In June this year, Save the Children released their annual report, the State of the World’s Mothers Report, 2013. Unsurprisingly, Nigeria found itself near the bottom,the eighth worst place. According to that report, Nigeria was the 169th most unsafe place out of 176 countries surveyed in which a woman could give birth. 1 in 13 women die in childbirth in Nigeria, with 145 women dying daily. Having only 2 percent of the world’s population, Nigeria contributes 10 per cent of the world’s maternal deaths, coming in as the second country with the highest absolute numbers of women (about 630 out of 100,000 live births) dying in childbirth. A lot of figures to digest, all pointing towards the same thing: too many Nigerian women die bringing life into the world.
But sometimes I find that statistics become just that: figures, numbers, data in a graph or on an excel sheet, on a report by donors, and nothing more. But when you know a woman who has died needlessly, those figures on the page, like 169 out of 176, or 10 per cent, become living, painful, flesh, blood and tears human beings. Take, for instance, my thirty-something year old lawyer and former classmate who died about a month ago. We read law together several years ago. She had a good job, lived life fully, and having married, had waited to carry her own child for several years. She finally succeeded in getting pregnant, shopped for that longed-for child in the best shops, including outside the country. However, instead of rejoicing with her at a baby dedication ceremony, or going “awww” at cute baby pictures on Facebook, we have had the ugly reality of reading condolence messages on Facebook, and making calls to inquire about funeral arrangements. You ask questions and then you hear a story of medical mismanagement and negligence that causes you to rage, stomp your feet in anger and perhaps weep because your country has swallowed yet another with no signs of saying “enough.” And when your tears are done, you may, if you have an active imagination like me, begin to imagine what happens to that baby, who would have been showered with endless love and coos. You may think of other babies, perhaps children left at home with an aunty in the mad dash that is usually brought on by labour contractions, and husbands left to decide what to do with an infant that will never know the mother that lovingly chose the blankets and baby clothes. And in those imagining, the figures cease to be mere numbers but pain, regret and anger.
If, like me, you have been consulted on the legal options of a mother who has lost a child long awaited because of an apparent case of sheer negligence on the part of health care professionals, and the anguish quivers its way to you over a phone line through tear-soaked voice, then 169thand 8th and 145 and all the other statistics frequently bandied about in the talk of maternal mortality cease to befigures but voices crying out for justice. These figures represent people who should have been protected by the law. So what can lawyers do?
In this article, I focus on how we can use the instrument of law and the lawyer’s functions in society to effectively to combat and reduce the rates of maternal mortality in Nigeria significantly. I am of the view that the law, while only one of the necessary tools, can proffer some (though not all) solutions to some of the causative factors of maternal mortality. I address the strategies and actions which lawyers can employ to address a serious public health issue and human rights issue that should be of major concern to all.
The high maternal mortality rate in Nigeria is a result of multi-facetedcauses which one may argue lawyers and the law can do little about. Some of these causes are socio-cultural in origin like lack of basic patient education and lack of basic awareness of patient rights, and cultural practices like teenage marriage, which lead to complications in pregnancy and childbirth. Others are systemic failures within our health care system including public and private facilities that do not meet basic international standards for obstetric care and maternal health,hostile attitudes of health professionals, lack of effective accountability mechanisms such as transparent and effective complaints mechanisms, a clear answer to the issues of who holds health care professionals accountable when an error occurs honestly or negligently, and the continuing obstacles to effective antenatal care. Some factors have economic origins such as poverty which limits access to education, health facilities and health education. Still others are political in nature such as the failure of political leadership and prioritisation. This is closely linked with the failure to enforce relevant laws and policies having implications for maternal health.
One of the key ways in which the law intervenes in medical concerns is through legal action under the tort of negligence. Medical negligence is engaged when a medical professional who holds himself out as a possessing the skills and knowledge to offer medical attention and is retained by a patient to offer these such services fails to exercise due care in doing so. The aim of the law is to provide the injured party with some relief and ultimately to act to deter professionals and their institutions from acting carelessly. The law may also intervene through criminal law, imposing fines and imprisonment, seeking to provide some deterrence.
Anecdotal evidence suggests that negligence plays an important role in many of the cases of maternal mortality that occur in medical establishments, one hears about , for instance, failure to attend to a patient undergoing labour in a timely fashion, careless mismanagement of complications during childbirth, failure to perform due checks after childbirth, ignorance and failure to exercise knowledge and skill in diagnosing and treating complicating conditions like gestational diabetes or pre-enclampsia, delays in making referrals in complicated cases, amongst other things. These are cases that would benefit from litigation, and punitive damages against negligent health professionals, resulting hopefully in more careful approaches to the treatment of women, in pre and post natal stages of pregnancy. Why are there, then, not more cases of medical negligence in our courts?
The reasons, it appears, are varied. Amongst other things, patients and their families typically shy away from legal action even in clear cases of gross recklessness. A continuing dependence on the superiority of health professionals’ knowledge and wisdom, socio-cultural ethos that seeks to protect professionals even when they have been contributory to the loss of a woman’s life, and a certain level of ignorance of patients’ rights pervade. Unfortunately, this reluctance to pursue legal action allows negligent doctors to continue to perpetuate their disregard for human rights and the sanctity of life without checks. Further, little is done within the medical profession and the nursing profession, professions regulated by law, to take effective steps to prosecute and enforce their professional codes of ethics on members. In addition, in government hospitals where many believe that they will get the best care, cases of negligence, including in maternal health care instances, are frequently swept under the rug of “administrative handling.” Where patients and their families, acting out of the norm, pursue the matter, reports are eventually made to state health service commissions whose function it typically is to discipline health care professionals in the employ of the government. What frequently occurs is a tap on the wrist, which may be all that can be done within the confines of the extant statutes, or which is all administrators in the commissions are willing to do, protecting health care professionals instead of patients and the general populace.
In view of these complicating factors, it may appear that there is little lawyers can do. For instance, where the family of a dead woman who has died producing life is opposed to suing a careless or inefficient health care professional, what can be done? Lawyers must become interested in health policy discussions around maternal mortality. We must indicate our willingness to prosecute such cases in appropriate avenues. We must be willing to take on cases of negligence which implicate maternal mortality, even pro bono where necessary. In forums organised by organisations like the Nigerian Bar Association, we must create opportunities for discussing issues like maternal mortality and strategies that the Nigerian Bar can adopt in furthering the agenda of maternal mortality rates reduction. Within the judiciary, speedy justice must become the goal for cases of medical negligence, including in maternal mortality and injury cases.
Beyond medical negligence, advocacy by lawyers is another important prospective tool. Intervening through advocacy, we must offer our expertise, knowledge, and skills to campaigning for legislation and policy implementation that have the potential to bring about a reduction in our maternal mortality rates. Nigeria, like many countries around the world, has pledged to bring down maternal mortality rates by 75 per cent from 1990 levels as goal number 5 of the Millennium Development Goals. We are not on course to achieve this. While the government has prepared laudable policies and plans such as the National Reproductive Health Policy, amongst others, the figures cited in the opening paragraph of this article remain reality. This should concern lawyers.
Therefore we must begin to analyse and evaluate the working of laws and policies that seek to promote maternal health such as the Free Maternal Health Services legislation in states like Lagos, Enugu, Anambra states amongst others, and the Reproductive Health Laws of states like Edo State. We must show interest in legislation that have implications for the development of the health system generally, because these have an impact for maternal health and mortality rates. We can advocate for the full implementation of these legislation and policies and development of new ones where appropriate.Lawyers must become more interested in prospective legislation such as the National Health Bill which promises to improve the health system by clearly delineating the responsibilities of each tier of government, and which will ultimately impact maternal health care in the country. Lawyers must also become advocates for more effective enforcement of legislation like the Child Rights Act which make several provisions for protecting children including from underage marriage which often leads to underage pregnancy and the attendant complications.
We must campaign for legislation on transparentand effective complaints procedures and mechanisms that ensures that complaints can be received. We must advocate for complaints not to be swept under the rug in the name of “administrative handling.” Moreover, we can develop avenues to educate the general populace about their rights as patients. We can advocate for new legislation to expand those rights and for those rights to be entrenched within the health care system. Further, we can liaise with medical and other health care professionals and ponder the ways in which we might provide assistance in enforcing professional standards required by the law and their codes of ethics.
In addition, we should establish networks of champions from the field of law who could serve as advocates for relevant law and policy implementation. These activities should not be limited to activities undertaken by the Federation of International Women Lawyers (FIDA) but must be more widely encompassing. This is after all a major public health and human rights issue that should concern everyone interested in the advancement of law in Nigeria.
In closing, the law should be a protector ofall, including women of reproductive age in Nigeria. The law looks beyond statistics and sees human beings, citizens of Nigeria, whose rights to life must be protected. As lawyers whose duties principally include promoting the good objects of law, we must act to reduce maternal mortality on Nigeria. The statistics cited in the opening paragraph must concern not only public health experts, medical professionals, international donors, non-governmental organisations, women’s’ rights groups, or policymakers. They must concern lawyers too.We must encourage the government through the avenues open to us to implement existing policies, and develop more effective plans for protecting the lives of women and ensuring their reproductive health. We must do more to entrench rights’ awareness in order to improve medical care and provide the backbone for having resort to legal action when necessary. The law and lawyers must be at the forefront of the fight against maternal mortality in Nigeria.