Windhoek — Is it 'informed consent' or 'forced consent' when a woman deep in labour pains signs a document that allows health care givers to perform a sterilisation procedure on her as a patient? This question formed the basis of the appeal hearing yesterday before a full bench of the Supreme Court in Windhoek. Counsels for both government and three women litigants who two years ago won a claim for damages in the Windhoek High Court over "forced sterilisations" focused their arguments on whether the women gave their "informed consent" or not.
The women who may not be named dragged government to court after they were sterilised ostensibly because they are HIV positive. In his landmark ruling made two years ago, Judge Elton Hoff ruled that the women did not give 'informed consent" before the procedure, which formed part of a caesarian section, were performed on the women who were unable to give birth naturally. The judge had however dismissed a claim by the applicants that they were sterilised because they are HIV positive.
During yesterday's proceedings before a full bench of the Supreme Court consisting of Chief Justice Peter Shivute assisted by Justice Gerhard Maritz and Justice Sylvester Mainga, Advocate Tim Bruinders instructed by the State Attorney's Office and assisted by Advocate Essi Schimming-Chase argued that the women knew what they were doing when they signed the consent forms.
According to Bruinders, the women were individually consulted and informed well in advance of what the procedure entailed and as such gave their "informed consent".
The government appealed the finding of Judge Hoff that the plaintiffs did not give their informed consent for the sterilisation procedure to be performed on them.
Bruinders argued that the judge erred when he concluded that the plaintiffs only signed the consent forms while in the throes of labour, which is not supported by evidence.
He further argued that Judge Hoff misdirected himself when he failed to address the question whether the plaintiffs were informed that sterility was a risk or a consequence of a sterilisation procedure on a prior occasion before they signed the consent forms.
The issue at hand is however whether the women signed the forms in order to have their babies delivered, Natasha Bassingthwaite who appeared for the women on instructions of the Legal Assistance Centre argued. She said that the women were not given a choice in the matter given the fact that they were in extreme labour and were just told to sign the forms. She said that the women were under the impression that they gave consent for a caesarian section only and if properly informed would have declined to have the procedure done. In the end, she argued, the women just thought "this is what happens to HIV pregnant women". According to Bassinghtwaite, the issue is clearly clarified by the testimony of the women in the main trial when they all said that they still wanted children.
After Judge Hoff gave his ruling on July 30, 2012, the government quickly lodged an appeal application in October 2012. Their appeal was granted and the proceedings in the main trial halted pending the outcome of the appeal.
While Judge Hoff indicated that monetary awards would be in the offing for the three women, the value was not decided and now pending the decision of the Supreme Court could be on hold for a long time still.