INFORMED CONSENT FOR MEDICAL TREATMENT IN NIGERIA: THE RIGHTS OF MENTALLY INCAPACITATED ADULTS AND THE LEGAL LIMITS OF THE NEXT OF KIN

Abstract

The Constitution guarantees an individual’s right of autonomy a corollary of which is the unfettered right to give or withhold consent to any kind of medical treatment. It is therefore clear that in Nigeria, a medical practitioner has the legal obligation to obey the decision of a patient who has the requisite mental capacity. However, it is not clear if a medical practitioner must obey the decision of the next of kin if an adult patient lacks the mental capacity to give or withhold consent to a medical treatment. This article argues that contrary to customary medical practice in Nigeria, in the absence of a valid advance directive by a mentally incapacitated patient, the extant laws in Nigeria point to the fact that a next of kin cannot withhold consent to a life sustaining medical treatment on behalf of the mentally incapacitated adult. It is therefore important to examine the legal rights of a next of kin in Nigeria in order to protect mentally incapacitated patients from decisions that might lead to their unlawful death contrary to section 33 of the Nigerian Constitution as amended.