2021

LEGAL AND ETHICAL ASPECTS IN HEALTH SE

MANUAL notes

MZUMBE UNIVERSITY:| FACULTY OF LAW:| DEPARTMENT OF

ECONOMIC LAWS

Prepared by: | Dr. HANIFA MASSAWE

 Table of Contents

PART I................................................................................................................................................3
1 INTRODUCTION......................................................................................................................3
1.1 The Goal and Objective of the Training.....................................................................4
1.2 Conceptualization of Health and Law........................................................................5
1.3 The status of the Health Service Delivery.................................................................8
1.3.1 Health Service Delivery as a Call.........................................................................8
1.3.2 Health service Delivery as an Employment, and entrepreneurship.........9
1.3.3 Health service delivery as Human Right.........................................................10
1.3.4 Health service delivery as Legal Right..............................................................11
1.3.5 As the ethical right and obligation....................................................................11
PART II.............................................................................................................................................13
THE LEGAL FRAMEWORK REGULATING HEALTH SERVICE DELIVERY IN
TANZANIA.......................................................................................................................................13
2 Introduction.............................................................................................................................13
2.1 Health Service Providers (HSP)..................................................................................13
2.2 Health Care Professionals...........................................................................................14
2.3 Laws regulating health delivery in Tanzania.........................................................15
2.3.1 The Constitution of the United Republic of Tanzania (CURT), 1997......15
2.3.2 The Public Health Act, 2009...............................................................................15
2.3.3 The Ocean Road Cancer Institute Act, No.2, 1996 (ORCI)........................17
2.3.4 The Mental Health Act, No. 21, 2008...............................................................18
2.3.5 The HIV and AIDS (Prevention and Control) Act, No. 28, 2008...............19
2.3.6 Medical, Dental and Allied Health Professionals, 2017..............................20
2.3.7 Nursing and Midwifery Act, No. 1, 2010 (NMA)............................................23
2.3.8 The Pharmacy Act, No. 1, 2011.........................................................................25
2.3.9 Medical Radiology and Imaging Professionals...............................................27
PART III.......................................................................................................................................30
ETHICAL ASPECTS IN HEALTH SERVICE DELIVERY FOR HEALTH
PERSONNEL...............................................................................................................................30
3 Introduction.............................................................................................................................30
3.1 Ethics as defined............................................................................................................30
3.2 Standard ethics for medical dental and allied professionals............................30
3.2.1 Informed Consent...................................................................................................31

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 3.2.2 Beneficence and non-maleficence.....................................................................32
3.2.3 Confidentiality.........................................................................................................32
 The exception to the principle of confidentiality...................................................34
f) Electronic Patient Record................................................................................................35
3.2.4 The Rights to ethical care and obligation.......................................................35
3.2.5 Limited resources...................................................................................................36
3.2.6 Competence to practice........................................................................................36
3.2.7 Veracity and fidelity...............................................................................................36
3.2.8 Financing health services....................................................................................36
3.2.9 Corruption................................................................................................................36
3.3 The ethical standard for nurses and midwifery professional...........................37
3.3.1 Respect for mankind and the patient/client as an individual.................37
3.3.2 Obtain Consent.......................................................................................................37
3.3.3 Maintain Professional Competence...................................................................37
3.3.4 Responsibility and Accountability.....................................................................37
3.3.5 Honest and Fairness.............................................................................................38
3.3.6 Leadership, Management, and Team-working..............................................38
3.3.7 Communication and interpersonal skills........................................................38
3.4 The ethical standard for pharmacist........................................................................38
3.4.1 Regard for Human Life.........................................................................................39
3.4.2 Honour and Dignity of Profession.....................................................................39
3.4.3 Availability of safe, efficacious, and quality medicine.................................39
4 Introduction.............................................................................................................................40
4.1.1 Termination of Employment...............................................................................40
4.1.2 Disciplinary inquiry...............................................................................................40
4.1.3 Tortious action........................................................................................................40
4.1.4 Criminal litigation..................................................................................................43
5 CONCLUSION.........................................................................................................................43

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 MZUMBE UNIVERSITY

FACULTY OF LAW

Department of Economic Laws

Legal and Ethical Aspects in Health Service Delivery

Prepared by: Dr. HANIFA MASSAWE

PART I
1 INTRODUCTION
The provision of health services is the core value of any state to her subjects
for socio-economic development. Just like any other jurisdiction across the
globe, in the United Republic of Tanzania (URT) the Health Services Delivery
(HSD) are regulated. That says, there is neither autonomy in the provision of
health service to health service providers nor the practice of health care
professionals that operate unregulated. Therefore, Health Care Professionals
(HCP) whether in public or private are bound by spirit and letters of the
laws.

Notably, health service delivery is based on trust, belief that the patient has
to his/her health care professional in handling health challenges. Of much
concern, the question would be, do HCP treasure the reputation of their
professionals, who oversees to see legal and ethical professional standards?
Sometimes the trust reverts to a specific HSP and similar questions must be
answered on the regulation and maintaining of ethical standards in the
HCD.

Important to note, Health law and medical laws are not taught a course in
most of the tertiary institutions that offer health and allied sciences, nursing
and midwifery, pharmacy, and allied science. It is equally possible to term
that, considering the nature of the service they offer in society, the need for
legal and ethical aspects in health care delivery is important to equip the
HSP and the HCP on such valuable knowledge in their profession.

3
This training is a vade mecum, to health care profession on legal and ethical
aspects in health service delivery.

1.1 The Goal and Objective of the Training

The goal of the training is to impart to the health care professionals the
theoretical and practical knowledge on aspects relating to legal and ethical
issues in health service delivery, and thus in lieu of, the programme shall
meet, among others the following objective.

i. Conceptualization of health and law

ii. To understand the status of HSD
a) As a Call.
b) As an Employment, and investment.
c) As a human right.
d) As a Legal right.
e) As an ethical right
iii. To understand the legal framework regulating health service delivery
in Tanzania;
a) The constitutional of URT.
b) The Public Health Act, 2009.
c) The Mental Health Act. No. 21, 2008
d) The Ocean Road Cancer Institute Act.
e) The Medical, Dental, and Allied Act. No. 11, 2011
f) The Pharmacy Act, No. 1, 2011
g) The Health Laboratory Practitioners Act, No. 2007
h) The private Health Laboratory Regulation Act, No. 10
i) The persons with Disabilities Act, No. 9, 2010
j) Tanzania Medical and Medicines Devices Act, 2003
k) The Nursing and Midwifery Act, No. 1, 2010
l) The Medical Radiology and Imaging Professionals Act, No. 21,
2007
m) Human DNA ( Regulation) Act, No.8, 2009

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 iv. The have knowledge on ethical aspects in health service delivery for
health personnel
a) Meaning of ethics
b) Ethical standards for medical, dental and allied professionals
c) Ethical standard for Nursing and midwifery
d) Ethical standard for pharmacist
e) Ethical standard for Medical radiology and imaging
professionals
v. Legal and ethical implications for failure to honour professional
standard
a) Disciplinary action by the employer
b) Disciplinary inquiry from the professional bodies
c) Tortious action
d) Criminal

1.2 Conceptualization of Health and Law

Even though the two concepts are commonly used in our daily life, it has
been difficult to define them, and for the sake of health care professionals, it
is worth defining these terms in our context. Why in the HCP context? The
answer would be simple;

Firstly, the knowledge relating to ‘health’ and ‘law’ is imperative to HSP and
HCP in the globalized world.

Secondly, understanding concepts effectively in the HCP context, will rise

the spirit contained in these two concepts, which are mainly admiration to
performing our duties professionally, legally, and ethically.

Thirdly, using the two words together that says, “Health Law” will import
another discipline of study which you as HCP need to have a thorough
knowledge of it.

Thus, the difficulty in defining is cautioned by Tinomugisha, BK., 1 save for

their daily use, the two terms ‘health’ and ‘law’ are not easily defined.

1
Twinomugisha, BK, (2015), Fundamentals of Health Law in Uganda, South Africa; Pretoria University Law
Press, at Pg. 3

5
However, The Institute of Medicine2 attempted and advanced that health is
sometimes negatively defined as the absence of diseases and injury, or
positively, as the concept of well-being.

The two thoughts observed are merged by World Health Organization, in

defining health to mean a state of complete physical, mental and social well-
being and not merely the absence of disease or infirmity. 3 Henceforth the
definition is given by WHO is adopted by the Tanzania National Health
Policy, 2007 in its Swahili version to the writ, “Afya maana yake ni hali ya
ukamilifu kimwili, kiakili and kijamii na kutokuwepo kwa maradhi”

It may be emphasized that the definition of health set forth by WHO and
adopted by the Tanzania National health policy, 2007, has imported the
domain or subject matter of HSD. This means HCP works to strive to build
that state of being complete whether physically (for example, what can be
touched, seen, observed, felt, and so on), mentally (psychic part of the
human being), and social wellbeing (include how do we relate with other, our
environments).

Before defining law with mild emphasis capitalizing on health issues in the
United Republic of Tanzania (URT). it is worth noting that, prior to 1990 the
URT had no health policy, thus the implementation of health services
adopted the national policy direction, which has, as its goals to fight against
three enemies, namely; ignorance, diseases, and poverty. 4 The national
health policy of 1990 was the first health policy, which focused on raising
health conditions to special groups such as children below five-year,
pregnant women, and nationals, then it was replaced by the current health
policy of 2007, intending to implement the national goal of 2025. 5

Reverting to the definition of law like many other concepts, ‘law’ has
attracted various definitions. The Oxford Dictionary defines law as ‘the

2
The Institution Medicine, (2001) Health and Behavior: The Interplay of Biological Behavioral, and Societal
Influences, the Committee on Health and Behavior: Research, Practice, and Policy Board on Neuroscience and
Behavioral Health, United States; National Academy Press, at. 3
3
The Constitution of World Health Organization adopted by the International Health Conference held in New
York from 19 June to 22 July, 1946 and signed on 22 July 1946 by representative of 61 states.
4
The National Health Policy, 2007
5
The National Health Policy, 2007

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system of rules which a particular country or community recognizes as
regulating the actions of its members and which it may enforce by the
imposition of penalties.6 It is a system of rules and guidelines, which are
enforceable through social institutions to govern behaviour.7

Law shapes economics, politics, and other spheres of life and serves as a
social mediator of relations between people. As Corley et al have observed,
the law is,

“An instrument of social, political, and economic change. Law is

both an instrument of change and a result of changes that take
place in our society. The law brings about changes in our society;
society brings about changes in the law. The law responding to the
goals, desires, needs, and aspirations of society is in a constant
state of change. Sometimes the law changes more rapidly than the
attitude of the majority in society. In this event, the law provides
leadership in bringing out changes. At other times our society is
ahead of the law in moving in new directions, and changes in the
law are brought about by the people …”

Law is an important tool in the development and governance of society. It

causes changes in society, it prohibits, punishes certain acts, such as the
deliberate spread of diseases, nuisances, abuse of drugs, and other acts.

It should be underscored that not all laws attract punishment or sanctions,

exempla gratia, doctors observe laws regulating their profession not for fear
of sanction because it is ethically right and we may conclude that such laws
are an indication of good practice.

Thus, the use of the two words together health and law, that says, health
law, changes the semantic and forms a branch of law concerning the health
of the human being. Sometimes it covers other sets such as medical law.
Health law covers health rights, international and human rights law, public

6
Oxford Dictionaries http://oxforddictionaries.com/definition/english/law (Accessed on 11th Nov. 2021 at
13:55).
7
Oxford Dictionaries http://oxforddictionaries.com/definition/english/law (Accessed on 11th Nov. 2021 at
13:55).

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health, medical negligence, which mainly deals with malpractice and tort.
Due to its impact, on society, some universities across the globe and
specifically in Tanzania have embraced it as a taught course.

1.3 The status of the Health Service Delivery

The traditional understanding and trust that underscored society as far as
HSP and HCP are concerned have changed. No wonder nowadays, people
will question their rights in the process of health management, that says,
the cause of death, surgery procedures, medical prescription, medicine
dispensation, the delay of medication, consent to treatment, choose of
personnel to attend them or deny others. Sometimes civil and criminal
litigations may be preferred to the HCP and the HSP, in the event such a
happens, don’t be furious or annoyed, simply be informed accordingly, that
the status of health service delivery has changed and swim according to the
situation.

1.3.1 Health Service Delivery as a Call

Just like other professionals such as the priesthood, the health care
professionals were regarded as a call. This means persons who entered this
noble profession had a spirit of service other than the source of income or
money generation. The primary goal was the desire and aspiration of service
for the society. The inner desire was offering service. Henceforth, the oath
was the gist and commitment that a person vowed to keep the covenant to
his or her professional.

Thus, the classical version and one of the oldest Hippocratic Oaths is held to
be sacred till today whereas gods and goddesses were said to witness to that
covenant. The oath binds the professionals to use their ability and
judgment, to keep the sick from harm and injustice, neither giving the
deadly drug to anybody who asks for it nor suggesting such effect. 8 The
rationale behind it being termed as a call, revolves around that, no money
can buy that health service, and whatever little is contributed was a token to
show appreciation of the time offered.

8
Jay w. mark, (2021), the Medical Definition of Hippocratic Oath, also available at
https://www.medicinenet.com/script/main/art.asp?articleskey=6930 retrieved on 21st November, 2021

8
Most if not all of our religion believes that, God is the life-giver, God is the
source of life, and whoever participate in the process of life serving,
protecting life is directly participating in the work of God. That said, health
care professionals are partakers of such sacred professionals.

 Dr. Ben Carson professional experience in HSD

I know and definitely believe that you have a tale to tell regarding personal
experience among yourselves but I find it worth sharing the professional
experience shared by your colleague in this sacred profession, one Carson,
B., in his masterpiece, gave his professional experience in health service
delivery by giving the story of Theresa Binder, a mother who wanted to kill
her children before they were born after receiving the news that, she would
give birth to Siamese twins. 9 It was his firm belief from his professional
experience that no one at that time had ever tried separating Siamese
successfully.

Surprisingly, after 22 hours battling the life of Patrick and Benjamin in a

historical surgery, Carson, B., prayed, if Oh, God, let them live, let them
make it.10 Thereinafter, the progressiveness of the children he found asking
himself, is this real? Is this happening? Since he hadn’t expected them to
survive for 24 hours. He lastly thanks, God. “God, thank you” God, thank
you” I know you have had your hand in this.” This was the reason why the
masterpiece was termed as the gifted hand since he believed during the
whole process of doing that, it was God who used them as instruments.
(Confer the book, Carson, B., 1990, Gifted hand, the Ben Carson Story, at
pp. 160-175).

1.3.2 Health service Delivery as an Employment, and entrepreneurship

Currently, the traditional understanding and categorization of health service
delivery as a call have drastically changed, health service delivery today, can
be seen as entrepreneurship ( to sound it better in our Swahili tongue is
commonly referred to as ujasiriamali, sometimes also referred to as fursa), it
is sometimes the source of income and therefore it is a business or
9
Carson, B, (1990) the Gifted hands at 160
10
Carson, B (1990), at 169

9
investment, this means people who venture into it are expecting among
others, interest, returns, benefits and so on, it is further seen as
employment, and thus the employer-employee relationship is established,
whereby the employee striving for the employment standard, and the
employer likewise.

Important to note, within this context, the doctor-patient relationship shift

depending on the nature and circumstances the two-person encounter. The
traditional understanding of service is impaired, the relationship of
investment, business, and employment is generated if not regulated may
destroy the health service delivery.

 Food for thought:

State whether the following incidence is a call to service or income

generation

Firstly, Consider the reported case that happened in Tanga, where a picture
of mother lying down, crying in deep tears, accompanied with fierce
bleeding, for the reasons which came to light that, Dr. Jackson Mery in
Kelenge health centre within Korogwe district in Tanga Region, who
mercilessly undressed the patient wound for failure to honour the agreed
sum worth of 10,000/= as a consideration contemplated in their
understanding in the course of service.

Secondly, consider the story of Dr. Ben Carson.

1.3.3 Health service delivery as Human Right

The development, at different clusters, has created the status of health
service delivery to be categorized as a human right. Of concern, some
jurisdictions across the globe, such as Malawi, South Africa, Angola, Congo-
Brazzaville, Mozambique, Kenya, whereas the right to health is explicitly
constitutionalized, and thus recognized as the fundamental human rights,
which implies failure for the provision of health service one can sue to
recover damages but the same is different in the CURT, of 19977 as
amended timely. However, it can be purposively imported under article 14,
and article 30 (2) (b) respectively, for the former the light to live and life is

10
enshrined and the later the enactment of laws to protect public health is
made sacred by the constitution.

Furthermore, the right to health is domesticated by the fact that the URT is
the signatories of a number of international instruments which have
explicitly provided the right to health such as the African Charter on People
and Human Rights (ACPHR),

That says health is a human right in the URT and those who are called to
the service of Health Care professionals such as Doctors in their various
capacities, Scientists, Pharmacists, Nurses, Psychologist, have a primary
duty to nurture and cherish this noble right with the greatest love endowed
by the almighty by protecting their profession and dignifying humanity in
preserving the human right.

1.3.4 Health service delivery as Legal Right

Despite being commercialized the traditional understanding of health as a
service is magnified with devoid of legal right. The lacunae established by
the CURT extend to the legal right. However, under Article 30 (2) (b) of the
CURT, of 1977 the legislator is empowered to enact laws that protect public
health. Henceforth do date there is yet health law that creates substantive
rights to the general public, the public health Act, 2009 provide for issues
related to public health. The question would be what will be the legal
implication for any discomfort in health services? The answer would be
flying to the code of ethics or tortious action. Thus, this makes an important
aspect of the study of ethics and its implications.

1.3.5 As the ethical right and obligation

Rights and obligations are two sides of the same coin. Patients have ethical
rights to health service delivery and health care professionals have an
ethical obligation to the provision of health care. This argument is born on
the reason that, unless there is explicitly provided in the constitution or
legislation to the substantive right, there is no right to health service. 11 As
emphasized by Harris D, M.,12 like an international organization, many
11
Carvalho, at all (2011) at 132
12
139

11
writers and advocates have simply assumed or taken for granted that
individuals have a right to health care services. They denied the rights as
expressed in international instruments like the constitution of the World
Health Organization, the International Covenant on Economic, Social, and
Cultural Rights, and the Universal Declaration of Human Rights, on the
ground that the said right is not enforceable.

Thus, retaining ethical rights for patients and ethical obligations for the
health care professional is the right thing. In 1983 USA President’s
commission for the study of ethical problems in medicine and biomedical
and behavioral research took no position whether it is right to health care,
but focused on the uniqueness of health care and moral obligation of
society. The organized medical profession in the USA. Physicians should
share charity care, indigent care, services during a pandemic, public
emergency13

Therefore, as far as health service delivery is concerned, patients have

ethical rights and health care professionals have an ethical obligation, and
the breaches of which are subject to the professional disciplinary
mechanism.

13
140

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 PART II

THE LEGAL FRAMEWORK REGULATING HEALTH

SERVICE DELIVERY IN TANZANIA
2 Introduction
This part among others shall discuss different laws that regulate health
service delivery in Tanzania mainland, to discharge these duties, two actors
are important, namely; the health service providers and health service
professionals, whereas the former includes, hospitals at different levels and
the latter, include personnel in varieties capacities, such as doctors,
midwifery, nurses, and so on.

Before discussing the laws it's worth noting the general understanding of
the HSP and HCP as presented herein as far as health service delivery is a
concern.

2.1 Health Service Providers (HSP)

The HSP are important actors in health service delivery, they include
hospitals at the national level, such as Muhimbili National Hospital, Zonal
level, such as Buganda Hospital, KCMC, Mbeya Referral Hospital, at the
regional level, District, Dispensary, Community level, it may extend to
private hospital depending on the categorization of their license. Important
to note, they are all regulated by the Ministry of Health, Community
Development, Elderly, and Children; however, the level of accountability
differ according to their levels,14 for example;

i. Health service providers regulated by Central Government; including,

service delivery at national, zonal, and Regional levels are under the
supervision and accountable to the Ministry of Health, Community

14
The United Republic of Tanzania, (2020) Ministry of Health, Community Development, Gender, Elderly and
Children, the National Guidelines for Patients/Clients Referral at All Health Facility Levels at 5

13
 Development Gender, Elderly, and Children (MOHCDEC), with the
involvement of respective Regional and Local Government Authority
Management where the Hospital is located.15

ii. Health service providers at the primary level are under the
supervision of the Ministry of President Office Regional and Local
Administrative Government (PRO- RALG). Whereby the Ministry of
MOHCDEC provides technical support.16

iii. Service providers in private are regulated under the MOHCDEC, just
like in public, human resources for health in the private facility have
to adopt the National Staffing Level Guideline.17

Henceforth, HSP includes but is not limited to, referral hospitals, zonal
hospitals, region hospitals, district hospitals, health centers, dispensary and
community-based hospitals, private hospitals; meanwhile, HCP are
professionals who offer such services to HSP and they include but are not
limited to; medical doctors, dentist, laboratories technician, nurses,
midwives, and allied professionals.

2.2 Health Care Professionals

The HCP is personnel who provide services to the patient in different health
service facilities. Thus, as advanced by Carvalho et al, a professional is a
practitioner who has undergone a long course of training, the successful
completion of which permits him or her to be entered onto a register
maintained by a ruling body of that profession. 18 This definition fits with the
interpretation provided under section 319 whereas ‘medical and dental
professionals’ are defined to mean, registered personnel holding a degree in

15
The United Republic of Tanzania, (2020) Ministry of Health, Community Development, Gender, Elderly and
Children, the National Guidelines for Patients/Clients Referral at All Health Facility Levels at 5
16
Ibid
17
Ibid
18
Carvalho, S, Reeves, M and Orford, J., (2011), Fundamental Aspects of Legal, Ethical and Professional Issues
in Nursing, 2nd Ed, Quay Book Division; London at 11
19
The Medical, Dental and Allied Professionals Act, No. 11 of 2017

14
the respective field, while section 320 recognizes the professional of nursing
and midwifery by defining professional misconduct.

Therefore, health care professionals in URT of regulated by a specific body of

professionals depending on their cadre, henceforth the medical, dental, and
allied professionals are regulated by MCT, the nurses and midwifery are
regulated by the TNMC, whereas the pharmacist is regulated by the
Pharmacy Council (PC), the code of the ethics thereof regulates the conducts
to fit the professionals.

2.3 Laws regulating health delivery in Tanzania

The following laws regulate the health service delivery in Tanzania mainland;
thus, they include;

2.3.1 The Constitution of the United Republic of Tanzania (CURT), 1997

The constitution of URT is the first instrument that sanctifies and protects
life as enshrined under Article 14 of the CURT, wherein the right to live and
the protection of life is expressly exposed, there are no explicit constitutional
rights to health. However, article 30 (1) (b) of the CURT, has consecrated the
enactment of laws in the protection of public health.

This means that by implication health in the URT is protected by the CURT.
All laws enacted therein have a constitutional blessing. However, in some
other jurisdictions, the term ‘right to health’ is explicitly mentioned in the
constitution as opposed to public health. This means the enforcement of
health as a constitutional right may stand without limbs or colours of right
and thus, have an adverse effect before the eyes of laws.

2.3.2 The Public Health Act, 2009

The preamble to the Act provides that the goal of the Act is to ensure the
provision of comprehensive, functional, and sustainable public health
services to the general public. The vest power to the Minister of Health, as
provided under sections 4 (1) (c) through (d),21 and among the powers vested
includes but is not limited to;

20
The Nursing and Midwifery Act, No.1, 2010
21
The Public Health Act, No. 1, 2009

15
 a) The prevention and control of living infectious or communicable and
other diseases.
b) Guidance to the Authority and other Authorities with matters
affecting public health.

As regards the Authorities introduced in the Act, this means that health
service delivery has been decentralized for administrative purposes, whereby
the ministry at a certain level has the functions of providing guidance.

Henceforth the Act defines the authority to mean a district or an urban

authority. whereas reference to the authorized medical officer of health,
similarly when the same is referred to the Ministry means District Medical
Officer (DMO), and Regional Medical officer (RMO) or any public officer as
appointed by the Minister, the same being provided under section 3. 22

Moreover, the Act identifies health facilities to include hospitals, health

centres, dispensaries, clinics, nursing homes, and health posts.
Consequently, the person so-referred to in HSD are those persons who have
undergone training and are qualified in health science and who are
registered by the professional bodies.

In nutshell, it may be said that the Act recognized different levels of health
services providers, personnel, and their administrative levels who are
accountable to the ministry of health and have been empowered to certain
functions as provided under sections 5, 6, and 7 of the Act.

As it has been pointed above, the Act deals generally with public health
such as;

a) Communicable and non-communicable diseases and prevention of

their spread.
b) vaccination against childhood, that says, within 12 months after the
child is born within Tanzania mainland the child must be vaccinated
as provided under section 19 of the Act.
c) It further deals with the control of epidemic, endemic, and pandemic
diseases such as cholera, cerebral spinal meningitis, malaria,
22
The Public Health Act, No. 1, 2009

16
 schistosomiasis, tuberculosis, dysentery, typhoid, viral hemorrhagic-
fever, and any other diseases that may be declared as such, as
provided under section 25.
d) Control advertisement on issues till permitted by the ministry
responsible as provided under section 173
e) Report of maternal death to the chief medical officer as provided under
section 172

The Act is read together with International Health regulation, 2005 which
has the purpose to prevent, protect, and control diseases as provided under
section 4 (2) of the Act. Shortly, the Act regulates all public health matters
in the URT mainland.

Food for thought:

i. What about persons who receive treatment from public or private

hospitals are they legally protected? Or do we have laws that address
their substantive rights? (If yes mention, if no why?)
ii. Assume a patient has been denied treatment for any reason with a
health service provider or health care professionals, does s/he have
the legal right?

2.3.3 The Ocean Road Cancer Institute Act, No.2, 1996 (ORCI)
Health service delivery of cancer diseases has a specific law that regulates
its medication and thus the ORCI establishes the cancer institute and
provides other incidental matters. The function of the Institute, among
others

i. to provide medical care for inpatient and outpatients affected by

cancer.
ii. Control institute or health facilities
iii. To stimulate and promote a programme of education on health and
particularly on cancer.
iv. To conduct a training
v. To provide consultant service
vi. Conducting research activities.

17
For administrative purposes the ORCI establishes the Board, its function is
directed to achieve the purpose and spirit of the Act.

2.3.4 The Mental Health Act, No. 21, 2008

Mental health patients have specific laws to regulate their care, protection,
and management. The Act further provides for voluntary or involuntary
admission in a mental health care facility and other related matters.

It further provides the procedure for the admission of a person with a

mental disorder, whereas section 4 and 5 provides for voluntary admission,
much more section 6 provides for temporary treatment. Sometimes the
application supported by a medical certificate may be made to the court for
admission as provided under sections 7 and 13 of Act No. 21, 2008.
Whereas section 37 establishes the penalty and offenses for wrongful
admission.

The law provides for the contents of the medical certificates as provided
under section 14 of the Act, No. 21, 2008. Moreover, the procedure for the
appeals is similarly provided, where the matter is via court determination.

The Act, No. 21, 2008 establishes the Mental Health Board (MHB), and its
composition and function are provided under sections 16 and 17
respectively. The Board has the function of;

a) ensuring that patients have active rehabilitation

b) Affording patients, their relatives on patient welfare
c) Taking appropriate Measures on issues related to patient
d) Considers the discharges of the offenders with mental disorders after
due treatment.
e) To recommend the means to improve the condition of mental health
care facilities and services for the welfare of patients and staff
f) To receive, and decide on reports submitted to it by the patient welfare
Board.

Important to note under section 28 Act, No. 21, 2008 provides for the
responsibility of persons taking care for mentality disordered person, that;

18
 a) To ensure their rights, treatment, and care received are adequate
b) To ensure they are not absconding from treatment and care.

The medical personnel in charge is empowered to initiate investigation

resulting from absconding and punitive measures for negligence as provided
under subsection 2 of section 28 of the Act.

Furthermore, the law empowers the minister to establish a Patient Welfare

Board in respect of every administrative area of the region. Whereas the law
under section 30 establishes the National Council for Mental Health (NCM)
and the function of the NCM;

a) Review and monitor the status of mental health status-related

problems, promotion, a prevention programme for abuse, and advice
b) Forming a working link between various sectors and disciplines for
coordination and promotion of mental health
c) Encourage and facilitate community involvement and NGOs in the
promotion of mental health and prevention of abuse and mental
disorder.
d) Encourage and encourage research
e) Mobilization of resources of development of mental health service in
collaboration with the ministry responsible
f) Evaluate regulate the functioning of the mental health legislation with
appropriate recommendations for review and implementation.

2.3.5 The HIV and AIDS (Prevention and Control) Act, No. 28, 2008
The Act provides an appropriate measure for prevention, treatment, care,
support, and control of HIV and AIDS and people living with it. Section 4 of
the Act, provides for duty for everyone in the fight against it, whereas
section 10 of the Act, related to the training programme of health
practitioners on universal precaution measures on HIV/AIDS and STI and
treatment procedures.

The act protects the patient against compulsory HIV testing vide section 15
of the Act, and thus emphasizes the counseling and testing, and the results
should be confidential vide section 16. Concerning medical confidentiality,

19
preservation of identity, and status of the person living with HIV/AIDS the
law capitalized under section 17 by listing persons such as;

a) All health practitioner

b) Workers
c) Employers
d) Recruitment agencies
e) Insurance companies
f) Data recorders
g) Sign language interpreter
h) Legal guardian
i) And other custodians of medical records files, data information, and
documents.

Should a medical practitioner breach in observance of the duty of

confidentiality penalty be provided under section 46 of the Act?

the act provides for access to health care facilities without discrimination
vide, section 24 and the health practitioner exposed to or infected with HIV
in the course of work shall be entitled to post-exposure prophylaxis,
treatment, injury compensation vide section 26. The Act also provides rights
and Obligations to the person living with HIV and AIDS vide sections 33
through 35 of the Act. Lastly, but not least section 51 provides for the
procedure of lodging the complaints.

2.3.6 Medical, Dental and Allied Health Professionals, 2017

The Act regulates health care professionals in the capacity of medical,
dental, and allied professionals. Moreover, ‘medical and dental professionals'
are defined under section 3 to mean a registered person holding a degree in
medicine or dentistry from an institution recognized by the Council.
Whereas the “allied health professional” means a person holding a degree in
allied health sciences from an institution recognized by the Council.

The Act established the Medical Council of Tanganyika (MCT) vide section 4
(1) and the function of the council is provided section 6 (a) through (q), and
they include but are not limited to;

20
 i. To advise the Minister on matters about regulation, practice,
and training of medical, dental, and allied health professionals;
ii. Exercise general supervision of professional conduct
iii. Regulate and control continuing professional development for
medical, dental, and allied health professionals;
iv. Promote the maintenance and enforce adherence to medical,
dental, and allied health professional ethics;
v. Advise respective institutions responsible for accreditation on
the kind of training or program that impart the requisite
knowledge and skill for the efficient practice of medicine, dental
and allied health sciences;
vi. Ascertaining the quality of training.
vii. Caution, censure, suspend from practice, erase from the
Register, Roll, and List of names of practitioners, after being
found guilty and convicted of an offense of professional
misconduct;
viii. ensure the maintenance of Register, Roll, and List;
ix. publish in the Gazette and official website of the Council,
names, addresses, and qualifications of all newly registered and
licensed medical and dental professionals and enrolled or
enlisted allied health professionals and practitioner;
x. Exercise disciplinary control over medical, dental, and allied
health professionals and practitioners;
xi. Approve internship centers for medical and dental graduates;
xii. To inquire into complaint, charge, or allegation of improper
conduct against any medical, dental, or allied health
professionals and practitioner registered, enrolled, or enlisted
under this Act;
xiii. To advise training institutions on matters relating to the
training of medical, dental, or allied health professionals;

Three types of registration of medical and dental professionals can be

identified, they include; provisional registration, full registration, limited

21
registration. Section 20, and 21 of the Act, provide for the registration
procedure.

Section 41 (1) of the Act, provides to be followed in instituting a proceeding,

for unfit professionals.

i. Lodging a complaint
ii. Accompanied by a written statement
iii. The MCT find if there is a primacies case
iv. MCT directs an inquiry be made
v. Right to be held is exercised (representative is allowed)

A Person is considered unfit on the following ground;

i. Has breached code of ethics;

ii. is incompetent;
iii. Has been convicted of an offense relating to medical, dental, or
allied health professional’s practice;
iv. Has committed any malpractice, negligence, breach, or any
directives issued under the law;
v. Mentally sick and approved as such by the Medical Board in
Tanzania or any other licensing authority responsible for health
regulation in any other jurisdiction
vi. contravention of the provision of the law or regulations;
vii. Failure to abide by terms, conditions, or limitations of a
registered, enlisted, enrolled as a medical, dental, or allied
health professional.
viii. Having a conflict of interest that affects the clients and a
registered, enrolled, or enlisted professional;
ix. Practicing without being registered, enrolled or enlisted or
without a practicing licence;
x. An attempt to use his certificate, number, or seal of another
medical, dental, and allied health professional or impersonate
any registered, enrolled, or enlisted medical, dental, or allied
health professional;

22
 xi. Abetting or aiding illegal practice of a medical, dental, or an
allied health professional;
xii. Furnishing false information or documents to the Council to
secure a certificate of registration, enrolment, or enlisting;
xiii. Impersonation of a registered, enrolled, or enlisted medical,
dental, or an allied health professional or a holder of the
temporary registration certificate;
xiv. Abusing a client verbally, physically, sexually, or in any other
way;
xv. Influencing a client to change his will, on health care directive;
xvi. Abandoning a client who requires attention;
xvii. misappropriating drugs or other property belonging to a client
or an employer;
xviii. Failing to report any incompetence, negligence, or professional
misconduct of medical, dental, or allied health professionals,
whose actions endanger the health of a client;
xix. Failure to exercise discretion in respect of the disclosure of
confidential information about the client;

2.3.7 Nursing and Midwifery Act, No. 1, 2010 (NMA)

The NMA provides for regulation and control of nursing and midwifery
education and practices to protect, promote, and preservation of public
health.

Section 4 of the NMA establishes the Council known as Tanzania Nursing

and Midwifery Council (TNMC), with the status of a body corporate, and the
composition of the same is established under section 5 of the NMA, and the
function of the TNMC is established under section 6 and they include but
not limited to;

i. Registration for qualified applicants

ii. Advice the Minister on matters concerning nursing and midwifery
and to make recommendations on policy matters,
iii. Ensure that the Register and Roll of nurses and midwives are
kept, maintained, and updated in the prescribed manner,

23
 iv. Establish standards of proficiency necessary to be admitted to the
different parts of the Register or Roll,
v. Collaborate with other relevant authorities on matters about
nursing and midwifery education training and practices in
approving various standards,
vi. Evaluate nursing education programmes and approve such
programmes to meet the Council’s requirements,
vii. To issue, renew, replace and cancel nursing and midwifery
practicing licences:
viii. Approve the annual budget of the Council,
ix. Establish and keep under review the standards of conduct,
performance, and ethics expected from nurses, and midwives, and
prospective nurses and midwives and give them guidance on these
matters as it sees fit.
x. Caution, ensure, order the suspension from practice, or order the
removal or restoration from the Register or Roll of the name of any
registered nurse or midwife or enrolled nurse or midwife for
malpractice, negligence, or professional misconduct.
xi. Prescribe uniforms, badges and any other distinctive identities to
be worn by nurses and midwives.
xii. Prescribe the form of professional oath to be used or administered
upon all nurses and midwives on admission and other professional
occasions.
xiii. Prescribe standards and conditions for establishing private
nursing or midwifery services including nursing homes, nursing
clinics, maternity homes, and maternity clinics.
xiv. Grant licence for establishing private nursing or midwifery
services, schools of nursing or midwifery;
xv. Develop, conduct and regulate nursing and midwifery registration
or enrolment examinations: and perform any other functions as
prescribed under the law or as may be directed by the Minister.

24
The registrar is appointed by the minister vide section 9 and therewith is
empowered with the function under section 10. For easy management, the
TNMC may elect to appoint the committee. The eligibility for registration is
established under section 15 of the NMA.

Important to note, section 22 of NMA provides for qualification to engage in

private nursing or maternity service, the nurse or midwife should have at
least served in a recognized health facility for not less than three years.
Henceforth the same should be applied to the TNMC vide section 23.
Furthermore, section 24 empowers the registrar with the supervisory
authority or any person authority on his behalf. Section 25 establishes the
procedure for laying down complaints, and section 26 the inquiry procedure
by the TNMC and section 28 speaks of the disciplinary authority of the
TNMC. The TNMC may pass the verdict and any person aggrieved by the
decision of the council may appeal to the minister, and the decision of the
minister may be appealed to the High Court.

2.3.8 The Pharmacy Act, No. 1, 2011

This Act, regulates health care professionals in the capacity of pharmacy,
the business medicine at individual or body corporate it further establishes
the Pharmacy Council (PC) and its functions therewith as provided under
sections 3 (1) and 4 respectively. The PC has the function of;

i. Advice the Minister in matters relating to pharmacy practice

ii. That, the provision of pharmaceutical service complies with norms,
and value of therapeutic for health and quality of life
iii. Uphold and safeguard the acceptable standard of pharmacy
practice in both public and private sectors.
iv. To control the standard, in terms of education, training and
professional development, registration, and professional
misconduct.
v. Inquiry into pharmacy practice raised by the public
vi. Maintain the dignity of professional
vii. Collaboration with TCU on the standard of tertiary education by
ensuring the training has specified knowledge

25
 viii. Collection of fees
ix. Keep and maintain the register of the role
x. Promote rational use of medicine

In performing his function, the PC has the powers as enumerated under

section 5 of the Act, to include;

i. Appointing officer or inspectors to perform duties on behalf of PC

ii. Remove the name from the roll
iii. Consider any matter affecting the pharmacy profession and take
action therewith as it may be necessary.
iv. To require any pharmacy professional to furnish any information
requires
v. Approve of institution and curriculum for the training of pharmacy
education

Furthermore, section 7(1) of the Act, No. 2011 establishes a disciplinary

committee and its composition therewith. The committee is duty-bound to
conduct a preliminary investigation whereas a registered person has
misbehaved in the capacity of a pharmacist, pharmaceutical technician, or
pharmaceutical Assistance.
Eligibility for registration is subject to professional examination and other
requirements as established under sections 14 and 15 of the Act. the Act
bars provision of service if not registered as provided under section 16 (1) of
the Act, as subsection 2 of the same provision provides for requirements for
registration, thus there are maybe provisional, temporary, and permanent.

Regarding the business of medicine, section 43 bars the business to

pharmacist only or those related with the pharmacist, and where the
business is to be performed by body corporate section 44 provides for
condition on that behalf, furthermore, the Act prohibits selling, dispensing
medicinal products except in the registered premises, thus the application
for and registration and permit shall be made to the council and registrar
respectively in a prescribed form vide section 36 and 37 of the Act. The
registrar on approval of the council may issue the following pharmacy

26
permit; retail, distribution, institutional, or any other business. For the
public interest, the minister may allow permit on the advice of the Council
as provided under section 40, and the exception thereof are provided under
sections 41 and 42 of the Act.

Lastly, penalty and misconduct vide section 45, the procedure for
cancellation and suspension vide section 48 and 49, whereas the
reinstatement to register and appeals altogether vide section 50 and 51 of
the Act. Of concern, the restriction on advertisement of medicine, medical
devices, or herbal medicine is provided under section 46 of the Act and the
PC may inspect as provided under section 52. Above all, the offences and
penalties are provided under section 53, and section 54 provides for
indemnity of the liability.

2.3.9 Medical Radiology and Imaging Professionals

The Medical Radiology and Imaging Professionals Act, 23 defines Medical
Radiology and Imaging to include a Radiographer, Radiotherapist,
Radiologist, Nuclear Medicine Technologist, Radiation Oncologist, Medical
Physicists, Radio-pharmacist, Radiographic Assistant, Radiological Officer,
and a Sonographer.

Section 4 of the Act establishes Medical Radiology and Imaging

Professionals' Council. Its functions include:

(a) Regulate and set standards of conduct and activities of Medical

Radiology and Imaging Professionals;

(b) Regulate standards and practice of the professions in Medical

Radiology and Imaging Professionals;

(c) Promote interest in, and the advancement of, professions in Medical
Radiology and Imaging Professionals;

(d) Evaluate academic and practical qualifications of Medical Radiology

and Imaging Professionals for the purpose of registration, enrolment or
enlisting under the said Act;

23

27
 (e) Foster co-operation between the Council and other institutions or
organisations, whether or not concerned with the profession of Medical
Radiology and Imaging Professionals;

(f) Monitor and ensure the proper collection of fees payable under the
law;

(g) Administer the funds of the Council;

(h) Keep and maintain the Registers, the Roll and the List for the
registration, enrolment and enlisting of Medical Radiology and Imaging
Professionals;

(i) Remove any name from the Register, Roll or List subject to such
conditions as the Council may impose;

(j) Approve institutions and curricula for training of Medical Radiology

and Imaging Professionals;

(k) consider any matter affecting the profession in Medical Radiology and
Imaging Professionals and take such action in connection therewith as the
Council considers necessary; and

(1) Carry out such other functions as may be conferred upon the Council
or as may, in the opinion of the Council, be necessary or expedient, for the
proper discharge of the functions under the said law.

For a person to be enrolled, he must have these qualifications: (a) he is a

Radiological Officer who is a holder of a Diploma in radiology or any other
qualification recognized by the Council as being equivalent to a diploma in
Radiology offered in Mainland Tanzania or (b) he is a Radiographic Assistant
who is a holder of a Certificate in Radiography or any other qualification
recognized by the Council as being equivalent to a certificate in radiography
offered in Mainland Tanzania; (c) he has complied with such additional
requirements relating to the acquisition of practical experience as
Radiological Officer or a Radiographic Assistant, and (d) his professional and
general conduct renders him fit and proper person to be enrolled.
Procedures for application for enrolment are the same as for registration.

28
For enlistment a person must have these qualities: (a) he is a Sonographer
who is a holder of a certificate in Sonography or any other qualification
recognized by the Council as being equivalent to a certificate in Sonography
offered in Mainland Tanzania; (b) he has complied with such additional
requirements relating to the acquisition of practical experiences as a
Sonographer, and (c) his professional and general conduct renders him fit
and proper person to be listed.

29
 PART III
ETHICAL ASPECTS IN HEALTH SERVICE DELIVERY FOR
HEALTH PERSONNEL

3 Introduction
This part discusses ethical aspects for health personnel in the course of
health services delivery to their expected professional standard, their
regulation according to their respective professional bodies, and lastly the
consequences of the failure to observe ethical standards so required.

3.1 Ethics as defined

Thompson et al define ethics as the collective belief and value system of any
moral community, or social or professional group. It is one of the ways by
which a group or community, professionals can live in harmony. 24 The same
is emphasized by Tom Beauchamp and James Childress as various ways of
understanding and examining moral life, or as a system for distinguishing
right conduct from wrong. It is a theoretical discipline within the broader
study of philosophy which attempts to discover why any action is right or
wrong.

3.2 Standard ethics for medical dental and allied professionals

Section 325 defines health personnel to mean any person who has undergone
training and is qualified in health sciences and who is registered by the
professional body. Section 3 of MDAP, defines medical and dental
professional to mean a person holding a degree in medicine or dentistry
from the institution recognized by the Council, whereas the “allied health
professional” means a degree in allied health science from an institution
recognized by the Council. These professionals are regulated by the Medical
Council of Tanganyika, as provided under section 41 26 , and are bound by
professional ethical standards as provided under section 57 of the Act. 27 The

24
Carvalho, S, Reeves, M and Orford, J., (2011) Fundamental Aspects of Legal, Ethical and Issues in Nursing, 2nd
Ed, London; Quay Books Division at 19
25
The Public Health Act, No. 11, 2009
26
The Medical, Dental and Allied Professional Act, No. 11, 2017
27
The Medical, Dental, and Allied Professional Act, No 11, 2017

30
following are ethical standards that are required by the Medical, Dental, and
Allied Professionals;

3.2.1 Informed Consent

Informed consent refers to the right of a patient to make his or her own
decisions regarding diagnosis and treatment and do so after receiving all of
the necessary information from the health care provider. The patient's right
to choose is based on the ethical principle of autonomy or self-
determination. Informed consent has two components, namely; a decisional
28
component and an informational component.

The ethical principle has been accepted as practice in many countries

around the world. The International Code of Medical Ethics of the World
Medical Association (WMA), explicitly provides that, a physician shall
respect a competent patient’s right to accept or refuse treatment.

In Tanzania, rule 3.0 of the Code of Ethics and Professional Conduct for
Medical and Dental Practitioners, 2005, (CEPCMDP) provide for informed
consent.

Food for thought:

xiv. Based on your experience do you think patients care much

about informed consent?
xv. Think about autonomy in withholding and withdrawing
treatment?
 By withholding, we refer not beginning a particular treatment
 By withdrawing we refer to stopping a particular treatment
xvi. Should consent be expressly or implied?
In major surgery, the consent must be expressed, and for testing,
sensitive diseases must be express
xvii. Think of an autonomous that result in death? Is health care
professionals unethical?

The principle of beneficence as expressed under rule 1.0 of the CEPCMDP

might outweigh the patient autonomy under rule 3.0 of the CEPCMDP,
28
Carvalho, et al (2011) 123

31
especially for the reduction of pain or increasing functioning without adverse
consequences. The principle of utilitarians would also support limiting
expensive medical treatments for dying patients, on the ground that society
would benefit more by allocating money for an individual to serve the
society.

 Court Decision observation on informed consent

Are we free to reject life-saving treatment which others may consider ‘wicked
folly’? In Re T [1992] 4 ALL ER 645, (Jehovah’s Witnesses case) CA Lord
Donaldson declared that;

“The refusal of treatment was not an autonomous right” T’s

rejection of blood could be disregarded, the right of the individual
to decide whether to accept medical treatment was paramount but
in cases of doubt that doubt falls to be under resolved in favour of
the preservation of life.

i. Is informed consent practical or theoretical? (share the

experience you encountered, challenges you think to this ethical
principle, developed world and developing,)
ii. Do we have physician-assisted suicide? Imagine your patient is
suffering intolerably and has requested assistance to die, will you
prescribe for lethal drug?

3.2.2 Beneficence and non-maleficence

The basic ethical principle of beneficence is the traditional concept of
helping people but also extends to the concept of non-maleficence, which
refers not to causing harm to other people. Thus, the traditional precept in
medical ethics to “do no harm” is included within the beneficence, thus,
health care professionals are called to offer their service in order to
maximize possible benefits and minimize possible harms. Rule 1.0 and 2.0
of the CEPCMDP.

3.2.3 Confidentiality
HSP is like priests and lawyers, must be able to keep secrecy. Two reasons
are offered, first, the information about a person’s health is private and thus

32
the patient has a right to control who to access it, and secondly, without
assurance to the private patient might withhold the information.

The HSP must respect patient confidentiality has its origin in the first code
of medical ethics, the Hippocratic Oath, which states

Whatsoever things I see or hear concerning the life of men, in my

attendance on the sick or even apart therefrom, which ought not
to be noised abroad, I will keep silence thereon, counting such
things to be as sacred secrets.

Patient confidentiality receives unqualified protection in the modern

version of the Oath, the Declaration of Geneva states;

“I will respect the secrets which are confided in me, even after the
patient has died”

 Food for thought;

Think and provide a professional direction on the confidentiality of the

following;

i. Think of discordant couples that say, one is HIV+ and the other
is HIV-, still having unprotected sex, with another who knows
nothing about the infected status of the other.
ii. Think of a depressed mother who confesses her violent impulses
towards her baby.
iii. After diagnosis, it comes to light that the patient before you has
attempted abortion unsuccessful, and she is under acute
breeding, but the patient wants the same be confided as against
his parents, at the same time the parents want to know the
sources of the breeding.
iv. Think of an employer who wants to know about the validity of the
document of his employee (your patient), who is charged with
absenteeism
v. Think of the law enforcers who want to know about the patient
who is accused of drugs use

33
 vi. Thick of the patient treated with a scar which is due to the bullet.
vii.Think about the judiciary order, which wants you to provide
expert evidence, following the mismanagement committed by
another doctor, and which is known to you.
viii. Suppose the patient dies, and your confided with
confidential about his health, and its exposure attracts monetary
value. (McKennitt v Ash)

Nota bene:

at the disposal of the doctor-patient relationship, we may have an

absolute obligation and relative obligation, whereas the former leaves
the doctor powerless to do anything but trying to persuade his patient
to allow him or her to disclose the same, whilst the latter, some higher
duties to another person or society applies, may deter patients from
seeking necessary treatment. This may damage not only the patient but
also those very people vulnerable when such information is not
disclosed.

 The exception to the principle of confidentiality

Although the principle of confidentiality is sacrosanct but is subject to the
following exception

a) Disclosure with consent; sometimes the patient expressly consents to

disclosure, and the doctor must make sure that the patient
understands what is to be disclosed, the reasons for disclosure, and
the consequences thereof. Thus, to whom and how much information
will be given. Sometimes as part of the family would wish to know.
Sometimes health care may be given to the team of professionals and
sharing information will normally be lawful, efforts should be made
that the patient understands this.
b) Disclosure where the patient lacks capacity; how do we know that a
person lacks capacity? When she or he is unable to decide for herself,
by virtue that she cannot understand, retain, weigh or use
information relevant to the decision (read the mental Health Act

34
 c) Disclosure to protect the patient
Sometimes, if a patient lack capacity may be at risk, and thus, the
doctor may do the same to protect
d) Compulsory disclosure; when disclosure of information or production
of the medical record is required by law, the health care professional
has no choice but to comply. Various circumstances can be elucidated
i. Any information required by the court; the doctor must provide.
However, the protection of medical confidentiality in the
courtroom lies in the judge’s discretion.
e) Disclosure in the public interest; what amount to the public interest
ii. Medical research
iii. Highly communicable diseases
iv. Prevention or detecting crime

f) Electronic Patient Record

Currently, at different levels there is a process of moving toward a fully
electronic patient record, despite swimming with development care should
be taken in confidentiality principle. In some jurisdictions have summary
care record?

3.2.4 The Rights to ethical care and obligation

As it has been explained above, there is yet explicitly statutory provision
that creates a right to health, and thus patients have rights to ethical care
and doctors have obligation to provisions of such care professionally. This
observation is also supported by Harriss D, M., unless the state legislates or
domesticates the international instruments, the same cannot be enforced.
Health care professionals have obligation to provide indigent care, medical
care, emergence care, diagnosis of death, patient well, and the patient has
the ethical rights to receive medical information and their management. Vide
rule 11 of the CEPCMDP. However, the for-profit organization should use a
fair marketing practice.

Food for thought:

 For three hours at the emergence, the patient dies unattended.

35
  (does s /he have a legal right or ethical right to proceed),
 What do you report in your clinical meetings?
 What actions do you take among yourselves?

3.2.5 Limited resources

It may be asked, is it necessary to ration health care? Of concern, by
rationing system means a method of limiting consumption of some good or
service. The idea of rationing is supported by WHO, but how should be done
is the most important question to adhere to, for example, some criteria have
been strongly criticized such as the ability to pay, social status, or any form
of discrimination.29 How limited resources are distributed for the public
service this is the main concern of the ethical in health service delivery.

3.2.6 Competence to practice

The principle requires that physicians should not expose patients to
unnecessary risk, and thus they have to attain a minimum level of
competence and maintain it. They should strive to advance their knowledge
in the professional and keep up to date. Vide rule 10 of the CEPCMDP.

3.2.7 Veracity and fidelity

This is a duty, to be honest, and truthful in the course of interaction with
the patients, the practitioner is obliged

3.2.8 Financing health services

Financing health service refers to the method of raising money for health
service, it can be financed in several ways such as private insurance,
government insurance, social or community, and payment out of pocket at
the point of service. Important observation would be, do we have fairness in
finance? Or do we have the same respect? Sometimes we have queued for
insurance and pocket out. The obligation to the service of all persons with
fairness is important.

3.2.9 Corruption
Unethical practices in the health service system diminish the professional,
imagine to additional fee than required, payment for services which have
29
155

36
been already covered under the insurance, additional payment under the
table to get a bed. Think of the time used in bargaining to be corrupted, and
the condition of your patient.

3.3 The ethical standard for nurses and midwifery professional

Just like medical, dental, and allied professionals, nurses, and midwifery is
a profession in health service provision, section 3 of the MDAP is recognized
as health personnel’s those who have attained training, whereas the NMA
defines professional misconduct concerning the profession of nursing and
midwifery. And whereas section 4 and 6 of the NMA established a council
and its function to deal with and regulate the profession of nursing and
midwifery. Therefore, the following are the professional standard for nursing
and midwifery.

3.3.1 Respect for mankind and the patient/client as an individual

This ethical standard under these professionals cater to the value of life and
honour patient’s wishes regarding their life, promote an environment, as
respect the privacy, as well as the autonomy of the patient as provided
under rule 1 of the code of ethics for nursing and midwifery in Tanzania

3.3.2 Obtain Consent

Patients and clients have the right to receive information about their
condition, thus be sensitive to their needs and respect their wishes, and the
information should be accurate, truthful, and presented, vide r. 2 of the
Code of Ethics for Nurses and Midwifery, 2007.

3.3.3 Maintain Professional Competence

Nurses must strive to achieve and maintain high professional standards,
and acknowledge the limits of professional competence, and only practice
within their profession. Take efforts in the acquisition of new knowledge and
skills, and strive to deliver care based on current evidence, best practice,
and validated research, vide rule 3 of the CNMP.

3.3.4 Responsibility and Accountability

For quality service should handle nursing and midwifery matters without
undue delay, risk, or unnecessary expense to the employer, client/patient

37
and accountable to actions or omissions through the formal line of authority
and responsibility, desist from corruption, and in case of delegation do it to
the closest supervision, vide rule 4 of the CNMP.

3.3.5 Honest and Fairness

This ethical principle requires nurses and midwifery to uphold a good
reputation of their profession, refuse gifts, favour, or hospitality, honestly
use official time to fulfill professional responsibility, and be fair in
distributing resources, vide rule 5 of the CNMP.

3.3.6 Leadership, Management, and Team-working

They must be professionally accountable and use the clinical governance
process to maintain and improve nursing practice and the standard of
healthcare. They must be able to respond autonomously confidently and
plan. Maximize and improve service. They should develop potential
management skills. Above all health service is loving service, working as a
team, with the client, client family, and another professional in the health
care delivery system.

3.3.7 Communication and interpersonal skills

Nurses and midwifery must use communication and interpersonal skills, the
communication must be safe, effective, compassionate, and respectful, they
use a wide range including communication technologies. Whereas persons
with disabilities must be able to work with service users and others to
obtain information.30

3.4 The ethical standard for pharmacist

The pharmacist provides service in the health system, according to
regulation 3 of GN 226 of 2020, read together with sections 2 and16 of the
Act. No.1 of 2011 defines the term pharmacist, as a person who is duly
registered under the Act. Therefore, being a profession, it has the body as
established under section 3 of the Act, No. 1 of 2011.

30
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38
3.4.1 Regard for Human Life
Pharmacists improve the quality of life through the provision of medicine
and related service, and have the highest regard to human life, having that
prime part of human life, they are obliged not to provide contraceptives to
minor, or incapable persons without involving medical practitioners, or
provision of medicine for inducing illegal abortion. Vide code 1, of the code of
ethics and professional conduct.

3.4.2 Honour and Dignity of Profession

As a pharmacist you are respected by the community and fellow health care
professionals as sources and professionals in medicine, show your
professionalism and specialization in medicine, and entrust the trust they
owe you. Observe the law, such as Cap. 311 of the Act, Act, No. 1 of 2011,
the regulation thereto which show the procedures on how to dispense
medicine and all orders and procedure regarding your professional.

3.4.3 Availability of safe, efficacious, and quality medicine

The pharmaceutical personnel is involved in several activities that lead to
the availability of medicines to patients, they include research, training,
manufacturing, supply chain, regulatory, advisory, policy development,
prescribing and dispensing medications, and thus they must ensure the
medicine are safe, efficacious and quality, and thus must act honestly
integrity, and concern for the patient. Vide code 3 of the Code of ethics for
the pharmacist

39
 PART IV

LEGAL AND ETHICAL IMPLICATION

FOR FAILURE TO HONOUR PROFESSIONAL STANDARD IN HEALTH

SERVICE DELIVERY

4 Introduction
Failure to meet professional standards does not go unnoticed, the defaulters
may be punished by Employers, professional bodies, or sometimes by the
court of law. It may be noticed from the whole discussion, the devoid of a
legal right explicitly does not bar a person to approach the court of law and
as a result where negligence or malpractice is proved.

4.1.1 Termination of Employment

No employer would like to work with unethical health care provider, thus
the only remedy is to terminate the employment.

4.1.2 Disciplinary inquiry

Health service is a profession, and thus is a domain professional bodies,
such as medical council of Tanganyika, Tanzania Nurses and Midwifery
Council, the Pharmacy Council, thus failure to observe the required
standard, the victims may be sanctioned.

4.1.3 Tortious action

Professional disciplinary may be due to malpractice or negligence, the
aggrieved part may prefer the suit before the court of law to recover damages

Courts reaction in different cases;

A written summary discharge, by an authorized Dr.

40
  Anitha Kaveva Maro v Muhimbili National Hospital Civil case. No.
21 of [2016] (2019), the case is about negligence, Dr. Jude
Tarimo was not a specialist, in turn, wrote a summary
discharge, was later dishonored by the MNH, as incompetent
since being the referral hospital the document authorized by the
said Dr. was invalid. But this assertion could not exonerate
from liability.

Following, the said document being tendered to her employer,

TBS, made an inquiry on the health status of Anitha that at
MNH. Later, Anitha was terminated from her employment and
sought relief before the court of law. Therefore, Mutungi B.R. J,
hold the verdict in favour of the Plaintiff, hence negligence
caused by DR. Jude Tarimo, had financial implications to the
Muhimbili Institution amounted to Tshs. 50,000,000/=

Failure to dispense medicine as a professional pharmacist

 Muhimbili National Hospital v Andrew Komba and Nelson Isleta

labor Revision No. 502 of 2019, the applicant complained of
malpractice of the respondent, whereas respondents were
terminated from the employment by dispensing medicine more
than required. Despite the same being prescribed by Dr. Alex,
but as pharmacist must make sure that, the medicine
prescribed, and the dosage given was equally properly given.
Therefore, the court revised the CMA decision and reaffirmed
the substantively right termination.

Negligent

 Emmanuel Didas v Muhimbili orthopedic Institute, Civil case 129

of 2012. HCD this was a famous case with public interest which
involved surgical mix-up whereas a knee patient underwent a
complex head operation, whereby the surgeons at MOI opened
the skull of Emmanuel Didas to remove a non-existent brain

41
 tumour whilst Emmanuel Mgaya, a chronic migraine sufferer
who had the tumour, underwent knee surgery.
The court hold in favour of the plaintiff, whereby MOI was
ordered to pay Tshs. 100,000,000/=
Emanuel Mgaya, who underwent a knee surgical operation died
a few days later.

Negligent by the Institution (Hospital) or Professionals

Sometimes the institutions may be held liable for the conduct of the health
care professionals. Proper administration will help, to mitigate the loss that
may be caused by such professionals.

 Theodelina Alphaxasa a Minor S/T Next Friend v The Medical

Officer I/C, Nkinga Hospital [1992] TZH 25.
The failure to use professional skills led to the amputation of
the arm of the plaintiff, the court found that in the event, Dr.
Kirunga used his medical professional skill would have saved
the potential danger of possible amputation, even the P.O.P was
not professionally installed. Thus no reasonable care and
standard of care were observed by Dr.
The court found that the Hospital was negligent in treating the
patient, and it is so guilty

Mismanagement by the health care professionals

 Matogo Bernard Shija v Minister of Health and Another Misc.

Civil. Cause no. 21 of (2003) [2008] TZH; Dr. Matogo the
plaintiff, applied for judicial review as against the decision of the
Medical Council of Tanganyika, who was accused and convicted
by the council on negligence for operating on the patient
without resuscitation and measure. The application was
dismissed by the court with cost.

Important to note, article 16 of the CURT protects the right to privacy,

perform your duty professionally.

42
4.1.4 Criminal litigation
Sometimes the offence may attract criminal litigation, the victim may be
arraigned before the criminal case.

5 CONCLUSION
Health service delivery in Tanzania, is regulated by laws established by
government, central and local, and applied to people for the purpose of
building a healthy society. It also covers rules and regulations established
by other key stakeholders in the area of health promotion such as business,
communities and Health Professionals’ Associations. It deals with the legal
aspects of promoting public health, which is largely concerned with the
state’s duties and powers to assure the conditions of the people to be
healthy without unduly constraining key human rights and freedoms such
as autonomy, movement, privacy, liberty and property. Health law is also
concerned with the legal aspects of health care, which cover availability,
accessibility, acceptability, and quality of health facilities, goods and
services. Thus, health law is multifaceted. It encompasses not only health
care delivery but other areas of study that focus on the intersection between
law and health.

43
 REFERENCES

The Constitution of the United Republic of Tanzania (CURT), 1997

Acts

The Public Health Act, 2009

The Ocean Road Cancer Institute Act, No.2, 1996

The Mental Health Act, No. 21, 2008

The HIV and AIDS (Prevention and Control) Act, No. 28, 2008

Medical, Dental and Allied Health Professionals, 2017

Nursing and Midwifery Act, No. 1, 2010

The Pharmacy Act, No. 1, 2011

Medical Radiology and Imaging Professionals Act, No.

Policies

The National Health Policy, 2007

Books/Journals

Carvalho, S, Reeves, M and Orford, J., (2011), Fundamental Aspects of

Legal, Ethical and Professional Issues in Nursing, 2 nd Ed, Quay Book
Division; London at 11

Jay w. mark, (2021), the Medical Definition of Hippocratic Oath, also

available at https://www.medicinenet.com/script/main/art.asp?
articleskey=6930 retrieved on 21st November, 2021

Oxford Dictionaries http://oxforddictionaries.com/definition/english/law

(Accessed on 11th Nov. 2021 at 13:55).

The Constitution of World Health Organization adopted by the International

Health Conference held in New York from 19 June to 22 July, 1946 and
signed on 22 July 1946 by representative of 61 states

44
The Institution Medicine, (2001) Health and Behavior: The Interplay of
Biological Behavioral, and Societal Influences, the Committee on Health and
Behavior: Research, Practice, and Policy Board on Neuroscience and
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The United Republic of Tanzania, (2020) Ministry of Health, Community

Development, Gender, Elderly and Children, the National Guidelines for
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Twinomugisha, BK, (2015), Fundamentals of Health Law in Uganda, South

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Carvalho, S, Reeves, M and Orford, J., (2011) Fundamental Aspects of Legal,

Ethical and Issues in Nursing, 2nd Ed, London; Quay Books Division.

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