Government of the Republic of Namibia v. LM et al.

[2014] NASC 19
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The respondents, three Namibian HIV positive pregnant women, were sterilized while undergoing emergency caesareans. The respondents each signed a consent form, which included consent to the caesarean operation and sterilization through bilateral tubal ligation (BLT) but claimed that they did not provide informed consent which is required for sterilization to be considered lawful.

The first respondent underwent an emergency caesarean due to severe pains that the doctors diagnosed as Cephalopelvic Disproportion (CPD). She signed a standard consent form while in labour giving consent for a “C/s due to CPD + BTL”. The respondent stated she did not understand the abbreviations nor was it explained what they meant. She contended that she neither requested nor consented to the sterilization procedure. The appellant, the Government of the Republic of Namibia, contended she requested the sterilization procedure after it was explained to her and written consent was obtained and that sterilization would have been explained in the respondent’s antenatal classes. The second testified that the doctor advised her while she was in labour that she should be sterilized as she was HIV positive but did not explain the advantages and disadvantages of the procedure. The respondent signed a consent form that included consent for BTL but she stated she did not have time to read the content of the form as she was in so much pain. She did not realize she had been sterilized until six months after the operation. The third respondent signed the consent form but claimed she did not understand its contents or received counselling on sterilization before.

The doctors and nurses who testified on behalf of the state claimed they followed protocol which included explaining the consequences of sterilization and a caesarean operation. They also stated they would not perform sterilization unless the patient requested the operation, so each respondent must have made the request. None of the medical professionals recalled the respondents personally but instead relied on insufficient notes made during each procedure.

The respondents filed an action against the Government of Namibia, claiming infringements on their “common law rights to personality; alternatively, a violation of the right to human dignity protected under Article 8, the right to liberty protected under Article 7, and the right to found a family guaranteed under Article 14 of the Namibian Constitution” (para 1). They also claimed the alleged sterilization procedures were part of a “wrongful and unlawful practice” of discrimination on account of their HIV positive status” (para 1). The High Court of Namibia found that none of the three women had given their informed consent to the sterilization procedure. The Court found no evidence to support the claim of discrimination based on HIV status, due to there being no official policy for sterilizing HIV positive women contrary to the beliefs of the respondents. The defendant, the Government of Namibia, appealed the High Court’s decision on the consent claim to the Supreme Court.

The issue the Court analyzed was whether, within the factual contexts of each respondent, informed consent to sterilization was given at the time of the procedure. In all three cases, the court held the respondents did not have the capacity to give informed consent in the context in which consent was obtained and the written consent given was not equivalent to informed consent. Therefore, the Court upheld the High Court’s decision that there was no informed consent and the sterilization procedures did infringe upon the respondents’ rights.

The Court referred to the Ethical Guidelines for Health Professionals which applied to all health professionals in Namibia. The document states that health professionals must honour the right to self determination of the patient and apply the principle of informed consent as an ongoing process. The appellant submitted that they followed the guidelines for informed consent in Chapter 6 as they had given full information about the proposed sterilization procedure, and the consequences of the procedure were explained in the respondents’ antenatal counselling sessions. However, whether the information was explained or not, the Court held that informed consent required more than knowledge of the procedure. Informed consent also required appreciation, meaning the respondents must comprehend the nature and consequences of the operation, then consent to the harm or risks associated with the procedure.

The Court held that a woman in labor does not have the capacity to comprehend the nature and consequences of an operation and is therefore not able to give informed consent. In the respondents’ cases, the nurses obtained written consent while the women were not only affected by regular labor pains but further complications as well. The first respondent suffered pains from CPD, the second respondent was worried about her child being in a breeched position, and the third respondent had prolonged contractions. The pain and worry that came with being in labor meant the women may not have rationally comprehended the consequences of giving consent to sterilization. The Court held that informed consent was not needed for emergency procedures, such as the caesarean operations, which doctors could perform if they have sound medical grounds. However, the sterilization of the woman was an invasive and possibly permanent procedure that did not amount to an emergency. The doctors argued that because “BTL” was written on the second and third respondents’ health passport, they assumed the women had given prior informed consent to the procedure, but the Court held this assumption was invalid. The Court held that informed consent was an ongoing process and just because the respondent had previously opted to the procedure did not mean they consented to it at the time of the operation. The respondents never booked a sterilization appointment, showing there was no evidence they intended on following through with the procedure. The Court held that valid consent required the consent to be obtained at the time of the operation, in this case while in labor, and the respondents did not have a sound mind to provide consent at this time.

The Court emphasized that medical paternalism had no place in the context of sterilization and the patient’s autonomy and right to self-determination are overriding principles. Even if the medical professionals provided medically accurate and helpful advice, the final decision must remain with the patient. The Court disapproved of the medical personnel in charge of the third respondent’s case who assumed because she was older, had multiple children, and was HIV positive that sterilization was the best option for her. The professionals have no authority to decide what is best for the patient in non-emergency situations. The patient must give informed consent for the procedure to be lawful.

“The informed consent requirement rests on three independent legs of knowledge, appreciation and consent...in the context of a sterilization, the woman must in fact be in a position to comprehend the nature and consequences of the operation to be performed on her. It follows that the patient must have the capacity to give her consent for it to amount to informed consent.” (paras 98 - 99)

“It is not advisable to obtain the consent of a pregnant woman while she is in labor… labor pains could be of such a severe nature that a woman may lose sense of reality and ‘grasp at straws’ to be relieved of the pain. In the case of an operation such as BTL, which has the consequence of rendering a woman incapable of bearing any future children if not done with reversal in mind, informed consent must not be obtained without ensuring that the woman is capable of giving it.” (para 102)

“There can be no place in this day and age for medical paternalism when it comes to the important moment of deciding whether or not to undergo a sterilization procedure. The principles of individual autonomy and self- determination are the overriding principles towards which our jurisprudence should move in this area of the law. These principles require that in deciding whether or not to undergo an elective procedure, the patient must have the final word. Unlike some life-saving procedures that require intervention on a moment’s notice, sterilization allows time for informed and considered decisions. It is true, as already mentioned, that health professionals are under an obligation to assess the patient and point out the risks involved in particular procedures so as to enable the patient to make an informed decision and give informed consent. They may also make recommendations as to the management and/or treatment of a patient’s condition based on their professional assessment. However, the final decision of whether or not to consent to a particular procedure rests entirely with the patient.” (Para 106)

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