AN EXAMINATION OF THE LEGAL STATUS OF MEDICAL REPORTS FROM GOVERNMENT AND PRIVATE HOSPITALS

ABSTRACT

Law enforcement agencies are tasked with keeping society safe through detection, prevention and investigation of crime. Where they fail in their detection and prevention responsibility and a crime is committed, they investigate to gather evidence and apprehend perpetrators of the crime. In the course of investigation, they may gather evidence which might include medical evidence in the form of medical reports, presented in court in the course of prosecuting offenders. This article set out to examine the legal status of such medical reports issued by medical practitioners from government and in some few cases, private hospitals. The article adopted the doctrinal approach in carrying out the examination. The article found that medical reports from government hospitals appear to enjoy some advantages; such as presumption of regularity, admission of such reports without necessarily calling the maker, etc., over reports from private hospitals, to the detriment of defendants in criminal trials and recommended that medical reports from government hospitals should not ordinarily be admissible in evidence in the absence of the maker.

Key words: crime, government hospital, private hospital, medical report, medical practitioner.

 

1. INTRODUCTION

In the course of criminal trials, the prosecution, depending on the facts and circumstances of the case, might present medical evidence in the form of medical reports or certificates prepared and issued by medical personnel to prove certain facts. For example, a post mortem report may be presented through a pathologist who carried out a post mortem; or through an Investigating Police Officer (IPO), to prove the cause of death of the deceased. Medical evidence is not needed in all cases of homicide, as held by Amina Adamu Augie JSC while delivering the leading judgment in Muhammad v The State^[1]

The lower Court is right; the Appellant cannot argue that the weapon he used on the deceased is not clear. He used a weapon, and whether it was a shovel or a knife, the weapon proved lethal; the deceased died the next day as a result of the injuries received. In such circumstances, the position of the law is that the cause of death can properly be inferred that the injuries caused the death. In other words, where cause of death is obvious, it is not a vital component of proof to have medical evidence to establish it^[2].

This was also emphasized by Chima Centus Nweze JSC while giving his own contribution to the lead judgement, when he added that, ‘Just as the leading judgment has shown, a clearly evident cause of death, as in the instant case, obviates the need for any medical evidence to establish the first ingredient of the offence of culpable homicide punishable with death, that is, that the deceased person died.’ In giving strength to this position, he further said: ‘Thus, in situations, as exemplified in the instant case, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death was instantaneous or nearly so.^[3]’

In a plethora of cases where medical evidence is required, medical reports are prepared and issued by medical personnel or practitioners from government hospitals. While in some few cases, the reports are issued from private hospitals. What is the legal status or implication of a medical report from a government hospital and that from a private hospital? This is the core issue this chapter hopes to resolve.

2. MEDICAL REPORT FROM GOVERNMENT HOSPITAL

A medical report or certificate issued by a registered medical practitioner from a government hospital appears to enjoy the presumption of regularity provided for in section 168(1) and (2) of the Evidence Act, 2011 and also constitutes an exception to the general rule that a document must be tendered by its maker. In other words, a medical report from a government hospital appears to be an exception to the documentary hearsay principle as even a non-maker of the report can tender it without giving excuse for the absence of its maker and the court will rely on the contents of the report. In Ekum v The State^[4] the court held that:

…While Mr. Emeka tried to disparage this document (Exhibit 3, the medical report) his opposing counsel, Mr. Onwubia drew attention to the provisions of Section 55(1)-(3) of the Evidence Act, 2011 which gives pride of place to medical certificates with the reservation of rights to cross-examine the maker exercisable by either party or at the instance of the Court when occasion demands. The said provisions are as follows: 55. (1) Either party to the proceedings in any criminal case may produce a certificate signed by the Government Pharmacist, the Deputy Government Pharmacist, an Assistant Government Pharmacist, a Government pathologist or entomologist or the Accountant-General, or any other pharmacist so specified by the Government Pharmacist of the Federation or of a State, or any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any accountant specified by the Accountant-General of the Federation or of a State (whether any such officer is by that or any other title in the service of the State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated in it. (4) Notwithstanding Subsection (1) of this section, any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as sufficient evidence of facts stated in it. (3) Notwithstanding Subsections (1) and (2) of this Section, the Court shall have the power, on the application of either party or of its own motion, to direct that any such officer as is referred to in the subsections shall be summoned to give evidence before the Court if it is of the opinion that, either for the purpose of cross-examination or for any other reason, the interests of justice so requires. But an accused person who has not specifically applied for the maker of such a certificate to be called as a witness cannot complain if the trial Court fails to call the office who signed the certificate. See Solomon Ehot v The State (1993) 4 NWLR 644, Uchenna Nwachukwu v The State (2002) NSCQLR 663 at 667- 678. In the present instance, during the trial, neither the Appellant nor the Respondent found it necessary to apply that the author of Exhibit 3 be summoned for cross-examination. The trial Court equally found this unnecessary as no controversy was raised as to how the deceased met his unfortunate and if I may say, untimely demise. Exhibit 3 was accordingly entitled to the presumption that it was appropriately signed and that it emanated from the appropriate quarters^[5].

Furthermore, in the latter case of Etuk-Udo v The State^[6]  the court reiterated the above position of the law with regards to the status of a medical report from a public or government hospital wherein it observed as follows:

Now, exhibits 3 and 4 were the reports of medical practitioner on the death of Owoidoho Monday Matthew and Monday Matthew respectively. They were tendered through PW1 who was not their maker. According to the prescription of Section 55(1) of the Evidence Act, 2011:

‘Either party to the proceedings in any criminal case may produce a certificate signed by the Government Pharmacist, the Deputy Government Pharmacist, an Assistant Government Pharmacist, a Government pathologist or entomologist or the Accountant-General, or any other pharmacist so specified by the Government Pharmacist of the Federation or of a State, or any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any account specified by the Accountant-General of the Federation or of a State (whether any such officer is by that or any other title in the service of the State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated in it.^[7]’

The court further stated that section 55(1) of the Evidence Act, 2011 is comprehension-friendly and its import is that a production of a medical certificate (report) effectively dispenses with the attendance of its author in court and that the case-law has given its imprimatur to the provision and that such a certificate could be tendered through an investigating Police Officer (IPO). The court then held that;

….the respondent’s failure or neglect to call the medical practitioner, who conducted the autopsy examination on the corpse of the deceased and authored exhibits 3 and 4, as a witness did not vitiate its admission through PW1, the IPO, and validity. The appellant’s argument on the point, which appears dazzling, is totally spent and misplaced in the wide domain of the adjectival law. I am therefore, derobed of any legal justification to ostracise exhibits 3 and 4 from this appeal in order not to offend the law^[8].

Section 51 of the Evidence Act is to a large extent similar to section 293 of the Indian Criminal Procedure Code, 1973 (“the Indian CPC”), which received judicial interpretation in the Indian case of Tomar v The State of Maharashtra^[9]. In that case, the court was tasked with answering the question whether the learned trial judge was justified in admitting the report of Assistant Director of State Forensic Laboratory/Scientific Expert under Section 293 of the Indian  CPC, in evidence though it was not admitted by the defence and whether the trial court was required to summon the Scientific Expert, before admitting his report in terms of the provisions of Section 293 of the Indian CPC. The said section reads as follows:

(1) Any document purporting to be a report under the hand of a Government   scientific expert to whom this section applies, upon any matter or thing duly   submitted to him for examination or analysis and report in the course of any proceeding under this Code may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the   subject-matter of his report.

(3)Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear   personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4)This section applies to the following Government scientific experts, namely:

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Inspector of Explosives;

(c) the Director of the Finger Print Bureau;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director, Deputy Director or Assistant Director of a Central Forensic   Science Laboratory  or a  State  Forensic   Science Laboratory;

(f) the Serologist to the Government^[10].

The court in answering the two questions or issues posed, held that the provisions of section 293 of the Indian CPC are intended to save time and avoid needless examination of experts mentioned therein, unless, the court found it necessary to examine the expert or when the accused requested for examination of the expert. It was further held that where the court does not find it necessary to analyse the Chemical Examiner or any other expert mentioned in subsection (4) of Section 293 and the defendant does not make any prayer to summon and examine the expert, the report can be used in evidence without examination of the expert.

Some Nigerian laws, such as the Evidence Act, the Penal Code, Criminal Code and criminal procedure laws bear striking similarities in content with some Indian laws such as the Indian CPC and the Penal Code of India, because Nigeria and India share a common colonial master in Britain^[11]. Therefore, it appears that section 55 of the Evidence Act, which is substantially similar to section 293 of the Indian CPC, was copied from India with slight modifications and, just as noted in the Indian case mentioned above, the said section 55 of the Nigerian Evidence Act, is meant to save time[12] and avoid needless examination of the specified officers mentioned in section 55, unless, the court finds it necessary to summon the said officer for purposes of cross examination or when the prosecution or defendant requests for examination of the officer.

Although section 55(3) of the Evidence Act, allows for any party or the court, suo moto, to apply for the maker of the report to be called for purposes of cross examination or for any other reason, if interests of justice so requires, the courts have chosen not to exercise such a discretion as evidenced in the cases of Mohammed v Kano, Eze v State, Ekum v State to mention but a few. In the case of Idirisu v The State[13], an accused person applied for an adjournment to enable him call a  medical doctor  who had prepared a medical report already received in evidence, as a  witness, the application was refused. When the case got to the Supreme Court on an appeal, it was held that the application for adjournment ought to have been granted.

Section 36(6)(d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) allows for the defendant to examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal. Although medical practitioners who prepare medical reports to be used in criminal trials are not witnesses to crime in the sense that they did not witness the crime being committed, the report issued by them constitute their statements in respect of the investigation, therefore, they are witnesses for the prosecution and the defendant or his legal practitioner is constitutionally allowed to examine such medical practitioners concerning their reports.

However, it is doubtful if many defendants make use of this right to demand for the maker of a medical report to be summoned for the purposes of cross examination regarding the contents of the report they have prepared.

In the American case of Melendez-Diaz v Massachusetts^[14], Diaz was charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and 28 grams. At trial, the prosecution placed into evidence the bags seized from Diaz and his confederate.    It  also  submitted three  “certificates  of  analysis”  showing  the  results  of  the forensic analysis performed on the seized substances.  The certificates  reported  the  weight  of  the  seized  bags  and stated  that  the  bags  have been  examined  and found to contain cocaine.  The certificates were sworn to before a notary public by analysts at the  State  Laboratory  Institute  of  the  Massachusetts  Department  of  Public  Health,  as  required  under  Massachusetts law. Melendez-Diaz objected to the admission of the certificates, asserting that his Sixth Amendment Right (Confrontation Clause) required the analysts to testify in person.  The objection was overruled, the certificates were admitted and he was convicted. He appealed and the Massachusetts Appeals court affirmed, rejecting the claim of violation of Sixth Amendment. Melendez-Diaz further appealed and the United States Supreme Court held that the certificates admitted without calling the analysts to testify violated the Sixth Amendment right of Melendez-Diaz to confront witnesses against him.

More importantly, it acknowledged that forensic reports are not ‘neutral’ as it is widely believed and acknowledged that people working in these labs are often pro-prosecution because of close working relationships with law enforcement^[15]. The court noted that:

Forensic evidence is not uniquely immune from the risk of manipulation. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution. Confrontation is one means of assuring accurate forensic analysis…Like the eyewitness who has fabricated his account to the police, the  analyst who provides false  results may, under oath in open court, reconsider his  false testimony…Confrontation is designed to weed out not only the fraudulent  analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials^[16].

The position of the law in the United States as seen in Diaz’s case appears to be in stark contrast to the position in Nigeria because in Nigeria a medical report from a government hospital may be tendered in evidence in the absence of the maker of the report as seen in Etuk-Udo’s case and a multitude of other cases.

The United States position appears to better protect the rights of the defendant to fair hearing because the defendant can cross examine the medical practitioner who made the report and through whom the report must be presented in evidence during trial. Such cross examination or confrontation is capable of showing that the report is biased, fabricated or false. After all, it has been held that “cross examination where properly employed is a potent tool for perforating falsehood[17]” and that “hard facts do not change under the fire of cross examination but falsehood cannot stand the heat.[18]”

It would therefore, be in the interest of justice and protection of right to fair hearing for the law in Nigeria to be amended to provide that such medical reports from government hospitals should not ordinarily be tendered by a non-maker except the conditions in section 83 of the Evidence Act, have been satisfied. This would better safeguard the right to fair hearing guaranteed the defendant and check against alleged pro-prosecution bias from medical reports issued by medical practitioners from government hospitals. If such medical practitioner is put in the witness box to prove his report, he will be subject to cross-examination by the defense counsel and such examination it has been argued^[19], is likely to bring out biases within such reports.

3. MEDICAL REPORT FROM PRIVATE HOSPITALS

The law accepts medical reports from private hospitals. In answer to the question whether a medical report must be issued from a government or private hospital, the Court of Appeal in Alex Ivwighre v The State^[20] stated:

The Learned Counsel for the Appellant is not contesting the fact that Exhibit “B” corroborated the testimony of PW1 that she was raped, however he is not happy that the medical report relied upon by the prosecution came from a private Medical Doctor in a private clinic instead of a government hospital. In my view, as long as the medical report is from a qualified Medical Doctor, whether it is from a private hospital or government hospital is a non-issue. The learned trial Judge was therefore right when he held that the medical report Exhibit “B” corroborated the evidence of PW1…^[21]

However, it appears that a medical report from a private hospital does not enjoy the same legal or evidential status as such a report is not presumed to be regular as per section 168(1) and (2) of the Evidence Act, 2011 and it must be tendered by the maker for the court to rely on its contents, except where conditions under section 83(1)(b) and (2) of the Evidence Act are satisfied. In Eze v State^[22] the court held:

Exhibit P1 (Referral Form/Note; titled “Confirmation of a Case of Rape”) at page 16 of the record was issued and signed by one Mrs, Ngozika of Chima Maternity & Hospital but the said Exhibit was tendered by PW3 (Dr. Nwambeke O. Nwambeke ) who was not the author of the said document. I agree with the learned counsel to the Appellant that Exhibit P1 tendered and admitted in evidence through PW3, who is not the maker, is documentary hearsay and therefore wrongly admitted and accorded probative value by the trial judge. The law is trite that evidence on the contents of documents or circumstances under which such documents were made by a person who was not their maker or present when the documents were made will be hearsay. By so holding, Exhibit P1, being an inadmissible evidence, is incapable of corroborating the testimony of PW1^[23].

In the cases of Ekum v State^[24] and Etuk-Udo v State^[25] a medical report from a government hospital was accepted in evidence even though same was presented by a non-maker without any explanation as to the absence or inability to call the maker or to satisfy 83(1)(b) and (2) of the Evidence Act.

However, in Eze’s case^[26], a medical report from a private hospital was rejected in evidence because it was presented by non-maker of the report and the exceptional conditions for acceptance of the report under 83(1)(b) and (2) of the Evidence Act were not met.

Based on the foregoing, it appears that a medical certificate or report from a government hospital is admissible irrespective of the provision of section 83 of the Evidence Act, whereas a certificate from a private hospital is admissible only upon satisfying section 83 of the Act.

It is curious why medical reports which are critical and relevant in proving certain facts in a case should be treated differently because of their sources of origin i.e. whether from government or private hospital, by the Evidence Act and case law. It appears that the medical reports from government hospitals are taken to be more authentic or less likely to be manufactured or fabricated and are therefore even presumed to be regular as per section 168 of the Evidence Act. The reports from government hospitals seem to enjoy this stamp of authenticity or genuineness because they are issued by a medical practitioner from a government hospital who is believed to be an independent and impartial witness. This can be gleaned from the dictum of the court of appeal in Mohammed v Kano State^[27] where the court held:

…the (medical) report, in this case, is not a private document secured by the Prosecutrix or her father, but was obtained by the Police to whom the complaint was made. It is a report from the General Hospital and not a private hospital. It is also made by a medical doctor in the service of the Government. The examination and report was thus an independent document at the instance of and collected by the Police, an impartial institution.

From the above dictum, it also appears that medical reports from private hospital are considered not to be produced by an independent and impartial body unlike a government hospital which is considered to be independent.

However, concerning the impartiality or non-bias of medical practitioners in government employment issuing medical reports for use by law enforcement agencies, Harne noted that:

…literature on scientific evidence suggests that when forensic labs work under the umbrella of law enforcement/government, the experts in the lab begin to see themselves as law enforcement professionals rather than scientists. Cognitive scientists argue that a close working relationship with law enforcement agencies leads to the subconscious adoption of the role of the prosecutor by scientists. This bias can affect the results of scientific inquiry, which are presented as neutral but, in fact, are biased against the defense. The risk is not of gross misconduct, rather that of subtle unconscious bias.^[28]”

4. CONCLUSION

This chapter briefly discussed medical reports and how they are useful in proving certain facts in criminal trials. The chapter also tersely considered medical reports issued from government and private hospitals and how they are treated by the courts when attempt is made to tender or put them in evidence during criminal trials. The chapter found some dichotomies in the treatment of medical reports emanating from government and private hospitals and also made a recommendation aimed at curing the mischief occasioned by the different treatment of medical reports from government and private hospitals by the courts.

5. RECOMMENDATION

The Evidence Act, 2011 should be amended to the effect that medical reports from government hospital shall not be accepted in evidence in the absence of the maker except the conditions for accepting documents in the absence of their maker in section 83 of the Evidence Act is met. The present law as espoused in the cases considered in this chapter, whereby under section 55 of the Evidence Act, a medical report from a government hospital can be accepted in evidence without satisfying the conditions in section  83(1)(b) and (2) of the Act is not protective of fair hearing guaranteed by the Constitution. Although by section 55(3) of the Evidence Act, the court shall have the power, on the application of either party or of its own motion, to direct that any medical practitioner from a government hospital shall be summoned to give evidence before the court if it is of the opinion that, either for the purpose of cross-examination or for any other reason, the interests of justice so requires, this option is hardly utilized or in some cases, attempt to utilize it, is refused[29], therefore, leading to acceptance of medical report from government hospital without such evidence being challenged by way of cross examination of the maker.

 

[1] (2017) LPELR-42098(SC)

[2] Ibid

[3] Ibid

[4] (2017) LPELR-50601(CA)

[5] Ibid

[6] (2020) LPELR-49164(CA)

[7] Ibid

[8] Ibid

[9]  (Unreported: Criminal Appeal No. 937/2018, judgement delivered on 9^th March, 2021 by Sandeep K. Shinde, J.)

[10] Section 293 of the Criminal Procedure Code of India, 1973

[11] Ecyclopedia.com ‘Law, Colonial Systems of British Empire’ <https://www.encyclopedia.com/ encyclopedias-alamanacs-transcripts-and-maps/law-colonial-systems-british-empire> accessed 25 September 2022

[12]This can be gathered from the decision in Olabode v State[12] where it was held that: “One issue which often causes several adjournments in murder trials at the lower court is the inability of the prosecution to secure the attendance of medical doctors in court. Several excuses are usually made ranging from that the doctor is busy or that he has relocated abroad as in this case. In such case, the practice is to tender the autopsy report through the police officer who conducted the investigation and received the said report. This was the scenario in the instant case.”

[13][1967] 1 All NLR 32

[14] 69 Mass. App. 1114, 870 N. E. 2d 676 <https://www.law.cornell.edu/supct/html/07-591.ZS.html> accessed 25 September 2022

[15] Ibid page 15

[16] Ibid page 12-14

[17] John Fabiyi JCA in Olaniyan v Adeniyi (2007) 3 NWLR (Pt. 1020) 1 @ 21, para. H

[18] Dongban-Mensen JCA in Tyonex Nig. Ltd v Pfizer Ltd (2011) ALL FWLR (Pt. 564) 175 @ 185

[19] Bharat Harne ‘Expert Testimony and Section 293 CrPC,: A Critique’ available at <https://theproofofguilt.blogspot.com/2021/08/guest-post-expert-testimony-and-section.html>, accessed 25 September, 2022

[20] (2018) LPELR-44862(CA)

[21] (2018) LPELR-44862(CA) Per BADA, J.C.A. (Pp. 14-15, Paras. E-D)

[22] (2019) LPELR-47984(CA)

[23] Ibid

[24] (n 4)

[25] (n 6)

[26] (n 11)

[27] (2017) LPELR-45423(CA)

[28]Bharat Harne ‘Expert Testimony and Section 293 CrPC,: A Critique’ available at <https://theproofofguilt.blogspot.com/2021/08/guest-post-expert-testimony-and-section.html >, accessed 4^th June, 2022

[29] (n 13)