CHAPTER ONE

THE GENERAL PARTS

INTRODUCTION
Law plays a major role in the life of the allied health professional. We currently have no specific
law that relates to the allied health professional. I do know that whatever exists is only in draft.
Despite the absence of a specific law, the allied health professional is affected in his practice by
the general laws of the land and the ethical principles of his profession. he exercise of informed
judgment at work consistent with applicable law and the ethical principles then become the
guiding rules for the allied health professional.
his chapter sets forth the general information about law, the sources of law in the !epublic of
"hana, some provisions in the #onstitution of the !epublic of "hana, $%%& that relate to health
care delivery and the criminal eyes of these provisions.
THE NATURE OF LAW
'ccording to most definitions, law is, in essence a set of binding rules and principles by which
people that live in a society deal with their disputes and problems, seeking to solve or settle them
without resort to force. Law governs the relationships among private individuals, organi(ations
and government. )ociety regulates the conduct of its members through established standards of
behaviour and means to enforce those standards.
Law is classified into private law and public law. Law that deals with the relationships between
private parties is called private law and that which governs the relationships between individuals
and the )tate is public law. *xamples of private law are the law of tort and the law of contract.
he examples of public law are international law, constitutional and administrative law and
criminal law. We shall look at law of tort and criminal law later.


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SOURCES OF LAW
he sources of law in "hana are found in chapter +, 'rticle $$ of the #onstitution of the
!epublic of "hana, $%%&. he 'rticle states that ,he Laws of "hana shall comprise
a. this #onstitution-
b. enactments made by or under the authority of the .arliament established by this
constitution-
c. any /rders, !ules and !egulations made by any person or authority under a power
conferred by this #onstitution-
d. the existing law- and
e. the common law.0
he 'rticle goes on to explain what the common law is. It states that the common law of "hana
shall comprise the rules of law generally known as the common law, the rules generally known
as the doctrines of e1uity and the rules of customary law that include those determined by the
)uperior #ourt of 2udicature. he article defines customary law as ,means the rules of law
which by custom are applicable to particular communities in "hana.0
he 'rticle explains, under clause 3+4 the existing laws to comprise, the written and unwritten
laws of "hana as they existed immediately before the coming into force of the #onstitution, and
any 'ct, Decree, Law or statutory instrument issued or made before that date, which is to come
into force on or after that date. *xamples of any 'ct, Decree, Law or statutory instruments are,
#oroners 'ct, $%56 3'ct $74, 8urses and 9idwives 'ct, $%:& 38.!.#.D. $$:4, Intestate
)uccession 'ct, $%7; 3..8.D.#.L.$$$4 and 8urses !egulation L.I.57< respectively.
*nactments referred to in the 'rticle are laws passed by previous .arliaments. /rders, !ules
and !egulations, cover )upreme #ourt !ules, $%%5 3#.I.$54, #ourt of 'ppeal !ules, $%%:
3#.I.$%4, =igh #ourt 3#ivil .rocedures4 !ules, &66< 3#.I.+:4, .arliamentary )ervice 3)taff4
!egulations, $%%; 3#.I.$$4. he common law and the doctrines of e1uity are those rules of law
,received0 the outcome of coloni(ation by the >ritish. he common laws include laws relating to
contract, and torts. he doctrines of e1uity are simply the rules of fairness. hey consist of
maxims one of which is- ,he who comes to e1uity must come with clean hands0, meaning that in
order to expect and get a remedy based on fairness the plaintiff must be fair himself. #ustomary
law relates to rules to be observed in times for example, of marriage, funeral, festival i. e.
=omowo, 'dae etc in "hana. =owever, customary laws, such as female genital mutilation and
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widowhood rites that are inimical to the physical and mental wellbeing of persons and
criminali(ed, are excluded.
THE CONSTITUTION
he word #onstitution has two meanings- the narrower meaning and wider meaning. In the
narrower sense it means a document that has a special legal sanctity which sets out the
framework and principal functions of the organs of government within the state and declares the
principles by which those organs must operate. hus, the #onstitution of the !epublic of "hana,
$%%& falls into this narrower meaning. he wider sense of the word constitution refers to ,the
whole system of government of a country, the collection of rules which establish and regulate or
govern government.0 In this sense the #onstitution includes issues of the #onstitution of the
!epublic of "hana, $%%&, culture, custom, usages and institutions.
he training of an allied health professional is not restricted to the ac1uisition of allied health
skills. It covers a wider range of other disciplines that include law, anatomy, physiology, medical
sociology, psychology and statistics. ?nderstanding the #onstitution, therefore, is helpful. In
this case, however, we shall restrict ourselves to provisions under fundamental human rights and
freedoms that we consider immediately relevant to health care delivery.
he #onstitution of the !epublic of "hana, $%%&, is the supreme law of "hana. 'ny other law
found to be inconsistent with any provision of the #onstitution shall, to the extent of the
inconsistency, be void. What it means is that the $%%& #onstitution is the ultimate law of the
land and does not compete with any other law. 'll other laws of "hana are beneath it. In the
event that another law conflicts with it, that law shall give way for its supreme nature to prevail.
In the case of !epublic v .eprah and others- ex parte 'gyeiwa @$%%:A%7B $"L! $6$& the court
noted that under section +73$4 of the #hieftaincy 'ct, $%:$ a chief was defined as one who was
in addition to his installation in accordance with all the relevant customary procedure and usage
had also been recogni(ed by the minister- had had his name published in the "a(ette and 3ii4 had
had his name entered in the 8ational !egister of #hiefs. ?nder article &:: of the #onstitution
$%%& not only had those additional conditions been stripped from the definition of a chief but a
chief a chief had been defined to include a 1ueen mother. 'nd under article $3&4 of the
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#onstitution, $%%& the conflict in the two definitions would be resolved in favour of the
constitutional provision.
#hapter ; of the #onstitution is devoted to fundamental human rights and freedoms. 'rticle
$&3$4 states in part that ,he fundamental human rights and freedoms enshrined in this #hapter
shall be respected and upheld by the *xecutive, Legislature and 2udiciary and all other organs of
government and its agencies and, where applicable to them, by all natural and legal persons in
"hana, and shall be enforceable by the courts. . .0 'rticle $& 3&4 provides that, ,*very person in
"hana whatever the race, place of origin, political opinion, colour, religion, creed or gender shall
be entitled to the fundamental human rights and freedoms of the individual contained in this
#hapter but subject to respect for the rights and freedoms of others and for the public interest.0
he total effect of 'rticle $& is that the government of the day, allied health professionals, nurses,
midwives, soldiers, the police, civil servants and all individuals within the territorial jurisdiction
of "hana are to observe the fundamental human rights and freedoms enshrined in the
#onstitution. )o too shall institutions as the ?niversities, companies and corporations
established by, and under, the laws of "hana, observe these rights and freedoms. Curthermore,
.arliament that makes the laws of "hana, in its deliberations, shall observe the rights and
freedoms. he 2udiciary, while it settles disputes, shall observe these rights. Individuals within
the geographical territory of "hana, in their broad dealings with themselves, in terms of gender
matters, religion and political activities are to observe the constitutional rights and freedoms.
he article however considers that in the exercise of these rights and freedoms, the rights and
freedoms of others and matters that serve the common good of the community, namely public
interest, come first.
he specific rights mentioned under the chapter include property rights of spouses, childrenDs
rights, cultural rights and practices, rights of the sick, womenDs rights and rights of the disabled.
Creedoms that are enjoyed include that of speech, religion, information and movement.
'rticle &$ provides general fundamental freedoms. 'nd these, include under clause 3$4 3c4
,freedom to practise any religion and to manifest such practice.0 8ote however that under article
&$3+4 oneDs freedom can be restricted where the restriction is reasonably re1uired in the interest
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of defence, public safety, public health or the running of essential services, on the movement or
residence within "hana of any person or persons generally, or any class of persons.
'rticle &5 of the #onstitution which provides for cultural rights and practices, states in clause 3$4
that, ,*very person is entitled to enjoy, practise, profess, maintain and promote any culture,
language, tradition or religion subject to the provisions of this #onstitution.0 #lause 3&4 denies
the practice of some cultural rights. It states thus, ,'ll customary practices which dehumanise or
are injurious to the physical and mental wellbeing of a person are prohibited.0
he author has observed from the experiences of practicing nursing students at the 8urses and
9idwifery raining #ollege, Eorle >u, 'ccra that some patients attend hospital with religious
items strapped around their waists, ankles or wrists. In some cases some of these patients, while
undergoing surgery, had insisted that those items should not be removed from their bodies. It is
my opinion, and that opinion is influenced by the #onstitution, that these religious items, to the
extent that they do not interfere with surgery, and will not lead to possible infections and
complications in the surgery, should not be removed. Indeed in one case as was narrated in a
nursing class, the patient protested vehemently before surgery that the religious item on her waist
should not be removed or else she would die. he health team did not heed to her protestation.
he item was removed and the patient did not survive the surgery. I consider that as pure
coincidence.
In respect of article &5 3&4, some cultural practices that dehumanise or are injurious to the
physical and mental wellbeing of a person are criminalised under the #riminal /ffences 'ct,
$%56 3'ct &%4. wo of these practices are female circumcision and cruel practices in relation to
bereaved spouses. he experiences of pain, trauma, agony and complications of females who
undergo circumcision are matters that are wellAknown. )o there are for the harshness of pouring
for examples, pepper into the eyes, giving cold bath, solitary confinement and sudden arduous
tasks of walking bareAfooted of widows.
)ection 5%' of the #riminal /ffences 'ct, $%56,3 'ct &%4 states that ,' person who excises,
infibulates or otherwise mutilates the whole or a part of the labia minora, labia majora and the
clitoris of another person commits a second degree felony and is liable on conviction to a term of
imprisonment of not less than three years0. What it means is that any person who engages in
female circumcision and excises, and excise is defined under the section to mean removal of the
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prepuce, the clitoris, and all or part of the labia minora, and infibulate which includes excision
and the additional removal of the labia majora, commits a criminal offence.
In the case of cruel practices in relation to bereaved spouses, who are generally females, section
77' 3$4 of 'ct &% states that, ,' person who compels a bereaved spouse or a relative of the
spouse to undergo a custom or practice that is cruel in nature commits a misdemeanor.0. '
custom or practice is cruel in nature if it amounts to assault i. e. unlawful and intentional
touching that aims at causing fear, annoyance, anger and restrict the movement of a person.

#onsent of a patient is re1uired in the exercise of medical treatment. here are, however, times
that a patient is unable to give consent. his may happen in the case of a child, a person who has
become unconscious or one who is mentally challenged and in a schi(ophrenic state. In any of
such cases, a parent, guardian or other relative will have to consent to medical treatment on
behalf of the patient. he parent, guardian or relative may, however, be constrained to give
consent to the medical treatment because of that personDs religious or other belief. In order to
ensure that such a patient is not denied medical treatment by a parent, guardian or relative who
may withhold consent on religious or on ground of belief, the #onstitution steps in. 'rticle &7 3+4
provides that ,8o child shall be deprived by any other person of medical treatment, education or
any other social or economic benefit by reason only of religious or other beliefs.0 'rticle <6
stretches the prohibition to protect the adult and others i.e. mentally challenged and the
unconscious. It states as the rights of the sick that, ,' person who by reason of sickness or any
other cause is unable to give his consent shall not be deprived by any other person of medical
treatment, education or any other social or economic benefit by reason only of religious or other
beliefs.0
he #ommission on =uman !ights and 'dministrative 2ustice 3#=!'24 has explained that
'rticle &73+4 of the #onstitution effectively takes out of the hands of parents, the power to
withhold or refuse consent for the administration of necessary drugs and medications re1uired to
save the life of a child, since the child cannot take any decision on his or her own. In the same
way article <6 of the #onstitution empowers medical practitioners to ignore the objections of
guardians in cases where the life of the child is in the balance. he same holds true for any adult
who, for reason of sickness or any other cause is unable to give consent.
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!eported cases on how parents or groups of persons have denied children consent to health care
will elucidate matters here. In the case of *li(abeth 'sare, on 'ugust & $%%7 *lisabeth 'sare $ F
years old baby fell ill, but the parents refused to send her to hospital. /n $6 'ugust her condition
became so serious that the parents consulted a doctor at the Winneba hospital in the #entral
!egion, "hana where she was diagnosed as having malaria and severe anaemia. he doctors
recommended that the girl should be given blood transfusion immediately to save her life. he
parents refused, with the father threatening that the blood would only be administered over his
dead body. 's a result of the resistance by the parents, the doctors could not administer the
blood, and the child died on $& 'ugust. Indeed, the health team could have proceeded to give the
transfusion if they knew, in good faith, that by their medical training and expertise, it was
necessary and prudent for the transfusion to be given, and that it was in the best interest of the
child to do so. he doctorsD refusal to give the necessary health care, in my view, did not only
constitute professional misconduct but also unconstitutional behaviour. In the extreme case of
difficulty where the medical team hesitates to work, within the opinion of #=!'2, the insulated
action to take is to move for a court order which will help to save life.

In the case of Cirst #entury "ospel #hurch at 2ames own, 'ccra, the church elders, prevented a
team of medical personnel and the police who visited the church premises on /ctober $; &666
from administering the poliomyelitis vaccine to the children whose parents were members of the
church. he elders were subse1uently arrested and put before court. he court bonded seven
elders of the church for eighteen months to be of good behaviour.
)till yet is the case of a $& year old boy who re1uired blood transfusion. he parents refused him
the transfusion because of their dogmatic adherence to their religion. he boy died as a result of
the stance of his parents and not even his pleas could break their hearts. he police later arrested
the parents and charged them on two counts of failing to supply the necessaries of health and life
to a minor, an offence under section :% of 'ct &% and refusing treatment to a minor under section
7 of the #hildrenDs 'ct, $%%7 3'ct ;564.
)ection 7 of the #hildrenDs 'ct states as follows-
,3$4 ' person shall not deprive a child of access to education, immunisation, ade1uate diet,
clothing, shelter, medical attention or any other thing re1uired for the childDs development.0
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,3&4 ' person shall not deny a child medical treatment by reason of religious or any other
beliefs.0
Indeed, section 7 of 'ct ;56 is a restatement of article &7 3+4 of the #onstitution and that of
section :% 374 of 'ct &%.
Indeed, the relevant portion of section :% applicable to the $& year old boyDs case is stated in
subsection 3$4 3b4 and 3c4 as follows-
,3b4 a parent is under a duty to give access to the necessaries of health and life to the parentDs
child actually under the control of the parent, which child is not of an age and capacity as to be
able to obtain those necessaries0
,3c4 a guardian of a child is under a duty to give access to the necessaries of health and life to the
child actually under the control of the guardian.0 8ecessaries of health and life as defined under
subsection 7 of the section to include, ,proper food, clothing, shelter, warmth, medical or
surgical treatment and any other matter which is reasonably necessary for the preservation of the
health and life of a person.0
hen in RE T (Adult) (Refusal of Medial T!eat"e#t) $%&&'( ) ALL ER *)&+ CA+ , who was
injured in a car accident whilst pregnant re1uired blood transfusion. )he had been an adherent of
the 2ehovahDs Witness sect, which forbade blood transfusion because the sect held it to be a sin.
here was some uncertainty as to whether her refusal of blood transfusion was voluntary or
induced by her motherDs undue influence. he court, upon application by her father and her
boyfriend, ordered that in her own interest the transfusion was to be given. )he appealed against
the decision. he appellate court held that although every adult had the right to refuse consent to
medical treatment, the person must have full possession of his or her faculties and not lack the
capacity to make such a decision. hat it being uncertain whether her medical condition at the
time made her fit to make such a decision, the doctors were right to assume that her decision had
been procured under the undue influence of her mother who was a 2ehovahDs witness. he
doctorsD decision to go ahead with the transfusion despite her purported refusal of consent was
lawful.
'rticle $< provides for the protection of right to life. #lause 3$4 of the article provides that no
person shall be deprived of his life intentionally except in the exercise of the execution of a
sentence of a court in respect of a criminal offence under the laws of "hana of which he has been
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convicted. hus in the #ommission on =uman !ights and 'dministrative 2ustice hearing of the
case of So"i , Te"a Ge#e!al Hos-ital $%&&). '///( CHRA0 %&*, the #ommission held that
the conduct of the servants and agents of the ema "eneral =ospital in the excessive delay in
getting a doctor to perform a caesarean operation on pregnant woman rushed in an emergency
situation that led to her death was in breach of duty to respect the patientDs right to life as
guaranteed under article $<3$4 of the #onstitution.
Indeed, under article &$73c4 of the #onstitution, the #ommission on =uman !ights and
'dministrative 2ustice has the duty to ,investigate complaints concerning practices by persons,
private enterprises and other institutions where those complaints allege violations of fundamental
rights and freedoms under this #onstitution.0 hus in the So"i case, the facts of which were that
on + 2anuary, $%%7 at about 5.<6am, a pregnant woman, aged <;, was rushed in an emergency
situation, to the ema "eneral =ospital, after experiencing severe bleeding at home, /n arriving
at the /utA.atientADepartment 3/.D4 of the hospital, her pulse rate was found very low- and her
blood pressure was also low that it could not be read. here was also no doctor to attend to her
even though the ema "eneral =ospital was, and is still, the only major "overnment =ospital
which serves as a !eference =ospital for ema and its environs and also handles deliveries and
surgical emergencies. he night doctor was not available- he had left the hospital between +.66
and +.<6am. i.e. before 7.66 am the scheduled closing time. he relieving doctor who was
supposed to take over from the night doctor at 7.66 am also did not turn up till well after $6.66
am. he patient was not attended to by a doctor until $&.<6 pm when she was rushed to the
theatre for a surgical operation but she did not survive the operation. he baby also died.
)ubse1uently, the complainant, the father of the deceased patient, petitioned the #ommission on
=uman !ights and 'dministrative 2ustice 3the #ommission4, claiming inter alia, compensation
for the death of his daughter as a result of negligence of the hospital. 'fter hearing the parties,
the #ommission arrived at the finding of fact that included that, 3i4 there was inordinate delay in
getting a doctor to perform caesarean section operation on the patient- 3ii4 for well over four
hours, the nurses at the hospital managed, beyond their competence, an emergency situation to
the patient- 3iii4 the life of the patient could have been saved by the timely intervention of a
doctor.
he #ommission held upholding the claim inter alia that, on the evidence, the conduct of the
servants and agents of the hospital, constituted an act of injustice and amounted to unfair
9
treatment of the patient by public officers acting in the course of their official duties within the
meaning of article &$73c 4 of the $%%& #onstitution. he #ommission disapproved of the policy
of the hospital of not allowing nurses to refer even emergency cases to the appropriate ward
except under referral by a doctor. he policy was based on the assumption that there would
always be a doctor on duty- as it turned out in this case, that assumption was not justified. he
effect of the #ommissionDs ruling is that, public officers including health workers should provide
professional attention to patients in the sense of justice and fair treatment. It also means that the
=ealth 'uthority must review the policy in referral cases.
'rticle $; speaks of respect for human dignity. #lause 3$4 of the article states that, ,he dignity
of all persons shall be inviolable.0 his means that a personDs human dignity shall not be
violated. #lause 3&4 provides that ,8o person shall, whether or not he is arrested, restricted or
detained, be subjected to
3a 4 torture or other cruel, inhuman or degrading treatment or punishment-
3b4 any other condition that detracts or is likely to detract from his dignity and worth as
as a human being.0
/dartey 9ills writing on 'ID) L'W considers this in reference to involuntary test for
=IGH'ID). =e explains involuntaryHforced testing, as when a person is made to undergo testing
for =IGH'ID) virus against hisHher will or without hisHher consent. =e says that the practice
violates the personal human rights of the individuals concerned, especially the personDs right to
personal liberty and hisHher right to respect for his human dignity. =e also explains that the
#onstitution forbids any person from forcibly subjecting any human being to any form of
treatment that flies in the face of respect for that person as a standard human being.
he allied health professional who directly or indirectly engages in involuntary testing of person
for =IGH'ID) must know that hisHher conduct is unconstitutional.
?nder article +$ of the #onstitution,$%%& there are duties imposed on the citi(enry of "hana. he
exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and
obligations. 'ccordingly, every citi(en is compelled as a duty to- protect and safeguard the
environment, uphold and defend this #onstitution and the law, promote the prestige and good
name of "hana and respect the symbols of the nation,
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CHAPTER TWO
THE LEGAL S1STEM2 THE COURTS
' countryDs legal system is said to have two major functions. he first is to provide the re1uired
mechanism within which individuals, institutions and organisations can exist and operate 3e.g.
the office and status of an allied health professional is recogni(ed by the 9inistry of =ealth and
therefore the !epublic of "hana4. he second is to provide a means of resolving conflicts and of
dealing with those who violate the accepted conduct of behaviour. hese functions are not
performed by the government of the day alone but also by the courts. Let us therefore, turn to
look at the legal system in "hana.
he purpose of the courts in every nation, in the words of !onald lrving writing in his book the
,Law is ' 'ss0, ,is to help keep the peace. #ourts determine and punish crime. hey also
resolve civil disputes to prevent people taking matters into their own hands.0
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THE GHANA LEGAL S1STEM
It is necessary for the allied health professional to understand the structure of the courts in order
to understand the judicial branch of government. he #onstitution vests, absolutely the
administration of justice in the 2udiciary. It states under #hapter $$ 'rticle $&; 3$4, that ,2ustice
emanates from the people and shall be administered in the name of the !epublic by the 2udiciary
which shall be independent and subject only to this #onstitution.0 It continues under clause 3<4
as follows, ,he judicial power of "hana shall be vested in the judiciary, accordingly, neither the
.resident nor .arliament nor any organ or agency of the .resident or .arliament shall have or be
given final judicial power.0
he judicial arm of the state has power or jurisdiction in civil and criminal matters and such
other jurisdiction as .arliament may by law confer on it 3clause ;4. 2urisdiction relates to a court
that has the authority to entertain or decide a case. It connotes the limit or extent of the power of
the court. In the case of the !epublic G =igh #ourt, 'ccra *x parte Laryea @$%7%A%6B & "L!%%
)#, the )upreme #ourt defined jurisdiction to mean the ,power or authority of the court to give a
decision on the issue before it0. he #hief 2ustice is the =ead of the 2udiciary and is responsible
for the administration of and supervision of the 2udiciary 3clause +4.
In terms of status, the courts are structured into superior and lower courts. he superior courts,
3superior courts of record4 are the )upreme #ourt, the #ourt of 'ppeal, the =igh #ourt and
!egional ribunals, he lower courts are the #ircuit #ourt, the District #ourt, the 2uvenile #ourt,
8ational =ouse of chiefs and such courts as .arliament may by law establish 3'rticle $&5, 3$4
3a4 3b4.
he highest court of the land is the )upreme #ourt which is the final court of appeal for both
civil and criminal cases. he )upreme #ourt has exclusive original jurisdiction in all matters
relating to enforcement or interpretation of the #onstitution.
's does the )upreme #ourt, the #ourt of 'ppeal has appellate jurisdiction to hear appeals from
judgements from the =igh #ourt and the !egional ribunals among others. In the case of the
=igh #ourt, it has jurisdiction to enforce the fundamental human rights and freedoms guaranteed
by the #onstitution. It also has jurisdiction in all matters, in particular in civil and criminal
matters. Curthermore, it has supervisory jurisdiction over all the lower courts. he =igh #ourt
has jurisdiction in relation to matters of the welfare of infants and people who are mentally
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unsound 3sections $7 and $% of the #ourts 'ct, $%%< 3'ct +;%4. he !egional ribunal has
jurisdiction over such offences against the state and the public interest. It also has appellate
jurisdiction over such offences against the )tate and the public interest.
he #ircuit #ourts have civil and criminal jurisdictions. In civil matters, the jurisdiction of a
#ircuit #ourt includes personal actions arising under contract or tort or for recovery of a fixed
sum of money that is not more than ten thousand "hana cedis, and to appoint guardians of
infants and to make orders for the custody of infants 3persons under $7 years old4. Cor criminal
matters, a #ircuit #ourt has original jurisdiction on matters as stealing, murder, manslaughter
and rape among others.
' District #ourt has both civil and criminal jurisdictions. Cor civil jurisdiction, it hears cases
relating to contract or a tort for the recovery of a fixed sum of money that does not exceed one
thousand "hana #edis. It also has jurisdiction over divorce and other matrimonial matters- for
paternity and custody of children. 's regards criminal matters, it presides over criminal offences
tried summarily such as mistreatment of bereaved spouses and persons who may attempt to
commit suicide. It also deals with criminal offences punishable by a fine not exceeding five
hundred penalty units 3"=I5,6664 or a term of imprisonment not exceeding two years or both
the fine and the imprisonment. he 2uvenile #ourt has power to hear and determine a civil or
criminal matter that involves a person under the age of eighteen years.
he courts are further vested with the power to protect those whose fundamental human rights
are violated. 'rticle <<3$4 of the #onstitution of the !epublic of "hana $%%& provides that where
a person alleges that a provision of the #onstitution on the fundamental human rights and
freedoms has been, or is being or is likely to be contravened in relation to him, then without
prejudice 3without loss of rights- in a way that does not harm or cancel the legal rights or
privileges of a party4 to any other action that is lawfully available, that person may apply to the
=igh #ourt for redress. 'rticle <<3&4 allows the =igh #ourt to issue directions, or orders or writs
including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and
1uo warranto as it may consider it appropriate for the purposes of enforcing or securing the
enforcement of any of the provisions on the fundamental human rights and freedoms to the
protection of which the person concerned is entitled. 'ppeal from the =igh #ourt lies in the
#ourt of 'ppeal and with a further appeal to the )upreme #ourt. 't this juncture it will be useful
to look at few key wordsHwrits in 'rticle <<J
Ha3eas Co!-us2
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=abeas corpus is a Latin expression that means ,you have the body0. It is a writ employed to
bring a person before a court most fre1uently to ensure that the personDs imprisonment or
detention is not illegal. Ha3eas o!-us ad su34iie#du" (usuall5 s6o!te#ed to 6a3eas o!-us)
means ,you have the body to submit to0. ' writ directed to someone detaining another person
and commanding that the detainee be brought to court.
Ce!tio!a!i2
#ertiorari is an extraordinary writ issued by an appellate court, at its discretion, directing a lower
court to deliver the record in the case for review. ' proceeding by writ of certiorari is a special
proceeding by which a superior court re1uires some inferior tribunal, board, or judicial officer to
transmit the record of its proceedings for review, for excess of jurisdiction.
P!o6i3itio#2
.rohibition is a law or order that forbids a certain action. It is a prerogative writ issued by an
appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a non
judicial officer or entity from exercising a powerAalso termed a writ of prohibition. .rohibition is
a kind of common law injunction to prevent an unlawful assumption of jurisdiction. It arrests the
proceedings of any tribunal, board, or person exercising judicial functions in a manner or by
means not within its jurisdiction or discretion.
Ma#da"us2
9andamus is a Latin word that means ,we command0. It is a writ issued by a court to compel
performance of a particular act by a lower court or governmental officer or body usually to
correct a prior action or failure to act.
7uo Wa!!a#to2
Kuo warranto means by what warrantLA or authorityA and was a proceeding to in1uire whether
authority existed to justify or authori(e certain acts of a public character or interest. /riginally
the proceeding of 1uo warranto was a criminal one instituted by the crown, the purpose of which
was to find out, in the course of a formal in1uiry, whether or not persons or corporations were
exercising a privilege or franchise illegally, or if persons who had no right to do so were
occupying some public office. If it were found that the person or corporation was in fact illegally
interfering with the prerogative power of the crown, or was in fact doing some other illegal act, it
was ousted from the illegal practice or office. 'ccordingly, it can be seen at once that the
proceeding on 1uo warranto was not one to be used by private parties in the conduct of ordinary
litigation.
F!a#6ise2
Cranchise means the right to vote. he governmentA conferred right to engage in a specific
business or to exercise corporate powers.
P!e!o8ati,e2
14
.rerogative is an exclusive right, power, privilege, or immunity usually ac1uired by virtue of
office. P!e!o8ati,e of "e!5 is the discretionary power of a supreme authority, such as a state
governor, national president, or sovereign, to commute a death sentence, change the method of
execution, or issue a pardon. he limited right of a chief executive to commute a death sentence
or to pardon a convicted person especially one convicted of a capital crime. P!e!o8ati,e
9!it(e:t!ao!di#a!5 9!it) is a writ issued by a court exercising unusual or discretionary power
e.g. certiorari, habeas corpus, mandamus, prohibition. W!it is a courtDs written order, in the name
of the state or other competent legal authority, commanding the addressee to do or refrain from
doing some specified act.
O!de!2
/rder is a command, direction or instruction. ' written direction or command delivered by a
court or judge. 'n order is the mandate or determination of the court upon some subsidiary or
collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary
point or directing some step in the proceedings. While an order may under some circumstances
amount to a judgment, they must be distinguished, owing to the different conse1uences flowing
from them, not only in the matter of enforcement and appeal but in order respects, as, for
instance, the time within which proceedings to annul them must be taken. !uling on motions are
ordinarily orders rather than judgments. he class of judgments and of decrees formerly called
interlocutory is included in the definition given in @modern codes4 of the word ,order0.
Interlocutory order is an order that relates to some intermediate matter in the case, an order other
than a final order.
Di!etio#2
Direction is an order- an instruction on how to proceedM the judgeDs direction to the jury.
0u!52
2ury is a group of persons selected according to law and given the power to decide 1uestions of
fact and return a verdict in the case submitted to them.
Sou!e of 9o!ds 3olded2 ;LAC<=S LAW DICTIONAR1
NATURAL 0USTICE
/ne of the most important principles of judicial review of administrative action is the rule that
certain powers must be exercised in accordance with natural justice. he traditional view of
natural justice is that it comprises two procedural rulesJ
3a4 'udi alteram partemJ the rule that no man is to be condemned without a hearing.
3b4 8emo judex in causa suaJ no man shall sit as a judge in his own cause.
' third limb of natural justice is the rule to act fairly. In many respects this rule encompasses
both of the traditional rules, but it may possibly apply to a wider range of decisions.
15
he rules of natural justice were not originally designed as a means of reviewing administrative
action and, until the early $%56s, the view of the courts was that natural justice only applied
where there was duty to act judicially. 8atural justice did not have to be observed by those
bodies taking decisions of administrative nature. Cor example in F!a#>li# , Mi#iste! of To9#
a#d Cou#t!5 Pla##i#8(%&)?) A ?@, the =ouse of Lords held that so long as the 9inister had
followed the statutory procedure when making a draft order designating )tevenage as a ,new
town0, then his decision could not be challenged. When taking this decision, he was acting in a
,purely administrative capacity0 which did not re1uire observance of the rules natural justice.
herefore, allegations that he had acted in breach of natural justice were irrelevant, even where
the challenge was on the ground of bias.
he case of Rid8e , ;ald9i# (%&*)) AC )/ established that natural justice could apply
irrespective of whether the function involved judicial or not. he criteria for the applicability of
natural justice was not the distinction between judicial and administrative function, but the
importance of what was at stake for the individual whose rights were affected by the decision. In
the Rid8e case !idge had been dismissed from his position as #hief #onstable of the county
>orough of >righton by the local watch committee. =e contended before the =ouse of Lords that
the principle of natural justice applied to the exercise of powers to dismiss him, and by not
allowing him to put his case properly. he =ouse of Lords allowed his appeal holding that
natural justice did apply and had not been observed.
T6e Ri86t to a Fai! Hea!i#82 Audi Alte!a" Pa!te"
'udi alteram partem literally means ,hear the other side0. In practice, this means that a person or
body taking a decision must consider both sides of the case before taking that decision. 8o man
is to be condemned without a hearing. Where a decision is one to which natural justice applies,
or where the decision involves the duty to act fairly, then the person or body taking that decision
must observe certain procedural re1uirements. he nature and degree of those procedural
re1uirements will however vary from one situation to another, depending upon context, subject
matter and the rights of those affected.
>asically, the right to a fair hearing re1uires that a person who stands to be affected by the
decision of an administrative authority should be givenJ
3a4 notice of the case he has to meet, and
3b4 a fair opportunity to answer the case against him and to present his own side of the case
(a) Notie of t6e Case He Has to Meet
(i) Notie of t6e Hea!i#8
16
'n initial ground of invalidity could be that the individual concerned has simply
not been given sufficient notice of a decision being taken to enable him to
prepare.
In Willis v #hilde 3$7;$4 $<>eav$$:, it was held that a school master, who was
informed, a few hours before a meeting of the trustees was due to take place, that
they would be considering representations from him on their decision to dismiss
him, had been given inade1uate notice of the meeting and that therefore its
subse1uent proceedings were of no effect
)imilarly, in "lynn v Eeele ?niversity3$%:$4 & 'll *! 7%, a breach of natural
justice occurred where a student was fined by the universityDs GiceA #hancellor
without first being told the reasons why or being granted a hearing, although relief
was denied on other grounds
T6e Rule A8ai#st ;ias2 Ne"o 0ude: i# Causa Sua2
8emo judex in causa sua, translated literally means that no man should be a judge in his cause.
.eople affected by judicial and administrative decisions have a right that the decision maker
should be impartial. 8o man should be a judge in a matter in which he is interested. he rule
takes two formsJ
3a4 #ases where the person taking a decision has an interest- and
3b4 #ases where the person taking the decision is biased
*vidence of either of these amounts to a breach of natural justice.
I#te!ests
(i) Peu#ia!5 I#te!est
he standard demanded by this rule is high. he slightest pecuniary interest on the part
of a decision maker in a matter subject to his influence will be sufficient to invalidate
any resulting determination.
In Dimes v "rand 2unction #anal .roprietors 3$7;&4 < =. L. :;%, Lord #hancellor
#ottenham had affirmed decrees made by the GiceA#hancellor in litigation between
Dimes and the canal proprietors. Dimes discovered that the Lord #hancellor had for a
long period held shares in the canal company in his own right and as trustee. he Lord
#hancellor continued to hear matters arising out of litigation relying on the advice of the
9aster of the !olls who sat with him. Dimes appealed to the =ouse of Lords against all
decrees made by the Lord #hancellor on the ground that he was dis1ualified by interest.
he =ouse of Lords set aside the decrees by the Lord #hancellor on the ground of
pecuniary interest. In the course of his speech Lord #ampbell stated inter alia thus ,N it
is of the last importance that the maxim that no man is to be a judge in his own cause
17
should be held sacred. 'nd that it is not to be confined to a cause in which he is a party,
but applies to a cause in which he has an interest.0
(ii) Ot6e! i#te!ests
he rule is not limited to pecuniary interest. /ther interests, such as professional
interest or family interests may also invalidate a determination.
In ! v )ussex 2ustices, ex parte 9c#arthy 3$%&+4 $ E> &;5, a solicitor who was
representing a client in a civil action against 9c#arthy arising out of a motoring
accident, also worked as a clerk to the )ussex 2ustices who were trying 9c#arthy on
a criminal charge arising out of the same motoring accident. When the justices retired
to consider their verdict, the clerk retired with them, and they convicted the defendant
of dangerous driving. *ven though there was no evidence that the clerk had actually
influenced the justicesD decision because of his intrest in the matter, and the fact that
he had retired with the justices when they considered their decision, their decision
was 1uashed. Lord =ewart #.2. saidJ , It is fundamental importance that justice
should not only be done, but should manifestly and undoubtedly be seen to be done.
Osoyhp-
In 9etropolitan .roperties Ltd v Lannon 3$%5%4$ K> ;::, there was evidence of both
professional and family interest hree tenants in a block of flats applied to the rent
officer to fix a fair rent for their flats after the landlords, who were part of a large
property group, proposed an increase. he landlords objected to the rent officerDs
determination and appealed to the rent assessment committee. he chairman of this
committee was a solicitor who lived with his father in the second block of flats owned
by an associated company of the same property group. he chairmanDs firm of
solicitors hadD in the past, negotiated with this company regarding rents, on behalf of
the chairmanDs father and other tenants in the second block of flats. It was held that
the decision of the committee must be 1uashed. ,8o man can be an advocate for or
against a party in one proceeding, and at the same time sit as a judge ofthat party in
another proceedings.
CRIME AND CIAIL ACTIONS
18
In pursuit of their daily clinical duties, allied health professionals must understand the legal
effects of some of their actions and inactions in the professional setting. he allied health
professionalDs failure to apply proper procedure and skill may result in criminal or civil actions
against himHher or the employer. >esides, the allied health professional handles some clinical
cases that are the product of crimes. Enowledge in what is a criminal offence or civil action will
help first and foremost in their avoidance. It also enables the allied health professional to
become more professionally conscious and thereby disentangle himselfHherself of legal
wrangling. he allied health professional as other health worker is a very busy person and it is
important that heHshe keeps away from litigation which clearly re1uires a lot of time and
attention.
%B C!i"i#al Offe#e
he interpretation section of the #riminal /ffences 'ct, $%56, 'ct &% section $, defines criminal
offence as- ,has the meaning assigned to it by article $% of the #onstitution.0 'rticle $% 3&$4
defines criminal offence also as- ,means a criminal offence under the laws of "hana.0
What this means is that where under any law of "hana it becomes a criminal offence for doing or
not doing a particular act, that action or inaction becomes a criminal offence. ?nder the 8urses
and 9idwives 'ct, $%:&, 38.!.#. D. $$:4, it is an offence for a person who ,willfully and falsely
uses a name title or an addition implying a 1ualification to practice nursing or midwifery.0 )o it
is a criminal offence under section & of the #oroners 'ct, $%56, 3'ct $74, that where a person
fails to notify the officer of the nearest police station where a dead body is found, or where a
person has died a violent, or any other unnatural death, or a death of which the cause is
unknown.
It is important to understand the nature of criminality. ' crime is an act that is punishable by state
sanction. If a person is found to be guilty of a criminal offence heHshe will be penalised as a
result. he penalty suffered is a punishment 3or ,sentence04. .unishment inflicted for offences
committed includes death, imprisonment, detention, a fine, payment of compensation and
liability to police supervision. In criminal matters, it is the state that prosecutes the person
accused of the criminal offence. he state in the prosecution of a crime is represented by the
'ttorneyA"eneral. he #onstitution of the !epublic of "hana, $%%& states under article 77
19
clauses 3<4 and 3+4 as follows- that ,3<4 he 'ttorney P "eneral shall be responsible for the
initiation and conduct of all prosecution of criminal offences.0 and then ,3+4 'll offences
prosecuted in the name of the !epublic of "hana shall be at the suit of the 'ttorney P"eneral or
any other person authorised by himHher in accordance with any law.0
he 'ttorney P"eneral himselfHherself may appoint an officer of his department not below the
rank of )tate 'ttorney,

or an officer holding a post e1uivalent to that rank or any other public
officer, or for a specified class of criminal cause or matter, public officers to be public
prosecutors. he officer or public officer includes the Deputy 'ttorney P "eneral, )olicitor P
"eneral, #hief )tate 'ttorney
&7
and police officer.
In order to prove that the person accused has committed the criminal offence, the prosecution
has the burden of proof. 'll of the elements or constituent parts of the offence must be proved
by the prosecution beyond reasonable doubt 3without leaving any doubt that the accused person
had committed a criminal offence4.
he police are the first representation of the )tate in a criminal matter in that that is the first
place to call. he police upon a report received on a criminal matter, may invite or cause the
arrest of the suspect, and then proceed to investigate the matter. 'fter investigation, if it is found
that a criminal act has been conducted, charges are then preferred against the person who
committed it. he person against whom the charges are preferred is known as the accused. he
accused is placed before a criminal court. 't this stage the accused is only a suspect. If the
accused is found guilty in a trial heHshe is then sentenced, and handed over to the prison
authority. he title of a case in a criminal trial is prepared as followsJ
THE REPU;LIC
Ae!sus
A+ ;B (Aused (t6e #a"e of t6e aused stated))
We shall now turn to look at some criminal offences under the #riminal /ffences 'ct, $%56 'ct
&%. We shall first look at some definitions under the interpretation section, section $ of 'ct &%-
,administer0 when used with reference to administering a substance to a person, means causing
the substance to be taken or introduced into a part of a personDs body whether with or without the
knowledge or consent of that person.
20
,duress0 means force, harm, constraint or threat, used with intent to cause a person against that
personDs will to do or to abstain from doing an act.
,felony0, ,first degree felony0 and ,second degree felony0 shall be construed in accordance
with section &%5 of the #riminal and /ther /ffences 3.rocedure4 'ct, $%56 3'ct <64. )ection &%5
of 'ct <6 provides in part thusJ
,3$4 where a criminal offence is declared by an enactment to be a first degree felony and the
punishment is not specified, a person convicted of that offence is liable to imprisonment for life
or any lesser term.0
,3&4 where a criminal offence which is not an offence mentioned in subsection ; is declared by
an enactment to be a second degree felony and the punishment for that offence is not specified, a
person convicted of that offence is liable to a term of imprisonment not exceeding ten years.0
he criminal offences mentioned in subsection ; are stealing- fraudulent breach of trust-
defrauding by false pretence- possession of stolen property- extortion- unlawful entry- forgery of
judicial or official document- possession of means of forging, corruption of and by public officer
or juror- accepting or giving bribe to influence public officer or juror- corrupt promise by judicial
officer or juror and withholding of public money by public officer. ' person convicted of a
criminal offence under any of these, is liable to a term of imprisonment not exceeding twenty P
five years.
,misdemeanour0 shall be construed in accordance with section &%5 of the #riminal and /ther
/ffences 3.rocedure4 'ct, $%56. )ection &%5 of 3'ct <6 4states in subsection 3+4 that ,3+4 Where
a criminal offence which is not an offence mentioned in subsection 3;4 is declared by an
enactment to be a misdemeanour and the punishment for that offence is not specified, a person
convicted of that offence is liable to a term of imprisonment not exceeding three years.0
,night0 means the time between the hour of seven in the evening of a day and the hour of six in
the following morning.
21
It is informative to note that some exemptions in the sense of conviction and strict sentencing
avail some persons in criminal punishment. )ection &5 states clearly that- ,for the purposes of
criminal law a person under twelve years of age is incapable of committing a criminal offence.0
he illustration provided under the section says that, ,', aged eleven years administers poison to
>. ' is not criminally responsible and is considered incapable of understanding the conse1uences
of those actions from a legal perspective.0
In the case of insanity, section &: of 'ct &% provides that where a person is accused of a criminal
offence, the special verdict provided by the 'ct <6 applies. ?nder section $<< of 'ct <6 where in
preliminary proceedings the court has reason to believe that the accused is of unsound mind and
conse1uently incapable of making a defence, it shall en1uire into the fact of the unsoundness by
causing the accused to be medically examined. )ection $<: of 'ct <6 provides that where the
court finds from evidence that a case of insanity is proven at the time that a person commits a
criminal offence, then the court shall return a special verdict to the effect that the accused is
guilty of the offence charged but was insane when it was doneJ where a special verdict is found
the court shall forward the court record or a certified copy of the court record to the 9inister of
2ustice and shall order the accused to be kept in custody as a criminal lunatic, in a place, and in a
manner directed by the court till the .residentDs pleasure is known.
In the case of Colli#s alias De!35 A T6e Re-u3li $%&?@ .??(' GLR C'%+ CA+ the appellant
was convicted of murder although there was evidence of insanity. It was held that the failure to
consider the appellantDs history of schi(ophrenia prejudiced him unduly. he re1uisite state of
mind is at the time the offence was committed and not at a subse1uent date. he court substituted
special verdict. In Willia"s A T6e Re-u3li $%&?).?*( %GLR C*CBCA, the accused set fire to
her husband who died as a result of injuries sustained therefrom. )he pleaded insanity. It was
held that the state of mind apart from evidence of history is often discovered by
contemporaneous acts and behaviour of the accused vi(- conduct immediately before, at the time
or immediately thereafter. *vidence did not show sufficient state of mental derangement for the
defence to succeed.
/n criminal liability of an intoxicated person, section &7 of 'ct &% states thus, ,3$4 *xcept as
provided in this section intoxication is not a defence to a criminal charge0. Intoxication becomes
a defence to a criminal charge if by reason of intoxication a person charged at the time of the act
22
complained of, did not know that the act was wrong or did not know what the person was doing
and ,3a4 the state of intoxication was caused without the consent of that person by the malicious
or negligent act of another person, or ,3b4 the person charged was by reason of intoxication,
insane, temporarily or otherwise at the time of the act.0
he section states that in a case that falls under section &7 3a4 the accused should be discharged,
but in that subsection & 3b4 the special verdict applies. )o in the case of R A O9a!e5 (%&D&) C
WACA **+ the appellant had been convicted of murder. =e contended that evidence of
intoxication had not been considered during the summing up by the judge. he court held that
although there was evidence of heavy drinking prior to the commission of the offence, it was not
such as to prevent the accused from forming an intention to kill. he appeal was dismissed.
In R A <i#8sto# $%&&)( 7; ?% CA+ the accused person had been invited to the flat of another.
=e was given refreshment laced with a drug and was then filmed having homosexual intercourse
with a minor, for purposes of blackmail. =e was prosecuted for the offence, and although he
pleaded intoxication by the act of a third party, he was convicted when the judge failed to direct
the jury on the effect of involuntary intoxication. =e appealed. It was held in allowing the appeal
that there was sufficient evidence of involuntary intoxication for the jury to have been directed
thereon and that failure to do this had rendered the conviction unsafe, such that it could not be
allowed to stand.
In <etsia9a6 A T6e State $%&*C ( GLR )?D SC+ the appellant was convicted of the murder of
his wife whom he had invited earlier to accompany him to the farm. =e pleaded intoxication
because earlier that day, he had drunk a bottle of ,akpeteshie0. he defence failed and he
appealed. It was held in dismissing the appeal that the state of intoxication must be such as to
affect the ability of the accused to appreciate the nature and 1uality of his act. >are evidence of
intoxication falls short of the standard re1uired to sustain the defence.
9ensahA >onsu notes that every time a doctor or nurse embarks upon the treatment or nursing of
a patient, some invasion of the bodily integrity of the patient occurs. )o it is for most allied
health professionals. #ertainly, all forms of physical examination would be criminal assault
without consent being obtained. It is important that in looking at criminal offence, discussion
23
should begin with criminal offence of assault which can be easily committed, and then to some
other criminal offences.
Assault
)ection 7+ states that, ,a person who unlawfully assaults another person commits a
misdemeanour0. his section presupposes that there is lawful assault. Lawful assault will re1uire
consent of a patient in medical or surgical treatment. #onsent obtained by deceit or of duress for
medical treatment is void.
<6
)ection 7; 3$4 notes different kinds of assault that includes, ,3a4 assault and battery, 3b4 assault
without actual battery, and 3c4 imprisonment.0
)ection 75 provides the meaning of assault and battery as when a person without the consent of
the other person and with the intention of causing harm, pain or fear or annoyance to the other
person, or of exciting the other person to anger, forcibly touches the other person. ' touch of the
kind is not only on the body but extents to clothing or any other thing in contact with the body or
with the clothes on the body, although the body is not actually touched.
'n illustration in the section provides that ' under false pretence of surgical treatment induces >
to consent to harm or pain, ' commits an assault and battery.
In the case of Co"fo!t E A#o! A T6e Re-u3li $%&@)( ' GLR I+ the first appellant in an
attempt to exorcise an evil spirit from the complainant, subjected her to some beating. It was
held that there was consent and that there was absence of malicious intent and, therefore, the
offence of assault had not been committed.
's regards assault without actual battery, section 7: provides that a person makes an assault
without actual battery on another person, if by an act apparently done in commencement of an
assault and battery- the person intentionally puts the other person in fear of an instant assault and
battery. hus, a person can make an assault by moving or causing a person, an animal, or a
matter to move, towards another person, although that person or the other person, animal, or
matter, is not yet within a distance from the other person that an assault and battery can be made.
In the case of ;!ue.<o#ua6 A T6e Re-u3li $%&*@( GLR *%%+ during a 1uarrel between the
appellant and a neighbour, he chased her in an effort to beat her up. =e was convicted of assault.
=e appealed, contending that he had not touched her. It was held that the mere act of chasing her
24
with the intention and, thus, causing an apprehension in her was sufficient for purposes of
proving assault.
It is important in all cases of assault and battery and assault without battery that the allied health
professional should not use an alien weapon on a patient. In order to avoid this, the nurse or
midwife 3where applicable4 should explain what is going to happen and reassure the patient in
any situation where the threat of harm may be an issue.
.
In reference to imprisonment, section 77 3$4 states that- ,' person imprisons another person if,
intentionally and without the other personDs consent, that person detains the other person in a
particular place, of whatever extent or character and whether enclosed or not, or compels the
other person to move to or be carried in a particular direction. 'n illustration provided is that ,'
by falsely pretending that > is under arrest prevents > from leaving >Ds own house. =ere '
imprisons >0. It is doubtful whether an allied health professional acting professionally will
imprison a patient. =owever, there may be times where a patient may not be able to pay the
health bill and the possibility of detention for that reason may arise. In this case it is for the allied
health professional to note the resulting criminal conduct.
A3et"e#t
'n occasion may arise where an allied health professional may not be directly involved in the
commission of a criminal offence but is instead an accessory to the act of the offence. hat is, the
allied health professional becomes connected with committing the criminal offence by assisting
the person who commits the criminal offence in several ways. he criminal offence may include
stealing, murder, assault, suicide and abortion. )ection &63$4 of 'ct &% sets the manner in which
assistance is provided. he section states that-
3$4 ' person who directly or indirectly, instigates, commands, counsels, procures, solicits, or
in any other manner purposely aids, facilitates, encourages, or promotes, whether by a
personal act or presence or otherwise, and a person who does an act for the purposes of
aiding, facilitating, encouraging or promoting the commission of a criminal offence by
any other person, whether known or unknown certain or uncertain, commits the criminal
offence of abetting that criminal offence and of abetting the other person in respect of that
criminal offence.0 )ection &63&4 adds thatJ
25
,' person who abets a criminal offence shall, if the criminal offence is actually
committed in pursuance of, or during the continuance of the abetment, be deemed to have
committed that criminal offence.0
'n allied health professional who finds himselfHherself in any of the stated situations to
abet the commission of a criminal offence may be held e1ually culpable with the person
who commits a criminal offence.
Suiide
'n allied health professional may find himself or herself involved in the abetment of suicide
either through procurement of dangerous drugs or medical weapon made as to help a person
commit suicide. )ection ;:3$4 states that, ,' person who abets the commission of a suicide
commits a first degree felony whether or not the suicide is actually committed.0 ' person who
attempts to commit suicide commits a misdemeanour 3section ;:3&4.
In the case of MS6a#e ,B R (%&@?) ** CAR &@, the appellant arranged for her mother to
commit suicide because her mother had been ill for a long time and had threatened to kill herself.
he attempt failed and the appellant was arrested, prosecuted and convicted.
A3o!tio# o! Misa!!ia8e
'bortion or miscarriage as defined under section ;73+4 ,means the premature expulsion or
removal of conception from the uterus or womb before the period of gestation is completed.0
)ection ;7 recognises that legitimate reason may arise where abortion or miscarriage will be
caused. In that case, the abortion or miscarriage becomes lawful. 'bortion or miscarriage is
lawful in the circumstances under section ;73&4- ,3a4 where the pregnancy is the result of rape,
defilement of a female idiot or incest, and the abortion or miscarriage is re1uested by the victim
or her next of kin or person in loco parentis if she lacks the capacity to make the re1uest- 3b4
where the continuance of the pregnancy would involve risk to the life of the pregnant woman or
injury to her physical or mental health, and the woman consents to it or if she lacks the capacity
to give the consent it is given on her behalf by her next of kin or the person in loco parentis- or
3c4 where there is substantial risk that if the child were born, it may suffer from or later develop,
a serious physical abnormality or disease.0 In loco parentis means in the place of a parent, acting
as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a
parent.
' lawful abortion or miscarriage is also lawful under section ;7 3&4 when it is caused by a
registered medical officer specialising in gynaecology or any other registered medical
26
practitioner in a "overnment hospital or in a private hospital or clinic registered under the
.rivate =ospital and 9aternity =omes 'ct, $%;7 38o.%4 or in a place approved for the purpose
by legislative instrument made by the 9inister.
'part from the circumstances under subsection ;73&4 of 'ct &%, any other conduct by a person
that causes abortion or miscarriage is a criminal offence. hus, section ;73$4 states that, ,3a4 a
woman who, with intent to cause abortion or miscarriage, administers to herself, or consents to
be administered to her a poison, drug or any other noxious thing, or uses an instrument or any
other means, or 3b4 a person who
i. administers to a woman a poison, drug or any other noxious thing or uses an
instrument or any other means with the intent to cause abortion or miscarriage of that
woman, whether or not that woman is pregnant or has given her consent,
ii. induces a woman to cause or consent to causing abortion or miscarriage,
iii. aids and abets a woman to cause abortion or miscarriage,
iv. attempts to cause abortion or miscarriage, or
v. supplies or procures a poison, drug, an instrument or any other thing knowing that it
is intended to be used or employed to cause abortion or miscarriage0, commits a
criminal offence. )ection ;73<4 ends it as follows- ,' person who intentionally and
unlawfully causes abortion or miscarriage commits a second degree felony.
In R , ;ou!#e (%&D?) D All ER *%C+ the court held that the doctor must not necessarily wait until
the patient is in peril of immediate death. It is his duty to perform the operation on reasonable
grounds and ade1uate knowledge and in good faith- if he forms the opinion that it is necessary
for the purpose of preserving the life of the patient.
In R A S"it6 (0o6#) $%&@)( % All ER D@*+ CA, the appellant carried on a special practice in the
termination of pregnancies. ' young woman came to see him for an abortion. =e neither
examined her internally nor asked about her medical history. 8o arrangements were made to
seek a second medical opinion. =e agreed to terminate the pregnancy upon payment of some
money. It was held that the pregnancy was not terminated on the good faith of the appellant.
here was no medical risk to the girl of carrying the pregnancy. =e had acted in bad faith since
he had no basis for carrying out the termination.
27
SEFUAL OFFENCES
We have noted that abortion or miscarriage is lawfully permitted where there has been rape or
defilement of a female idiot. It is humbly submitted that the word idiot is substituted with the
words mentally challenged. We shall, therefore, turn to look at sexual offences and ask the
1uestion whether an allied health professional can be involved in any sexual offence. In one
unreported case, a male nurse while on duty raped a female patient in her sick bed. 'n allied
health professional must also understand the implication involved in treating rape cases. 's part
of the health team, the allied health professional must know that rape cases are first and foremost
criminal in nature. )o it is for other sexual offences as defilement and carnal knowledge of the
mentally challenged.
Ra-e
)ection %: of the #riminal /ffences 'ct, $%56 3'ct &%4 provides that, ,' person who commits
rape commits a first degree felony and is liable on conviction to a term of imprisonment of not
less than five years and not more than twentyAfive years.0
' person is guilty of rape if it is proved that he had ,carnal knowledge of a female of not less
than sixteen years without her consent0 3section %7 of 'ct &%4 and where it becomes necessary in
a trial to prove ,carnal knowledge or unnatural carnal knowledge, the carnal knowledge or
unnatural carnal knowledge is complete on proof of the least degree of penetration0 3)ection %%
of 'ct &%4.
I# R A Flatte!5 (%?@).@@) %D Co: CC D??
he prosecutrix submitted to sexual intercourse with the accused, under the belief that he was
performing on her a surgical operation to cure her of a bout of fits. he court held the act to
which the prosecutrix submitted was materially different from what the accused did. )he
consented to being treated medically and not to the accused having sexual intercourse with her.
he act therefore, amounted to rape.
Defile"e#t
Defilement under the #riminal /ffences 'ct, $%56 3'ct &%4 is where it is proved that a person
has had ,natural or unnatural carnal knowledge of a child under sixteen years of age0. he
penalty where defilement is committed is a term of imprisonment of not less than seven years
28
and not more than twentyAfive years 3)ection $6$ of 'ct &%4. #onsent in this criminal matter is
immaterial.
In the case of Re-u3li A 1e3oa6 $%&*?( G L R ')? , the accused defiled a nine year old girl
who failed to make a report of the incident. he court held that even if this fact indicated that she
was a consenting victim, her consent was not of conse1uence.
Ca!#al >#o9led8e $of idiot(
It is a criminal offence that attracts a term of imprisonment of not less than five or not more than
twentyA five years on summary conviction, where,
,' person has carnal knowledge or has unnatural carnal knowledge of an idiot, imbecile, or a
mental patient in or under the care of a mental hospital whether with or without the consent of
that other person in circumstance which prove that the accused knows, at the time of the
commission of the criminal offence that the other person has a mental incapacity.0 3)ection $6&
of 'ct &%4.
I# R A P!ess5 $%?*N.*@( %/ Co: CC*D*B
he accused had sexual intercourse with a thirtyAseven year old female who was an apparent
idiot. he court held that the accused was guilty of an offence.
I#dee#t assault
Setio# %/D of At '& (%) states t6atG ,' person who indecently assaults another person
commits a misdemeanour and is liable on conviction to a term of imprisonment of not less than
six months.0 he section makes it clear that a person commits the criminal offence of indecent
assault if, without the consent of the other person that person- 3a4 forcibly makes a sexual bodily
29
contact with the other person, or 3b4 sexually violates the body of the other person, in a manner
not amounting to carnal knowledge or unnatural carnal knowledge.
Indecent assault, therefore, comes in the form of kissing, holding the male or female
reproductive organs or buttocks of another person without that personDs consent. In one
unreported case the story is told of a male patient who re1uested a female nurse to feed him. In
the course of feeding the patient, he fondled with her breast. #learly, this was a case of indecent
assault by the patient.
Mu!de!
9urder under section +: of the #riminal /ffences 'ct, $%56 3'ct &%4 means, ,' person who
intentionally causes the death of another person by an unlawful harm commits murder, unless the
murder is reduced to manslaughter by reason of an extreme provocation, or any other matter of
partial excuse, as is mentioned in section ;&.0 9urder is therefore, unlawful killing of one person
by another of sound mind with the intention to do so. =arm as is noted under the interpretation
section of 'ct &%, means a bodily hurt, disease or disorder whether permanent or temporary.
)ection <6 3&4 of 'ct &% approves the interchangeable use of force and harm. It provides that ,N
expressions applying to the use of force apply also to the causing of harm, although force only
may be expressly mentioned.0
)ection << of 'ct &% states that ,' person who is authorised by an enactment to use force may
justify the use of necessary force according to the terms and conditions of that authority.0 he
practice of the nurse or midwife re1uires the use of force or harm. his is by way of suturing and
injection, among others. !ecognition is given to the fact that lawful use of force cannot be
excluded in the lives of men. )ection +&, therefore, in providing justification on grounds of
consent for force to be used approves that, ,a wound or grievous harm cannot be justified on
grounds of consent, unless the consent is given, and the wound or harm is caused, in good faith
for the purposes or in the course of medical or surgical treatment0 3section +& 3b4 of 'ct &%4.
hus a wound or grievous harm cannot be justified on grounds of consent. )imilarly, the killing
of a person cannot be justified on the ground of consent 3section +& 3a4 of 'ct &%4. hus, a
wound, or grievous harm, and killing, based on consent or made otherwise, that results in death
30
will not be justified- it is a criminal offence of murder for any allied health professional who
engages in professional misconduct or malpractice with intention to cause unlawful harm
resulting in the death of a patient.
In Se!e6i A E A#o! A T6e State $%&*D( ' GBLBR CD %+ SBCB+ the appellants pushed a man off a
fast moving train and he was killed. he court held that there was sufficient evidence of an
intention to cause death and the infliction of unlawful harm. he essential elements of the
offence of murder are intent to cause death, and infliction of unlawful harm. heir appeal against
a conviction of murder was dismissed.
he law is clear whoever commits murder shall be guilty of first degree felony.
Ma#slau86te!
?nder section ;&, a person who intentionally causes the death of another by unlawful harm,
commits manslaughter, and not murder or attempted murder, if that person , 3a4 was deprived of
the power of selfAcontrol by an extreme provocation given by the other personN0 )o, one of the
reasons which may reduce murder to manslaughter, is extreme provocation. 'nother reason
given under section ;& 3d4, is ,being a woman she caused the death of a child, which is a child
under the age of twelve months, at a time that when the balance of her mind was disturbed
because she had not fully recovered from the effect of giving birth to the child or by reason of
lactation conse1uent on the birth of the child.0 We shall look at this two. )ection ;< states those
matters that amount to provocation. We shall limit ourselves only to two of the matters that may
amount to extreme provocation under the section. )ection ;<3c4 states that, ,an act of adultery
committed in the view of the accused person with or by the wife or the husband, or the criminal
offence of unnatural carnal knowledge committed in the husbandDs or wifeDs view on the wife, or
the husband, or child-0 he position of the law is clear that a reaction from the husband or
wife3accused4, that may lead to the death and therefore, to the charge of manslaughter must be
done on the spur of the moment. It will not be for the husband to wait a while to react.
In the case State , <9ad4o Ofo!i $%&*%( GBLBRB %*'+ SBCB , the appellant suspected his wife, the
deceased, of adultery. /n the fatal day, when his wife and her mother were going to the farm, the
appellant suddenly appeared, armed with a cutlass and attacked his wife, who died later the same
day from the injuries sustained. In his defence, the appellant alleged that his deceased wife had
31
confessed to adultery and had slapped him. In this he was disbelieved by the trial judge, who
convicted him for murder. In the words of the court, ,even if the deceased had confessed to
adultery, this alone would not amount to such extreme provocation as would reduce offence to
one of manslaughter.
he second reason for which murder would be reduced to manslaughter is section ;< 3d4. he
section states that, ,a violent assault and battery committed in the view or presence of the
accused person on the wife, husband or child, or parent, or on any other person who is in the
presence and in the care or charge of the accused person.0 In the case of R , Rose $%??'.?*( %C
COF CC C)/+ the accused killed his father as a result of his reasonable belief that his father was
cutting his motherDs throat. he court held that his conduct was excusable.
hen in R , F!af!a (%&D?) ) WACA *%, the appellant shot an arrow and killed one of a group of
people who were committing an assault and battery on his wife. he court per the majority held
that the degree of assault was violent enough to amount to extreme provocation.
's noted under section ;&3d4 a woman who causes the death of a child who is under twelve
months old at a time she has a disturbed mind as a result of not fully recovering from the effect
of birth to a child or as a result of lactation, may have murder reduced to manslaughter. Indeed,
this situation may occur in puerperal psychosis. In R , C6i"a (%&))) %/ WACA ''D , a woman
killed her twin female children shortly after birth to them on the ground that, in her view, it was
abomination to give birth to twin female children. =er conviction of murder was substituted by
one of infanticide.
wumasi, says that whenever an accused puts forward a plea of provocation, he in effect tells the
court that he acted at a time when he temporarily had lost the power of selfAcontrol. hus as we
have seen, extreme provocation when proven, may reduce murder to manslaughter. If it appears
to the court that it is not, provocation will be excluded and the accused person will be convicted
of murder unless, of course, he has another defence.
)ection ;+3$4 provides for the cases in which the benefit of provocation is excluded. We shall
look at only one of them. )ection ;+ 3$4 3a4 states, ,that the accused person was not in fact
deprived of the power of selfAcontrol by the provocation.0
In the case of Do#>o! , T6e Re-u3li $%&@*( % GBLB RB)?%+ CA+ the appellant killed a woman
who caught him stealing from her farm. =e pleaded provocation because the woman attacked
32
him with a palm branch and he heaped insults on him. he court held that there was no evidence
that he had lost the power of selfAcontrol since a beating with a palm branch was not such as to
make a person lose the power of selfAcontrol.
In <9a3e#a Atta A 7uee# (%&CD) %) WACA D'D, the appellant caught his wife in the act
sexual intercourse with his brother. =e did not do any act against his wife or his own brother on
the spur of the moment when he saw them in the act, but he called his wife to follow him to a
certain latrine where he killed her with a cutlass, and later went to his room, collected his gun
and proceeded to shoot the brother in the latterDs store. he court held that he had not lost the
power of selfAcontrol considering the circumstances under which he killed them.
/ne author
<$
notes that there are various ways in which manslaughter can be committed, and of
the lot, the one that is of most relevance to health professionals is involuntary manslaughter. his
arises when death is caused by recklessness or gross negligence. Cor the health professional, the
death of a patient, where not deliberately planned, is most likely to be caused by gross
negligence.
In respect of manslaughter, section ;6 of 'ct &% states that- ,' person who commits
manslaughter commits a first degree felony.0
)ection ;$ of 'ct &% defines manslaughter thus-
,' person who causes the death of another person by unlawful harm commits manslaughter, but
if the harm causing the death is caused by negligence, that person has not committed
manslaughter unless the negligence amount, to a reckless disregard for human life.0
Indeed, the author explains that the definition of manslaughter indicates that proof of mere
negligence is not sufficient to convict a health professional of the criminal offence. he
negligence must be of such a high degree as to constitute reckless disregard for human life.
)ection $& of 'ct &% defines negligence as where, ,' person causes an event negligently, where
without intending to cause the event, that person causes it by a voluntary act, done without the
skill and care that are reasonably necessary under the circumstances.0 he illustrated section on
manslaughter explains in part as follows- ,' woman who does not have knowledge of
midwifery, acts as a midwife, and through her want of skill she causes death. =ere, if ' knew
that a properly 1ualified midwife or surgeon could be procured, the fact of ' so acting without
33
possessing proper skill and without necessity for so acting, is evidence of negligence, although it
appears that she did her best. >ut if the emergency was sudden, and a properly 1ualified midwife
or surgeon could not be procured, ' has not acted negligently, provided she did the best she
could under the circumstances.0 he provision also illustrates that, ,If the law directs poisons to
be sold only in bottles of a particular kind, and the chemist sells poison in a common bottle, this
is evidence of negligence, even though the common bottle is labelled ,.oison.0
In the case of t6e State A <9a>u N>5i $%&*'( % GBLBRB %&@, a student nurse was asked to treat
a sick child. =e agreed to do so and injected the child twice with what he believed was
mepacrine. he child died within a few hours. .ostA mortem examination revealed that death was
due to arsenic poisoning. he accused was charged with manslaughter and practising medicine
without being registered. he court held that the negligence of the accused in mistaking arsenic
for the drug he intended to administer did not amount to a reckless disregard for human life.
'B Ci,il Atio#
#ivil law exists to protect persons 3including nonAhuman persons such as companies4 against the
wrongful actions or omissions of other persons. #ivil wrongs include breaches of contract, loss
or damage or injury to a person due to a personDs negligence or injury to a personDs reputation
due to anotherDs defamatory remarks. he nature of civil action is that the person 3plaintiff4 who
brings civil action sues the other person 3defendant4 for a remedy in the form of monetary
compensation and injunction among others. he remedy that a person seeks to claim is not
usually designed to be punitive. o prove the wrong of the defendant, the plaintiff has a burden
of proof and this must be discharged on a balance of probabilities.
<&
In an allegation with reference to the tort of negligence, the plaintiff must prove that in a case of
an allied health professional, a legal duty exists and that duty has been breached resulting in a
harm or injury to himHher.
34
If the defendant also raises a defence to the allegations, then heHshe too must prove the elements
of hisHher defence on a balance of probabilities. he case in a civil action is titled, plaintiff 3with
name3s4 versus defendant 3with name3s4.
<<
/ne of the areas of civil law that affects the work of an allied health professional is the law of
tort. ' tort is a civil wrong committed by one person against another such as to cause that other
person some injury, damage to physical property, damage to hisHher financial interests, and injury
to hisHher reputation among others.
Whenever a person suffers damage or injury in any form, he Hshe is inclined to look to the law
for redress. his redress may take various forms. In a great majority of tort actions coming
before the courts, the plaintiff is seeking monetary compensation 3damages4. In many cases,
however, the plaintiff is seeking an injunction to prevent the occurrence of harm in the future.
he law of tort like another branch of law, namely contract, is concerned with liability. he
authorities see tortious liability as that which ,arises from the breach of a duty primarily fixed by
law- this duty is towards persons generally and its breach is repressible by an action for
unli1uidated damages0
<+
.?nli1uidated damages is an undetermined amount of money that may
be awarded to the plaintiff if heHshe succeeds in hisHher action.
orts may be intentional or nonAintentional. In intentional tort, the person who commits it intends
the action that causes harm to the victim. *xamples are the torts of assault, battery and false
imprisonment. 8onAintentional torts generally constitute negligence. )ome of the torts that affect
allied health professionals are assault, battery, false imprisonment, defamation and negligence.
;atte!5 a#d Assault
)ince most of the allied health professionalDs work involves the physical touch of patients for
diagnosing and administration of therapy and others, the allied health professional must
understand that such clinical procedures may be instituted upon the consent of a patient. #onsent
may be obtained in writing or may be implied and inferred from the patientDs conduct.
(a) ;atte!5
,>attery is the intentional and direct application of force to another person.0
<;
'n example will
be one person striking another, throwing water at a person resulting in the drops of it falling on
the intended person, pulling away a personDs chair causing him to fall
<5
or an allied health
35
professional 3physiotherapist4 applying heat wave without going through the operating procedure
of informing the patient..
>attery in this sense then consists of touching a person without permission. ' clear explanation
of what is to be done is essential. If a patient refuses to be touched, that wish must be respected.
)lapping another at the back for fun or as an act of friendship, does not however constitute the
tort of battery.
<:
If that were so the world, in the current context, will be a strange place to live
in.
(3) Assault
,'ssault is an act of the defendant which causes to the plaintiff reasonable apprehension of the
infliction of a battery on him by the defendant.0
<7
?sing the example for battery, where a person
throws water at another and that person shows fear of the drops of water falling on him, the
associated fear is assault in this sense. In both battery and assault, genuine consent on the part of
a patient, whether expressed or implied negates the torts of assault and battery.
So"e A--liatio#s of t6e To!ts of Assault a#d ;atte!5
'uthorities
<%
have cited some of the grounds for civil action in the assault and battery of a patient
pursuing hisHher rights- depending on the types of patient as followsJ
$. Corcing a patient to submit to a treatment for which heHshe has not given consent either
expressly in writing, orally or by implication. Whether or not consent was signed, a
patient should not be forced, for resistance implies a withdrawal of consent. his might
be as simple as given an enema and as specialised as an intravenous injection. 9ost
hospitals re1uire a patient or hisHher personal representative to sign a statement upon
admission, giving consent to treatments and procedures deemed necessary to hisHher
welfare. *ven so, the nurse and everyone else should be extremely careful about forcing
the patient to undergo treatment since the patient, under the law, must understand why the
treatment is considered necessary and what risks are involved.
36
&. hreatening to strike or actually striking an unruly sick child or an adult, except in self
defence.
<. Corcing a patient out of bed to walk postoperatively.
+. #utting a female patientDs hair or having it cut without her consent or the consent of her
husband. Written consent must be obtained to cut a patientDs hair prior to an operation or
at any other time when it is so reasonable to do, otherwise, the nurse or midwife may be
accused of assault.
;. *jecting a visitor from a patientDs room without the patientDs consent.
(C) False I"-!iso#"e#t
Calse imprisonment is defined as the ,infliction of bodily restraint which is not expressly or
impliedly authorised by the law.0
+6
It has been explained that both ,false0 and ,imprisonment0
are somewhat misleading terms. Calse is used in less common sense for ,erroneous0 or ,wrong0.
It is 1uite possible to commit the tort without ,imprisonment0 of a person in the common
acceptation of the term. In fact, neither physical contact nor anything resembling a prison is
necessary. 'n example of false imprisonment is where a lecturer locks his class in the lectureA
room after the usual time for dismissal has arrived. )o too is it when someone is detained in the
public streets. ,Imprisonment0 is the restraint of an individualDs liberty, whether it is in the open
field or in the stocks or cage in the street, or in a personDs own house, as well as the prison. 'nd
in all these places, the party so restrained is said to be a prisoner so long as he has not his liberty
freely to go at all times to all places.
+$
he term also applies to many clinical procedures that actually or conceivably are performed in
hospital and nursing or midwifery situations. If they are performed without the consent of the
patient or hisHher legal representative the nurse or midwife, and their employer will be held
liable. In most instances a health professional 3nurse or midwifeQ will not be held liable if it can
be proved that what was done was necessary to protect others, namely patients and staff.
A--liatio# of false I"-!iso#"e#t to Nu!si#8
!estraining a patient by physical force or using appliances without written consent, especially in
procedures where the use of restraints is not usually necessary. his may be a delicate situation
because if restraint is not used, such as side rails, to protect a patient, the nurse may be accused
37
of negligence and at the same time if restraint is used without consent that may be false
imprisonment.
!estraining a mentally ill patient who is neither dangerous to himselfHherself nor to others. Cor
example, patients who wander about the hospital making a nuisance of themselves usually
cannot legally be locked in a room unless they show signs of violence.
Detaining, for an unreasonable period of time a patient who is medically ready to be discharged.
he detention may be due to the patientDs inability to pay his bill or to inordinately wait, at
hisHher expense, for the delivery of an orthopaedic appliance or other service. In such instances,
the nurse or nursing department may not be directly involved but it is always wise to know the
possibility of legal developments and to exercise sound judgment in order to be completely fair
to the patient and avoid trouble.
Detaining an unwilling patient in the hospital. If a patient insists on going home, or a parent or
guardian insists on taking a minor or other dependent person out of the hospital before hisHher
condition warrants it, hospital authorities cannot legally re1uire himHher to remain. In such
instances, the doctor should write an order permitting the hospital to allow the patient to go home
,against advice0, and the hospitalDs representative, namely nurse or midwife, should see that the
patient or guardian signs an official form absolving staff of all responsibility should the patientDs
early departure be detrimental to hisHher health and welfare. If the patient refuses to sign, a
record should be made on the chart of exactly what occurred and an incident report should be
filed. It may so be that the patient should be helped to the hospital entrance in the usual manner.
+&
Defa"atio#
,Defamation is the publication of a statement which reflects on a personDs reputation and tends to
lower him in the estimation of rightA thinking members of society generally or tends to make
them shun or avoid him.0
+<
Liability for defamation is divided into two categories, namely libel and slander. ' libel is made
up of a defamatory statement or representation in permanent form. Cor example a picture, statue,
waxwork effigy, or any writing, print mark broadcasting, both radio and television and theatrical
performances. )lander exists where the communication is made in oral form or by gesture.
++
38
In both slander and libel, a third person must be involved. Cor example, one person can make all
kinds of derogatory statements directly to another without getting into trouble with the law
unless overhead by a third person. hen the remarks are slanderous. It should be for the third
person to understand, what has been said. If the words were spoken in a language that the third
person does not understand it is not slanderous.
Litigation is expensive and re1uires time, energy and attention. 8urses and midwives are,
therefore, advised to be wise in what they say to protect them from litigation. /n the other hand
they should be careful in accepting unfair and untrue statements about themselves that are likely
to adversely affect their reputations and future in nursing as well as the good name of nursing in
the community.
Ne8li8e#e
,8egligence as a tort is the breach of a legal duty to take care which results in damage, undesired
by the defendant, to the plaintiff.0
+;
he ingredients for the tort of negligence are legal duty 3duty
of care4, a breach of that duty and conse1uential damage. In the scenario of the tort of negligence
in relation to an allied health professional and a patient, it will be a legal duty owed to the
plaintiff 3a patient4 by the defendant 3allied health professional4 to use due care 3reasonable care
and re1uisite allied health professional skill under the circumstances4. he duty of care is
breached where the allied health professional3defendant4 fails to use the ac1uired skill, resulting
in harmHinjury to the plaintiff 3the patient4. If evidence proved that the plaintiffDs injury was
caused by the direct action or inaction of the defendant, then the tort of negligence has been
caused.
'uthorities
+5
say it is not for every act that a person may be held responsible in law, nor even for
every careless act that causes damage. ' person will only be liable in negligence if heHshe is
under a legal duty to take care. ,Duty0 is the chief ingredient of the tort of negligence.
he classic case of Do#o86ue A Ste,e#so# $%&D'( ABCB C*'+ is helpful to determine the crucial
duty of care. In this case a manufacturer of ginger beer had sold to a retailer ginger beer in an
opa1ue bottle. he retailer resold it to ', who treated a young woman of her ac1uaintance to its
contents. hese included the decomposed remains of a snail which had found its way into the
bottle at the factory. he young woman alleged that she became seriously ill in conse1uence and
sued the manufacturer for negligence. he =ouse of Lords held that the manufacturer owed her a
39
duty to take care that the bottle did not contain noxious matter and that he would be liable in tort
if that duty was broken. Lord 'tkin, one of the Lord 2ustices of the =ouse of Lords to which the
case had been appealed, spoke in part thusJ
,Nhe rule that you are to love your neighbour becomes in law you must not injure your
neighbour- and the lawyerD 1uestion. Who is my neighbourL receives a restricted reply. Rou must
take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then, in law is my neighbourL he answer seems to beA
persons who are so closely and directly affected by my act that I ought reasonably to have them
in contemplation as being so affected when I am directing my mind to the acts or omissions
which are called in 1uestion.0
+:
he neighbour of an allied health professional in context to hisHher duty apart from colleagues is
mainly the patient. he allied health professional at work, has a special relationship to the
patients heHshe serves and, thus, have a duty of care imposed on him or her.
he allied health professional has special training and expertise and is re1uired to exercise a very
high degree of care in carrying out tasks. Where for one reason heHshe does not apply this skill
and expertise or omits to apply hisHher skill resulting in injury or death and it is proven that theH
she is the cause of it, a case of negligent suit will be brought against him or her or the employer.
Indeed the allied health professionalDs skill relate to modern state of the arts or the technology
available to himHher. he case of Roe A Mi#iste! of Healt6 @%&C)( ' K.;B**, was in $%+:. '
patient was in a hospital and Dr. "., an anaesthetist, administered a spinal anesthetic to him in
preparation for a minor operation. he anaesthetic was contained in a glass ampoule which had
been kept before use in a solution of phenol, but unfortunately, some of the phenol had made its
way through an ,invisible crack0 into the ampoule. It thus contaminated the anaesthetic, with the
result that !. became permanently paralysed from the waist down. Dr. ". was aware of the
conse1uences of injecting phenol, and he therefore subjected the ampoule to a visual
examination before administering the anaesthetic, but he was not aware of the possibility of
,invisible cracks0. =ad he been aware of this possibility, the danger to !. could have been
eliminated by adding a powerful colouring agent to the phenol so that contamination of the
anesthetic could have been observed. It was held that he was not negligent in not causing the
40
phenol to be coloured because the risk of invisible cracks had not been drawn to the attention of
the profession until $%;$ and care has to be exercised to ensure that conduct in $%+: is only
judged in the light of knowledge which then was or ought reasonably to have been possessed. In
this connection, the existing medical literature at the time did not make !Ds injury any less
probable than it would have been after $%;$.
In the case of P!es35te!ia# Hos-ital+ A8o8o A ;oate#8 $%&?).%&?*( GBLB RB DB%%* CBA+ the
plaintiff, a senior nurse Pmidwife, was an employee of the defendant hospital. /n $: 2anuary,
$%7$ the plaintiff was on night duty assisted by a nurse. ' pregnant woman came at % p.m. to
deliver. 'fter the preliminary procedure had been done the pregnant woman was put to bed. )he
later felt like using the toilet. )he got out of bed but then realised it was rather the baby which
was descending and therefore, called the plaintiff for assistance. he plaintiff told the pregnant
woman that her time was not yet due. 's the pregnant woman was plodding towards her bed,
she delivered the baby on the floor and called for the plaintiffDs help. >oth the plaintiff and the
nurse rushed to the scene. Instead of necessary sympathetic and professional assistance re1uested
of her, the plaintiff insulted the new mother and slapped her twice.
)he cut the umbilical cord and left the baby in the pool of blood and fluid until the nurse took
charge of the baby. he plaintiff then ordered the new mother to wipe off the blood and remove
the placenta from the floor. Collowing that incident, the plaintiff was invited the following day
to the matronDs office and interrogated. )he behaved insultingly to the authorities. he defendant
then gave her a 1uery the same day which she failed to answer. he defendants therefore,
dismissed the plaintiff. he letter of dismissal spelt out the plaintiffDs remissness and charged her
under article &+ of the condition of service for insubordination and gross negligence of duty.
he dismissed staff, therefore, sued claiming damages for wrongful dismissal and perpetual
injunction restraining the hospital authorities from forcibly removing her belongings from the
nursesD 1uarters. he trial court held on behalf of the dismissed staff that she was wrongfully
dismissed. he defendant hospital then appealed. he court held that the plaintiff stood
condemned for instant dismissal either on account of gross insubordination or of gross
negligence.
Indeed the P!es35te!ia# Hos-ital+ A8o8o case does not only exhibit a classic case of gross
negligence on the part of the nurseAmidwife but to the knowledge of the student and practicing
nurse and midwife, a pristine case of criminal assault and the intentional torts of assault, battery
41
and false imprisonment. Indeed, the new mother could have sued the nurse on all three
intentional torts in addition to that of negligence and attached the employerAthe .resbyterian
=ospital, 'gogoHhe .resbyterian #hurch of "hana.
In the case of Asafo A Cat6oli Hos-ital of A-a" $%&@D( % GB LBRB '?'+ in December $%5%,
the plaintiffDs sixA week old daughter was admitted as an inApatient at the defendantsD hospital.
he child was kept in the special ward for children and was fed three times a day only on the
instructions and at the invitation of the hospital staff on duty. Due to the age of the child, her
mother had to sleep at the hospital in order to breastfeed her, but neither the plaintiff nor the
mother had access to her except at the invitation of the hospital authorities. /n or about $+
2anuary, $%:6 the child disappeared and nobody knew her whereabouts. he plaintiff instituted
action against the defendants for damages for negligence. he court gave judgment to the
plaintiff. In giving judgment the court said in part that by accepting the child into their custody
for treatment the defendants became duty bound to ensure her safe custody and to deliver her
back to the plaintiff whether dead or alive. ' breach of that duty would entitle the parents of the
child to institute action against the defendants for damages provided negligence and subse1uent
loss of the child could be proved.
Indeed, the #ommission, in the So"i case, furthermore held that ema "eneral =ospital did not
use reasonable care and attention and show diligence expected in the running of a public hospital
and therefore, miserably failed in its duty of care to the patient. he public had a right to expect
the hospital to provide prompt medical attention, at least in an emergency situation.
'uthorities
+7
have cited some common acts of negligence that a nurse is most likely to commit in
the practice of nursing as followsJ
#areless attention to a patientDs personal belongings, resulting in the loss of valuable or
necessary property, such as expensive jewelry, money, prostheses, or dentures.
Cailure to make sure that faulty e1uipment is removed from use in crowded corridors or hall
ways or slippery or that unclean floors are taken care of, and that fire ha(ards are eliminated. '
case of the kind will also implicate other professionals, for example, the hospital administration.
42
Cailure to use ade1uate precautions to protect the patient against injury. ' nurse knows that
drugs or hot li1uids, or potentially harmful implements, such as scissors must be kept out of the
reach of a young child or a delirious or confused patient.
9edication errorJ the major errors in order, are imprudent wrong dose, wrong drug, omission of
a dose, wrong rate of administration, wrong route and wrong time.
8urses who are imprudent and take unsafe shortcuts or otherwise fail to adhere to what they
know is competent nursing practice are being negligent.
'bandoning a patient, 'bandonment simply means leaving a patient when the nurseDs duty is to
be with himHher. Cor example, leaving a child or incompetent adult without the protection
re1uired to be offered.
Cailing to count sponges H instruments before and after certain surgical operation and therefore,
leaving any one of them in the internal cavity of a patient.
Cailure to respond or to ask someone else to respond promptly to a patientDs call or signal if,
because of such failure, a patient attempts to take care of hisHher own person and is injured . his
might happen when heHshe attempts to get out of bed to go to the bathroom or reaches for a bed
pan in his bedside stand.
Indeed in carrying out the duties prescribed under L.I.57<, 3regulation $&Afourth and fifth
schedules4, if the nurse fails to apply the re1uired skill and care resulting in harm to a patient,
and evidence proves that, heHshe will 1ualify under the tort of negligence.
he matter of negligence has been of concern to the "hanaian authorities. While such cases
affect all health professionals, it is very informative to nurses and midwives.
In the 9onday, ; 'ugust, &66& edition of the "hanaian imes the #ommission on =uman !ights
and 'dministrative 2ustice 3#=!'24 decried the myriad of complaints it had received against
health professionals in the country. 'mong the complaints were health professionalsD failure to
provide prompt medical care to patients, delays in operating on patients, nursesD lack of
diplomacy and tact in dealing with patients.
43
he #ommissioner of #=!'2 said that the number of complaints received against health
professionals over the previous two years had been on the increase, and called on health
professionals to be aware of legal responsibilities towards patients.
=e said that though the culture of suing health professional had not yet taken root in the country,
,the indications are that patients are becoming aware of their rights and are willing to take action
against them and health administrators.0
he "hanaian imes edition of hursday, /ctober &;, &666 also carried the news item captioned,
,=ospital )taff to >e .unishedNfor negligence, malpractices.0 he news item saidJ ,wo
#ommittees set up to investigate allegations of malpractices and negligence in some health
institutions have established that there were preventable deaths.
hey also revealed the inability of some hospital staff to produce the body of a baby, who was
alleged to have died.
Curthermore, the #ommittee established the falsification and forgery of medical forms, coverAup,
money and corruption.
#onse1uently, they recommended that some medical staff should be punished and appropriate
compensations paid to all relatives of the victims and written apologies sent to the victims. .rof.
Ewaku DansoA>oafo, then 9inister of =ealth received the reports in 'ccra.
he #ommittees were the aylor #ommittee which investigated cases of malpractices at the
!idge and 'chimota =ospitals and the 9amprobi .olyclinic and the Eplomedo #ommittee
which en1uired into the alleged controversial death of a baby at the EorleA>u eaching
=ospitalN.resenting his committeeDs report Dr. 2oseph aylor, highlighted the turning away of a
pregnant woman by the 'chimota =ospital staff because they were in an anniversary mood.
hat resulted in the death of a patient after giving birth.
/n !idge =ospital and 9amprobi .olyclinic, Dr. aylor said deaths recorded were preventable
but they occurred due to negligence by some nurses and staff of the clinic.
he #ommittee recommended that disciplinary action should be taken against the nurses, while
the family of the deceased, 'ugustina 9ensah, be compensatedN0
44
)till on negligence, the Daily "raphic of $7 2une, $%%: carried the story captioned, ,ragedy at
E'=0, Dead 9anDs Camily at ,War0 with =ospital 'uthorities. 8egligence #auses >abyDs 'rm
to be 'mputated.0 he story continued thusJ ,'n alleged negligence of duty by some medical
personnel at the Eomfo 'nokye eaching =ospital 3E'=4 has led to the death of an adult and
the amputation of the arm of an infant at the hospital.
he first incident involved a retired army )ergeant, William E. Reboah from Dormaa 'henkro,
who died following head injuries he sustained when an oxygen bottle fell on his head while on
admission at the hospital.
In the second incident, the arm of the infant, just a few days old, had to be amputated because the
right thing was not done, while administering infusion, therefore, causing the arm to go numb
and dead.
It was said that the arm had to be tied for an infusion to be administered but the hand was left
untied till the next morning when the arm was found to have gone numbed and dead
necessitating the amputation0
he 'ccra 9ail of uesday, 2une, $%, &666 carried this story with the title, ,EorleA>u in I;66
9illion 9alpractice )uit.0 he story read in part that the EorleA>u eaching =ospital was due to
appear in court to answer a case of negligence brought against it by a couple in 'ccra. he
couple was claiming general damages and exemplary damages in the sum of I;66 million for the
loss of their unborn baby, which they alleged died because of ,deliberate negligence0 on the part
of a doctor and a team of nurses.
he doctors at EorleA>u eaching =ospital were said to have been professionally negligent in
delaying to perform a caesarian operation, thus leading to the death of the unborn baby.
Dot!i#e of Pe!so#al Lia3ilit5
If there is a rule that a nurse or midwife should know, it is the fundamental rule of law that every
individual is liable for his Hher own negligent act. his rule is known as the ,doctrine of personal
liability.0 What this means is that the law does not permit a wrongdoer to avoid legal liability for
his or her own wrongdoing even though someone else may also be sued and held legally liable
for the wrongful action in 1uestion under another rule of law.
+%
45
9ost nursesHmidwifes in our country are employed in government hospitals with others in
private hospitals or clinics. Cewer nurses work on their own by way of medical assistance to the
sick andH or the aged at homes. ' nurse, whether heHshe works at the government or private
hospital or clinic or at home, is responsible for hisHher own negligent conduct.
Dot!i#e of Res-o#deat Su-e!io!
he ,doctrine of respondent superior 3let the master answer40 is a legal doctrine that holds an
employer liable for the acts of employees that occur in the course of duty, i.e. while they are
carrying out hisHher 3employeesD4 duties.
;6
In the case of Li"-us A Lo#do# Ge#e!al O"#i3us CoB(%?*') IBHBE CB C'*+ a driver of the
defendantsD omnibus had printed instructions not to race with, or obstruct, other omnibuses. In
disobedience to this order he obstructed the plaintiffDs omnibus and caused a collision which
damaged it. he defendants were held liable because what he did was merely a wrongful,
improper and unauthorised mode of doing an act which he was authorised to do, namely promote
the defendantsD passenger carrying business in competition with their rivals. Willes 2. said in this
case in part thus, ,It is a rule of law that an employer though guilty of no fault himself, is liable
for damage done by the fault or negligence of his servant acting in the course of employment.0
P!i,ile8e Co""u#iatio#

he nurse or midwife as part of the medical team, comes face to face with persons with diseases
such as tuberculosis, =IGH'ID) and other sexually transmitted illness, leprosy, and deformed
babies among others, that may invite stigma from some members of society. It will be
unprofessional for the nurse to communicate to any member of the public on any of these
diseases without the exclusive permission of the patient. he law largely provides protection to a
patient on release of information about himHher while undergoing medication. he #onstitution
provides in clause 3&4 of article $7 that, ,8o person shall be subjected to interference with
privacy of hisNcorrespondence of communication except in accordance with law and as may be
46
necessary in a free and democratic society for public safety or the economic wellbeing of the
country, for the protection of health or morals, for the prevention of disorder or crime or for the
protection of the rights or freedoms of others.0 he effect of the article is that a person with any
disease has the right to insist on the nonAdisclosure of hisHher illness be it a normal or that which
falls into a category of stigmatisation. )o it is for a pregnant woman who gives birth to a normal
or abnormal baby to be protected.
he *vidence 'ct, $%:< 8.!.#.D.<&< provides certain privileges to persons who give
confidential communication about themselves to certain people they confide in to refuse to
disclose such information in any proceeding as a matter of right. In addition, the 'ct also
provides the receiver of such privileged communication the right to refuse to disclose the
information or any part of it in any proceeding without the informantDs permission or consent.
>esides, the 'ct gives the informant the right to sue the person he confided in to compel himHher
not to disclose the information or any part of it without the informantDs consent. ' privilege, in
the law of evidence is a right to refuse to disclose a fact, or to prevent others from doing so.
In this book we shall restrict ourselves to professional communication. )ection $6< 8.!.#.D.<&<
relates to mental treatment. 2ustice /foriA>oateng submits that all communications between a
doctor and hisHher patient relating to all ailments not just mental disturbances should so far as it
first appears, be considered confidential. While it is noted that the section limits itself to mental
treatment and therefore, affects mental health nurses and to some extent midwives in cases of
female mental patients who become pregnant, in respect of privilege communication, it is
submitted that, in the vein of the =onourable 2ustice that, confidential communication should
affect all nurses as well as midwives. )ection $6<3$4 provides as follows-
,' person has a privilege to refuse to disclose and to prevent any other person from
disclosing a confidential communication between that person and a physician or
psychologist or any other persons who are participating in the diagnosis or treatment
under the direction of the physician or the psychologists where the communication was
made for the purpose of diagnosis or treatment of a mental or emotional condition.0
.)ection $6< 3&4 also provides as followsJ
,Na communication is confidential if it is not intended to be disclosed to third persons
other than those reasonably necessary for transmission of the communication or persons
47
who are participating in the diagnosis or treatment under the discretion of a physician or
psychologist.0
he definition of confidential communication implies communication between the physician or
psychologists and third personsH any other persons participating in the diagnosis in the treatment
of the patient that include nurses and midwives are e1ually privileged. )o also will the privilege
exist among radiographers, medical laboratory scientists and physiotherapists who participated in
the diagnosis andHor treatment.
?nder section $6< 3<4, the privilege belongs to the patient. he following can also claim itJ
3a4 the patient- or
3b4 the patientDs guardian or committee- or
3c4 that patientDs personal representative if the patient is dead- or
3d4 the physician or psychologist who diagnoses or gives the treatment and those other
persons who participate in the diagnosis or treatment under the direction of the
physician or psychologist.
In this privilege also the patient, where heHshe is an adult, is the chief claimant, if heHshe is not so
mentally ill as to be unable to conduct hisHher own affairs. /n the other hand, if heHshe is a child,
the privilege will be exercised or waived by hisHher guardian.
If the patient is an adult but is in such a state as incapable of understanding anything and that
heHshe has been certified as mentally challenged, the privilege will be claimed or waived by
hisHher committee. #ommittee is defined under section $:% of the 'ct as,
,means a person, committee or other representative authori(ed by law to
protect the person or property or both of an incompetent, and to act for the incompetent in
matters affecting the person or property or both of the incompetent.0
If the patient is dead, the privilege will be claimed or waived by hisHher personal representatives.
48
CHAPTER THREE
NATURAL 0USTICE
here are two traditional maxims of natural justice, namely the audi alteram partem rule
AB NURSES AND MIDWIAES ACT+ %&@' (NBRBCBDB%%@)
his chapter will look at the basic legal documents that establish the status, office, and prescribe
the practicing duties and the nursing and midwifery environment for nurses and midwives. he
documents are the 8urses and 9idwives 'ct, $%:&, 38.!.#.D. $$:4, and the 8urses !egulations,
$%:$, L.$.57<, 3Legislative Instrument 57<4. he 1uestion to start with is who a nurse isL '
nurse by statutory definition ,means a person who has completed a programme of basic nursing
education and is 1ualified and authori(ed in the country of that person to give nursing services
for the promotion of health, the prevention of illness and the care of the sick.0
;$
he law has also categorised nurses into !egistered 8urseA9idwife, !egistered 8urse,
!egistered 9ental 8urse, !egistered .ublic =ealth 8urse and 'uxiliary 8urse. ' !egistered
nurseAmidwife ,means a person registered both as a nurse and as midwife.0
;&
' midwife
excludes a traditional births attendant.
;<
!egistered 8urse ,means a nurse who is for the time being registered in the general part of the
!egister.0
;+
!egistered 9ental 8urse ,means a nurse who is for the time being registered in the
supplementary part of the !egister containing the names of nurse trained in the nursing and care
of persons suffering from mental illness.0
;;
!egistered .ublic =ealth 8urse ,means a nurse who
is for the time being registered in the supplementary part of the !egister containing the names of
nurses trained in health visiting.0
;5
'uxiliary nurse ,means an enrolled general nurse, enrolled
mental nurse or a community health nurse.0
;:
49
he 'ct, 38.!.#.D. $$:4, establishes the 8urses and 9idwives 'uthority.
;7
he 'uthority, is the
highest body in the structure of the nursing and midwifery profession. It is vested with the
responsibilities for the nursing and midwifery profession and, in particular, with the organi(ation
of the training and education of nurses and midwives, and the maintenance and promotion of
standards of professional conduct and efficiency.
;%

he 'uthority is also responsible for, prescribing the conditions of registration of nurses, and
midwives and of the granting of certificates and badges to nurses and midwives- the
establishment of a system of training of nurses and midwives- the selection of the subjects in
which persons seeking to 1ualify as nurses or midwives may be examined- the establishment of
courses of instruction for student nurses and midwives- the admission, subject to the conditions
prescribed by the >oard, of students to pursue courses of instruction leading to 1ualification as
nurses or midwives and the examination of student nurses and midwives.
56
he governing body
of the 'uthority, is the #ouncil
5$
3#ouncil4.
he #ouncil, consists of twentyAone members and represented by, eleven registered nurses, made
up of at least one nurse midwife and also a military nurse, elected by the registered nurses- five
registered midwives, elected by the registered midwives- three registered medical practitioners,
appointed by the "hana 9edical 'ssociation- one person experienced in hospital administration
appointed by the 9inister of =ealth, and one person appointed by the minister of *ducation. he
chairman of #ouncil, is a registeredAnurse midwife.
5&
he 'ct vests the power to issue certificates to 1ualified nurses and midwives in the 'uthority.
#ertificates, are given to persons who satisfy the #ouncil that they have attained the necessary
standards of proficiency in nursing or midwifery, or they have ac1uired an ade1uate practical
experience, in nursing or midwifery or they are otherwise 1ualified to practice as nurses or
midwives.
5<
he 'uthority is mandated to provide separate registers for the registration of nurses and
midwives. husJ some nurses register in the general part of the register, while others in the
supplementary part of the register.
5+
=istorically, registration was made in the general register.
)pecialisation in other fields of nursing later led to registration in the supplementary register to
show additional 1ualification or primary specialisation. he 'ct ensures that full name, address,
1ualification, date of local registration, and higher or additional 1ualifications of the person
registered, together with the remarks that are necessary are indicated in the registration data
. 5;
50
he registrar of the 'uthority, is a registered nurseA midwife, and appointed by the #ouncil.
55
=eHshe has the mandate to register a nurse or a midwife who pays a prescribed fee.
5:
' person
who seeks to be registered must hold a 1ualifying certificate issued by the 'uthority, and other
1ualification recogni(ed by the #ouncil as furnishing a sufficient guarantee that heHshe has the
knowledge and skill re1uisite for the efficient practice of nursing or midwifery and which is
approved by the 9inistry of =ealth.
57
'nother merit to enable a person to register is that the
registrar must be satisfied the person who is to register is of good character and is by law entitled
to practice nursing or midwifery in the country where the 1ualification was granted or would, if
that person were a national of that country, be so entitled.
5%

he #ouncil is given the discretion to prescribe conditions to enable a person register where that
person who holds a 1ualification in nursing or midwifery is unable to practice nursing or
midwifery in a country because that person has not ac1uired the practical experience re1uired by
the laws of that country or is unable to 1ualify for registration because, that person does not
satisfy the basic re1uirements as already noted, to be registered. In order to satisfy the conditions
prescribed to register, such a person is permitted to be engaged for a specified period in
employment in "hana, or elsewhere in one or more hospitals or institutions approved by the
#ouncil. In situation where the #ouncil prescribes condition because a person has not ac1uired
practical experience as re1uired by the laws of that country, or is unable to 1ualify for
registration because heHshe does not satisfy the basic re1uirement, and therefore, the #ouncil has
re1uired that person to be employed, for a specific period in a hospital, or in an institution, such a
person shall not be said to commit an offence for practicing. Indeed, a person commits an
offence under section &;3c4 of the 'ct, where without being registered, that person practices or
professes to practice or publishes the name of that person as practicing nursing or midwifery, or
receives payment for practicing nursing or midwifery. It is of interest to note that a person who
obtains a higher 1ualification or additional, recognised by #ouncil is entitled to have that
1ualification inserted in the appropriate register in substitution for, or in addition to the
1ualification previously registered without payment of a further fee.
:6
he 'ct compels the registrar, to keep a !oll of 'uxiliary 8urses, in a form that shows clearly
the full names, address, 1ualifications and date of enrolment of the person enrolled, together with
the remarks that are necessary.
:$
' person registered under the 'ct, shall not be enrolled as an
auxiliary nurse. In spite of that, where a person enrolled as an auxiliary nurse and is
subse1uently registered, the registrar shall remove the name of that person from the !oll of
51
'uxiliary 8urses.
:&
Despite the fact that a person registered is not to be enrolled as an auxiliary
nurse, a registered midwife, who is not a registered nurse may be enrolled as an auxiliary nurse
but that enrolment shall not affect the registration of that person as a midwife.
:<
he peculiar tag
under the 'ct is that an auxiliary nurse is not, as an auxiliary nurse, a member of the nurses and
midwives profession and is not entitled to practice that profession by virtue of the enrolment.
:+
In spite of the limitation on an auxiliary nurse, for not being entitled to practice, an auxiliary
nurse is allowed to perform, under the direction of a person registered under the 'ct, the services
of an elementary nature and under the conditions prescribed or permitted by the #ouncil.
:;
he 'ct ensures that there is procedure for application for registration.
:5
he application is made
to the registrar, accompanied by the prescribed fee and by the document conferring or evidencing
the 1ualification by virtue of which the application is made and showing the time when the
1ualification was obtained.
::
In the event of a dispute, a copy of the list published, is evidence in
proceedings that the persons specified are registered and the absence of the name of a person
from the copy of the list is evidence, until the contrary is shown, that that person is not
registered.
:7
he registers and copies of the register or extracts from the register certified and
signed personally by the registrar, shall be received in a court. he registrar is tasked in 2anuary
of every year, to publish in the "a(ette the names, addresses, dates of registration and
1ualifications of the registered nurses and midwives.
:%
he registrar, shall produce or cause to be produced, a register kept when re1uired to do so by a
court. In order to ensure that the register of nurses contain updated list of the living and those
resident in "hana, the 'ct, enjoins the registrar, to remove the name of a person who has died or
whom the registrar has reason to believe has permanently left "hana and does not intend to
return.
76
' person whose name has been removed from the register for the reason that, that
person has permanently left "hana and will not return, shall on returning to "hana have the
name restored without the payment of a fee.
7$
he 'ct, ensures that the location of a nurse or midwife, can be traced at every time. It therefore,
charges a nurse or midwife, registered under the 'ct, to notify the registrar in writing of a change
or an alteration in address as soon as the change or alteration occurs.
7&
he 'ct ensures that a register is not tainted by way of erasure. It enforces that where an error
occurs, a line of red ink is drawn through the word improperly inserted, so as to leave the
52
original word legible, and a word which may have been omitted shall be interlined or written in
the margin with red ink. In order to authenticate the correction, the registrar is to sign in the
margin opposite the correction.
7<
' nurse becomes entitled to practice nursing or midwifery once registration has been made. It
provides protection to a registered nurse or midwife who is not employed by the "overnment or
paid out of public funds. his applies therefore, a nurse or midwife in private practice. It enables
that nurse or midwife to recover in court with full costs of suits, reasonable charges for
professional aid, advice and visits and the value of the medicine or the medical or surgical
appliances rendered or supplied to the patient. In this case, recovery, is restricted to the nurse or
midwife who is registered.
7+
he 'ct, makes it an offence when a person willfully procures registration by means of a false or
fraudulent certificate, representation or declaration, or willfully and falsely uses a name, title or
an addition implying a 1ualification to practice nursing or midwifery or without being registered
practices or professes to practice or publishes the name of that person as practicing nursing or
midwifery or receives a payment for practicing nursing or midwifery or willfully destroys or
damages a register.
7;
he penalty on conviction, is a fine not exceeding two hundred and fifty penalty units or to a
term or imprisonment not exceeding twelve months, or to both the fine and the imprisonment.
he 'ct foresees that in a profession of nurses and midwives misconduct and individual failings
will arise. It therefore, ensures that problems of the kind are resolved. It therefore, puts
structures in place for resolution. )ection &: of the 'ct, sets up a disciplinary committee
composed of one public officer enrolled or 1ualified to be enrolled as a legal practitioner as
chairman, and appointed by the 9inister of =ealth. he other members are, two medical
practitioners appointed by #ouncil from among its members, and one general nurse, one mental
health nurse, one public health nurse, and one midwife appointed by the #ouncil from among its
members. he 'ct allows the committee to coAopt a person to its membership, but that person
will have no vote in a matter of decision.
' disciplinary case on which the disciplinary committee is authorised to sit on under section
&:,of the 'ct, is where allegation has been made to the registrar, that a nurse or midwife, who is
registered, has been convicted by the #ouncil or elsewhere of an offence, and that the nurse or
53
midwife has been censured by a judicial authority in relation to the professional character of that
person, or the nurse or midwife has been guilty of conduct which prima facie 3what seems to be
the truth4 constitutes professional misconduct. Where therefore, the registrar is satisfied that an
allegation has been made against the nurse or midwife, and it has the chance of success and Hor is
made in sincerity, namely in good faith, then the registrar shall call the nurse or midwife against
whom the allegation is made to give in writing an explanation which that member wishes to
make and shall forward to the #ouncil the documents relating to the allegation including the
written explanation. he .resbyterian =ospital, 'gogo case, is an example of a situation in which
the registrar could call the nurseAmidwife to give in writing an explanation, and for consideration
of the disciplinary committee.
he 'ct, ensures that the process of the disciplinary committeeDs hearing adheres to the maxims
of natural justice. 8atural justice provides that a person against whom a case is made, is allowed
to state hisHher side of the story, and that person who brings the charge does not sit as a member
of a committee, and that fairness prevails. What it means is that the nurse or midwife, against
whom an allegation is made, shall be given ade1uate notice of the date of the sitting of the
disciplinary committee. =eH)he nurse or midwife, shall be told of the location and time of the
sitting, and shall be provided with a copy of the document of allegation and allowed to have legal
representation. In this regard, and under sections &: A&7 where the #ouncil is satisfied that there
is some merit in the allegation made in writing to it, and that it can go before the disciplinary
committee for hearing, the registrar will notify the nurse or midwife, and refer the case to the
disciplinary committee which shall then proceed to in1uire into the allegation. Indeed, where for
a reason, the chairman of the disciplinary committee is unable to be present at an in1uiry the
assistance of the 'ttorney P"eneral shall be sought for a legal officer.
he #ouncil, shall make and submit to the 9inister of =ealth for approval, rules to regulate the
procedure at in1uires.
75
't the sitting of the disciplinary committee, the registrar, complainant, the nurse or midwife is
entitled to be represented by a lawyer. Where after being notified, the nurse or midwife or the
lawyer fails to appear, the 'ct, allows the committee to proceed with its in1uiry in the absence of
the nurse or midwife or lawyer or both. In order for the committeeDs work to take a judicial
character, a person appearing before the disciplinary committee swears an oath.
7:
/n the
54
completion of the in1uiry, a copy of the proceedings of the disciplinary committee together with
its findings is submitted to the #ouncil.
77
he 'ct prescribes the form of sanction to be applied to a nurse or midwife in a case where
adverse findings have been made. It ensures that, a copy of the findings of the disciplinary
committee and the decision of the #ouncil on the findings, are served on the nurse or midwife.
)ection &% therefore, provides the following, when majority of the #ouncil finds the allegation
against the nurse as proved-
a. reprimand the nurse or midwife,
b. suspend the nurse or midwife from practice for a period determined by the council,
c. order the registrar to remove the name of the nurse or midwife from the register after the
expiry of the period prescribed for appeal. Indeed, where a nurse or midwife has been
suspended on the basis of the findings and decision of the #ouncil, a nurse or midwife
has twentyAone days after the service, to appeal against the findings of the disciplinary
committee and the decision of the council. 'ppeal in this case is to be made to the
9inister of =ealth, or
d. suspend or postpone the making of the order to the registrar for a period considered
expedient by the #ouncil.
's noted a nurse or midwife, on whom sanction is made has the right of appeal. In cases
where a nurse or midwife, is suspended based on the findings of the disciplinary
committee and the decision of the #ouncil, and therefore, that nurse or midwife is
reprimanded, and the name is removed from the register or where the #ouncil suspends
or postpone in making decision for a considered period, the aggrieved nurse or midwife is
permitted to make hisHher appeal to the =igh #ourt.
(;) NURSES REGULATIONS LBIB *?D
PRACTICE OF NURSES
!egulation $& of L.$. 57<, provides for the practice of nursing. !egulation $& 3$4 states that
,'ny person carrying out all or any of the treatments referred to in this regulation shall be
deemed to be carrying out the practice of nursing.0 !egulation $&3&4 continues, that ,*very
!egistered 8urse or !egistered 9ental 8urse may carry out any of the treatments specified in
the Courth )chedule subject to the conditions specified in that )chedule.0 Curthermore, and for
!egistered .ublic =ealth 8urse, regulation $& 3<4 states that, ,*very !egistered .ublic =ealth
55
8urse may carry out any of the treatments or practices specified in the Cifth )chedule, subject to
the conditions specified in the )chedule.0 he details o f the Courth )chedule of regulation $&
3&4 are as follows-
PRACTICE OF NURSES
Treatments which a nurse may perform without Instructions from a Doctor
$. #are and cleanliness of all nursing e1uipment
&. )terili(ation of surgical e1uipment
<. Washing of patient
+. .revention and treatment of bedsores
;. #leaning patient of pediculi
5. 9aking of patientDs bed
:. #ooking and serving patientDs food
7. #leaning mouth of patient. 'dministration of mouth washes and gargles.
%. "iving treatments for reduction of pyrexia, tepid and cold sponging but not
administration of antiApyretic drugs, except aspirin, phenacetin.
$6. 'dministration of evacuant enemata, soap and water, olive oil, glycerin.
$$. 'dministration of evacuant suppository, vi(J glycerin but not of suppositories
containing dangerous drugs or poisons.
$&. 'dministration of drugs for relief of flatulence
$<. 'dministration of common drugs for the relief of painAaspirin, but not of any drug
listed in the .harmacy and Drugs 'ct as a dangerous drug.
$+. "iving of moist inhalation for laryngitis, tracheitis, pharyngitis or nasal sinus
infections.
$;. 'pplication of simple liniments
$5. Irrigation of eyes
$:. 'pplication of cold to a part P cold compress, ice bag
$7. 'pplication of heat to a partAhot water bottles, electric pad, medical fomentation,
#ataplasma kaolini #o.
$%. )urgical fomentation
&6. .reparation of any part of the body for an operation
&$. 9ake blood films for diagnosis of malaria. 3he nurse may not, without sanction of a
Doctor, withdraw blood through a hollow needle or any other contrivance for the
purpose of making blood tests.4
&&. Disinfection of utensils, clothing, bedding, furniture, excreta of patients.
&<. "ive usual nursing and first aid treatments for relief of shockA warmth- elevation of
legs.
&+. Withdraw urine by rubber catheter
&;. 'rrest haemorrhage by use of pad and bandage, digital pressure or tourni1uet.
&5. "ive first aid treatment for cleaning of a wound.
56
&:. 'pply first aid to fractures, sprains, muscle injuries, by using splints, slings, bandages
or sandbags.
&7. .erformance of artificial respiration in an emergency.
&%. Cirst aid treatment for removal of foreign body from eye.
<6. "ive of first aid treatment for snake bits or insect stings.
<$. "iving of first aid to a woman in labour if no midwife or Doctor is available.
<&. "iving of first aid to patients having fits or convulsions.
<<. 'dministration of demulcent drinks- common antidotes and antagonists against
poisons and administration of such stimulants as coffee in cases of collapse following
poisoning.
<+. "iving first aid treatment for burns but not applying sclerosing agents to burnt areas
without sanction of Doctor.
<;. .erformance of last offices.
<5. Eeeping of the various charts and records.
Treatment which a Nurse may perform only with sanction of a Registered Medical Practitioner
(not necessarily in his presence), given in writing and dated on the patients treatment form
<:. 'rtificial feeding by oesophageal or nasal routs
<7. 'dministration of any drug ordered by a !egistered 9edical .ractitioner. his
includes-
a. /ral and rectal administration
b. =ypodermic, intraAmuscular and intravenous injection-
c. 'pplications to eyes, ears, throat, vagina, urethra and skin-
d. 'dministration by inhalation 3but not anaesthetics except in the presence of a
!egistered 9edical .ractitioner.4
' nurse may not administer drugs or anaesthetics by the intrathecal route.
<%. /btaining of specimens of infective material from throat, nose, eyes, urethra, cervix-
using appliances for the purpose.
+6. *xamination of urine with a view to providing data for doctor to form a diagnosis.
+$. .erformance of minor operations such as incision of boils or insertion of sutures in
wounds.
+&. 'pplication of strapping or elastoplast or other skin adherent for temporary treatment
of fractures. .utting on of .laster of .airs.
+<. 'pplication of radiant heat
++. Lavage of stomach, colon, bladder
+;. Gaginal douching
+5. Dressing of operation and other wounds including removal of stitches, clips, drainage
tubes, etc.
Treatment which Nurses may perform only in presence of a Registered Medical Practitioner and
with his sanction!
57
+:. 'dministration of anaesthetics.
FIFTH SCHEDULE (Re8ulatio# %' (D)
PRACTICE OF PU;LIC HEALTH NURSES
$. o supervise the welfare of infants from seven days old 3when the 9idwife ceases to
visit4 to five years old- each infant to be visited monthly for first twelve months, then
at three monthly intervals until the age of three years.
&. o attend and supervise #hild Welfare #entres where children are weighed and
inspected- to give mothers advice on feeding, weaning and dietary re1uirements of
the growing child and so to encourage mothers to make full use of the Welfare #entre
by attending regularly.
<. o advise with regard to domestic and personal hygiene when visiting mothers in
their homes.
+. o teach mothers to recogni(e and notice early signs and symptoms of disease and to
obtain early medical advice.
;. o advise parents and expectant mothers as to the best means of promoting their
health and that of their families.
5. o organi(e and attend anteAnatal and family planning clinics and to advise mothers
on general preAnatal care and diet.
:. o organi(e and attend school clinics, carrying out general inspection of all children
at home when occasion demands.
7. o organi(e and give nursing services to sick persons, invalids and those re1uiring
nursing in their own homes.
%. o prevent infection by immunisation and vaccination programmes.
$6. o follow up cases of infectious diseases and give advice with regard to prevention of
spread of diseases- special emphasis on ,followAup0 of contacts of uberculosis,
Genereal Disease and Leprosy.
$$. o refer to the appropriate authorities persons suffering from mental illness or
subnormality and to advise and assist such persons in recuperation and rehabilitation.
58
$&. o follow up cases of mental illness and subnormality discharge from hospitals and
treatment centres.
$<. o visit and inspect all motherless and orphaned children monthly up to five years
and then at three monthly intervals to the age of ten years.
$+. o followAup children discharged from hospital, to give advice regarding diet and
general afterAcare, etc.
$;. o keep all the necessary records and ledgers and to send in monthly returns to the
9edical /fficer of =ealth
The aforementioned are legal duties of Registered Nurse or Registered Mental Nurse,
and Registered Pu"lic #ealth Nurse, respectively! It must "e carried out with competence
with speciali$ed s%ill without delegating them to a lay person! Mensah&'onsu however
o"serves that(
,.atients who cannot leave their bed must be given nursing care in bed. he practice of making
relatives of patients to give bed bath, etc, can constitute criminal negligence if the patient should
come to harm as a result of the lack of knowledge of the relatives. In many "hanaian hospitals,
patients are bathed, fed and dressed by their relatives while the nurses look on. 9any nurses
have stopped making patientsD beds or doing any of the numerous duties that a nurse must do on
the ward. If a patient should come to harm as a result of the neglect of a nurse, it would not lie in
that nurseDs mouth to say that the event was caused by the lay relativeDs carelessness. In addition
to criminal liability, the hospital institution involved would be saddled with civil liability for the
nurseDs negligence.
'nother major infraction of nursing duties which takes place in many hospitals in "hana is the
practice of leaving patients unattended at critical times. his often happens when the patients is
undergoing transfusion of one kind or the other, or when the person is undergoing some form of
treatment that spans a period or time during which the patient re1uires watchful attention. It is
1uite normal practice in many "hanaian hospitals for nurses to leave a helpless patient
undergoing transfusion in the care of a notAsoAill one, with instructions to the other patient to call
when the fluid runs out. /n occasion, the patient is himselfHherself expected to monitor the
e1uipment, and could receive some tongueAlashing for failing to do so properly. his is as
inhuman a practice as it is a dangerous one, since the patient or patient volunteer might fall
asleep and not call for help when a medical emergency occurs. It is therefore appropriate that,
such conduct be characteri(ed as criminal and be made the subject of a prosecution for
negligently causing harm.0
7%
59
he conduct should not only be characterised as criminal but aptly unprofessional in the face of
the statutory document that established the office and stated duties of the professional nurse.
CHAPTER FOUR
PATIENTS CHARTER AND CODE OF ETHICS
#hapter ; of the #onstitution of the !epublic of "hana, $%%& as we have noted, deals with the
fundamental human rights and freedoms of the citi(ens and all who reside within the territorial
land of "hana. We have noted specific rights that deal with the sick. he "hana =ealth )ervice
has reAemphasised those constitutional rights by laying down the patientDs charter and rights and
responsibilities, and code of ethics for health professionals.
*thics as .arelli puts it, ,is the principle of morality including both the science of the good and
the nature of the right, or the rules of conduct recognised in respect to a particular class of
60
actions.0
%6
=e sees a broader definition of ethics as ,primarily concerned with the good of the
individual, concentrating on motives and attitudes. *thical sanctions are internal and appeal to
oneDs honour, conscience, or what is good for society.0
%$
he "hana =ealth )ervice #ode of *thics should as a collective code for all health professionals.
It does not take away the distinct professional code of ethics of those in the health service,
namely doctors, nurses, pharmacists, medical laboratory scientists etc. he code of ethics is not
law but helps nurses and midwives to maintain a high level of ethical conduct in the discharge of
their duties. Giolation of the code of ethics may lead to investigation by the 8urses and
9idwives 'uthority and possible sanction.
T6e G6a#a Healt6 Se!,ie Patie#t=s C6a!te!
&'
he "hana =ealth )ervice is for all people living in "hana irrespective of age, sex, ethnic
background and religion.
he service re1uires collaboration between health workers, patientsHclients and society. hus the
attainment of optimal health care is dependent on team work.
=ealth facilities must therefore provide for and respect the rights and responsibilities of
patientsHclients, families, health workers and other health care providers. hey must be sensitive
to patientDs socioAcultural and religious backgrounds, age, gender and other differences as well as
the needs of patients with disabilities.
he "hana =ealth )ervice expects health care institutions to adopt the patientDs charter to ensure
that service personnel as well as patientsHclients and their families understand their rights and
responsibilities.
his #harter is made to protect the !ights of the patient in the "hana =ealth )ervice. It
addressesJ
a. he !ight of the individual to an easily accessible, e1uitable and comprehensive health
care of the highest 1uality within the resources of the country.
b. !espect for the patient as an individual with a right of choice in the decision of hisHher
health care plans.
61
c. he !ight to protection form discrimination based on culture, ethnicity, language, religion,
gender, age and type of illness or disability.
d. he responsibility of the patientHclient for personal and communal health through
preventive, promotive and simple curative strategies.
THE PATIENT=S RIGHTS
$. he patient has the right to 1uality basic health care irrespective of hisHher geographical
location.
&. he patient is entitled to full information on hisHher condition and management and the
possible risks involved, except in emergency situations when the patient is unable to make a
decision and the need for treatment is urgent.
<. he patient is entitled to know of alternative treatment3s4 and other health care providers
within the )ervice if these may contribute to improved outcomes.
+. he patient has the right to know the identity of all hisHher care givers and other persons who
may handle himHher including students, trainees and ancillary workers.
;. he patient has the right to consent or decline to participate in a proposed research study
involving him or her after a full explanation has been given. he patient may withdraw at any
stage of the research project.
5. ' patient who declines to participat e in or withdraws form a research project is entitled to
the most effective care available.
:. he patient has the right to privacy during consultation, examination and treatment. In cases
where it is necessary to use the patient or hisHher case notes for teaching and conferences, the
consent of the patient must be sought.
7. he patient is entitled to confidentiality of information obtained about him or her and such
information shall not be disclosed to a third party without hisHher consent or the person
entitled to act on hisHher behalf except where such information is re1uired by law or is in the
public interest.
%. he patient is entitled to all relevant information regarding policies and regulation of the
health facilities that heHshe attends.
$6. .rocedures for complaints, disputes and conflict resolution shall be explained to patients or
their accredited representatives.
$$. =ospital charges, mode of payments and all forms of anticipated expenditure shall be
explained to the patient prior to treatment.
$&. *xemption facilities, if any, shall be made known to the patient.
$<. he patient is entitled to personal safely and reasonable security of property within the
confines of the Institution.
62
$+. he patient has the right to a second medical opinion if heHshe so desires.
THE PATIENT=S RESPONSI;ILITIES
T6e -atie#t s6ould u#de!sta#d t6at 6eHs6e is !es-o#si3le fo! 6isH6e! o9# 6ealt6 a#d s6ould
t6e!efo!e+ o.o-e!ate full5 9it6 6ealt6a!e -!o,ide!sB T6e -atie#t is !es-o#si3le fo!2
$. .roviding, full and accurate medical history for hisHher diagnosis, treatment, counselling and
rehabilitation purposes.
&. !e1uesting additional information and or clarification regarding hisHher health or
treatment, which may not have been well understood.
<. #omplying with prescribed treatment, reporting adverse effects and adhering to follow up
re1uests.
+. Informing hisHher healthcare providers of any anticipated problems in following prescribed
treatment or advice.
;. /btaining all necessary information, which have a bearing on hisHher management and
treatment including all financial implications
5. 'c1uiring knowledge on preventive, promotive and simple curative practices and where
necessary seeking early professional help.
:. 9aintaining a safe and hygienic environment in order to promote good health.
7. !especting the rights of other patientsHclients and =ealth )ervice .ersonnel.
%. .rotecting the property of the =ealth facility.
N;2 T6ese !i86ts a#d !es-o#si3ilities s6all 3e e:e!ised 35 a!edited a#d
!eo8#ised !e-!ese#tati,es o# 3e6alf of "i#o!s a#d -atie#ts 96o a!e u#a3le
fo! 96ate,e! !easo#s to "a>e i#fo!"ed deisio#s 35 t6e"sel,esB
I# all 6ealt6a!e ati,ities t6e -atie#t=s di8#it5 a#d i#te!est "ust 3e
-a!a"ou#tB
63
THE CODE OF ETHICS
P!ea"3le2
he #ode of *thics for the "hana =ealth )ervice 3"=)4
%<
defines the general moral
principles and rules of behaviour for all service personnel in the "hana =ealth )ervice.
he )ervice shall be manned by persons of integrity, trained to a high standard to deliver
a comprehensive and e1uitable service for the benefit of patientsHclients and society as a
whole.
$. 'll )ervice personnel shall be competent, dedicated, honest, clientAfocused and
operate within the laws of the land.
&. 'll =ealth .rofessional shall be registered and remain registered with their
.rofessional !egulatory >odies.
<. 'll )ervice personnel shall respect the !ights of patientsHclients, colleagues and other
persons and shall safeguard patientsDH clientsD confidence.
+. 'll )ervice personnel shall work together as a team to best serve patientsD HclientsD
interest, recognising and respecting the contributions of others within the team.
;. 'll )ervice personnel shall coAoperate with the patientsHclients and their families at all
times.
5. 8o )ervice personnel shall discriminate against patientsHclients on the grounds of the
nature of illness, political affiliation, occupation, disability, culture, ethnicity,
language, race, age, gender, religion, etc. in the course of performing their duties.
:. 'll )ervice personnel shall respect confidential information obtained in the course of
their duties. hey shall not disclose such information without the consent of the
patientHclient, or person3s4 entitled to act on their behalf, except where the
disclosure of information is re1uired by law or is necessary in the public interest.
64
7. 'll )ervice personnel shall treat official discussions, correspondence of reports
obtained during official duties as confidential except where disclosure is re1uired by
law.
%. 'll information obtained from patientsHclients shall only be used for the prime
purpose of their management. 'ny other use of such information shall only be done
with the prior consent of the patient or person3s4 entitled to act on hisHher behalf.
$6. 'll )ervice personnel shall provide information regarding patientDs condition and
management to patients or their accredited representatives humanely and in the
manner they can understand.
$$. 'll )ervice personnel shall protect the properties of the )ervice including properties
entrusted in their care.
$&. 'll )ervice personnel shall respect the rights and abilities of disabled persons and the
aged and work together to serve or safeguard their interest.
$<. 'll )ervice personnel shall keep their professional knowledge and skills up to date.
$+. 8o )ervice personnel shall demand unauthorised fees from patientsHclients.
$;. 8o )ervice personnel shall accept any gift, favour or hospitality from the
patientHpublic which might be interpreted as seeking to exert undue influence to
obtain preferential consideration in the course of their duty.
$5. 'll )ervice personnel shall refrain from all acts of indiscipline including drunkenness,
smoking, immorality, abuse of drugs and pilfering in the course of performing their
duties.
$:. 'll )ervice personnel shall avoid the use of their professional 1ualifications in the
promotion of commercial products.
$7. 8o )ervice personnel shall act in collusion with any other person for financial gain.
$%. )ervice facilities and resources shall not be used for unauthorised private practice.
65
NURSES E MIDWIAES
COUNCIL OF GHANA
&)
's a registered 8urse and or 9idwife, you must observe the followingJ
$. 'ccountability for professional practice
&. Individuality of patients, clients and their relatives
<. .rotection of confidential information
+. #onsent for care or treatment rendered
;. 9aintenance of professional knowledge and competence
5. Identification and minimising risks to patients, clients and their relatives
:. rustworthiness
7. #ollaboration with other professionals in the health team
P!olo8ue
66
he 8urses and 9idwivesD #ouncil is the statutory body responsible for the 8ursing and
9idwifery professions and in particular, with the organisation of the training and
education of 8urses and 9idwives and the maintenance and promotion of standards of
professional conduct and efficiency. he purpose of this code is toJ
Inform 8urses and 9idwives of the standard of professional conduct re1uired of them in
the exercise of their professional accountability and practice.
Inform the public, other professionals and employers of the standard of professional
conduct that they can expect of a registered 8urse or 9idwife.
%B As a Re8iste!ed Nu!se a#d o! Mid9ife+ 5ou s6all 3e Aou#ta3le fo! 5ou!
P!ofessio#al P!atie2
a. Rou shall be answerable for your actions and omissions regardless of advice or directions
from another professional.
b. Rou have a duty to care for patients, clients and their relatives who are entitled to receive
safe and competent care.
c. Rou must adhere to the laws of "hana as enshrined in the #onstitution.
d. Rou may delegate care to others who may or may not be registered 8urses or 9idwives
but you remain accountable for such delegation.
'B As a Re8iste!ed Nu!se a#d o! Mid9ife 5ou "ust Mai#tai# t6e I#di,idualit5 of t6e
Patie#ts+ Clie#ts a#d t6ei! Relati,es+ 1ou Must2
a. 'cknowledge and respect the role of patients, clients and their families as partners in
their care and the contributions they can make to their care, speedy recovery or
peaceful death.
b. *nsure that you promote and protect the interest and dignity of patients, clients and
their relatives irrespective of gender, age, race, ability, sexuality, economic status, and
culture, religious or political affiliations.
c. 'void any abuse of the privileged relationship which exists with patients, clients and
their property residence or workplace.
d. !eport to a relevant person of authority, at the earliest possible time, any
conscientious objection that may be relevant to your professional practice.
e. #ontinue to provide care to the best of your ability until alternative arrangements are
instituted.
DB As a Re8iste!ed Nu!se a#d o! Mid9ife+ 5ou "ust P!otet Co#fide#tial I#fo!"atio#+
1ou "ust2
67
a. !espect confidential information obtained in the course of professional practice and
refrain from disclosing such information without the consent of the patient, client or
relative or legal guardian, except where such disclosure is re1uired by law or by order
from a court of jurisdiction or is necessary in the public interest.
b. *nsure that patients, clients and relatives understand that some information may be made
available to other members of the health team involved in the delivery of care.
c. )eek patientDs or clientDs wishes regarding the sharing of information with their relatives
and others. When a patient or client is considered incapable of giving permission, you
must consult your immediate supervisor.
)B As a Re8iste!ed Nu!se a#d o! Mid9ife+ 5ou "ust O3tai# Co#se#t 3efo!e 5ou 8i,e
T!eat"e#t o! Ca!e+ 1ou "ust2
a. 'cknowledge that patients and clients have a right to receive information about their
condition, which should be accurate, truthful and easily understood
b. !espect patientsD or clientsD rights to decide whether or not to accept any care or
treatment
c. *nsure that informed consent is given voluntarily by a legally competent person
d. 8ote that consent may be given in writing, orally or by coAoperation, which should be
accurately documented.
e. 8ote that consent e1ually applies to mentally challenged patients- in such cases, you
may consult specialists and or relatives.
f. 8ote that a witness to a given consent must be a close relative or a legal guardian of
the patient or client.
CB As a !e8iste!ed Nu!se a#d o! Mid9ife+ 5ou "ust Mai#tai# 5ou! P!ofessio#al
<#o9led8e a#d Co"-ete#e+ 1ou "ust2
a. Eeep your knowledge and skills up to date throughout your professional working life.
b. !enew your .rofessional Identification 8umber 3.I84 within the specified period
upon providing evidence of workshop updates
c. 'cknowledge limitations of your professional competence and only accept
responsibilities and undertake practice for those in which you are competent.
*B As a Re8iste!ed Nu!se a#d o! Mid9ife+ 5ou "ust Ide#tif5 a#d Mi#i"ise Ris>s to
Patie#ts+ Clie#ts a#d t6ei! Relati,es+ 1ou "ust2
a. Work with other members of the team to promote health care environments that are
conducive to safe, therapeutic and ethical practice.
68
b. 'ct 1uickly to protect clients from risk if you have good reason to believe that you or
a colleague, from your own or another profession, may not be fit to practice for
reasons of conduct, health or competence.
c. *nsure the availability and ade1uacy of basic resources to function
d. 9ake known to your immediate supervisors any circumstance which could place the
patient, client and their relatives in jeopardy or which militates against safe standards
of practice.
e. In an emergency, in or outside the working setting, you have a professional duty to
provide care. he care provided would be judged against what could reasonably be
expected from someone with your knowledge, skills and abilities when placed in
those particular circumstances.
@B As a Re8iste!ed Nu!se a#d o! Mid9ife+ 5ou "ust 3e T!ust9o!t65+ 1ou "ust2
a. ?phold the reputation of your professionJ your behaviour must at all times bring
credit to the profession.
b. 'void the use of professional 1ualifications in the promotion of commercial products
or services in order not to compromise the independence of professional judgements
on which .atients, #lients and relatives rely.
c. !efuse any gift, favour or hospitality which might be interpreted as seeking to exert
undue influence to obtain preferential consideration.
d. 8either asks for nor accepts loans from .atients, #lients or their relatives and friends.
?B As a Re8iste!ed Nu!se a#d o! Mid9ife+ 5ou "ust Colla3o!ate 9it6 ot6e!
P!ofessio#als i# t6e Healt6 Tea"+ 1ou "ustJ
a. Work in collaboration and in coAoperation with other health professionals, recogni(e and
respect their particular contributions within the health team.
b. #ommunicate effectively and share your knowledge, skill and expertise with other
members of the health team for the benefit of patients, clients and their relatives.
c. *nsure accurate documentation of all procedures and care rendered to patients, clients
and relatives.
69
REFERENCES
$ !oach, W. =. 2r. and he 'spen =ealth Law and #ompliance #enter, 9edical
!ecords and the Law, 2ones and >artlett .ublishers $%%7. p.&
& loc. cit
< loc. cit
+ ufnell, ). #orporate and >usiness Law, Coulks Lynch Ltd, &666 p.$5
; ibid at p.;
5 #riminal /ffences 'ct, $%56 3'ct &%4 sections 5%' and 77'
: >radley, '. W. *wing, E. Wade and >radley- #onstitutional and
'dministrative Law. *l>) with Longman $%%+ p.+
7 ibid at p.;
% Worthington, $ and >ritton, #. he >usiness *nvironment. .itman .ublishing.
&666. ..$;6
$6 Irving, !. She Law is a 'ssD Duckbacks p.<
$$ #onstitution of the !epublic of "hana, $%%&, 'rticle $&% 3$4
$& ibid 'rticle $<6 3$%4
$< ibid 'rticle $<: 3$4
$+ ibid 'rticle $+6 3&4
$; ibid 'rticle $+$
$5 ibid 'rticle $+<
$: #ourts 'ct, $%%< 3'ct +;%4 sections +& and +<
$7 ibid section +& 3$43a43i4 and 3iv4
70
$% ibid section +<
&6 ibid sections +: and +7
&$ ibid section +: 3$3a4 and 3f44
&& ibid section +7 3$a4
&< ibid section +% 3<4
&+ #riminal and /ther /ffences 3.rocedure4 'ct, $%56 3'ct <64 section &%+
&; uffnell op. cit at p.<
&5 Law /fficers, 'ct $%:+ 38.!.#.D &:%4 section $
&: op. cit 'ct <6 section ;5
&7 op. cit 38.!.#.D &:%4 section < 3<43a43b4
&% 9ensaA>onsu,=. '.8, ,he #riminal Law he =ealth .rofessional In "hana0
<6 'ct &%, section $+3b4
<$ 9ensaA>onsu, op. cit.
<& uffnell op. cit at p.<
<< =igh #ourt 3#ivil .rocedure4 !ules, &66+ 3#.I.+:4
<+ !ogers, W.G.=. Winfield and 2olowic( on ort. )weet T 9axwell $%7+ pp.$ P
<
<; Ibid at p.;+
<5 loc. cit
<: Eelly, L.R. Dimensions of .rofessional 8ursing ;ed 9acmillan .ublishing
#ompany 8ew Rork $%7; p.;$:
<7 !ogers op. cit at p.;+
<% Eelly, op. cit at p.;$:
+6 !ogers, op.cit at p.+6
+$ Ibid at p.;%
+& Eelly, op. cit at pp+7+ P +75
+< !ogers, op. cit.&%<
++ Ibid at p.&%+
+; !ogers ,op. cit. at p.5%
+5 loc. cit.
+: !ogers, op. cit.at:6
+7 Eelly, op. cit.+7+
71
+% .arelli, !. 2. 9edicolegal Issues for !adiographers. *astwind .ublishing,
$%%+ p.$;
;6 Ibid at p.$5
;$ 8urses and 9idwives 'ct, $%:& 38.!.#.D.4 $$:4 section <%
;& 8urses !egulation, $%:$ L.$. 57<. regulation &5
;< Labour 'ct,&66< 'ct 5;$,section $:;
;+ L.I.57<,3regulation &54
;; L.I.57<,3regulation &54
;5 L.i.57< ,3regulation &54
;: 8.!.#.D. $$: section <%
;7 8.!. #.D.$$: section $
;% 8.!.#.D. $$: section &3$4
56 8.!.#.D. $$: section &3a4 3b4 3c4 3d4 3e4 3f4
5$ 8.!.#.D. $$: section <
5& 8.!.#.D. $$: section <3a4 3b4 3c4 3d4 3e4
5< 8.!.#.D. $$: section $<
5+ 8.!.#.D. $$: section $+3$4
5; 8.!.#.D. $$: section U+3&4
55 8.!.#.D. $$: section %3$4
5: 8.!.#.D. $$: section $;3$4
57 8.!.#.D. $$: section $;3$4 3a4
5% 8.!.#.D. $$ section $; 3b4 3c4
:6 8.!.#.D. $$: section $;3&4 3<4 3+43;4
:$ 8.!.#.D. $$: section $53$4
:& 8.!.#.D. $$: section $53&4
:< 8.!.#.D. $$: section $53<4
:+ 8.!.#.D. $$: section $53+4
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:5 8.!.#.D. $$: section $:
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76 8.!.#.D. $$: section %3$4
72
7$ 8.!.#.D. $$: section $%3&4
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7; 8.!.#.D. $$: section &;3a43b43c4
75 8.!.#.D. $$: section &:3+4
7: 8.!.#.D. $$: section &73+4
77 8.!.#.D. $$: section &73;4
7% 9ensaA>onsu, op.cit
%6 .arelli, op.cit.at %;
%$ loc. cit
%& he "hana =ealth )ervice. .atientDs #harter Cebruary &66&
%< he "hana =ealth )ervice. #ode of *thics Cebruary &66&
%+ 8urses T 9idwivesD #ouncil of "hana. #ode of .rofessional #onductJ
)tandards for #onduct, .erformance and *thics. 2une &665.

73