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