Windhoek
Three judges of the Supreme Court delivered a split decision on an appeal that was lodged by a Jehovah’s Witness member, who refused a blood transfusion because of her religious beliefs.
The woman – who may not be identified to protect the identities of her children – had to undergo emergency surgery after complications during a caesarean section and she needed a blood transfusion due to low haemoglobin level.
However, before the operation the woman, who will be identified as Ms ES, signed a durable power of attorney (DPA) for health-care in which she appointed her husband as her designated health care agent.
Since Ms ES is a faithful Jehovah’s Witness, the DPA stated she would refuse the “transfusion of blood in any and all circumstances”.
However, when her condition became life threatening, her brother Mr AC approached the High Court to be appointed her curator in principle for the authorisation of needed medical procedures.
The High Court granted the application on September 13, 2012, and Ms ES applied for a rescission order on September 25 while at the same hearing Mr AC made a counter application.
After hearing extensive arguments on the matter, the High Court granted Mr AC’s application and dismissed the rescission application by Ms ES.
However, Ms ES was discharged from hospital without receiving any blood transfusion and she approached the Supreme Court to have the order appointing Mr AC as her curator lifted as she is now healthy.
Chief Justice Peter Shivute, with Justice Kate O’Reagan concurring, granted the appeal and ordered that the order of the High Court of September 13 be set aside and substituted it with an order dismissing the application.
They also ordered that the order of September 25 be set aside and substituted for an order rescinding and setting aside the High Court’s order granted in favour of Mr AC.
Justice Sylvester Mainga, on the other hand, differed partially from the majority judgment and said that he would have refused the order of the High Court of September 13, but would have granted the application of Mr AC on September 25, 2012.
He said in his opinion, the rights of the children in preventing their mother from abandoning them override the principle of patient autonomy.
He continued that in his view, the right of a parent to abandon a child as a result of religious beliefs, if unnecessary, is neither a reasonable nor a logical interpretation of Article 14(3), 15(1) and 21(c). He said the majority decision effectively condoned child abandonment if a parent’s decision is made for religious reasons. “Regrettably, I cannot endorse a judgment that endorses, as I believe this judgment does, the right to patient autonomy without equal recognition of the right of children to know and be cared for by their parents. In their judgment, Justices Shivute and O’Reagan upheld the principle of patient autonomy, as enshrined in the constitution.
According to the judges, the principle of patient autonomy must be the overriding principle that guides the court.
They said to hold a person ransom to the rights of their children in cases of the refusal of potentially life-saving medical treatment is an infringement of their right to self-determination.