Court will Step in When a Parent or One in Loco Parentis Refuses Blood Transfusion for their Child.

Tega Esabunor & Mrs. Rita Esabunor v Dr. Tunde Faweya, Chevron Nigeria Limited Supol Yakubu Commissioner of Police Lagos State and M Olokoba (Chief Magistrate)

Background:

The 2nd Appellant is the mother of the 1st Appellant. The 1st Appellant was born on the 19th of April 1997. Within a month of his birth, he fell seriously ill. His mother rushed him to Chevron Clinic on the 11th of May, 1997.

He found out that the 1st Appellant urgently requires a blood transfusion.

The 2nd Appellant and her Husband vehemently opposed the decision to give the baby blood transfusion on the basis that several diseases can be contracted and that it is against their religious beliefs as Jehovah’s Witnesses that no member of the sect should be given a blood transfusion.

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Court will Step in When a Parent Refuses Blood Transfusion for their Child.

The Doctor was unyielding.

The third Respondent, the Counsel to the police commissioner, brought a motion exparte before a magistrate court, ordering that the Hospital hospital give a blood transfusion to the boy. The Court granted the prayers, and the boy was treated.

The boy got well, and on the 15th of May, he was discharged.

His mother filed a motion on notice where she sought the setting aside the order, but her application was dismissed.

The Appellant, not satisfied with the application’s dismissal, filed an application for an order of certiorari and damages of N10m against the magistrate court, but the application was dismissed, and hence they appealed the decision of the Court of Appeal. The Court of Appeal in Lagos heard her matter but affirmed the decision of the High Court.

THE ISSUES FOR DETERMINATION: Court will Step in When a Parent or One in Loco Parentis Refuses Blood Transfusion for their Child. 

The issue for determination is whether the Justices of the Court of Appeal misdirected themselves by refusing to hear the subject of the Magistrate Court’s jurisdiction.

Whether the Appeal Court was right in refusing the orders of the lower Court

(3) Whether the Court of Appeal was right when it failed to hold that the proceedings before the learned Chief Magistrate Court were conducted in breach of the appellants’ right to a fair hearing.

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

(5) Whether the learned Justices’ of the Court of Appeal were correct in holding that the Order of the 5th Respondent had overridden the 2nd Appellants’ right to consent to the choice of treatment for her infant.

(6) Whether the Court of Appeal was wrong when it held that because the transfused blood cannot be extracted from the 1st Appellant, the matter has become academic.

(7) Whether the Court of Appeal was in error when it held that the Appellants’ are not entitled to damages

The Appellant’s Counsel argued that the Appeal Court failed to consider the jurisdiction of the Magistrate Court, and as such, it is a fundamental error, and the Court would have quashed the decision if it considered the decision of the Magistrate Court and thus, it is a misdirection. He also alleged that the Appellants were not heard in the motion exparte, and thus, the Appellant was denied the right to be heard.

The Counsel to the 1st and 2nd Respondent argued that the proceedings had been moved to the High Court to be quashed, and the Court of Appeal was right to determine that the 5th Respondent was not in want of jurisdiction.

The Counsel further argued that the law allowed the 2nd Appellant to have the order reviewed. Consequently, there was no denial of the right to a fair hearing.

On issue 4, the learned Counsel for the 1st and 2nd Respondent submitted that the 4th Respondent obtained a valid court order for treatment to be administered on the 1st Appellant. They relied on Medical Disciplinary Tribunal v Okonkwo (2001) NWLR Pt 711 pg 206.

The learned Counsel to the 5th Respondent submitted that where the Court is confronted with balancing the right of a child against the right of his parents to veto that right, the overriding consideration should be the best interest of the Child.

He further submitted that the Child is incapable of exercising this right, and as such, Section 339 and Section 341 of the Criminal Code is activated to protect the interest of the vulnerable children from abuse of these rights by those in locos parentis over them.

The Supreme Court held that the Court of Appeal did not abandon the jurisdiction of the magistrate court. The 5th Respondent was right to exercise jurisdiction over the matter.

It also held that the commissioner of police intended to prevent a criminal offense, and when action is brought before a chief magistrate, the chief magistrate has the jurisdiction to hear it to prevent the commission of a crime.

Thus in the circumstances, the 5th Respondent had the jurisdiction to hear the matter, and the High Court was right not to quash the orders, and the Court of Appeal was right in affirming the decision.

On issue number 4, the Court held that in respect of an adult, an adult who is conscious and in full control of his senses could either accept or refuse a blood transfusion, and the Hospital has no choice but to respect that choice.

But in respect of a child, it is different, a child cannot make decisions for himself, and the law is duty-bound to protect such person from abuse as he may grow up and disregard those religious beliefs.

It doesn’t make any difference if the parents were the ones that made the decision.

The Court further held that where a competent parent or one in locos parentis refuses a blood transfusion on the grounds of religious beliefs, the Court should step in, consider the baby’s welfare and the best interest of the Child.

Court will Step in When a Parent or One in Loco Parentis Refuses Blood Transfusion for their Child.

These considerations outweigh the religious beliefs of the Jehovah’s Witness Sects. The decision should be to allow blood transfusion, especially in life-threatening situations.

On issue number 6, the Court held that the order for certiorari is discretionary, and it will only be issued to quash judicial acts, not an executive or ministerial acts.

It held that the High Court’s decision to refuse the order was in order and affirmed the decision of the Court of Appeal to refuse the application.

On the issue of damages, it held that damages are only awarded provided there is evidence, but there is no evidence that the claim should be dismissed.

Overall the appeal was dismissed for want of merit.

COMMENT:

The Court’s decision is well thought out, and it settles the issue of religious beliefs giving consent to blood transfusion in respect of children. Parents, especially those of the Jehovah’s Witness sect, can no longer refuse blood transfusion consent regarding their children.

The child has a right to life, but because he cannot make decisions for himself, parents or those who are in loco parentis can no longer use religious beliefs as a yardstick to deny their children the right to life. This religious narrative amounts to an abuse of the Child’s right.

One may argue that the parents are taking advantage of the fact that the child cannot make decisions for himself.

The decision of the Supreme Court is welcome as it has taken away the rights of parents to deny their children the right to life because of a frivolous religious belief. The child will grow up, and one day may decide to renounce the belief.

Court will Step in When a Parent or One in Loco Parentis Refuses Blood Transfusion for their Child.

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