ANALYSIS: How government failure renders Nigeria’s Health Act ‘ineffective’ (2)

(This is the second part in a series to reivew the National Health Act. Read the first part here.)

Mr Ogirima who stated this at the NMA’s 58th Annual Delegates’ Meeting and Scientific Conference in April said Nigeria’s health and socio-demographic indices have kept declining because a series of laws, policies and conventions adopted are not being followed with the right implementation.

He said such laws include the National Health Policy 2004 & 2016; and Healthcare Financing Policy & Strategy 2006.

Mr Ogirima, a professor, was however particular about the National Health Act 2014. He said the Act addresses most of the issues bedevilling the sector and would have revolutionised healthcare delivery in Nigeria had they been diligently implemented.

The signing of the National Health Act by former President Goodluck Jonathan on October 31, 2014 into law after 10 years of consideration birthed the argument over its implementation which has remained four years after.

Minister of Health, Isaac Adewole, earlier in January argued that all other provisions of the Act have been fully implemented except the Basic Health Care Fund (BHCPF), a major objective of the Act which provides for not less than one per cent of the Consolidated Revenue for health funding.

But Mr Ogirima had then described the ministers’ position as far from the truth.

Fortunately, when passing the 2018 budget in May, the National Assembly earmarked N57.15 billion for the BHCPF as stipulated by the Act and stakeholders in the health sector sighed in relief.

The joy was, however, short-lived as the BHCPF 2018 is yet to be released barely a month to the end of the year. It again restored the argument over non-implementation of the Act to the front burner.

Besides, the fact that certificates of standard, another major provision of the law are yet to be issued to any hospital across the country counters the health minister’s position that the Act has been ‘fully implemented’ (Inclusion of the BHCPF in 2018 budget means full implementation going by the ministers’ assessment).

Former NMA President, Mike Ogirima, a professor of Orthopaedic and Trauma Surgery

Part 2 subsection 2 of the Act clearly states that a health establishment, health agency or technology without obtaining a certificate of standards cannot operate 24 months after the date the Act took effect.

This has been the crux of agitations over the non-implementation of the Act. Going by this provision, all hospitals and health establishments in the country are operating illegally because it is over 24 months (two years) since the Act was enacted and no hospital is yet to receive the certificate of standards.

National Health Act: Implementation – What the Law says

In the details of the National Health Act which critically examined in the first part of this series, the federal ministry of health among other agencies under its supervision were vested with powers to execute, enforce, oversee, coordinate, delegate and regulate almost all the provisions of the Act.

Part 1 of the Act details the powers of the ministry of health through its minister in that regard. It states that the federal health ministry shall develop the National Health Policy and issue guidelines for its implementation; and collaborate with states and local governments to ensure appropriate mechanisms are set up for implementation.

It also stated that “it shall prepare strategic, medium-term health and human resources plan annually and ensure the preparation and presentation of an annual report of the state of health of Nigerians and the National Health System to the President and National Assembly.

“It shall establish the National Council on Health, the highest policy-making body on health issues in Nigeria.

“It shall also establish and coordinate the National Tertiary Health Institutions Standard Committee which is almost like the National Universities Commission (NUC) in the Ministry of Education.” This committee is supposed to issue the certificate of standards to tertiary health institutions across the country, according to the law.

These are only but a few of the responsibilities of the health ministry as listed in Part 1 of the Act.

Non-Implementation of the Act: Who is Responsible? – Experts

Some experts we spoke to on this issue gave different opinions but pushed the bulk of the blame over non-implementation of the Act to the Nigerian Government, particularly the Ministry of Health.

“It’s obvious! those who should implement it is the government but they lack the political will to put the machinery in motion to see it implemented”,  Francis Faduyile, the present president of the NMA said.

“On the part of the NMA, we have been discussing with government and lobbying that the necessary dictates of the Act are implemented. We have called the government to set up a committee that will issue the certificates of standards.

“Sadly, the said one per cent Consolidated Fund which was added in the 2018 budget is not even up to what the Act mandated and yet for them to release the money and put it in different areas has not been done.

“So, I think its the government we should be asking why have they not followed the dictates of the law. It is largely in the hands of the government.”

Nzube Akunne, a Lagos-based lawyer, described non-implementation as the major challenge of most laws in Nigeria.

“There are so many laws signed but you find out that they are not yet implemented. Many laws of the country are like that.

“The problem is not with the legislators who made the laws but the executives who are supposed to enforce. In the case of the NHA, the executive is the health ministry so if it’s not implemented, then the lacuna is from the ministry, they are responsible to use their executive power to enforce the law.”

Victor Emeguiwe, a public health activist said the Act allocated specific roles and responsibilities to various government agencies to implement its provisions.

“In this issue of certificate of standards, it is the role of the ministry of health to grade all the health care providers and issue the certificate to them through certain institutions which were meant to be set up. The fact that it has not yet been done is a question that should be asked the ministry of health.

“Why have they abdicated that responsibility of not implementing that aspect of the Act? They say they are in the process of setting up a committee that is going to look into that (after four years?) yet they have not finalised the operationalisation of the Act. So questions should be redirected to the health ministry.”

Mr Emeguiwe, however, said the burning issue at the moment is non-release/disbursement of the basic health fund included in the 2018 budget. He accused the health ministry and the National Primary Health Care Development Agency (NPHCDA) of delaying the process.

“Guidelines for disbursing the BHCPF has not been set up because of the bickering between the federal ministry of health and the NPHCDA, the agency that is supposed to manage the funds. There is supposed to be guidelines on how these funds can be disbursed but the guidelines have not been set up.”

The NPHCDA is supposed to set up the guidelines, according to the Act.

NPHCDA Head office in Abuja. (Photo taken by Ebuka Onyeji)

Henry Ewononu, a health expert and consultant, outlined some aspects of the law that is still ineffective.

“Section 11 E of the Act provides for emergency treatment but many Nigerians still complain because the fund set out for emergencies which is in the BCHPF is not released, disbursed and enforced. Up till now, we don’t know the exact number of Nigerians captured under the NHIS because the National Council on Health which was mandated in the Act to capture Nigerians into the scheme seems ineffective.

“While there is a law that provides how Nigerians should get health services, yet up till now people are dying because of lack of access to health services”, Mr Ewononu lamented.

“What about the issue of treatment of public officers outside the country? It’s in the Act! Section 46 read: ‘Without prejudice to the rights of any Nigerians to receive medical check-up or investigation of treatment anywhere within and outside the country, no public officer of any sort thereof shall be sponsored for medical check-up, investigation or treatment abroad at public expense except in exceptional cases on the recommendation and referral of the medical board and duly approved by the minister or the commissioner as the case may be.’

“But there is still a lacuna here because this medical board has not been set up. This is arbitrariness. These are all infractions!

“We have started organ transplant, kidney transplant and all but there is nothing regulating them. Meanwhile, it is clearly stated in section 38. This issue of certificate of standards was to curb quackery in the health sector but nothing has been done.

“The Consumer Protection Board has provided a framework of implementing Part 3 of this Act, which is on the right and obligations of the users. An agency outside health is doing this? What then is the health ministry doing?”

For Dale Ogunbayo, a medical consultant, the main issue is that people are not aware of the Act and government is not enforcing the various sections of the Act.

“Money is something that is very attractive to us as Nigerians and so people only begin to pay attention to the Act when the money part of the Act is discussed. Basic health care provision funds is the part that seems more attractive to the few people that even know or take interest in the NHA.”

Repeated calls and text messages sent to the phones of both the health minister and ministry’s spokesperson, Boade Akinola, for a response were not returned.

In the next phase of this series, the Basic Health Provision Fund will be reviewed.