WINDHOEK – A full bench of the Supreme Court on Monday dismissed an appeal the government lodged against a judgment of the High Court that three women who underwent “forced” sterilisation were entitled to compensation.
In a judgment delivered by Chief Justice Peter Shivute, in agreement with acting judges of appeal Gerhard Maritz and Sylvester Mainga, the matter was referred back to the High Court to determine damages.
Judge Elton Hoff in his ruling on July 30, 2012 found that the three women who may not be named because of their HIV status did not give “informed consent” when they signed consent forms for sterilisation.
The women were sterilised at two state hospitals on different occasions in 2005 and 2007.
The sterilisation procedure was carried out the same time as a caesarean section as the women could not give birth naturally.
After the sterilisation each of the women instituted legal proceedings against the government, claiming violations and infringements of their common law rights to personality, alternatively a violation to human dignity, the right to liberty and the right to a family as protected by the constitution.
The High Court ruled the State failed to prove the women gave their informed consent for the sterilisation procedure, but dismissed the second claim of the women that the sterilisation was because of discrimination on the basis of their HIV-positive status.
“The Namibian Constitution affords every individual in Namibia the right to dignity, to physical integrity and to found a family,” Chief Judge Shivute wrote in the judgment and added that the right to found a family includes the right of women of full age to bear children and of men and women to choose and plan the size of their family.
He said in the case of an unmarried woman, it is primarily her choice whether or not to bear children.
“Against this background, the decision of whether or not to be sterilised is of great personal importance to women. It is a decision that must be made with informed consent as opposed to merely written consent,” the Chief Justice said.
He continued: “Informed consent implies an understanding and appreciation of one’s rights and the risks, consequences and alternatives to the patient. An individual must also be able to make a decision regarding sterilisation freely and voluntarily.”
The Chief Justice stated that the Health Professionals Council of Namibia published a document titled ‘Ethical Guide for Health Professionals’ in which it is clearly stated that informed consent means everyone has the right to be given full information about the nature of his or her illness, diagnostic procedures, the proposed treatment and costs involved.
He said what clearly flows from the above is that in the context of sterilisation, the woman must be in a position to comprehend the nature and consequences of the operation to be performed on her.
He said in the current case it was crucial to determine whether the women had the intellectual and emotional capacity to give their informed consent.
He said in the particular circumstances the women found themselves in doubt that they fully comprehended what was communicated to them.
He said the conduct of the doctors and nurses smacked of “medical paternalism” which in this day and age has no place when it comes to important issues such as sterilisation.
“I am not persuaded that the appellant has discharged its onus on a balance of probabilities that informed consent was given by any of the respondents,” the Chief Justice said and continued that the women could not have fully and rationally comprehended the consequences of giving consent as they were in various stages of labour.