By Kaaka Dello-Ziem,JP-
(A Law Lecturer, SD Dombo University of Business & Integrated Dev’t Studies, Ghana)
For the past year Prof. Raphael Nyarkotey Obu, Professor of Naturopathy, Author, Medical Journalist & Columnist who also had his legal training at the Gambia Law School, Banjul, and currently pursuing another Doctor of Philosophy(Ph.D) in Law and Development at the Institute of Development and Technology Management(IDTM), affiliated to the University of Cape Coast, Ghana, has speedily enriched the natural medicine literature by writing six important and interesting books including the literature of natural medicine Law and Negligence.
These are: Medical Negligence and The Law in Ghana and The Gambia; Life in The Gambia: Tales from a Professor and an Aspiring Barrister; African Naturopathy, Prayer as Complimentary Medicine: How Much We Know? From the pulpit to Scientific Exploration; Modern Naturopathic Medicine Development in Ghana; The Law and Naturopathic Medicine Practice in Ghana; and also, The Regulatory Framework of Traditional Medicine in the Gambia.
Medical Negligence and The Law in Ghana and The Gambia, the subject matter of this Review, was written to mark the Nyarkotey 2nd Public Lecture and Book Launch. The theme of this launch, according to him, is:“Contributions of Herbal Medicine in the Ghanaian Healthcare Sector”
“. . . The questions that should be molded and shaped to meet the needs and opinions of today” are:
1) what is the state of negligence in the profession of natural healthcare? And
2) And whether the court is biased toward the practitionersin the drugless industry?
To answer the above concerning the subject matter ofnegligence, the court does not have a different test but holds all medical practitioners of all fields to the same standard as medical men and on some occasions to their colleagues in the same industry.
It may be rightly said that, to a large extent, he, despite odds and stressful circumstances, has succeeded in molding a considerable branch of the law to suit the Legal, Medical, social, and economic needs of our century, Ghana.
This book has five chapters and is centered on medical negligence in the healthcare sector as well as in the trade of natural healthcare. You will also understand the doctrine in the Bolam principle commonly known as the Bolam Test: “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.” And this, the author described it as the old Mantra Test.
The key passages from Montgomery v Lanarkshire Health Board [2015] UKSC 11 (11 March 2015) judgment involve what a patient would consider being a material risk: “The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments. This is what the author treats as the new Mantra Test
Besides these fundamental cases as the Lawyers would describe as locus classicus cases, the author would have been incomplete in his work if the book was without mention of the following cases: Candler v. Crane Christmas & Co. [1951] 1 All E.R. 426, C.A. on negligent statements; Bonsor v. Musicians’ Union [1954] 1 All E.R. 822, C.A. on trade union disputes; Conway v. Rimmer [1967] 2 All E.R. 1260, C.A. about Crown privilege; Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997, C.A. about ministerial discretion; and Schorsch Meier GmbH v. Hennin [1975] 1 All E.R. 152, C.A. about judgments in foreign currency.
On the General law of negligence discussed in chapter one of the book, the learned author traces its history and comments that this is the area of the law that twentieth-century and twenty-first-century judges have done well to develop most. Donoghue v. Stevenson apart, Prof. Nyarkotey has also, well in discussing the principle ofnegligent statements in the famous decision in Candler’s case, which was approved by the House of Lords in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.[1964] A.C. 465.
In Complementary and Alternative Medicine to the Tort of Negligence (Chapter Two), expressing the same elements, the author provides readers the very understanding and the Legal definition of Traditional and Alternative Healing; The Burden of Proof in drugless healing; The School of Healing Test and its consequential question of discrimination against the Traditional healers, the author went on to suggest the Courts Determinationthe School of Healing Test, again “The school of healing rule is not sacrosanct”. The question the author posts hereis, Should the court abandon the School of Healing test?
The author in this chapter equally wrote succinctly on the Drugless healer’s duty to advise the patient, the Drugless healer’s liability when an expert witness disagrees, and finally, the Medical Doctors practicing Alternative. The established principles of practice for the guidance of its members concerning methods, diagnosis, and remedies, which each member is supposed to adhere to had been decided by the court in Nelson v. Harrington, (1888), and this, the author emphasized in page 137 of this main edition. With many other cases of law to the emphasis the author referred us to the case of McPeak v. Vanderbilt University Hospital, the case in the court suggests a wide range of alternative treatments. Therefore, in our jurisdictions like “Ghana and Gambia” which is the pivot of the title of this book is the traditional medicine treatment that Medical Doctors in substantive medical centers should rely on. It is vitally clear that the book emphasizes medical negligence to include liability against the traditional medical practitioner who under his practice owes standard care.
Chiropractors and Negligence is the main topic for Chapter Three. The main consideration, according to Prof. Nyarkotey, is the “interest” of the traditional and alternative medical systems apart from the standard medical systems all providing different healthcare services with one goal ofrestoring the “patient”. The Author points out the rising cases of medical negligence or malpractice found in all the medical systems under a duty of care and causation. Apart from that the Learned Author is not only simplistic in Language but his writing style alone will cause no eye to wink when reading through the maiden book ever written from the Western views to the African views by laying emphasis that all fields of the practice are the application of the general negligence theory.
From the language to the style, the Author took time to build the history of Chiropractic, giving it a clear definition to authorities. Emphasizing Walkenhorst v. Kesler, the position of the law in Chiropractic has been simplified with further cases like Lowman v. Kuecker, a case that heldthat “…. the practice of chiropractic is the practice of medicine”. The author in his writing up applied the cases of Maryland Casualty Company v. Hill; Willette v. Rowekamp; Cucchiara v. Funicelli; Yagodinski v. Sutton; Wallace v. La Vine; Janssen v. Mulder; Beech v. Hunter; Nelson v. Dalil; Kuechler v. Volgmann; Treptau v. Behrens Spa; and Kuechler v.Volgnann; Bakewell v. Kahle; Kelly v. Carrol; the author advanced us with more cases to make the book an “Evidence based book”. See:
Chesney v. People, 121 Colo. 73, 212 P.2d 1011 (1949) (chiropractor);
Ellinwood v. McCoy, 8 CalApp.2d 590, 47 P.2d 796 (1935), (drugless healer); Hardy v. Dahl, 210 N.C. 260
530, 187 S.E. 788 (1936), (naturopath);
Bolles v.Kinton, 83 Colo. 147, 263 Pac. 26, 56 A.L.R. 814(1929), (osteopathic physicians);
Grainger v. Still,187 Mo. 197, 85 S.W. 1114, 70 L.R.A. 49 (1905), (osteopathic physician and surgeon).
There are many more cases the Author used in the subject of this book.
Chapter Four deals with the Chiropractor as an Expert Testimony. This is a twofold standard as the author indicated “Chiropractors will not be judged the same wayas medical doctors; because the court recognizes their training regimes to be different from medical doctor training. The author’s emphasis is on the fact that a chiropractor is competent to testify as an expert witness in his special field of medicine. He buttresses his argument in this book with the cases of Alger v. Schine Theatrical Company; Yagodinski v. Sutton; The court in Dickman v. Struble made it clear that the competency of expert witnesses rests largely in the discretion of the trial judgeas seen in the City of Akron v. Public Utilities Commission. Therefore, in Tully v. Mahoning Express Company, a witness seeking to qualify as an expert must first state his education, skills, and experience in the subject area in which he is to testify. The praises may be too small but one cannot run away from the author’s sterling knowledge and wide range of discussion in this book on medical negligence.
This Review would be incomplete if the popular case is omitted — Klop v. College of Naturopathic Physicians of British Columbia —. The Learned Author in this book, clarifies the principle by referring to other cases i.e R. v. Javanmardi, Director of Consumer Affairs Victoria vGibson (No 2) [2017] FCA 366; and in Alfredo Bowman and Dr. Sebi LLC v. Michael Jackson [2004].
The principles from the above cases:
“The Healing Power of Nature (Vis Medicatrix Naturae) …
Identify and Treat the Causes (Tolle Causam) …
First Do No Harm (Primum Non Nocere) …
Doctor As Teacher (Docere) …
Treat the Whole Person (Tolle Totum) …
Prevention (Preventare)”
Chapter Five of the book deals with the spirituality of “The Pastor as a Drugless Healer”. The Author emphasizes the reason for this force is that Most of them, assert that orthodox medicines alone are not enough; they must be supplemented with anointing oils, counseling from pastors, herbal medicines, and other possible solutions. The Author again applied the cases of Nally v. Grace Community Church, 253 Cal. Rptr. 97 (1988) which was decided to address the “clergy malpractice,”
Apart from the main theme of law reform, Medical Negligence and The Law in Ghana and The Gambia, haveother attractions. The language and style in which the story is clothed are worth noting. In simple, clear, and colloquial language, the great Author can state the law in away that the layman can understand. In his staccato and laconic style, he succeeds in telling the world his views onMedical Negligence as it is for now and, as it should be in the future.
Humour comes next. It is not only what to say that matters but how to say it. Prof Nyarkotey is aware of this and in his book, he expresses humour in writing as he does in speech. Some critics have these comments about the book on Medical Negligence and the Law in Ghana & The Gambia. it is observed, “His reputation is founded on a rare combination of intellectual brilliance, a vivid style of speaking and writing, and an unquenchable zest for reforming the law. Prof. Nyarkotey’s book reflects these qualities.” describes the book as “an ebullient, readable and vigorous defence of his judicial career . . .”
For the law student, the academic lawyer, the practitionerof Law, the practitioner of medicine, and the judge, MEDICAL NEGLIGENCE AND THE LAW IN GHANA & GAMBIA should have several attractions. Even the layman may find it fascinating.
Other Legal books by Prof. Nyarkotey on the legal aspect of Naturopathy.
Congratulations for showing academic and legal scholarship in the profession of natural Medicine in Ghana and Africa.
