country.

ROLE OF GOVERNMENT IN E-HEALTH
For many years, we have had several National Health Policies approved by the Federal Government in form of ‘Strategic Health Development Plan’. Despite all of these, Nigeria still lacks an explicit e-Health policy.

Currently, the role of government or market actors in the development of e-Health has not been explicitly defined by any policy or legal framework. Further, there is also no (corporate) governance and policy mechanism in place at the national, regional and/or local levels to ensure implementation, support and monitoring of the strategy.

It is important to note that there was a stalled attempt to develop an e-Health policy and legislation in 2011 when a national conference on ICT Health was organized by the Federal Government which led to a decision to develop a policy and strategy for implementing e-Health in Nigeria. Sadly, there is currently no information on the subsequent developments that have followed the national conference in December 2011.

RECOMMENDATIONS
Much has been said about the importance of Telemedicine in Nigeria, ranging from the applicable laws to the lacuna in our legal system. It is therefore imperative to make the following recommendations:

Enactment of Legislation for Telemedicine:
There is a need to enact an Act and to have proper guidelines for telemedicine. This Act should establish a body for the enforcement, regulation and control of Telemedicine issues nationwide. It should be clearly defined to enable medical practitioners and/or telemedicine service providers do the following online:
-Provide advice online;
– diagnose online (e-consultations);
– prescribe medicine online (e-prescribing);
– dispense medicine online (e-dispensing of medicine).
Also, the legislation should provide for how health information is stored and accessed across geographical and health-sector boundaries. It should also stipulate requirements for the licensing or accreditation of online e-health applications, e-Health or telemedicine guidelines/codes of practice.

Integration of both International and Domestic Approaches:
In solution-finding, the Government and relevant stakeholders must engagement in greater alliance with global and regional organizations to improve on Telemedicine policies in Nigeria.

Encourage commitment with all national stakeholders:
Invitation of private sector telemedicine enterprises and support between the public and private sectors is vital and unavoidable in order to form a practicable telemedicine policy.

It is important to as well transform regulatory bodies including a telecommunications regulator, a data protection regulator and a cyber-crime prevention regulator to further stabilize Telemedicine activities.

Also, it is significant to encourage and find appropriate alternative and more pragmatic means of performing activities in a virtual environment, so that they have the same effect as those carried out using conventional approaches, including addressing issues of an evidential nature.

In achieving all these, it is crucial to set up a committee to develop a practical legal framework on telemedicine that would ensure a regulation is practical, enabling and contextually suitable.

CONCLUSION
The incessant growth and maturity of telemedicine services in Nigeria is inevitable. Hence, the duty to give it a safe landing in our legal system lies in the hands of both Federal and State Governments, regulatory bodies and all concerned stakeholders.

As a Legal Scholar, Professor Lawal Ahmadu puts it, ‘effective laws put in place will help to cut out protracted industrialization phases and catapult developing economies into prosperity.’

Lawyers therefore need to do more in their advocacy for a proactive legal framework for telemedicine and in their involvement in the policy process as it the proper step toward national development.

ARTICLE AUTHOR:
Adeoye Damilare Adetayo Esq
adamilreadetayo@yahoo.com
(+234) 08165548350

Damilare Adetayo Adeoye is member of the World Association for Medical
And Center for Medical Law Research and Development.

REFERENCES
[1] World Health Organization ‘Telemedicine Opportunities and developments in Member States’ Report on the second global survey on eHealth Global Observatory for eHealth series – Volume 2 (2010)
[2] PA Jennett et al ‘The socio-economic impact of telehealth: a systematic review” 2003 Journal of Telemedicine and Telecare 311-312 and Le Roux (note 2) at 102.
[3] Health Regulation Impact Assessment: Africa (2015), a document from a project funded by UK aid from the Department for International Development (DFID) for the benefit of developing countries.
[4] Professor Lawal Ahmadu: ‘Telemedicine, Law and Development’ (2019). A lecture on Telemedicine delivered at the American University of Nigeria.
[5] Babatunde Ayankunle: ‘Telemedicine regulation promises access to health’ (2019). An Article published inside The Nations Newspaper, a national newspaper in Nigeria in June,2019.
[6] ATA 2001, America Telemedicine Association, URL: http://www.atmeda.or/ or http://www.americantelemed.org.
[7] ITU-BDT 1997, ‘Telemedicine and developing countries’, URL: http://www.itu.int/itudoc/study2/reports/
[8] WHO 1997, WHO Director General Highlights: ‘Potential of Telemedicine’, Press Release WHO/65, Sep. 16.

Pictures Source

1. https://physiciansnews.com/2015/01/23/malpractice-reforms-offer-more-open-process-in-massachusetts/

2. http://efempowermenttraining.com/legal-training/

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