THE RIGHT OF THE INDIVIDUAL PERSON TO MAKE DECISIONS ABOUT LIFE AND HEALTH IN NIGERIA: HOW FAR CAN THESE DECISIONS EXTEND?

BY TERI WELLINGTON ESQ AND MARTHA TAIWO OJELADE ESQ.

The Nigerian Legal System has a rich collection of cases bordering on the right of a person and especially, a minor to either accept or refuse blood transfusion. In the case of an adult, a stoic refusal to get transfusion is most times, honored as issued. In the case of a child who can neither grant nor refuse the requisite consent though, the situation usually gets quite interesting.

The Nigerian legal system has a plethora of decided laws wherein parents of a child or any other person standing in loco parentis to a child have refused blood transfusion for the child in the face of very daunting odds against the survival of the child. Many have deferred to religion rather than science and logic.

They have dared all consequences and even proceeded to sue the authorities after blood transfusion had been administered either via the blatant doggedness of the medical practitioner, or via an exparte application by either the hospital wherein the child is admitted or by government officials who had been informed of the parent’s refusal. They had stoically ignored the fact that the child’s life was saved, but went ahead to cry wolf, to cry that their rights had been infringed by the Government and the powers that be.

The case of Tega Esabunor & Anor V. Tunde Faweya & 4 Ors (2022) AAER-74 (SC) has some facts very similar a case we would herein examine.

In the case of Okonkwo V. Medical and Dental Practitioners Disciplinary Tribunal a certain Doctor by name Okafor gave a patient, Mrs. Martha Okorie (Who was in full consonance with her husband) a ‘To whom it may concern: Re: Martha. The patient and her husband strongly refused blood transfusion despite appeals, explanations and even threats that she may die. The husband rather asked for his wife to be discharged and he took her away on 17/8/91.

Mrs. Martha Okorie later went to a different hospital with her husband and eventually died from the complications that arose from her childbirth of the 29th day of July, 2022.
In the year 1993, Dr. Okafor was made to appear before the Medical and Dental Practitioners’ Disciplinary Tribunal, he was held to have erred by not ‘forcefully’ admitting blood transfusion which the Tribunal referred to as a simple procedure.

The Respondent Dr. Okafor appealed this decision and the Court of Appeal overturned the decision of the tribunal based on famous precedents like Denloye V. Medical and Dental Practitioners Disciplinary Tribunal and other decided cases. The Medical and Dental Practitioners’ Disciplinary Tribunal then appealed to the Supreme Court. At the Supreme Court, the decision of the Court of Appeal stood and it was held that the Tribunal had no powers to try Dr. Okafor in the manner it did.

In the foregoing matter, we saw a medical practitioner who rather than force the patient to have a transfusion, gave her (and her husband) the freewill to do what they wanted. He faced the Tribunal for this seemingly liberality. This law had been the law for many years till the radical matter of Tega Esabunor & Anor V. Tunde Faweya & 4 Ors radically came to change the legal landscape.

The hospital authorities got the government involved in the issue of either administering or not administering blood transfusion to a child whom the parents didn’t want the transfusion for. The parents, being of the Jehovah’s Witness sect, vehemently refused that blood be transfused to their child. The hospital and the government however, got an ex parte order and had the blood transfused to the child. The child was saved via this procedure and was restored to good health. The parents of this child then sued.

Before we engage in further analysis of this matter though, I would say that it is really surprising that after the child became whole and suffered no illness again, the parents still felt aggrieved that blood transfusion was administered on their child. The abhorrence of blood transfusion by Jehovah’s witnesses is Biblical and to a large extent, hygienic. There are fears that diseases may be spread therefrom and other forms of contagion contracted. Now, since the child had obviously become better and glaringly so too, why would the parents go ahead to sue both the government and hospital who apparently wanted only the best for the child and by extension, them too? It is in this scenario we see the grip of religion on the minds of individuals. We see people toss logic and constituted authority to the winds in a bid to satisfy the injunctions of their heavenly creator.

In the present case, after an ex parte order had been obtained by the Hospital authorities, the Magistrate Court gave an order that blood be transfused to the child Tega. The Court further went ahead to state that the hospital authorities must as a matter of fact, report back to Court as to whether the transfusion was successfully carried out or otherwise.
The parents of the child approached the High Court of Lagos to have this matter quashed. Same was turned down. Dissatisfied, the parents appealed.

The Court of Appeal also upheld the decision of the Magistrate Court and the parents being aggrieved still, appealed to the Supreme Court. At the Supreme Court, the decision of the Court of Appeal was upheld on whether the right of a parent to refuse transfusion for a child supersedes that of a hospital to administer transfusion, it was held that section 38 of the Constitution of the Federal Republic of Nigeria to freedom of Thought, Conscience and Religion is subservient to the powers of the Nigerian State in S.45 of the Constitution to derogate from same in the interests of Safety, Defence, Public Health and Security.
It would then be safe to say that an order of court authorizing transfusion would in all circumstances, be held to be superior and weightier than the mere sentiment of a parent or an individual gripped by the fervor of illogical beliefs.

Per Rhodes Vivour JSC (As his Lordship then was) further opined that the best interest of the child supersedes in all matters involving a child. Would the best interest be to leave a child based on mere religious fervor?

The decision of the Supreme Court is very good law in my opinion. The right of the government (typified by the Magistrates and other appellate courts in this matter) in my humble opinion, overrides the right of the parents over the child. If parents are given the final say over the wellbeing and welfare of children, many children would perish as a result of parental beliefs and negligence deeply rooted in grave and great misconceptions.

Though the state is not a big brother that watches the every move of the citizens, the state is concerned enough to know what is best for its citizens if the citizens approach it either with notice or without same when an emergency, and in this present case, a medical one, is involved.