Contents   Abstract 1. Introduction 2. Commodifiction and Law 2.1 Process of Commodification 2.2 The Role of Law in Commodification 3. Health and Health Care Delivery in Tanzania 3.1 Health Needs in Tanzania: The Importance of the Collective 3.2 Health Care Delivery: Independence and Ujamaa 3.3 Structural Adjustment and Privatisation 3.4 Commodification Trends 4. Medical Malpractice Litigation   4.1 Levels of Litigation   4.2 Future Patterns of Malpractice Litigation   4.3 The Uses of Litigation 5. Regulating Medical Work 5.1 Medical Self-Regulation in Tanzania 5.2 Recent Disciplinary Cases 6. Conclusion   References  Download

John A Harrington

Lecturer in Law,
University of Warwick, UK

John.Harrington@warwick.ac.uk

Abstract

This paper examines the manner in which the tensions created by health care reforms in Tanzania were manifested in problems of law and professional regulation. The extensive privatisation of health provision and the introduction of user fees in the public sector rested upon a commodification of health care which was itself only possible through the deployment of contract models. Tort litigation was recommended as a channel of accountability but only resulted in a further skewing of resources towards the wealthy. The stresses created by the advertising of medical services and by doctors’ abandonment of altruistic goals were reflected in the disciplinary case load of the Medical Council in Tanzania. Professional ethics and privileges adopted during the colonial period were unable to withstand the pressures of the market. The paper also attempts to locate these processes within the context of global liberalisation of health care services, whether through Structural Adjustment Programmes (SAPS), or the General Agreement on Trade in Services (GATS). As such the Tanzanian experience can illustrate some of the possible legal and regulatory consequences of the current part-privatisation of health care provision in Britain.

Keywords: Commodification, GATS, Health Care, Liberalisation, Medical Practice, Privatisation, Structural Adjustment, Tanzania,

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This is a refereed article published on: 20 January 2004

Citation: Harrington, J, ‘Law and the Commodification of Health Care in Tanzania’, 2003 (2) Law, Social Justice & Global Development Journal (LGD). <http://elj.warwick.ac.uk/global/issue/2003-2/harrington.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_2/harrington/>

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1. Introduction

Health care services, especially in the west, have traditionally been delivered by a mix of nationalised, charitable and insurance-funded institutions. As such they were long seen as resistant to commodification and outside investment. This is no longer true. Sponsored by the World Trade Organisation (WTO), the General Agreement on Trade in Services (GATS) promises to ‘open up’ health care, among many other sectors, to inward investment. This privatisation of health care is driven in the first instance by the requirement under GATS that foreign companies seeking to provide services not be at a disadvantage relative to their local competitors. Barriers to entry such as tariffs, restrictions on capital movement and special licensing regimes will have to be removed as specific services come up for negotiation under GATS at the WTO. Admittedly Art 1.3(b) of GATS exempts from competition services provided in the exercise of governmental authority. Yet this protection is immediately cut down by Art 1.3(c) which states that any public service supplied on a commercial basis or in competition with other providers should be opened up to foreign companies. Under pressure from health care multinationals and others it is probable that trade negotiators and disputes panels will take a broad, pro-competition view of these provisions. [1] For example, once a part of the health care system, such as blood testing, is subject to competition, that will have to be opened up to non-national providers. GATS can thus be seen as a global free-trade battering ram behind which private capital can swarm into health care. [2]

Progressive commentators have highlighted the likely consequences of this liberalisation drive for health care users in the west. They focus particularly on the threats to the standard of service provision, to equality of access, and to employment conditions in the sector. For example, in the United Kingdom so-called ‘Private Finance Initiatives’ allow companies to take over the running and ownership of National Health Service (NHS) facilities. [3] Evidence to date indicates that the cost to the public of paying private companies to make this capital investment greatly exceeds the cost of doing so through government borrowing. In seeking to maximise their returns private companies now embedded in the NHS have cut back on staff and bed numbers, sold off valuable land adjacent to hospitals, and transferred most of the risk involved in their ventures to the local health authorities. [4] They have also begun to package the care offered to patients: dividing it into free services still funded by the NHS, and restricted services (eg private rooms) for which the patient must pay. A two-tier health service may now be realised, not only as between public and private hospitals, but within NHS facilities themselves. [5]

The United Kingdom under the Thatcher and Major governments was a world leader in the privatisation of state-owned industries in the 1980s and 1990s. Initially under pressure of the International Monetary Fund and in response to the 1970s crisis of accumulation, it pioneered techniques of retrenchment in telecoms, transport, utilities and manufacturing which were exported around the globe. [6] With the United States, Britain is a pillar of the so-called Washington consensus which supports the efforts of the Bretton Woods institutions to create global markets and to ‘reform’ poor country economies through structural adjustment and other programmes. [7] These liberalisation drives have produced a radical mutilation and privatisation, not only of productive state activities, but also of non-productive sectors such as health care. [8] To this extent the experience of a country such as Tanzania can now be said to exceed that of the United Kingdom, where even Conservative governments were reluctant to withdraw entitlements to medical care. Close examination of the Tanzanian experience can be instructive, therefore, to British scholars seeking to predict the form and consequences of liberalising health care and other welfare services. As in the colonial period, so too now in the post-Cold War era, the more vulnerable periphery is proving a fertile testing ground for possible ‘reforms’ in the metropolitan core.

This essay is a brief study of the commodification of health care in Tanzania. In particular it seeks to explicate the role of specific legal forms in this process. It rests on the basic thesis that the forms of contract, tort liability, and professional self-regulation are profoundly implicated in the marketisation of health services in Tanzania. More than this however, the process of commodifying and privatising a service long-oriented by non-commercial values is beset by contradictions which can be read off from the practical difficulties of contracting, litigating and regulating. These issues are perhaps of greatest importance to the people of Tanzania, their doctors and lawyers. In addition, however, the fate of colonial, essentially British legal forms under pressure of adjustment and retrenchment can be made to speak back to the ‘mother country’, itself about to endure a similar phase. As such, in a very modest way this essay takes up Baxi’s challenge to remove:

common law scholarship [from the] conceptual cloisters that often ignore the historic causes of world impoverishment, especially the impact of colonial and imperial common law practices and performances. [9]

2. Commodification and Law

2.1 Process of Commodification

Before proceeding it is necessary to clarify some basic terms. Most important of these is of course ‘commodification’. In this context we can say that commodification is a pre-requisite for the penetration of capital into a previously non-market sector of activity. All markets are embedded in non-market social environments, all are dependent on state-made rules for their functioning. Competitive pressures drive businesses to enter these non-market environments in search of profits as a general rule. [10] But in the case of government-run sectors it will be necessary for the state to take active steps to disengage before private investment is possible. In other words the state will have to begin the process of commodification of services, such as health care, itself.

Commodification renders things and services capable of having equivalent value, that is capable of being exchanged for each other in certain ratios or for an equivalent in money. [11] In the case of services this is often difficult to achieve: [12]

1) The elements of the service need to be specified, that is broken down and reconfigured into discrete units of output. They need to be packaged and priced. In the health sector, this would involve hospitals offering patients not overall care, but a series of discrete treatments, each with a price attached. Competition on price between different providers becomes possible. Providers also need to be able to advertise their different offerings.

2) Effective demand for the particular services needs to be created. Taxation and public spending on health care are cut. This forces wealthier patients to turn to the private sector. But it also leaves them with enough income to pay for private services. Where users are too poor to pay for services they may be endowed by the state with portable subsidies. In the form of vouchers these can be used to purchase care in a mixed public-private market. [13] At the same time state-run services are denied adequate funds and denigrated in the eyes of the public. Collective means of achieving health goals are dismissed as impractical or inefficient. [14]

3) Workforces need to be converted into producers of surplus value, retainable by investors. [15] Impediments to the flexible deployment of labour must be removed. Rationalisation of work practices entails the delegation of tasks downwards to lower skilled workers, the replacement of workers by machines, and the displacement of labour onto service users themselves or their family. (An example of the latter is provided by the increasing burden of caring on women as the state withdraws from long term care of the sick and elderly).

The discussion of GATS has shown that this process of commodification is now stimulated and shaped by international pressures. It can no longer simply be a question of national business interests seeking access to profitable public-sector activities. Instead, as Gregory Albo has pointed out, the national state reshapes the economy to the benefit of international capital. [16] The state, thus, remains vital to commodification under globalisation. It internalises the goal of international competitiveness; mediating between the territorialisation of value production and the internationalisation of capital circulation. It acts to convince workers nationally that their interests are co-terminous with international competitiveness, in the form of low wages and diminished welfare coverage. [17] It also reflects the material interests of a significant section of the national elite in privatisation and global free trade. [18]

2.2 The Role of Law in Commodification

Legal forms are indispensable in this process. In the first instance legislative measures are required to undo state-based regimes. Existing statutory restrictions on private practice are abolished by further enactments. Monopolies of practice are similarly removed. (GATS, with its compulsion to legislate for open markets, has hastened this process.) [19] The new era of privatisation also represents a return for the doctrines of classical nineteenth century private law, in particular those of contract. [20] Indeed the fact that health care services can now be contracted over is the very mark of liberalisation in the sector. Henceforth allocation will be based more on ability to pay than need. Concern shifts from substantive fairness in the distribution of services at the delivery stage, to procedural fairness in the exchange of money for services at the contracting stage. [21] Use of health care is determined apparently by individual choice, but actually by success in current or previous struggles for accumulation. The symbiotic relationship between commodity exchange and legal form is, thus, reasserted in the changing health care context. [22]

Of course the system of contracting cannot function unless the services to which it relates are capable of being contracted over in the first place. As has been mentioned, this requires that they be clearly defined and delimited. In the private sector this is achieved through the legal recognition, or creation, of exclusory property rights in land or goods. Security of title then enables exchange (by way of contract) to proceed, and boosts investor confidence. [23] By contrast, in the state-run sector unbundling and delimitation is often achieved through bureaucratic reorganization before privatisation. Even at this stage contract often begins to play an important role. Internal markets are achieved within the state sector by the creation of purchaser/ provider splits. The British National Health Service was subjected to pre-emptive market discipline in this way by the Conservative government in 1991. [24] Accounting techniques, management structures and the prevailing ethos then established have eased the path to privatisation along which the NHS is now arguably being led by the Labour government. [25] Even where internal markets are not introduced, a previously integrated service may be disaggregated into micro-elements which may then be contracted out. The state in effect operates as the estate agent or realtor of its own assets. [26] Unbundling is doubly functional to privatisation. As noted, it creates specific targets for private investment; part-privatisation of some aspects of health care is thus possible. It also means that charging can be introduced before actual privatisation through the imposition of user-fees for defined services such as specific treatments or consultations.

Contract-based delivery of health care entails a concern with remedies should the contract be breached. Patients begin to expect compensation where treatment is unsuccessful or positively injurious. The huge increase in negligence litigation against doctors in Europe and especially in the United States is clearly associated with the rise of consumerism and the shaping of patient expectations by contractual models. [27] Indeed this orientation to individualized justice is evident in the United Kingdom notwithstanding the fact that access to health care in that country is founded not on contract, but on statutory entitlement. [28] It should also be noted that the process of de-regulation, necessary for full privatisation, is often followed by re-regulation. The new private providers are subjected to weak controls, most especially to preserve competition within the sector, but also, though less prominently, to promote non-market or social values, e.g. the geographic distribution of facilities like post offices or hospitals.

As has been suggested above, occupational niches and privileges are also subject to rationalization and elimination in the process of incremental privatisation. However, these barriers to market competition and direct regulation cannot be removed immediately. There will be an overhang of old professional forms and ideologies which nurture resistance to the new market order. [29] At the very least regulatory practice in the transition phase displays the tensions and contradictions produced by the penetration of capital into previously non-market spheres. As will be seen in later sections, this has already been true of health care privatisation in Tanzania.

In the cultural sphere commodification also has self-reinforcing hegemonic effects. Neoliberal intellectuals and journalists are devoted to creating a new common sense through repetition of the idea that most things and services can be packaged, bought and sold; and, perhaps more importantly, through suppression of the idea that they can’t. [30] As Leys says of Britain:

The commercialisation of everyday life made people willing to accept the impact of market forces as natural and even inevitable, and to accept that they themselves, rather than the state, were responsible for coping with the consequences. [31]

This market-doxa creates and allocates new roles to participants in the health care enterprise. [32] Governments become enablers not providers, patients become customers, doctors businessmen. In time it should no longer be possible to imagine oneself as anything more than a market actor. The newly introduced market is itself reified at the level of the imaginary. [33] The interested citizen and the disinterested professional transmogrify and merge into the self-seeking individual of textbook economics. The rhetoric of individualist legalism is integral to this cultural hegemonic project. Lawyers function as the organic intellectuals of the new era, peddling legal symbols and a language of the law appropriate to renewed market hegemony. [34] The inextricable legal dimension of market rhetoric highlights the fact that this is not an intellectual construction, imposed from above, as it were. [35] Rather it is developed, modified and renewed in the material practices of lawyers, judges, doctors, patients and medical regulators.

3. Health and Health Care Delivery in Tanzania

The privatisation of health care in Tanzania has proceeded in a very specific context, one determined by the distinctive health needs of the population and by accrued patterns of service delivery. We examine this context in the following sections, before proceeding to consider the role of the law in the commodification process.

3.1 Health Needs in Tanzania: The Importance of the Collective

The most significant health problems facing Tanzania are malnutrition, intestinal conditions such as diarrhoea and dysentery, and infectious diseases, such as malaria, bilharzia and AIDS. [36] Although chronic and degenerative illnesses have become more prevalent in the last two decades, they are still much less prominent than in western societies. There are many causes of infectious diseases, but it has long been accepted that the most efficacious means of checking their spread is through improvements in sanitary conditions. These improvements are generally achievable through collective action to build drains and latrines and to ensure adequate supplies of clean water. As essentially preventive measures they do not require a significant medical input in terms of the involvement of doctors or the use of pharmaceuticals.

It has been shown that economic conditions, in particular land use, strongly influence levels of malnutrition. [37] The widespread shift in cultivation from food crops to cash crops has meant that farmers are dependent on trends in world markets for the income needed to ensure adequate food for their families. The deterioration in the terms of trade which Tanzania has endured since the early 1970s has been accompanied by an increase in malnutrition particularly among women and children. Neither infectious diseases nor malnutrition are likely to be eliminated by orthodox clinical medicine. At best, all that can be hoped for is an alleviation of the symptoms of those affected.

Notwithstanding these clear needs, Tanzania’s health care system, like that of many other developing nations, is mainly geared towards curative rather than preventive medicine. This reflects a bias introduced with the practice of western medicine itself during the colonial period. The medical services of the missionary societies and the colonial administration were built around the individual therapeutic relationship between doctor and patient. [38] Apart from a number of unsuccessful coercive campaigns against infectious diseases such as sleeping sickness, resources were overwhelmingly concentrated upon hospitals and urban dispensaries. [39] This bias was carried over after decolonisation.

3.2 Health Care Delivery: Independence and Ujamaa

Tanganyika gained independence in 1961. [40] Its new rulers had a common belief that the welfare of the nation depended on the active intervention of the state. [41] The early phase of ‘modernisation’ reached its zenith during the period of ujamaa, roughly from 1967 to 1983. The latter was a programme of ‘African socialism’, Fabian in inspiration and based upon widespread nationalisation and state direction of the economy. [42] Extension of medical care was a central objective of ujamaa; the health of the population being itself taken as one of the key indicators of development. Falling rates of mortality and morbidity were seized upon as signs of the successful realisation of the party’s programme. As part of this strategy a medical faculty was opened in 1963 at the University of Dar es Salaam, centred upon Muhimbili Hospital in the city. [43] The cohort of Tanzanian doctors increased many times over during the period; from zero at independence it rose to 1,265 in 1991/2. This still equalled only one doctor per 21,423 of population, however. [44]

The statist direction of policy was emphasised by the Private Hospital (Regulation) Act 1977 which banned all private practice with the exception of missionary medicine. A majority of doctors in the country in this period were, therefore, employed by the government. Efforts were made to re-orientate health care programmes away from curative and toward preventative medicine. Campaigns like mtu ni afya [45] sought to mobilize local communities to remove sources of infectious illness such as swamps and polluted water supplies. For a time the government succeeded in curbing the growth of spending on hospital facilities in order to free up money for this. It also expanded the cadre of village health workers and other auxiliary staff in order to make health care more widely available, especially in rural areas. [46] In absolute terms, however, the allocation to preventative medicine remained low. [47]

The ongoing dominance of the western curative model in Tanzanian medicine was a manifestation of the local profession’s strong ties to its counterparts in Europe and North America. It also testifies to the expansionary pressure of the global medical services and pharmaceutical industries. Even in the decade or so of its ‘socialisation’ Tanzanian medicine was inextricably caught in the circuits of foreign capital. Clinical facilities, which were needed for medical training and practice in the western manner, were established in a number of cities and large towns. These facilities and the professionals who worked in them, were able to attract a disproportionate degree of overseas aid, when compared with non-curative, public health programmes. The current costs of urban hospitals and clinics, once established, were and still are a major drain upon the state’s health budgets and its foreign currency reserves. Pharmaceuticals, surgical equipment and sterile instruments must be purchased from western multi-nationals in order to justify the initial capital expenditure. [48] Insofar as these outgoings are met from domestic sources, they represent a redistribution of resources from rural farmers to urban dwellers, particularly those of the middle class. [49] Doctors perform an essentially compradorial function in this regard; acting as brokers for overseas aid and the commodified wares of the global health care industry. Investment in the advanced technology of urban hospitals also serves to delegitimise the fairly low-skill activities which are characteristic of public health campaigns.

3.3 Structural Adjustment and Privatisation

Such progress as was made in the health sector in the 1970s suffered a severe setback during the 1980s. From the mid-1970s Tanzania’s macro-economic situation deteriorated greatly due to a number of both external and internal factors: two world oil crises lead to a huge increase in the country’s debt burden; the terms of trade deteriorated dramatically; and flooding and drought in the mid 1970s increased Tanzania’s dependence on imported food and further exacerbated the debt problem. The resulting economic difficulties were fully felt in the early 1980s. [50] Initially the government made several attempts to develop its own response to the general situation, including some reduction in spending on welfare and health. These measures were not successful in promoting recovery and ultimately in June 1986 the Tanzanian government was forced to accept World Bank and IMF conditionalities on further aid as laid down in the so-called Economic Recovery Programme. [51]

The ‘reforms’ had a strongly negative effect upon the health service itself as well as non-medical factors like income and nutrition which determine the general health of the population. [52] Severe cutbacks were introduced, with the government budget allocation for the health sector falling from 9.4 percent in the early 1970s to five percent in 1990/91. [53] Consequently there was a collapse in the morale of health care workers leading in turn to a ‘brain drain’ of Tanzanian-trained physicians, 26 percent of whom left the country in the 1980s. [54] The inherited biases in the Tanzanian health care system remain as obvious as ever. For example, between 1989 and 1993 89 per cent of the government’s health budget was spent on curative health services and only four per cent on preventive services. [55] Urban health care users are still better served than their rural counterparts. The role of foreign aid has increased as the funding capability of the government has declined. Nearly 81 percent of total spending on preventive services is donor-funded. [56]

In response to this crisis of funding and under pressure from foreign agencies the Ministry of Health began to argue for a ‘public/ private mix’ in the delivery of health care. The Medical Association of Tanzania also lobbied for an improvement in its members’ (greatly diminished) remuneration through the removal of restrictions upon private practice. [57] As a result under the Private Hospitals (Regulation)(Amendment) Act 1991, the previous ban on ‘for-profit’ practice was lifted. Individual qualified medical practitioners and dentists are now permitted to manage private hospitals. By 1994 it was found that the private sector owned 40 percent of all service delivery points: eight to ten percent ‘for profit’; 30 per cent ‘not for profit’. [58] This represented an important shift in the funding and structure of health care in Tanzania.

The break with the past in Tanzanian health care is even more vivid in the case of ‘user charges’ which were first introduced in July 1994. These charges, which had already been implemented elsewhere in Africa, were inspired by the policy of cost-sharing expounded by the World Bank in its document Financing Health Services Policy Study and by the World Health Organisation in the so-called Bamako Initiative both of 1987. [59] User charges are aimed at raising revenue and eliminating ‘unnecessary’ use of facilities. Quite how much use of Tanzania’s meagre health care system was in fact unnecessary was never explored by the crusading economists who proposed the scheme. [60] Formal success seems nonetheless to have been achieved: studies conducted during the introduction of the charge showed that use of services, particularly by women, declined significantly. [61] This repeats the experience in Nigeria, Kenya and Ghana, where use of clinics dropped by half shortly after the introduction of health care fees. An increase in child mortality, sexually transmitted diseases and tuberculosis was noted in all three countries for the subsequent period. [62]

3.4 Commodification Trends

The commodification of health care in Tanzania has, thus, proceeded in much the manner outlined in previous sections. The specification of services was already a feature of the state-run system owing to the dominance of curative medicine and the pressures of western health capitalism. It has intensified with the growth of private hospitals. Liberalisation permitted doctors and patients lawfully to contract over service provision for the first time. (Even before this there was a notable parallel economy in health care whose contracts were not, of course, enforceable at law.) User charges simulate this effect in what remains of the public sector. Effective demand has arrived in the form of a growing middle class, itself profiting from expanding private markets. Non-commodified alternatives to private medicine in the state sector have declined for lack of funding. Non-commodifiable alternatives, especially public health improvements are similarly under resourced. Finally many doctors have changed from being public servants bound by a non-market ethos, to entrepreneurs seeking to maximize the return on their investment and employing lower skilled staff to carry out more mundane tasks.

4. Medical Malpractice Litigation

It has been noted above that malpractice litigation is closely connected with the commodification of health care. In common law systems such actions are usually in tort, for negligence. Of course there is no necessary doctrinal link between the contract form of commodity exchange and tort law. Nonetheless the discrete bilateral form of the negligence action, as well as its essentially retrospective, compensatory orientation, mean that it supports and reproduces the commodification of health care. Tort law also operates as a material ideology constraining health care users to think of themselves as essentially isolated, rights-bearing consumers, rather than say contributors to the health of all through taxation and more concrete public health measures. In the following section we examine: the causes of the previously low level of litigation against doctors in Tanzania; the reasons why litigation is now set to increase; and the likely effects of such an increase.

4.1 Levels of Litigation

There has been very little litigation arising from medical practice in Tanzania since (or indeed before) independence. [63] A survey of reported cases and case files at the High Court in Dar es Salaam revealed only three cases concerning medical negligence between 1961 and 1999. [64] A number of reasons as to why there have been so few may be suggested. The most obvious, perhaps, is the relatively low level of access to health care. If a significant section of the population is not able to use health care facilities, particularly those where complex and, therefore, more risky procedures are carried out, they will never be in the position of being injured in a medical accident or a fortiori of suing their doctor or the hospital in which they were treated. There are also difficulties where patients actually have been injured by the careless conduct of medical interventions. Particularly in rural areas litigation may involve suing the only doctor in the area, with the result that should the action fail the patient and their family would be entirely dependent for care upon a practitioner whose competence they had disputed in court and who would, to say the least, not be well disposed towards them. [65] A further practical obstacle is presented by the lack of access of members of the public to legal services. In 1998 there were only 167 advocates, that is lawyers in private practice in Tanzania. This is equivalent to one lawyer for every 138,000 Tanzanians, compared with one for every 900 inhabitants of England and Wales. The opportunity costs to a rural dweller of travelling to consult with a lawyer in the nearest town almost certainly inhibits a considerable amount of potential litigation. This is, of course, quite apart from consultation fees and the costs of taking an action which will be prohibitive for most.

Apart from these practical hindrances there are also a number of less tangible, symbolic barriers to the widespread initiation of malpractice litigation. Medical paternalism, which has been much criticised in the west, has in Africa been overlaid with and reinforced by the authoritarian and coercive paternalism of first the colonial and then the independent state. In so far as the practice of medicine in Tanzania has been associated with or sponsored by the state it has had as its ideal target patients who are subordinate, compliant and passive. Whether in the colonial campaigns to maintain the labour force through preventing the spread of infectious diseases, or in the post-independence struggle to improve the health of the population as a goal of development, individuals were to be ordered and manipulated by directing agencies outside of themselves, in the form of health departments, the military and the party. [66] Although there were undoubtedly instances of resistance to this coercion, it did not, indeed it could not take a legal form. [67] Law in the colonial state and in its successor was conceived of primarily as constitutive of state power, not as a limitation upon it. [68] Until very recently, therefore, there was no widespread perception of litigation as a means of providing for the accountability of the agents and institutions of the state including the great majority of medical professionals who worked for it.

Furthermore, for much of Tanzania’s modern history missionary medicine has been more extensively available than that provided by the state. It too was unlikely to be a site of legally formulated challenges to medical power. In the activities of the missions, indeed in the very person of the missionary doctor the therapeutic and the religious were combined. [69] Institutions taking as their chief responsibility the salvation of souls could not brook and would not encourage challenges to their authority and their legitimacy in the form of litigation. Although the churches reduced their prosleytising efforts in the 1970s, their generally good relations with the independent state meant that they were guaranteed a considerable degree of autonomy and protection from intrusion upon their social and religious work. [70] In short it may be concluded that for a variety of more or less tangible reasons private law litigation and rules of liability were not significant in the constitution of doctor-patient relationships in Tanzania.

4.2 Future Patterns of Malpractice Litigation

Many of the obstacles to suing discussed above have recently diminished in importance. There are, thus, a number of grounds for believing that litigation against doctors and health care institutions is set to increase. First, given the continuing low level of funding for health care, the probability of accidents occurring will remain relatively high. Second, a procedural obstacle to litigation has been removed with the abolition of the requirement that the fiat of the Attorney General be obtained before a claim can proceed against a public hospital or one of its employees. [71] It should be noted in this connection that a hospital, whether public or private, may be held vicariously liable for the torts of its employees. [72] If no particular medical practitioner can be identified as having been negligent the hospital may be found directly responsible in negligence for having poor organisational systems in place. [73] It may also be held liable for carelessness in selecting and supervising its employees. [74] Thus, for example the owner of a private hospital may be liable for medical accidents which occur in his institution.

These changes are bolstered by the increasing prominence of notions of the rule of law and accountability in policy making and administrative and political discourse in Tanzania in the last decade. Along with the rest of the state sector the potential for review of medical practice has thereby increased. In particular the introduction of user charges in state facilities and the growth of private medicine indicate a trend toward the commercialisation of medicine. Consequently patients may be expected to consider themselves more and more as consumers of a service for which they have paid in one fashion or another. As was indicated above, the accountability of medical professionals will be realised through contracts and the law of negligence rather than through line management and the bureaucratic controls of the state-run system. This is stimulated both by the World Bank’s policy of increasing patient choice through markets and voucher systems, and through the arrival of commercial providers from abroad as required by GATS. As a result claims consciousness can be expected to increase among patients contributing to a rise in litigation. Furthermore, medical negligence will usually leave the patient needing further treatment. An award of damages therefore may be sought as an effective indemnification of the patient against the cost of such additional care.

Any increase in litigation will have significant consequences for patients, for the medical profession and for the health care system as a whole. The costs of malpractice will be imposed on the state and the owners of private hospitals. The state may in turn spread these costs among the general public through taxation. The equivalent mechanism in the case of private facilities will be an increase in fees. Further spreading is possible through insurance. [75] The apparent fairness of such loss spreading is limited, however, by the existing structure of medical services in Tanzania. It has already been pointed out that only those who are fortunate enough to be able to obtain medical treatment in the first place will be in a position to sue for any injuries which they sustain. Given the current uneven distribution of health care this additional allocation of collective resources to victims of medical negligence may be viewed as a reinforcement of pre-existing inequalities.

It is worth mentioning a further negative aspect of increased civil liability related to its form in law. The rights vindicated by the law of negligence through an award of damages are almost always negative rights to freedom from harm or some other form of unwanted interference. Positive rights to be provided with care, even in the most urgent of situations, are not recognised by the courts. Thus, the peasant in a remote village without even basic health care facilities who suffers serious harm due to lack of treatment will have no legal remedy. In sum the courts are empowered to interfere with the collective allocation of health care resources to protect the interests of those who already benefit disproportionately, but not to disturb that allocation in favour of those who are correspondingly disadvantaged.

4.3 The Uses of Litigation

Three mutually reinforcing characteristics of the Tanzanian health care system were noted at the outset of this discussion: a persistent bias toward curative medicine in the organization of health care services; chronic under-resourcing of the system; and the growing commercialisation of medical practice. Each of these phenomena shapes and is shaped by the increasing juridification of therapeutic relations: only those already benefiting from curative medicine are in a position to sue for damages in negligence; the consumerist dimensions of litigation encourage citizens to regard health care as a commodity; no action may be sustained at common law for failures to provide care, either against individual doctors or institutions, or against the state. Private law may not be mobilized, in other words, to effect a shift in resources or to change the focus of national health care policy away from curative and towards preventive medicine. [76] This is not to say that increasing legal intervention will not affect the practice of medicine in Tanzania. If litigation does increase there will be at least a notional shift in the balance of power within the doctor-patient relationship. The coercive paternalism of medical practice in the colonial and early post-colonial period may come to be replaced by a more forthright assertion of their rights by patients. Nonetheless it is clear that many pressing questions concerning the adequacy of care available to patients simply cannot be formulated in terms of negative human rights or common law doctrine.

The rise of litigation also contributes to the ‘naturalisation’ of the market in medical services, whereby the inability of the mass of Tanzanians to enter that market appears to be a matter of fate, not collective choice. This idea of necessary scarcity and the market model of entitlement on which it is premised is carried back into the state sector in popular discourse and judicial reasoning. Courts in many jurisdictions have refused to recognise positive rights to treatment on the basis that tragic choices are inevitable where resources are short. As much was acknowledged by the South African constitutional court in a 1997 decision not to compel a health authority to provide a needful patient with kidney dialysis. In the words of Chaskalson P:

The hard and unpalatable fact is that if the appellant were a wealthy man he would be able to procure such treatment from private sources; he is not and has to look to the State to provide him with the treatment. But the State’s resources are limited and the appellant does not meet the criteria for admission to the ... programme. [77]

5. Regulating Medical Work

The contradictions thrown up by the commodification of health care are vividly displayed in the context of professional self-regulation. On the one hand many Tanzanian doctors have been responding to the liberalisation programme by entering into private practice. Indeed, as has been noted, the Medical Association of Tanzania itself played a considerable role in lobbying for the reintroduction of private medicine. On the other hand bodies such as the Medical Council of Tanganyika and the Medical Association of Tanzania have sought to counter the corrosive effects upon professional status of an unqualified commercialisation of medicine. In the following sections we examine the regulatory strategies adopted by the Medical Council in an attempt to reassert the non-market ethos of the profession in the face of market pressures. Before this, however, we examine briefly the disciplinary powers of the Council and the standards which it applies in exercising them.

5.1 Medical Self-Regulation in Tanzania

Under the Medical Practitioners and Dentists Ordinance Cap 409, licensing and disciplining of Tanzanian doctors is carried out by Medical Council of Tanganyika. In deciding to caution, suspend or strike a doctor off the register for disciplinary offences the Council judges whether he or she was guilty of ‘infamous conduct’ (s.26 cap 409). In a Notice issued by the Council in 1980 this is defined in the words of the nineteenth century English judge Lord Esher MR as ‘something ... which will be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’. [78] In addition the notice identifies as criminal offences which will lead to disciplinary action: forgery, fraud, theft and indecent behaviour, as well as misuse and misprescription of drugs, and the carrying out of abortions. The practice of advertising, the use of unqualified assistants to carry out doctors’ duties, and the fraudulent use of titles and descriptions are also prohibited. Finally, the catalogue of culpable misconduct is extended to treating or attending patients while under the influence of drink, abuse of dangerous drugs, commercialisation of a secret remedy, gross or prolonged neglect of duties, disregard of responsibilities to patients and adultery or improper conduct or association with patients.

These norms of professional discipline may be divided into two types. The first, profession-related norms, are directly aimed at upholding ‘the honour and integrity of the medical profession’, i.e. its elevated status as an occupation kept apart from the operation of the market and bureaucratic domination. Restrictions on advertising, the misuse of titles and improper delegation of tasks are barriers to full commodification of health care services in so far as they hinder the rationalisation of work practices and the full emergence of a surplus-creating workforce. The second, patient-related norms, seek to protect patients through imposing obligations of loyalty on doctors. They include the prohibition on sexual relations with patients and the sanctioning of gross neglect of professional duties. Their articulation and enforcement also contributes to maintaining the status of medicine as a special vocation. Its members are ideally guided by an altruistic ethos, and they are willing to discipline their peers where this is violated. This contrasts with the self-seeking ethos of the market and the greater emphasis on the regulatory effects of provider competition and patient litigation therein.

5.2 Recent Disciplinary Cases

Both types of norm have been engaged in recent disciplinary work of the Medical Council of Tanganyika. In the following section we consider cases of the ‘integrity’ type arising out of impermissible advertising, and cases of the ‘loyalty’ type concerning the abandonment of public patients by their doctors. Both reveal the difficulty for regulators of shoring up traditional, non-market notions of professionalism in the face of pressures which tend massively to undermine them.

5.2.1 Advertising

With the liberalisation of the Tanzanian newspaper industry (Dar es Salaam alone has a dozen or more different titles in English and Kiswahili) the ethics of advertising doctors’ services have come to be considered by the Medical Council. Private hospitals and clinics are much in evidence in the urban areas, often being announced by garish neon signs. [79] Competition between them is intense and it is not surprising that the press has been used as a ready means of self-promotion. In April 1997 the Council sanctioned one doctor who placed a notice in a daily newspaper which it held amounted to an advertisement and another doctor who allowed a newspaper report about his clinic which had the same effect to be published. [80] In the first case the Council stated that it ‘takes a serious view of the creeping practice of self-advertisement by medical practitioners and dentists in the country’. [81] The doctor, who pleaded guilty was cautioned. By contrast the other accused who maintained a plea of not guilty received a censure amounting to a severe reprimand. In sentencing him it was stated that:

The Council is greatly concerned by the increasing number of medical practitioners who seem to have forgotten about settled professional ethics. Advertisements can be by way of ‘Notices’ in the pages of the newspaper, or through radio and television media. Unless serious alert is given to the whole professional body and the public at large the Council fears that the offensive practice of self-advertisement will continue ... We think that this conduct calls for a deterrent sentence. [82]

It is to be noted that the accused doctors in both of these cases, at least initially, claimed that they merely wished to convey information. Yet in the first case references to ‘senior consultant’ and ‘fully modern facilities’ were found ‘likely to attract a favourable response from the readers in the way that an advertisement would’. The distinction between notices merely conveying information and advertisements which amount to self-promotion is extremely difficult to draw. The Notice of 1981, for example, states that ‘[t]he Council has ... no objection to the insertion in the press of an inconspicuous notice indicating a change of address or telephone number, or temporary absence from practice, or notifying the visit of a bona fide specialist.’ [83] Yet functionally, in terms of the operation of the market, both amount to the same thing: conveying information about the availability of services and the prices of these services. This is integral to the idea of markets. Indeed it is seen as a prerequisite of their presumed benefits. Those investing in medicine will necessarily seek a return on their investments and this return can only be achieved by increasing the throughput of patients in a given facility. Advertising is arguably the most effective means to such an increase. It is apparent that traditional professional ethics are being undercut by the rival ethic of free market medicine. It has fallen to the Council to highlight this ethic on the very occasions of its breach.

5.2.2 Abandoning Patients

The abandonment of patients by their doctors has long been held to breach traditional medical ethics. Even in the highly commercialised setting of American medicine it has been sought to retain at least a veneer of non-market altruism in this respect. [84] The phenomenon of abandonment has presented itself in Tanzania of late partly, it may be assumed, because of the opportunity for doctors to work in the public service, and at the same time to run private facilities of their own. Thus in 1996 the Medical Council held that a doctor who left a dangerously ill patient in the maternity ward of a public hospital unattended resulting in the death of the patient was guilty of ‘infamous conduct in a professional respect’. In sentencing him the Council indicated its strong suspicion of a conflict of interest in the case. It stated that:

Throughout the trial an explanation kept emerging ... [this was that] Dr W was attending to patients at his private hospital during the lengthy hours when he was absent from [the hospital] where he was the Doctor on Duty. The practice has emerged amongst medical practitioners, and seems to be growing. The Council frowns upon the practice of doctors absenting themselves from duty posts to attend to chores at their private clinics. We think the practice is subversive of the Hippocratic Oath, and should be avoided by all medical practitioners... We would like [Dr W] and other medical practitioners to appreciate the fact that if you are employed by someone as a medical practitioner, then your first duty and loyalty is to that person and his establishment. Loyalty to your own private clinic should be secondary, and should be seen to be so. [85]

Accordingly the accused was suspended from practice for twelve months.

As has been noted, in the 1980s, before the reintroduction of private medicine, Tanzania experienced an external ‘brain drain’ of qualified medical staff seeking work in the west. Contemporary instances of conflicting loyalties might be characterized as an internal ‘brain drain’, from public to private medicine. As the Council’s judgment indicates there is widespread anecdotal evidence of this. The parallel economy of bribery within the pubic health care system seems to have been augmented by a similarly parallel, but more detached economy of fee paying within the private sector. Rent-taking within state medicine has been supplemented, and for some practitioners superseded, by a practice of referring wealthier patients out of public facilities and into private clinics. (‘If you want proper treatment you will have to visit my clinic ... and pay’ for it’.)

5.3 Professionalism and the Market

These cases before the Medical Council of Tanganyika were heard in the context of the reintroduction of ‘free market medicine’ into Tanzania pursuant to internationally sponsored liberalisation programmes. The return of private health provision has presented the members of the profession with opportunities to improve their material position beyond the formal (and informal) income which was available to them as employees of the state. However, it also presents a considerable threat to the ‘integrity’ of the profession as understood traditionally. If medicine becomes a commodity, then its producers are forced to compete with purveyors of other, substitutable commodities. To take one example, the at least notional dominance of western medicine over traditional African medicine would be at an end. Self-medication and the practice of so-called ‘injection doctors’ would overwhelm the ‘orthodox’ medical profession. [86] Doctors would also be forced to bargain with patients; the latter becoming consumers of a service. Accompanying this would be an even greater concentration of medical work upon the wealthy, ie those able to afford private practitioners’ fees. In short, as well as professional autonomy, all semblance of altruism and disinterested service would be lost.

As a leading member of the Medical Association of Tanzania, who is also a member of the Medical Council has put it, ‘the imposition by structural adjustment programmes of the market model on the health services and health sector reforms are already having a profound effect on the doctor/ patient relationship, at the same time as reducing the access to and quality of health services to the most vulnerable and disadvantaged groups’. [87] This development is fatal to the integrity, understood literally, and the legitimacy of the profession. It has been countered by the pronunciation and reaffirmation of professional ethics, and by the active enforcement of disciplinary norms. [88]

6. Conclusion

Under compulsion of structural adjustment programmes health care has been substantially commodified in Tanzania having once been available free at the point of use to all. Law has featured prominently in this process. The legal forms of contract and tort, and the system of professional self-regulation have all been subject to distinctive stresses and contradictions in the last decade or more. The law of contract has been deployed instrumentally to create markets in health care where before there was a unified public system free. Tort law functions to protect entitlements accrued under the contract system. Both operate to exclude difficult questions of scarcity and the impoverished litigants who might otherwise raise them. The South African experience shows that courts and commentators can only justify and sustain these limitations with difficulty. Professional ethics have been even more obviously compromised by the commercialisation of medical practice. Rules promoting altruism and decorum among practitioners have come under most pressure. Designed by Victorian professionals to exclude the market, they are undermined by the drive for accumulation in the health care sector and the commodification of services on which this depends.

These problems can be expected in western countries to the extent that they have not yet liberalised the delivery of health care. In particular British observers can learn from the developments considered in this essay. The form and substance of both private law and professional discipline in Tanzania were imposed during the colonial period. Furthermore Tanzania’s post-independence health care system drew a great deal upon the model of the British NHS. Not only the powerful role of the state in service delivery, but also the generally paternalistic style of medical practice were features in common. Contract and tort law should, therefore, play a similar role in the imposition of market discipline through commodification, the introduction of market discipline and privatisation. Arguably the coming pathologies of the GATS era in British health care have been anticipated in Tanzania’s phase of structural adjustment.

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