Intent to commit a crime is a common element of a criminal offence. But can the prosecution secure conviction, even if a court finds that the defendant had no intention to commit the alleged offence? This is what the Court of Appeal, Lagos Division is set to unravel in the appeal filed by Dr. Ferdinand Ejike Orji against the State of Lagos, writes Wale Igbintade
In most- if not all- legal systems across the world, the doctrine of mens rea (an intent to commit crime) is captured in the criminal law principle of “no liability without fault.” According to this principle, no one should be convicted of a crime unless some measure of subjective fault is attributable to him. Therefore, to secure conviction, the prosecution must prove that the defendant acted with the intent to achieve a specific goal, as well as the intent to commit the illegal acts.
On January 20, 2023, Justice Adedayo Akintoye of the Lagos High Court in Charge No: LD/8963C/2019 convicted one Dr. Ferdinand Ejike Orji on four counts out of six counts of offences he was charged with by the Lagos State Government, and sentenced him to one year imprisonment on each of the four counts. The sentences, however, are to run concurrently.
Specifically, Justice Akintoye found Dr. Orji not guilty of Count one of causing grievous harm but found him guilty of endangering human life through reckless and negligent acts, as well as endangering human life through reckless and dangerous acts contrary to sections 245, 251 (1) (e) 209,211 and 251(1}(e) respectively of the Criminal Law Chapter 17 volume 3 Laws of Lagos State 2015.
Dissatisfied, the appellant (Dr. Orji) in his Notice of Appeal filed by his team of lawyers, led by senior counsel, Chief Bolaji Ayorinde SAN, appealed against the judgments and prayed the court to discharge the appellant from Counts 2, 3, 4 and 6 and set aside the sentences passed on him by the lower court.
The appellant in his grounds of appeal argued that the trial Judge having found that the he (appellant) did not have the mens rea or intention to commit the offence in Count 1, (causing grievous harm to his patient- a minor, by unlawfully and without his parents’ consent applied a fibreglass cast very tightly and directly on his left leg from his upper thigh down to the toes) erred in law when she failed to considered the existence of mens rea and intention of the appellant with regards committing the offences in Counts 2, 3, 4, and 6.
He submitted that Counts 2, 3, 4, and 6 relate to the same events as in Count 1 of the Charge, contending that if the trial judge found that there is no intention and or mens rea in Count 1, there cannot be intention and or mens rea in Counts 2, 3, 4, and 6.
The appellant stated that the ingredients of the elements of a crime and offences charged must co-exist and must be proved beyond reasonable doubt before a defendant (appellant) can be convicted of the offence.
It is the argument of the appellant that since the trial judge failed to consider the existence of mens rea and or intention as an essential ingredient of the offences charged against the appellant in Counts 2, 3, 4, and 6, the mentioned essential ingredients of Sections 209, 211, and 251 (1) (e) of the Criminal Law of Lagos 2015 relied on by the trial judge in her judgement lacked ingredients of the intention of the appellant to commit the offence.
He argued that the ingredients of the elements of a crime and offence charged must co-exist and must be proved beyond reasonable doubt before a defendant (appellant) can be convicted of the offence.
On the trial judge’s reliance on the evidence of members of the Medical and Dental Council Investigative Panel dated the 6th day of November 2020 and Report of the Medical and Dental Practitioners Investigation Panel dated March 15, 2021, the appellant submitted that the Medical and Dental Council Investigative Panel is not a Court or Tribunal, but merely an investigative panel of inquiries or an inquest for recommendation to its council.
The appellant stated that the Medical and Dental Council Investigative Panel did not make a verdict or final decision, but mere opinions and discussions as medical colleagues with the appellant and other parties who participated in the care of PW10, hence its opinions, reports, and findings are not binding on the lower court.
Besides, the appellant stated that the trial judge erred in law when she held that the appellant’s acts were negligent and reckless and that his reckless and negligent act did cause great harm and endangered the life of PW10 (patient) by using untrained personnel to manipulate PW10’s leg thereby aggravating a simple fracture of the said left leg.
The appellant submitted that the trial Judge failed to consider the evidence of DW2 (appellant) on October 28, 2022, where he stated that PW1 and PW2 (unskilled persons) assisted him under his full supervision in the presence of his medical doctor, nurse and other staff in his hospital.
He argued further that the trial judge failed to consider the evidence of DW1 on October 7, 2022 that a doctor can rely on the assistance of non-doctors to convey the patient in treatment rooms and even hold down a patient, especially during an emergency.
The appellant stated that there was no evidence from the prosecution to establish that the defendant had intention to cause harm or hurt PW10 by using PW1 and PW2 (untrained personnel) to manipulate PW10’s left leg thereby aggravating a simple fracture of the said left leg.
On the issue that the appellant was negligent and reckless by applying a fibreglass cast tightly on PW10’s left leg and causing severe pain and refusing to remove same when requested to do so, the appellant contended that the trial judge failed to avert her mind that the appellant upon the complaint made on July 27, 2018 by PW10 and PW3, of pain and discomfort at the left knee region, opened a rectangular window at the popliteal fossa aspect of the knee, over the area where the patient complained of, and this relieved the patient.
He stated that when PW10 was taken back to his hospital following a complaint that “water was oozing out from the popliteal aspect of the knee where the window was cut,” the cast was halved and subsequently converted to a back slab to support the knee during the patient’s journey to the United States, adding that the patient and his mother (PW3 and PW10) slept in the appellant’s hospital till July 28, 2018 without further complaints of excruciating pain or discomfort.
The appellant submitted that the trial judge failed to avert her mind and consider the evidence of PW7, the first orthopaedic doctor who saw PW10 and his evidence of March 18, 2022 where he stated that “he saw a half cast and could not ascertain how tight the cast was before removing the entire cast.” Thus, the cast was not tight or tightness doubtful.
On the issue that the appellant undertook to administer surgical treatments by carrying out a complex Orthopaedic procedure without requisite skill or supervision of an orthopaedic surgeon and without an x-ray first done to ascertain the nature of the fracture, before applying the fibreglass cast on the left leg of PW10, the appellant stated that he has been a medical doctor/surgeon for about 40 years, stressing that fracture treatment/application of cast is not an operation or surgical treatment.
He argued that prosecution witnesses, (PW4, PW6 and PW7) in their testimonies had told the court that even Medical Students can apply a cast, thus the appellant is adequately qualified to apply a cast to stabilise a fractured leg.
On the decision of the lower court that the appellant committed a breach of his professional duty as a medical practitioner, when he willfully refused to promptly remove the tight fibreglass cast on PW10’s left leg despite complaints of severe pain which thereby resulted in compartment syndrome, the appellant submitted that compartment syndrome is a process and attributed to time of when it sets in.
The appellant stated further that it has been the argument of the appellant and that of the prosecution witnesses that compartment syndrome sets in within 4-6 hours, and it is that of an emergency situation which cannot be ignored but treated immediately.
Analysing a series of events as they occurred, the appellant submitted: “The patient (PW10) left the appellant’s Hospital on July 28, 2018 with no complaints or diagnosis of compartment syndrome. Upon presentation of PW10 on July 29, 2018 before PW7’s Kamorass Hospital where the back slab and remaining cast was removed, there was no diagnosis of compartment syndrome by PW7 an orthopaedic doctor.
‘’Upon presentation of PW10 on the 30th day of July 2019 before PW6 at Reddington Hospital, there was no diagnosis of compartment syndrome by PW6 (an orthopaedic foctor). In fact, Exhibit M – Reddington Clinical Case Notes which is the case notes of PW6 stated that he did not identify compartment syndrome until the 2nd day of August 2018 – 4 days after PW10 was presented to Reddington Hospital, and a fasciotomy was done on August 2nd 2018 by PW4 and PW7 at Reddington. ’Exhibit N – Reddington Medical Report dated October 4, 2018 is evidence before the court to corroborate PW4 and PW7 evidence on the day PW10 was operated to treat compartment syndrome.’’
He contended that ‘’Compartment syndrome set in PW10’s left leg on the 4th day of admission at Reddington Hospital, and seven days after the cast was applied and subsequently halved into back slab within 24 hours by the appellant.’’
Consequently, the appellant submitted that the evidence given as to when PW10 was diagnosed of compartment syndrome contradicts the prosecution’s allegation that the appellant’s application of a tight fibreglass cast, or refusal to promptly remove it caused the onset of compartment syndrome on PW10’s left leg.
He stated that the lower court failed to evaluate the evidence of the series of events vis-à-vis the facts of the case and thereby concluded that the appellant’s willful refusal to promptly remove the tight fibreglass cast on PW10’s left leg despite complaints of severe pain resulted in compartment syndrome.
Consequently, the appellant prayed the court to pronounce him not guilty of Counts 2, 3, 4 and 6 of the amended charges dated February 2, 2022, and also set aside part of the judgment delivered on January 20, 2023 by Justice Adedayo Akintoye.
Undoubtedly, the outcome of this case is of great concern to medical professionals in Nigeria and the general public. The question begging for an answer is whether doctors stand the risk of conviction where there is no finding of criminal intent on their part.
Furthermore, in all cases of alleged medical negligence, can the court infer criminal liability when there is no mens rea
The decision of the Court of Appeal is surely being eagerly awaited on it.
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