NIGERIA’S TELEMEDICINE REGULATORY FRAMEWORK

It is in dire need of reform, contends

 VICTOR OKEKE

The emergence of telemedicine platforms like Doctorcare247, CribMD, Mobihealth International, and their like, which enable Nigerian doctors and healthcare specialists to diagnose and treat patients online, represents a significant advancement in healthcare delivery across the nation. However, these innovations operate within a precarious legal environment primarily because Nigeria’s current regulatory framework is fundamentally inadequate to address the unique challenges posed by digital healthcare services.

The principal legislation governing medical practice in Nigeria, the Medical and Dental Practitioners Act (Cap. M8, LFN 2004), was enacted in an era that predated the digital health revolution. While Section 2(a) – (d) of the Act empowers the Medical and Dental Council of Nigeria (MDCN) to regulate medical practice, its provisions fail to contemplate the distinctive aspects of virtual healthcare delivery. This legislative gap has left regulatory authorities without clear mandates regarding telemedicine oversight.

While it is important to acknowledge that Rule 22 of the MDCN Code of Medical Ethics 2004 does briefly address telemedicine, characterizing it as “a professional opportunity outcome of modern advances in computer and telecommunication technology… steadily creeping into professional practice in Nigeria,” these provisions are notably insufficient for today’s rapidly evolving digital health landscape. It instructs practitioners to “continuously assess and avoid medico-legal pitfalls” in areas including confidentiality, professional competence, the legal status of consulting specialists, equipment reliability, and continuity of care.

In their latest review in 2008, the code in Appendix 5, defined telemedicine as “the employment of telecommunications technology to give clinical attention to patients in locations remote from the doctor.” The appendix acknowledges telemedicine’s potential to “enable a large number of widely scattered patients in rural areas to have access to the expertise of the few specialists concentrated in urban locations.” Still, it fails to establish a regulatory framework that would encourage the necessary investment in the sector but merely focuses on simple “broadcasting of clinical information” and “interception by unauthorized persons” which is an outdated conception of telemedicine that predates the sophisticated encrypted platforms that now dominate the landscape.

When examining the operations of these platforms which facilitate remote consultations, electronic prescriptions, and digital health records, the legal incongruities become apparent. The platform’s services extend beyond traditional doctor-patient interactions into domains that existing regulations never anticipated. For instance, when Doctorcare247 connects Nigerian patients with specialists across international boundaries, questions of jurisdiction and licensing immediately arise that current legislation cannot adequately address.

It is thus suggested that three regulatory deficiencies require immediate attention. Current medical licensing regulations in Nigeria do not specifically address telemedicine practice. Section 8 of the Medical and Dental Practitioners Act establishes licensing requirements for medical practitioners but fails to delineate standards for virtual practice. This creates uncertainty regarding whether additional credentials are necessary for telemedicine providers. For entities like Doctorcare247, this ambiguity creates significant legal exposure. When their affiliated physicians provide care across national boundaries, questions arise regarding which country’s medical body has jurisdiction. The legal principle of lex loci delicti (the law of the place where the tort occurred) becomes difficult to apply when the patient, physician, and digital platform may each be located in different jurisdictions. In such scenarios, determining which court has jurisdiction and which substantive law should apply becomes highly problematic.

Perhaps the most concerning challenge is the liability standards for adverse events occurring during telemedicine encounters. When a diagnostic error occurs during a virtual consultation on Doctorcare247, determining liability becomes more difficult. Is the individual physician solely responsible, or does liability extend to the platform? How does the technological mediation of the doctor-patient relationship affect the standard of care? These questions remain unanswered within Nigeria’s current legal framework. Sections 15 and 16 of the Medical and Dental Practitioners Act establish disciplinary procedures for professional misconduct but do not address the unique considerations that arise in virtual practice. Moreover, the Act’s provisions regarding standard of care were developed in the context of in-person medical practice and may require recalibration for digital health contexts.

The regulatory vacuum surrounding telemedicine has created significant challenges for insurance coverage. The National Health Insurance Authority’s (NHIA) governance framework lacks specific provisions for telemedicine reimbursement, creating barriers to coverage for virtual healthcare services. This regulatory gap has direct implications for platforms like Doctorcare247, whose services may fall outside established insurance reimbursement codes.

NHIA Act (2022) provides general authority for determining covered services but lacks specific guidance regarding telemedicine coverage. The Act establishes broad powers for the Authority to “enforce the basic minimum package of health services” in Section 3(c) and to “promote, regulate and integrate health insurance schemes” in Section 2(a), but it does not contain any explicit provisions or guidance specifically addressing telemedicine or digital health services. The Act focuses on establishing the institutional framework, funding mechanisms (including the Vulnerable Group Fund), and general principles for health insurance coverage, but leaves the specifics of what services are covered to be determined through implementation guidelines and regulations. The absence of standardised telemedicine reimbursement codes creates legal uncertainty regarding insurance coverage obligations. When insurers deny coverage for telemedicine services provided through platforms like Doctorcare247, patients may face unexpected out-of-pocket expenses that undermine healthcare accessibility.

Nigeria’s regulatory approach to telemedicine contrasts sharply with comparable jurisdictions that have developed comprehensive frameworks for digital health services. South Africa’s Health Professions Council has established specific telemedicine guidelines that address critical legal issues such as informed consent in virtual settings, continuity of care standards, and licensing requirements for telemedicine practitioners. These guidelines provide legal certainty that is notably absent in Nigeria’s regulatory environment.

Similarly, Kenya’s Digital Health Act (2023) created a comprehensive legal framework for digital health services, including the establishment of the Digital Health Agency (DHA) and other provisions addressing cross-border practice, data protection standards, and liability frameworks.

These regulatory approaches could inform Nigeria’s development of a robust legal framework. The United Kingdom’s regulatory model, which integrates telemedicine within existing healthcare regulations while addressing specific digital health considerations, offers another potential template. The UK’s General Medical Council has established clear guidelines regarding physicians’ responsibilities in digital practice, creating legal certainty that benefits both providers and patients.

Drawing from the above, it is obvious that Nigeria requires dedicated legislation addressing telemedicine practice. This legislation should establish clear definitions of telemedicine services, delineate licensing requirements for virtual practice, and establish standards of care specific to digital healthcare delivery.

The legislation should explicitly address critical issues such as licensing requirements for telemedicine providers, including provisions for cross-border practice; standards for establishing doctor-patient relationships in virtual contexts; requirements for ensuring continuity of care in telemedicine scenarios; and protocols for handling emergencies during virtual consultations. The legislation should empower the MDCN to develop specific regulations governing telemedicine practice, ensuring that regulatory requirements evolve with technological advancements.

Legislation should establish clear liability frameworks for telemedicine practice, addressing the unique considerations that arise in virtual healthcare delivery. These frameworks should delineate standards of care specific to telemedicine practice; allocation of liability between individual practitioners and telemedicine platforms; jurisdictional considerations for cross-border telemedicine services; and requirements for professional liability insurance for telemedicine providers.

Legislation should mandate the integration of telemedicine services within the National Health Insurance Authority, establishing standardised codes for telemedicine services; reimbursement parity for appropriate virtual and in-person services; coverage requirements for essential telemedicine services; and standards for determining medical necessity in virtual care contexts.

Implementing these legal reforms requires a coordinated approach involving multiple stakeholders. The Federal Ministry of Health and Social Welfare, in collaboration with the MDCN, should lead the development of comprehensive telemedicine legislation, working also hand-in-hand with the Nigeria Data Protection Commission (NDPC) regarding data protection provisions; the National Health Insurance Authority regarding coverage and reimbursement frameworks; the Nigerian Communications Commission regarding technical standards; professional medical associations regarding standards of care and professional ethics; patient groups regarding patient rights and protections; and telemedicine providers regarding operational considerations. This multi-stakeholder approach would ensure that the resulting legal framework comprehensively addresses the complex challenges of regulating digital healthcare services in Nigeria.

Okeke is a lawyer with the Centre for Social Justice (CSJ) Nigeria