STILL ON THE RAGING WAR BETWEEN PATHOLOGISTS AND LABORATORY SCIENTISTS; A NEEDLESS WAR IN A SANE SOCIETY AND AMONGST LAW-ABIDING PROFESSIONALS
as legally analyzed by Mr Awkadigwe F. I. (MBBS NIG, LLB NIG, BL, ASS)
The proper understanding about the bruhaha concerning who heads the laboratories in our teaching hospitals has become imperative. It is very easy to run to conclusions. However, no matter how quick we are to rush into conclusion, it must be stated clearly that professional status is a creation of law; and just like any other legal creation, the meaning and scope of any artificial legal creation is strictly limited by the legislation creating such an artificial creature.
Therefore, the simple fact that medical and laboratory science professions are artificial creations of the Act of the National Assembly of Nigeria by virtue of Item 49 of the Exclusive Legislative List of the Second Schedule of the Constitution of Nigeria (CFRN), and the consequent enactment of the Medical and Dental Practitioners Act (MDPA) and the Medical Laboratory Science Council of Nigeria Act (MLSCMA), any meaning or interpretation of these two professions can only be derivable from those laws creating those professions and not from figments of people's imaginations, nor could their meaning or scope be determined by the best practices or by similar practices elsewhere around the world, PROVIDED THAT the laws establishing them gave them meaning and scope. As we shall see later, MDPA did not give medicine meaning and scope. In absolute contrast, MLSCNA gave medical laboratory science meaning and scope. The import of this, is that while medical laboratory scientists cannot do or purport to do anything outside the clear scope limited to it by MLSCNA or assume any other meaning than that allocated to it by MLSCNA, medical practice could actually include meanings ascribable to it across the world and more. Its scope could also encompass limitless reasonable extent, providing the scope does not infringe the aspect of other professions validly and clearly enacted into our laws. In this instance, written laws supersede extrapolated constructions from international laws not domesticated according to section 12 of the CFRN.
The manifest misapplications of the two Acts in the decision of the National Industrial Court of Nigeria (NICN) as it laboured to find a common ground in the exagerated professional dispute between MLSCNA AND MDPA in 2016, stems from that singular attempt to explain an artificial legal creation using extraneous materials outside the simple and unambiguous terms of the Constitution and the two Acts. Thus, in trying to properly identify who should head the laboratories in our teaching hospitals, and indeed who should even work in those laboratories, I shall use the clear terms of those Acts to bring the message home. In the legal parlance, words simply mean what they mean.
Now, let us look at the wisdom of the Legislature in the two Acts and how legislature was so meticulous in chosing the terms for the delivery of their intentions.
MDPA at section 1 (2) (e) was clear as it was unequivocal in its declaration that MDCN had the responsibility of :
Making regulations for the operation of clinical laboratory practice in the field of Pathology which includes Histoopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology
Equally, the MLSCNA was also clear so much so as to admit of no ambiguity when it declared in parallel as regards the responsibility of MLSCN at section 4 (b) (h) thus :
(b) regulate the practice of Medical Laboratory Science in Nigeria
(h) inspect, regulate and accredit medical laboratories
The question now is WHAT IS CLINICAL LABORATORY PRACTICE, and WHAT IS MEDICAL LABORATORY PRACTICE as used in the Acts? Are they the same? What is the FIELD of pathology? What is medical laboratory? If field of pathology the same as medical laboratory? Is the legislature saying the same thing using different words or is it actually creating different fields as evident in the use of different terminologies to describe concepts? Did Legislature in any way or in any form interprete in these legislations that the field of pathology has become the same thing as medical laboratory? Were there no medical laboratories in Nigeria when MDPA was enacted? How come there was no mention of medical laboratory in MDPA is pathology meant medival laboratory? Why also was no mention made of pathology when MLSCNA was enacted if pathology had been transmogrified into medical laboratory? Why was Legislature picky and choosy about the terms it used in the two legislations?
It is a settled principle of law that Legislature does not employ the instrument of a word in vain.
I hereby appreciate our Legislature who copied laws of foreign and more advanced countries and translocate same on Nigeria with such meticulousity as to also employ distinct terms for distinct purposes even though the implementers of such legislations may not even know the import of the provisions of that legislations until situations like this arise.
The meaning of clinical laboratory practice is undisputed. It is the collection of patient's samples done within the confines of a clinical setting for specific patients identifiable as being managed under a physician in the hospital. This is the practice handed over exclusively to the doctors in section 1 (2) (e) of the MDPA for its regulation. The meaning and scope of medical practice was left open by the MDPA, but the scope of the field of pathology was clearly outlined. It is because of this placement of medical practice in the realm of expanded construction that any conflict between it and any other newer professional creations shall be defined by a strict construction of that other profession that seeks to displace and subsume any aspect of the medical profession. This is a construction contrapreferentum. Here is one of the essential areas that the learned judge of NICN derailed.
It is noteworthy that the Act did not divest any other persons like the scientists, technologists and technicians of the capacity to work in the aforementioned laboratory, just as it did not stop orderlies from working in the clinical laboratories ; however, the Act was emphatic on who should regulate clinical laboratory practice, and that is who? The MDCN. This was the singular reason why because of shortage of doctors in the pathology units, scientists, technicians, technologists or even SSCE holders were employed to assist doctors. And the doctors appreciate their presence and savour their assistance.
What then is MEDICAL LABORATORY SCIENCE? Where do medical laboratory scientists work? What is the meaning and scope of this creation of MLSCNA?
THE CORRECT POSITION OF THE LAW IN NIGERIA ON THE DOMAINS OF MDCN AND MLSCN
It is patently evident from the wordings of the two federal legislations (MDPA and MLSCNA ) that a medical laboratory scientist has been empowered to practice medical laboratory science uninhibited by anybody in any guise in Nigeria once that practice is outside the clinical (hospital ) setting. In other words, his practice of medical laboratory science in other areas than within the hospital setting (namely biotechnology laboratories, non-clinical industrial laboratories etc) is unlimited. He can aspire to the zenith of his career to the Masters and Doctorates levels purely controlled by the provisions of MLSCNA 2003 at its section 4 (b)&(h) and the regulations made thereat and thereto. This is because the regulation for the operation of clinical (ie hospital-based) laboratory practice has long ago been banished, in the incontrovertible wisdom of our Legislature in section 1 (2) (e) MDPA , to the exclusive preserve of the MDPA. That means that a medical laboratory scientist who wished to practice medical laboratory science in clinical laboratory setting, and who MDPA and MLSCNA has permitted expressly or by way of regulations made pursuant to those enactments, can and shall be so permitted and allowed to practice his profession (including any possibility of hospital-based residency programs) in the clinical setting clearly subject to the provisions of section 1 (2) (e) MDPA.
The emphasis here is not only on the field of pathology generally but also a critical consideration of the limitations placed on the relevant areas accessible to the medical laboratory scientist as provided in section 29 MLSCNA when compared to the broader disciplines of pathology listed in section 1 (2) (e) MDPA.
The sections are below set out :
Section 1(2)(e) MDPA states :
Making regulations for the operation of clinical laboratory practice in the field of Pathology which includes Histoopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology
Section 4(b) MLSCNA states :
regulate the practice of Medical Laboratory Science in Nigeria
Section 29 (which is the definition/interpretation section ) states :
“Laboratory” means the Medical Laboratory under this Act, and where used in its adjectival sense it shall be construed accordingly;
“Medical Laboratory Science”-
(a) Means the practice involving the analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment for the purpose of medical laboratory diagnosis, treatment and research; and
(b) includes medical microbiology, clinical chemistry, chemical pathology, haematology, blood transfusion science, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliativecytology parasitology, forensic science, molecular biology, laboratory management; or any other related subject as may be approved by the Council.
Now, what are the important points to be gleaned from this legislative wisdom depicted in both Acts? Just follow me.
1. A medical laboratory is not a clinical laboratory in our legislations and probably indeed in any other jurisdiction. This assertion shall be made much clearer infra.
2. The MLSCNA in its definition of a laboratory as cited above clearly excluded the clinical laboratories in loud recognition of the fact that in Nigeria, another Act has provided for clinical laboratory practice in the field of pathology.
3. Medical laboratory is a scientific practice, and all its scopes are sciences. The obvious inclusion of science in its subspecialties is a clear indication that its subspecialties have to be construed ejuden generis science. Therefore, the subspecialties bearing the same appellation as those found in the field of pathologies are not identical disciplines, rather, the science feeds into the art in medical practice. Science was patently expunged from the subspecialtyies of pathology as pathology is both science and art, not purely a science simpliciter. Laboratory scientists are not blacksmiths as well.
4. It then means that those areas mentioned in section 1(2)(e) MDPA are the only laboratories that may be practised within the hospital setting while those in section 29 MLSCNA are the areas that may have its practice outside the hospital setting
5. It then literally follows that the following can be practised in the hospitals: Pathology which includes Histoopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology
Whereas the following can be practised outside the hospital setting : medical microbiology, clinical chemistry, chemical pathology, haematology, blood transfusion science, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliativecytology, parasitology, forensic science, molecular biology, laboratory management.
6. The literary effect is that only HAEMATOLOGY, CHEMICAL PATHOLOGY, CLINICAL CHEMISTRY, MEDICAL MICROBIOLOGY and IMMUNOLOGY that may be practised concurrently within and outside the hospital regulated within and outside the hospital by MDPA (within the hospital ) and MLSCNA (outside the hospital ), with its science and art forms undertaken by the pathologists and their pure science forms undertaken by the scientists.
7. It also invariably follows that Histopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Medical Parasitology, and Medical Virology may not be practised outside the hospital setting in Nigeria as they are not pure sciences as those recognized above.
8. It is also conclusive that ONLY blood transfusion science, virology, histochemistry, cytogenetic, exfoliative cytology, parasitology, forensic science, molecular biology, laboratory management are the laboratory practices that may be permitted to be practised outside the hospital regulated by MLSCNA in its entirety; and although no law forbids its practice within the hospital setting, may be practised in the hospital setting BUT UNDER THE REGULATION OF MLSCNA and not MDPA. The reverse is also true that where clinical laboratory practice is done outside hospital setting it SHALL BE REGULATED BY MDPA and not MLSCNA.
THE PARALLELISM OF CLINICAL LABORATORY PRACTICE OF SECTION 1(2)(E) MDPA AND MEDICAL LABORATORY PRACTICE OF SECTION 4(B) MLSCNA WAS A CASE OF COURT CONFOUNDING CLEAR LEGISLATIVE SOLEMN DECLARATIONS.
The provisions of MDPA and MLSCNA in their relevant sections so parallel to the extent of being preposterous to conjecture that in any case, a pathologist may desire to practise as a medical laboratory scientist. The two fields are so wide apart that the distance is enough to swallow the highest ambition of any average doctor or scientist that might wish to cover it.
Below are some of the clear statutory provisions in MDPA and MLSCNA that separate the two fields of human endeavor just as the SUN separates the DAY from the NIGHT.
1. The clear provisions of scope of regulations: while MDPA is empowered, at its section 1(2)(e) to regulate CLINICAL LABORATORY PRACTICE (ie laboratory practice within hospital setting ) , MLSCNA is empowered at its section 4(b) to regulate MEDICAL LABORATORY PRACTICE (ie non-clinical laboratory practices otherwise recognized by MLSCNA as medical laboratory practice)
2. The interpretation and definition of MEDICAL LABORATORY PRACTICE in section 29 MLSCNA visibly, loudly and clearly did not include clinical laboratories as part or aspect of medical laboratory, the legislature being fully aware that it had earlier assigned the regulation of clinical laboratories to another body known as MDCN.
3. The total exclusion of the word HOSPITAL and CLINIC from the MLSCNA throughout the length and breath of that legislation
4. The definition of MEDICAL LABORATORY PRACTICE by the Act creating same (MLSCNA ) deserves more details here. I shall now expound this provision for clarity.
The Act defines MEDICAL LABORATORY PRACTICE at its section 29 as:
(a) Means the practice involving the analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment for the purpose of medical laboratory diagnosis, treatment and research.
Three main points can be gleaned from this provision of MLSCNA in order to separate the scopes of MEDICAL LABORATORY PRACTICE from CLINICAL LABORATORY PRACTICE the way grains are separated from chaff; and then buttress the wisdom of Legislature in its meticulous designation of regulations of the two practices to the two different bodies.
I. While the analysis done in medical laboratories under MEDICAL LABORATORY PRACTICE is on HUMAN OR ANIMAL SPECIMENS, the only specimens handled under CLINICAL LABORATORY PRACTICE is ONLY HUMAN SPECIMEN. The reason is simple : the pathologist is only concerned with the analysis of the sample of an identifiable and identified patient whose PARTICULAR disease and health or otherwise is his primary concern, and not diseases GENERALLY ; while the laboratory scientist is concerned with diseases generally and not PARTICULARLY, of both human and animals from results of the samples gotten from ANIMALS or HUMANS. While the latter result may be very important to the CLINICAL LABORATORY DOCTOR who is called a PATHOLOGIST (as opposed to a medical laboratory scientist as the case may be), the former is a nonstarter in a clinical setting and thus unimportant, not needed and therefore dispensed with in all its entirety. Animal samples are used medical laboratories for the developement of materials and research. This is not the case in clinival laboratories manned by pathologists for the sole purpose of patient care and management.
II. The scope of MEDICAL LABORATORY PRACTICE include : (a) analysis of HUMAN or ANIMAL specimens (b) production of biologicals (c) design of equipment (d) fabrication of those designed equipment for the PURPOSE of medical laboratory diagnosis, treatment and research.
Of all the four recognized precincts of competence under medical laboratory practice, AND INDEED LABORATORY PRACTICES GENERALLY, one, out of the four precincts is found in the activities under clinical laboratory practice. This one precinct is only related but not identical to what scientists do. Analysis of patients' samples here, is not for the same purpose as that done by the scientists. Sample analysis is also a very small proportion of what pathologists do, and which the scientists are not trained to do. The questions are: DO YOU REGULATE A PRACTICE THAT IS WITHOUT YOUR PRECINCT?
III. The wordings of the section 29 MLSCNA is derivatively categorical as it is explicit that while clinical laboratory practice is an end in itself, medical laboratory practice is a means to an end. In other words, all the precincts of medical laboratory practice enumerated in this section, all, except a part of one of the four, ie one-eighth of the whole, can be considered as an end viz analysis of human specimen. The other seven-eighths are all geared towards production of biologicals and equipment for research, identification and discovery of the best ways that would ensure that methods of analysis of specimens are sensitive, specific, accurate, error-free and of the optimal predictive values. These, the laboratory scientist does and discovers and sends same across to his brother pathologist who applies these discoveries in the clinical laboratory for confident application to identified patients in the care of the clinicians. Therefore, the scientist discovers new methods while the pathologists, and even other professionals like vetenary surgeons, apply the discoveries in their clinical laboratories.
The big question is : how many medical laboratory scientists or medical laboratories in Nigeria can tell Nigerians the extent they have gone in giving life to the clear provisions and mandates exclusively granted their profession vide (a) analysis of ....... ANIMAL specimens (b) production of biologicals (c) design of equipment (d) fabrication of those designed equipment for the PURPOSE of medical laboratory diagnosis, treatment and research.
MLSCN AND THE APPROPRIATE INSPECTORS OF LABORATORIES IN NIGERIA.
Medical laboratory practice as defined by MLSCNA has not been fructified by the crop of medical laboratory scientists churned out on a daily bases by our universities, In fact, the bulk of the medical laboratory scientists do not know any other laboratory practice than clinical laboratory practice. It is a notoriety that most laboratory scientists do not know that their actual jobs as provided by the Act creating their profession are:
Analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment for the purpose of medical laboratory diagnosis, treatment and research.
Now, let me break it down.
The drafting of this clause is inelegant and therefore I shall below put it in a paragraphing technique that would aid your comprehension of that clause. Thus, the clause can be restructured as follows :
a. analysis of human or animal tissues, body fluids, excretions,
b. production of biologicals,
c. design and fabrication of equipment
FOR THE PURPOSE OF MEDICAL LABORATORY DIAGNOSIS, TREATMENT AND RESEARCH.
Note abundantly that the purpose of (a)(b) AND (c) is for medical laboratory diagnosis, treatment and research ; and not PATIENT diagnosis, treatment and research!!!!!!
This means that the doing of (a), (b) and (c) is for a particular purpose and not otherwise. That particular purpose is for MEDICAL LABORATORY DIAGNOSIS, TREATMENT AND RESEARCH. Therefore, a medical laboratory scientist could do all of (a),(b)&(c) for a sole purpose of medical laboratory diagnosis, treatment AND research. Note also the conjunctives "AND" .
The next question is, what is MEDICAL LABORATORY DIAGNOSIS, TREATMENT AND RESEARCH?
It simply means, medical laboratory.........
i. DIAGNOSIS,
ii. TREATMENT AND
iii. RESEARCH
It means the diagnosis, treatment and research done at or inside a medical laboratory. We earlier saw what is enacted to be done in a medical laboratory. They are those activities contained in (a)(b) AND (c) supra and no other. We also saw that (a), (b) AND (c) can only be used for purposes of medical laboratory goals of (i)(ii)&(iii) only.
The implications are that there are some manner of DIAGNOSIS, TREATMENT and RESEARCH done at or in a medical laboratory using (a), (b) AND (c). The question that comes to mind is WHAT MANNER OF DIAGNOSIS, TREATMENT and RESEARCH?
It is submitted that the scope of the DIAGNOSIS, TREATMENT and RESEARCH contemplated by the paragraph is strictly limited to (a), (b) AND (c) above. The laboratory scientist uses (a), (b) AND (c) to make his medical laboratory diagnosis; uses (a), (b) AND (c) to make his medical laboratory treatment; and uses (a), (b) AND (c) for his medical laboratory research.
Thus, the medical laboratory scientist can (and is empowered by law to) use animal or human samples, biologicals and equipment to make diagnosis of any cause and nature of those samples, biological or equipment. In doing so, he can know when the sample, biological or equipment has a problem/defect and he identifies the problem/defect promptly and find a way of documenting such diagnosis and improving on the process of diagnosis in future.
The medical laboratory scientist can as well use animal or human samples, biologicals and equipment to treat his samples, biological or equipment for quality preservation, storage or fixing. This position is reinforced by the provisions of the same MLSCNA at section 4 (e), viz: regulate the production, importation, sales and STOCKING of diagnostic laboratory REAGENTS and CHEMICALS........, especially those reagents and chemicals that are products of applied biology ie the BIOLOGICALS as used in the MLSCN Act.
The medical laboratory scientist can also use animal or human samples, biologicals and equipment to research into better ways of diagnosis, treatment of his tools and research.
Bringing the whole discussion home, it all means that :
1. All the laboratories in Nigeria purporting to be medical laboratories, but which are in reality, clinical laboratories (by virtue of the fact that they purport to produce results of identified patient samples and send same to the clinicians ) are caught up by the regulations made by MDCN and are squarely under the control of MDCN and NOT MLSCN. This is because, by passing such results to the clinicians, they have abdicated their comfort zones, and have invariably placed themselves under the Argos eye of the clinicians who may not take chances with their HUMAN patients.
The double check of the Pathologist goes beyond the quality checks of the laboratory scientist. It is the meat of pathology bearing in mind that the quality checks of the laboratory scientist is not infallible (not in this era of our national life where no doctor can guarantee the possible procurement of unadulterated biologicals, adequate treatment and preservation of equipment and transfer of such equipment and biologicals under standard conditions for conduct of a reliable and reproduceable results).
2.In the same fashion, the residency programmes purported to be in the offing, orchestrated by MLSCN in the hospital setting are of no moment however . This is because no hospital-based postgraduate programmes in clinical laboratory setting can take effect without MDCN regulation and approval.
3. A hospital management board that applies a scheme of service that places a medical laboratory scientist as the head of its clinical laboratory commits a fatal blunder and actionable infractions of our federal laws. A scheme of service is inferior to MDPA and MLSCNA. Those Acts are clear on what medical laboratory scientist is, what a medical laboratory is, and where a scientist can work and who regulates medical laboratories and pathology laboratories.
