Funmilayo Odude, Partner, Commercial and Energy Law Practice (CANDELP)

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Effective way to stem emigration of Nigerian doctors 12 May 2023

In April 2023, the House of Representatives considered a bill “for an Act to amend the Medical and Dental Practitioners Act to mandate any Nigeria trained medical or dental practitioner to practice in Nigeria for a minimum of 5 years before (being) granted a full license … in order to make quality health services available to Nigeria.” The bill, which was sponsored by Hon. Ganiyu Abiodun Johnson, has passed second reading. The Medical and Dental Consultants’ Association of Nigeria (MDCAN) in a press release dated 7 April 2023 totally rejected the bill, marshaling convincing points as to why the bill will neither address the problem of migration of healthcare workers from Nigeria nor improve the quality of the healthcare system in the country.

Can Nigeria, through legislation, prevent the migration of a particular class of workers for a specific period of time? There are ways to work around the provisions in the bill such that it becomes ineffective in stemming the ‘brain drain’ crisis it seeks to address. First, as the MDCAN pointed out in its press release referred to above, the bill does not address the migration of more senior doctors and limits its scope to newly qualified doctors. The current trend of emigration has a lot of professionals in middle management caught in the bug across different professions and fields.

MDCAN also made the point that all recipient nations need to do is review guidelines for foreign doctors to include those who are yet to have full registration in their country but with evidence of completing medical education. The trend of migrants using post-graduate studies as the route to relocate to developed countries sufficiently shows that Nigerians do not mind the extra layer of academic study to either qualify to practice their profession in those regions or to improve their chances of getting better roles. In the legal profession for example, a huge number of Nigerian lawyers who have emigrated have taken the examinations and gone through the processes required to be qualified to practice law and be called to the Bar in those regions and countries.

For the purposes of determining the constitutionality of the provisions of the bill, which has also been called into question, it is important to highlight what the bill provides and does not provide. The bill does not strictly restrict the emigration of any person, including newly qualified medical and dental practitioners. Thus, a newly qualified medical or dental practitioner may emigrate at any time he or she desires to do so in accordance with due processes and valid documentation without breaching the provisions of this bill. The bill does not mandate them stricto sensu to remain in the country for five years after their qualification. However, the bill would prevent such ‘qualified’ medical or dental practitioner from emigrating with a medical or dental practitioner’s license before he or she completes a five-year working period in Nigeria.

Thus, what the bill provides is a restriction from receiving a medical or dental practitioner’s license. It basically amends the criteria for receiving a medical or dental practitioner’s license by including work experience within Nigeria for five years. The effect is extending the current housemanship programme run by the profession, from a year to five years. But unlike the housemanship programme, the rationale is not for training purposes but to retain medical personnel to meet the needs of the country.

MDCAN referred to this as ‘bonding’ and stated that it amounted to slavery or servitude and forced or compulsory labour, which constitutes a breach of citizens’ fundamental rights under Section 34 of the constitution. However, Section 34 (2) (d) and (e) of the constitution provides that “forced or compulsory labour does not include any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community”; or “any labour or service that forms part of – normal communal or other civic obligations for the well-being of the community”…or “such compulsory national service which forms part of the education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly.”

Thus, while the provisions of the bill do not, in my estimation, result in slavery or servitude, or compulsory labour in their literal interpretations, an argument could be made that even if it did, the constitution provides sufficient grounds for the provisions to still pass the constitutionality test, given the purpose of the bill. However, in as much as bonding agreements, the NYSC programme, and the eligibility criteria set by other professions for the practice of their professions are enforceable in Nigeria and do not constitute a breach of any constitutional provision, the provisions of the bill, to the extent that it seeks to add a criterion for being qualified to receive a medical or dental practitioner’s license, does not breach any constitutional provision.

Its reasonableness and its ability to achieve the outcome of stemming the brain drain experienced in the medical profession and generally making quality healthcare available in Nigeria is a different conversation altogether. There is undoubtedly a healthcare crisis in Nigeria. The profession itself has over the past couple of years raised alarm on the depleting number of healthcare professionals in the country. MDCAN in its press release highlighted that a 2022 survey revealed that over 500 consultants were estimated to have left Nigeria over the preceding two years. Also, a survey conducted by NOI Poll and Nigeria Health Watch last year shows only approximately 35,000 doctors are practicing in the country out of 72,000 medical doctors registered with the Medical and Dental Council of Nigeria.

Healthcare workforce migration is not a recent problem. The World Health Organization (WHO) has identified it as a global issue even before the crisis was further exacerbated by the COVID-19 pandemic. The World Health Assembly (WHA) first petitioned the WHO to develop a code of practice on the international recruitment of health personnel in May 2004. The intention was to create a framework among member states for cooperation on matters concerning healthcare personnel migration and strengthening the healthcare systems of countries with fragile systems and scarce resources. The Global Code of Practice on the International Recruitment of Health Personnel was adopted in May 2010 by the 63rd World Health Assembly.

The code is a voluntary, non-legal instrument and is expected to serve as a guide for member states to draft their national policies in this regard as well as collaborate with other countries through bilateral, regional, or multilateral agreements or arrangements in achieving the highest attainable standard of heath for their countries. It also provides a balanced framework by which member states can establish policies that balance the need to obtain the highest attainable standard of heath for their countries with the individual rights of healthcare workers to leave any country in accordance with applicable laws. The code thus calls for collaboration between all stakeholders involved, including health personnel, recruiters, employers, healthcare organisations, public and private sector organisations concerned with the international recruitment of health personnel.

The code is a very useful tool for any country seeking to craft policies and provide solutions to scarce human resources in its healthcare system with its all-encompassing framework. While it discourages member states from actively recruiting health personnel from developing countries facing critical shortages of healthcare workers, it encourages member states to also see the value of profession exchanges, both to the healthcare system as a whole and to the healthcare workers. It encourages collaboration between destination countries and source countries to sustain and promote human development and training.

Thus, several countries have bilateral, multilateral, and regional agreements as well as mobility partnership agreements on the recruitment of international health personnel in place, some of which even preceded the WHA’s code; others after it have also been adopted by countries. Some countries have also successfully negotiated broader financial and technical cooperation agreements.

By virtue of its voluntariness, the WHA’s code creates a reporting mechanism to measure its impact in member states. Article 9.1 of the code calls upon member states to report to the secretariat every three years on measures taken and accomplishments and difficulties encountered in implementing the code to illustrate how its objectives are being achieved. There is no evidence that Nigeria has adopted this code, has made any reports, or is even being guided by the framework for addressing the issue.

A solution on medical migration cannot be crafted by Nigeria in isolation from the rest of the world, particularly the destination countries of emigrating health workers. A legislative restriction on the emigration of healthcare workers from the country, without a holistic policy that includes collaboration with other countries to negotiate technical assistance, twinning of health facilities, support for capacity building, technology and skills transfers, the equitable treatment of citizens in the destination countries, and return migration, is short-sighted and myopic. It would be foolhardy for Nigeria to think that it can compete with developed nations in retaining talents in the country through restrictive legislations.

Furthermore, public trust is eroded where the legislature is quick to slam restrictions on citizens but has repeatedly rejected any attempt to restrict medical tourism with the use of public funds by legislative means. In both the 8th and 9th Assemblies, the House of Representatives rejected a bill seeking to discourage medical treatment abroad by public officials or with the use of public funds. The bill presented in 2022 sought to amend section 46 of the National Health Act by providing that “A public officer of the Federal Government shall not embark on medical trip abroad without approval; or be sponsored for medical check-up, investigation; or treatment abroad at public expenses except in exceptional cases on the recommendation and referral by the medical board and which recommendation or referral shall be duly approved by the Minister or Commissioner as the case may be; or embark on medical trip abroad unless he satisfactorily proves to the office where the officer is working, that such ailment cannot be treated in Nigeria.”

The solution to the declining state of the healthcare system in Nigeria does not lie in a single legislation drafted without adequate collaboration with all the relevant stakeholders. It requires extensive local and international collaboration, an appreciation of all the factors contributing to emigration of healthcare and other professionals and the political will to sincerely craft holistic policies that will require sacrifices from not just the healthcare personnel but from all. A good place to start is to adopt the WHA’s code and to increase the percentage of the budget allocated to healthcare.

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).