You Can’t Deny A Child Healthcare Because Of Your Religious Beliefs – Supreme Court

ESABUNOR & ANOR. vs. FAWEYA & ORS.(2019)LPELR-46961 (SC)

FACTS OF THE CASE
The
2nd appellant is the mother of the 1st appellant. She gave birth to him
on April 19, 1997 at the Chevron Clinic, Lekki Peninsula in Lagos.
Within a month of his birth (i.e. on 11 May, 1997) he fell gravely ill.

His
mother, the 2nd appellant, took him back to the Chevron Clinic on 11
May, 1997 for urgent treatment. It was the 1st respondent who treated
the 1st appellant. He found that the 1st appellant urgently needed blood
transfusion.

The 2nd respondent and her husband made it
abundantly clear to the 1st respondent that on no account should their
child (the 1st appellant) be given blood transfusion. Their reason being
that there were several hazards that follows blood transfusion such as
contracting Aids, Hepatitis etc and that as members of the Jehovah
witness sect, blood transfusion was forbidden by their Religion. Dr
Tunde Faweya (the 1st respondent) remained unyielding.

The next
day, the learned counsel for the Commissioner of Police, Lagos State
moved an Originating Motion Exparte before the 5th respondent.
The motion was brought under Section 27 (1) and (30) of the Children and Young Person’s Law Cap 25 of Lagos State.

The
relief sought was: “that the medical authorities of the Clinic of
Chevron Nigeria Limited Lekki Peninsula Lagos be allowed and are hereby
permitted to do all and anything necessary for the protection of the
life and health of the child TEGA ESABUNOR and for such further order or
orders as the Court may deem fit to make in the circumstances.”
After
hearing counsel, the Chief Magistrate granted the application under its
inherent jurisdiction. On receipt of the Order of the Chief Magistrate,
the 1st respondent administered blood transfusion on the 1st appellant
on the same day. (i.e. May 12, 1997).

The 1st appellant got well
and was discharged. His mother took him home. On May 15, 1997 the 2nd
appellant filed an application on notice wherein she sought for the
setting aside of the order made on 12 May, 1997. The application was
unsuccessful. It was dismissed on May 21, 1997.

The appellants’
were dissatisfied with the proceedings before the Chief Magistrate, so
they approached the High Court for an order of Certiorari and damages of
N10 million. In a considered ruling delivered on May 28, 2001 the
learned trial Judge refused their prayers and claims.
The appellants’ were not satisfied with the ruling of the High Court.

They filed an appeal. The Court of Appeal, Lagos Division, heard it and
the decision of the High Court was affirmed. Further dissatisfied, the
Appellants appealed to the Supreme Court.

ISSUE:
(4)
Whether the Court of Appeal was correct in holding that the 2nd
Appellants’ refusal to give consent to blood transfusion amounted to an
attempt to commit a crime or to allow the 1st Appellant to die.

RESOLUTION OF ISSUE NUMBER 4/LEGAL PRINCIPLE:
Resolving
issue 4, the Supreme Court stated that an adult who is conscious and in
full control of his mental capacity, and of sound mind has the right to
either accept or refuse blood (medical treatment). The hospital has no
choice but to respect their patient’s wishes.

When it involves a
child, the Supreme Court stated that different considerations apply and
this is so because a child is incapable of making decisions for himself
and the law is duty bound to protect such a person from abuse of his
rights as he may grow up and disregard those religious beliefs. It makes
no difference if the decision to deny him blood transfusion is made by
his parents. See M.D.P.D.T. v. Okonkwo (2001) 7NWLR (Pt.711) P.206.

The
Supreme Court held that when a competent parent or one in loco parentis
refuses blood transfusion or medical treatment for her child on
religious grounds, the Court should step in, consider the baby’s
welfare, i.e. saving the life and the best interest of the child, before
a decision is taken.

These considerations outweigh religious
beliefs of the Jehovah Witness Sect. The decision should be to allow the
administration of blood transfusion especially in life threatening
situations.

Source:- Guardianng