26 September 2012

Namibia: Court Rules to Allow Blood Transfusion

THE legal stalemate over the medical treatment of a Windhoek resident who has been refusing a blood transfusion on religious grounds is continuing, after a High Court ruling which yesterday authorised her medical doctor to provide the necessary treatment, including a blood transplant, to her.

Polytechnic of Namibia lecturer Efigenia Semente was not in a fit mental state when she indicated her refusal of a potentially life-saving blood transfusion following the birth of her third child in a Windhoek hospital on September 8, Acting Judge Collins Parker found in the judgement which he delivered yesterday.

Based on that finding, he found that Semente was not competent to exercise her freedom to refuse a blood transfusion on the basis of her freedom to practise her chosen religion and her right to personal liberty.

"The right to decide one's own fate presupposes a capacity to do so," Judge Parker quoted a statement from an English Court of Appeal case which also dealt with a tug of war about the medical treatment of a member of the Jehovah's Witnesses faith.

Judge Parker's ruling is not expected to change much in the treatment which Semente has been receiving in hospital over the past two and a half weeks, though. Immediately after the ruling had been delivered, Semente's legal counsel, Raymond Heathcote, told the judge that he had instructions to appeal the matter. Heathcote added that Semente's haemoglobin level has risen above 7 (grams per decilitre of blood), which is a crucial level, without having received a blood transfusion, and that she could be discharged from hospital by today.

An appeal would have the effect of suspending the High Court's order until the appeal has been decided.

Lawyer Johann du Plessis, who was representing Semente's brother, Arsénio Abel Chingufo, said after the delivery of the judgement that it would not be necessary to enforce the court's order in light of Semente's improved condition. An appeal against the ruling would be opposed, though, he said.

The legal battle over Semente's medical treatment presented the High Court with an unprecedented case, involving fundamental and competing rights such as the right to personal liberty, the right to choose and practise a religion, and the right of children to know and be cared for by their parents.

Acting Judge Parker did not make a ruling on these competing rights, though. Instead, he kept his judgement confined to the question whether Semente had the mental capacity to make a decision about her own medical treatment at the time that she made her refusal of a blood transfusion clear to her doctor.

Semente's refusal of a blood transfusion is based on her religious beliefs as a Jehovah's Witness. One of the fundamental beliefs of her faith is that blood transfusions are forbidden by the Bible.

She suffered a major loss of blood after the birth of her third child by caesarian section on September 8. With Semente in a grave condition in hospital, her brother approached the High Court with an urgent application on September 13, asking that he be appointed as his sister's curator and that he be authorised to instruct a medical doctor to provide appropriate medical treatment - including a blood transfusion, if necessary - to his sister.

An order to that effect was granted by Judge Parker.

Two days later, though, lawyers representing Semente and Chingufo were back in the High Court, with Semente asking for the previous order to be set aside. Semente's application was dismissed in yesterday's judgement.

It was not Chingufo's case that Semente is not entitled to enjoy her constitutional right to practice any religion of her choice, Judge Parker noted in his judgement.

Chingufo's case rested on two pillars, which were that she was not in a fit mental state in which she could exercise her right to refuse medical treatment in the form of a blood transfusion, and secondly that her enjoyment of her freedom of individual autonomy had to be considered against the rights of her children and the interests of her family and society in general, the judge said.

In the end, only the first of these two issues was decided by the judge.

Internationally, it is an accepted legal principle that competent adults are generally free to refuse medical treatment, even if they risk death through such a refusal, Judge Parker indicated. The right to determine what is to be done with one's own body is a fundamental right, he noted.

However, just because adults have the right to choose it does not mean that they have in fact exercised that right, he said. The right to decide one's own fate should flow from a capacity to make such a decision, he pointed out.

In Semente's case, the medical doctor who had been treating her told the court that because of the extent of blood loss she had suffered her brain and vital organs were not receiving enough oxygen. In the doctor's opinion, her mind was not functioning at its full capacity due to a lack of oxygen.

A contrary opinion which was expressed by a psychiatrist who provided a report to the court on Semente's behalf was not accepted by the judge. The psychiatrist was not involved in Semente's treatment and it would be considered to be unethical for the psychiatrist to have a professional consultation with a patient he was not treating, Judge Parker reasoned.

Semente was represented by Heathcote, on instructions from Ruben Philander. Andrew Corbett, instructed by Du Plessis, represented Chingufo.

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