Ban on Medical Doctors in Public Service from Private Practice
This article by Ikenna Okoli and Uche Obiorah, discusses the Federal Government's ban on medical doctors in government employment from engaging in private practice, examining the laws in that regard, and concluding that even though the 2008 Code of Medica
It was reported recently, that the Federal Government banned medical doctors in government employment from engaging in private practice. Ever since that announcement, there have been different reactions from different persons and organisations. The Nigerian Medical Association has publicly denounced the decision, whilst some doctors have been reported to have called it a time bomb waiting to explode.
We shall look at the decision of the Federal Government in the light of the position of the law, to ascertain whether or not the Federal Government was right in its pronouncement.
The right of medical doctors in government employment to engage in private practice in Nigeria will be considered in relation to the provisions of different laws and the Constitution as discussed under the following sub-headings.
Regulated and Other Professions (Private Practice Prohibition) Act 1984
The repealed Section 1 of the Regulated and Other Professions (Private Practice Prohibition) Act 1984, prohibited public officers which included medical doctors in government employment, from engaging in private practice.
Regulated and Other Professions (Private Practice Prohibition) (Medicine and Dentistry Exemption) Order 1992
Section 1 (1) of the Regulated and Other Professions (Private Practice Prohibition) (Medicine and Dentistry Exemption) Order of 1992 ("Medical Doctors Exemption Order") made pursuant to Section 1 (5) of the Regulated and Other Professions (Private Practice Prohibition) Act provides that:
“The professions of medicine and dentistry are by this Order exempted from the provisions of the Regulated and Other Professions (Private Practice Prohibition) Act.”
Though the above provision of the Medical Doctors Exemption Order appears to be inelegantly worded, the true effect was to allow medical doctors in full time government employment to engage in private medical practice.
Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Act 1999
The Regulated and Other Professions (Private Practice Prohibition) Act 1984 (and consequently Medical Doctors Exemption Order) was repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Act 1999, which came into force on 29th May, 1999.
Constitution of the Federal Republic of Nigeria 1999
Under the 5th Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended, medical doctors who are in public service are only permitted to engage in farming and nothing else.
For more clarity, Item 2, Part 1, 5th Schedule to the Constitution of the Federal Republic of Nigeria 1999, provides: “Without prejudice to the generality of the foregoing paragraph, a public officer shall not -
(a) receive or be paid the emoluments of any public office at the same time as he receives or is paid emoluments of any other public office; or
(b) except where he is not employed on full time basis, engage or participate in the management or running of any private business, profession or trade; but nothing in this subparagraph shall prevent a public officer from engaging in farming."
Note that Part I of the 5th Schedule to the Constitution, 1999 provides for the “Code of Conduct for Public Officers", while Part II thereof provides the list of the "Public Officers for the Purposes of the Code of Conduct", which includes (under Item 10 of Part II) as follows:
“... and all other persons in the civil service of the Federation or of the State.” And (under Item 15 of Part II) as follows:
"All staff of universities, colleges and institutions owned and financed by the Federal or State Government or local government councils"
“All persons in the civil service of the Federation or of the State” and "All staff of universities" as used in Items 10 and 15 of Part II, 5th Schedule to the 1999 Constitution respectively, indisputably includes all medical doctors in government employment.
It is our humble but firm view that, the expression, “engage or participate in the management or running of any private business, profession or trade”, clearly covers any private medical practice. Invariably when medical doctors in full government employment involve themselves in private medical practice, they are certainly engaging or participating in the management or running of a private business or profession and are therefore, running foul of the law.
It is an established principle of law that, a Schedule to an Act of Parliament is as much an enactment as any other part of such Act. See IBIDAPO
v LUFTHANSA AIRLINES (1997) 4 NWLR (Pt. 498) 124 at 162, A -B
See also BOARD of CUSTOMS & EXCISE v BARAU (1982) 10 SC 23 at 48, where the Supreme Court per Idigbe, JSC, held that:
"---There is no doubt that generally a Schedule is as much a part of the statute, and as much an enactment, as is the section by which it is introduced."
There is therefore, no doubt whatsoever that the 5th Schedule to the 1999 Constitution is an integral part of the Constitution, and has the same force as sections 172 and 209 of the Constitution, which provide that every person in the public service of the Federation and the State, shall observe and conform to the code of conduct [provided in the 5th Schedule to the Constitution].
We are not unaware of the 2008 Code of Medical Ethics in Nigeria, made under the Rules of Professional Conduct for Medical and Dental Practitioners. Under Part E, 49; medical practitioners and dental surgeons in full time employment in the public service of Nigeria, are free to engage in private medical or dental practice in their spare time.
Clearly, the foregoing rule cannot be valid, in the light of the clear provisions of the Constitution.
Conclusion
This constitutional provision prohibiting medical doctors in government employment from engaging in private practice, clears any doubt as to the position of medical doctors in the employment of government.
The effect of this is that, up until the Constitution is amended, medical doctors in full time government employment cannot engage in any private business, profession or trade, except farming.
Medical doctors in full time government employment who are also privately practicing medicine, are doing so illegally. They are prohibited from so doing by the Constitution which is the supreme law of the country. All that the Federal Government has done recently is to restate the law and indicate that the law will be fully enforced.
Given the above position, it is rather surprising that doctors and some commentators are berating the Federal Government. If medical doctors feel aggrieved, their option lies in trying to effect a change in the law as it currently stands.
"THE EFFECT OF THIS IS THAT, UP UNTIL THE CONSTITUTION IS AMENDED, MEDICAL DOCTORS IN FULL TIME GOVERNMENT EMPLOYMENT CANNOT ENGAGE IN ANY PRIVATE BUSINESS, PROFESSION OR TRADE, EXCEPT FARMING"