Court name
High Court
Case number
1603 of 2008
Case name
LM and Others v Government of the Republic of Namibia
Media neutral citation
[2012] NAHC 211
Judge
Hoff J

















REPORTABLE



CASE NO: I 1603/2008



CASE NO: I 3518/2008



CASE NO: I 3007/2008







IN THE HIGH COURT OF NAMIBIA











MAIN DIVISION, HELD AT WINDHOEK











In the matter between:











L M
.......................................................................................................................1ST
PLAINTIFF



M I
….....................................................................................................................2ND
PLAINTIFF



N H
…...................................................................................................................3RD
PLAINTIFF







and







THE GOVERNMENT OF THE REPUBLIC OF
NAMIBIA …...................................DEFENDANT















CORAM: HOFF, J















Heard on: 01 –
03 June 2010; 01 – 03 September 2010; 06 – 08 September
2010; 10 September 2010; 18 – 20 January 2011; 27 January 2011











Delivered on: 30 July 2012















JUDGMENT















HOFF, J: [1] The
plaintiffs instituted actions against the defendant for damages which
arose from what they allege in their respective pleadings to be an
unlawful sterilisation performed on them without their consent by
medical practitioners in the employ of the State at State Hospitals,
alternatively on the grounds of a breach of a duty of care that these
medical practitioners owed to each of the plaintiffs.







[2] In a second claim each of the
plaintiffs alleged that the sterilizations were done as part of a
wrongful practice of discrimination against them based on their HIV
status and that it amounts to a breach of their basic human rights as
guaranteed by the provisions of the Constitution of the Republic of
Namibia. It is not disputed that the HIV status of all three
plaintiffs are HIV positive.







[3] The first claim is pleaded by the
plaintiffs in similar terms and it is necessary only to refer to the
first plaintiff’s particulars of claim. The first plaintiff’s
particulars of claim reads, inter alia, as follows:







3. On or about 13
June 2005 and at Oshakati State Hospital, Oshakati, the plaintiff was
wrongfully and intentionally assaulted, alternatively wrongfully and
negligently caused harm in that she was subjected to a sterilization
procedure, alternatively a sterilization procedure without her
consent, by employees of the defendant, which caused her injury.







4. In the alternative to
paragraph 3 supra,







4.1 At all relevant times
the employees of the defendant referred to in paragraph 3 supra,
had a duty of care to:







4.1.1 Execute their
duties without negligence;







4.1.2 Not subject
plaintiff to a sterilisation procedure, alternatively a sterilisation
procedure without her consent and without explaining to her the
concomitant or resultant risks and consequences flowing from, or
incidental to, a sterilisation procedure;







4.1.3 Take all reasonable
steps to safeguard the plaintiff from being injured or from any loss
or damages being occasioned to her;







4.1.4 Would take due and
proper care of the plaintiff after her admission to, and at all
relevant times whilst being a patient at, the Oshakati State
Hopsital, Windhoek.



4.2 On or about 13 June
2005 and at the Oshakati State Hospital, Windhoek, plaintiff was
subjected to a sterilisation procedure;



4.3 The aforesaid
sterilisation procedure constituted, or resulted, from a wrongful and
negligent breach of one or more or all of the duties of care set out
in paragraph 4.1 above, which defendant as well as defendant’s
aforementioned employees at all relevant times had to and in respect
of the plaintiff;







4.4 As consequence of the
negligent breach of duty of care as aforementioned, plaintiff
suffered injuries.







5. At all relevant times
hereto, the aforementioned employees of the defendant acted within
the course and scope of their employment with the Ministry of Health
and Social Services and with the defendant, alternatively within the
ambit of the risk created by such employment. The names and further
particulars of such employees are unknown to plaintiff, save to state
that they at all material times were personnel employed at, or
attached to, the Oshakati State Hospital, Oshakati, Namibia.







CLAIM 1







6. As a result of the
aforesaid sterilisation procedure and the conduct of defendant’s
employees referred to in paragraph 3, alternatively 4 supra,
the plaintiff suffered the following violation and infringements of
her common law rights and without derogating from the generality
thereof, her common law and personality rights and more particularly







6.1 will be unable to
bear children in future and found a family;







6.2 lost marriage
prospects;







6.3 suffered and
continues to suffer ongoing mental and emotional anguish;



6.4 endured and continues
to endure shock, pain and suffering;







6.5 suffered and
continues to suffer infringement of her rights to bodily and
psychological integrity;







6.6 was subjected to
torture or to cruel and inhuman or degrading treatment or punishment;







6.7 suffered and
continues to suffer a violation of her dignity.



7. Alternatively to
paragraph 6 supra, and as a further consequence of the
aforesaid wrongful and unlawful conduct by defendant’s
aforementioned employees as set out in paragraph 3, alternatively 4
supra, plaintiff suffered a violation and an infringement of her
rights guaranteed and protected under the Namibia Constitution,
particularly:







7.1 Her right to life in
terms of Article 6 of the Constitution;







7.2 Her right to liberty
in terms of Article 7 of the Constitution;







7.3 Her right to human
dignity in terms of Article 8 of the Constitutions;







7.4 Her right to found a
family in terms of Article 14 of the Constitution.







8. As a result of the
facts and circumstances as set out in paragraph 6 supra,
alternatively paragraph 7 above, plaintiff suffered loss or damages
(both past and contingent) in the amount of N$1 million. It is not
reasonable nor practical to apportion the aforementioned globular
amount of N$1 million to any of the numerous and particular
infringements, violations and invasions of plaintiff’s rights
suffered by her as referred to in paragraph 6 and 7 above.







9. In as much as the
aforesaid claim for loss or damages is based on what is set out in
paragraph 7 above, plaintiff claims such loss or damages as monetary
compensation in terms of Articles 25 (3) and 25 (4) of the Namibian
Constitution.



CLAIM 2







10. The aforesaid
sterilisation of the plaintiff by the defendant’s
aforementioned employees was a consequence of her being a woman who
is HIV-positive.







11. As a result, the
aforesaid sterilisation was a wrongful and unlawful practice of
impermissible discrimination against the plaintiff.







12. As a consequence of
the aforesaid wrongful and unlawful conduct, and particularly the
impermissible discrimination as set out in paragraphs 10 and 11
supra, plaintiff suffered a violation and an infringement of
her rights guaranteed and protected under the Namibian Constitution,
particularly;







12.1 Her right to life in
terms of Article 6 of the Constitution;



12.2 Her right to liberty
in terms of Article 7 of the Constitution;



12.3 Her right to human
dignity in terms of Article 8 of the Constitution;







12.4 Her right to
equality and freedom from discrimination in terms of Article 10 of
the Constitution;







12.5 Her right to found a
family guaranteed in terms of Article 14 of the Constitution.







13. As a result of the
aforegoing, plaintiff suffered loss or damages and in entitled to
monetary compensation in terms of Article 25 (3) and 25 (4) of the
Constitution in respect thereof.







14. In the premises
plaintiff is entitled to an award of monetary compensation by the
defendant in the amount of N$200,000.00.







WHEREFORE
plaintiff claims from the defendant:







Ad claim 1








  1. Payment in the amount of
    N$1 million.








Ad claim 2








  1. Payment in the amount of
    N$200,000.00.








Ad claims 1 and 2








  1. Interest on the amounts
    as set out in prayers 1 and 2 above, at the rate of 20% per annum a
    tempore morae
    from date of judgment to date of payment.









  1. Costs of suit.



  2. Further or alternative
    relief
    .”








[4] Although the claims had been
consolidated each of the different claims instituted by the
plaintiff’s has to be decided on its own merits as they relate
to separate incidents.







[5] The defendant pleaded that in each
case the plaintiff’s written consent was obtained after the
procedure was explained fully to the plaintiffs together with the
risks and consequences thereof and also after alternative
contraception methods had been explained.







[6] The issue in each claim is whether
the defendant had obtained not only the plaintiffs’ written
consent but the plaintiffs’ informed consent prior to the
respective sterilisation procedures performed on them.







[7] It is common cause that all three
plaintiffs underwent a sterilisation procedure which has rendered
them incapable of bearing children.







[8] It was agreed between the parties
that the question of liability be decided first by this Court and
that the issue of quantum would stand over for adjudication at a
later stage.







Applicable law







[9] The defendant’s defence is
the defence of volenti non fit iniuria in that the
plaintiffs signed consent forms which signified consent to the
sterilisation procedures.







[10] In Castel v De Greef 1994
(4) SA 408 (C) is regarded as a leading judgment on the issue of
informed consent wherein Ackermann J (as he then was) with Friedman
JP and Farlam J concurring, made a paradigm shift from medical
paternalism to patient autonomy. At 420A the doctrine of informed
consent was placed within its common law context where the following
appears:







It is important,
in my view, to bear in mind that in South African law (which would
seem to differ in this regard from English law) consent by a patient
to medical treatment is regarded as falling under the defence of
volenti
fit non iniuria,

which would justify an otherwise wrongful delictual act. (See,
inter
alia,

Stoffberg
v Elliot

1923 CPD 148 at 149 – 50;
Lymbery
v Jeffries

1925 AD 236 at 240;
Lampert
v Hefer
NO
1955 (2) SA 507 (A) at 508;
Esterhuizen’s
case
supra
at 718 – 22; Richter’s case
supra
at 232
and
Verhoef
v Meyer

1975 (TPD) and 1976 (A) (unreported), discussed in Strauss (op cit at
35 – 6) ).







It is clearly for the
patient to decide whether he or she wishes to undergo the operation,
in the exercise of the patient’s fundamental right to
self-determination."











[11] With reference to Rogers v
Whitaker
(1993) 67 ALJR 47, a decision of the High Court of
Australia, the court in Castel stated the following at 426B:







Of particular
importance is the conclusion of the Court in
Rogers
v Whitaker

at 52 that:







The law should
recognise that a doctor has a duty to warn a patient of a material
risk inherent in the proposed treatment; a risk is material if, in
the circumstances of the particular case, a reasonable person in the
patient’s position, if warned of the risk, would be likely to
attach significance to it or if the medical practitioner is or should
reasonably be aware that the particular patient, if warned of the
risk, would be likely to attach significance to it. This duty is
subject to the therapeutic privilege.’ ”







[12] Therapeutic privilege referred to
serves the purpose of protecting the patient’s health not
necessarily ensuring patient autonomy.







[13] In Castel at 425 the Court
stated the following:







For consent to
operate as a defence the following requirements must,
inter
alia
be
satisfied:








  1. the consenting party
    must have had knowledge and been aware of the nature and extent of
    the harm or risk;



  2. the consenting party
    ‘must have appreciated and understood the nature and extent of
    the harm or risk;



  3. the consenting party
    ‘must have consented to the harm or assumed the risk;



  4. the consent ‘must
    be comprehensive, that is extend to the entire transaction,
    inclusive of its consequence’.”




(See also Louwrens v Oldwage
2006 (2) SA 161 (SCA) at 173).







[14] It should be obvious that the
required consent must be given freely and voluntarily and should not
have been induced by fear, fraud or force. Such consent must also be
clear and unequivocal.







[15] Carstens and Pearmain in
Foundational Principles of South African Medica Law at 687
postulate that the “lack of informed consent amounts to an
assault (in the context of wrongfulness/unlawfulness) and not
negligence (in context of the element of fault). The concept of
assault should not be assessed in its strict literal sense, but as a
violation of a patient’s right to bodily or physical
integrity”. These authors at 879 are of the view that since the
patient is usually a layperson in medical matters, knowledge and
appreciation on his or her part can only be effected by providing
appropriate information. Adequate information becomes a requisite of
knowledge, appreciation and consent and therefore also of lawful
consent.







[16] In deciding whether or not the
plaintiffs given informed consent prior to the surgical procedures
this Court must consider whether plaintiffs had been provided with
adequate information in order to enable them to make informed
decisions.



[17] In Castel, with reference to F v
R (1983) 33 SASR 189, a decision of the Full Court of the Supreme
Court of South Australia, the following appears at 427A:



AJ King CJ
considered in F v R at 192 (a passage approved in
Rogers
v Whitaker

at 51):







What a caerful and
responsible doctor would disclose depends upon the circumstances. The
relevant circumstances include the nature of the matter to be
disclosed, the nature of the treatment, the desire of the patient for
information, the temperament and health of the patient?’ ”







Expert evidence







[18] Matti Kimberg testified that he
is a qualified gynaecologist and obstetrician practicing in Windhoek.
He holds an MB, B.Ch medical qualification being a fellow of the
College of Obstetricians and Gynaecologists in South Africa and a
fellow of the Royal College of Obstetricians and Gynaecologists in
the United Kingdom. He has been practicing as a gynaecologist and
obstetrician for more than 30 years. Prior to this he had been
practicing as a general practitioner for eight years. He is
Vice-President of the Medical and Dental Council of Namibia and
serves on the Executive Committee of the Medical Association of
Namibia.







[19] He testified that he regularly
performs procedures at the Central State Hospital but do not work at
the Katutura State Hospital and is not acquainted with the facilities
at Katutura Hospital. In respect of the Central State Hospital there
is an acute shortage of theatre space for a number of reasons and
that the staff work under tremendous pace and pressure. He testified
that he examined and consulted each one of the plaintiffs in his
consulting rooms. Each one of the plaintiffs had given birth by way
of a caesarean section, and a surgical procedure of bilateral tubal
ligation (BTL) (performed on women to bring about sterilisation) had
been performed on the plaintiffs.







[20] In respect of the first plaintiff
the witness testified that he had on 20 April 2010 consulted with the
plaintiff and a laparoscopy was done on 26 April 2010 at the Central
Hospital. He found that the plaintiff had been sterilised and that
the prognosis for a future reversal was poor. It was the plaintiff’s
third pregnancy at the age of 26 years of which the first child one
was stillborn. The two previous pregnancies resulted in normal
deliveries. From a perusal of the antenatal and maternity records
there was little in the hospital records indicating what type of
information was given to the plaintiff regarding the tubal ligation
procedure and whether alternative methods of contraception were
offered to her.







[21] It appears from a form “consent
to an operation” that the plaintiff had signed and had given
her consent for a “C/S due to CPD + BTL (ON HAART)” on 13
June 2005. Dr Kimberg testified that C/S means caesarean section and
CPD is cephalic pelvic disproportion which means that the head of the
child is either too big or in a wrong position or the pelvic too
small to allow for a normal vaginal delivery. HAART means highly
active antiretroviral therapy which means that the plaintiff was on
treatment for her HIV condition. On the reverse side of this consent
form is the doctor’s report of the operation with a reference
inter alia to the name of the patient and the signatures of
two doctors and a nurse. This consent form is the standard hospital
consent form and was the only form signed by the first plaintiff.







[22] In respect of the second
plaintiff she was seen by him on 16 April 2010 at his consulting
rooms and a laparoscopy was performed on her on 19 April 2010 at the
Central Hospital. He found that the tubal ligation operation had
severed the fallopian tubes very close to the fimbrial ends which
gave a very poor prognosis for a reversal of the sterilisation. She
gave birth to three children, two of whom were by way of caesarean
section. The second plaintiff signed the standard consent form for an
operation on 8 December 2007. On this form it is indicated that she
gave consent for a “caesar + BTL due to previous caesar”.
She also signed a second “consent form for sterilisation”
in which she consented to undergo the “operation of tubular
ligation, the nature of which has been explained to me. I have been
told that the object of the operation is to render a patient sterile
and incapable of parenthood”. The form further states that
plaintiff understands that if successful the procedure may be
irreversible. At the bottom of this form there is a statement to be
completed by a doctor to the effect that the doctor declares that he
or she has explained the procedure and related aspects of
sterilisation to the patient. This part of the form was not completed
and not signed. This form also contains a section for a statement by
the spouse of the patient which is optional. He testified that one
would have expected the doctor to have signed this form, preferably
earlier on in the pregnancy and in order to given the patient time to
consider all her options. The witness testified that it is normally
regarded that three caesarean sections are permissible because of the
risk of the rupture of the uterus, bleeding and various complications
with increasing caesarean sections. He also testified that on perusal
of the hospital notes there is no record of the type of counseling
that was provided and if alternative forms of contraception were
offered. It further appears from the hospital records that a
caesarean section was done due to prolonged labour which is a perfect
valid reason for performing the caesarean procedure since prolonged
labour in an HIV positive patient increases the incidence of
mother-to-child transmission.







[23] In respect of the third plaintiff
consultation was done on 27 April 2010 at his consulting rooms and a
laparoscopy was carried out on 3 May 2010 in the Central Hospital.
The third plaintiff was 46 years old and had 6 normal deliveries and
one caesarean section. The witness testified that from a surgical
point of view the prognosis for reversing the sterilisation was good
but the chances of another pregnancy would not be good at all due to
the age of the plaintiff. The third plaintiff signed the standard
form of consent to an operation on 13 October 2005. It appears from
this form that she consented to a caesarean section due to prolonged
first stage and BTL. The third plaintiff also signed a second consent
form for sterilisation on the same date. The statement at the bottom
of this form was completed and signed by Dr Sichimwa on 13 October
2005. It appears from the hospital records that when she was in
labour for natural birth, there was no booking for her for a
sterilisation procedure. There was nothing in the health passport of
the plaintiff that she was to have a sterilisation procedure.







[24] The witness testified that the
pain experienced during labour by women can be extremely intense and
can become so overwhelming that they virtually loose sense of
reality. They are not aware of anything else except this awful pain.
He testified that the circumstances under which to secure the consent
of a patient in respect of a sterilisation procedure is when the
patient is rational and not in pain, has time to consider it, time to
discuss it with her partner and relatives and thereafter come to a
reasoned conclusion. It is not a decision to be taken under the
duress of extreme pain.







[25] Dr Kimberg testified that in
reaching informed consent certain factors should be taken into
account:



(a) understanding the information
relevant to the decision and being able to retain and assimilate that
information;



(b) being able to weigh that
information as part of the process of making that decision;



(c) being able to properly communicate
that decision;



(d) being aware of the short and long
term possible repercussions of the decisions;



(e) being aware of and able to
evaluate the alternative options available, if any, and after having
been duly informed of such alternatives;



(f) not being subject to undue
influence by the situation, environment and coercion by medical
personnel (commonly referred to as medical paternalism) and/or other
parties; and



(g) being advised of the ability to
withhold consent, even if it might not be in her best interest to do
so and the need to respect that decision.







[26] In Foundational Principles of
South African Medical Law supra
the authors with reference to van
Oosten LLD Thesis 4
58 stated that the patient’s right to
informed consent is not absolute and that the needs and contingencies
of medical practice sometimes, depending on the circumstances, place
restrictions on the duty to disclose information. One of such
restrictions is where the patient is already in possession of the
requisite information.







[27] The onus of establishing the
defence of volenti non fit iniuria rests on the defendant.
(See Santam Insurance Co. Ltd v Vorster 1973 (4) SA 764 (A) at
779 A – B). In the law of delict the onus to prove the
existence of a ground of justification (in casu, volenti non fit
iniuria
) rests on the defendant. (See Mabaso v Felix 1981
(3) SA 865 (A); Ntamo v Minister of Safety and Security 2001
(1) SA 830 (TK) at 833 A; Ferreira v Ntshingila 1990 (4) SA
271 (A) at 273 A).







[28] Whether or not informed consent
was present is a factual issue and not a legal one.







[29] Dr Kimberg testified that it is
important to record the fact that alternative contraception methods
have been discussed especially in a hospital situation because a
patient may be seen by different doctors at different times, by
different nurses and one does not have the advantage of getting to
know the patients and their circumstances. In these instances the
patient would be responsible to take the decision herself and needs
to be fully informed as to what her options are.







[30] It was his evidence that assuming
the three plaintiffs had received counseling and options had been
explained he would have hesitated to do a sterilisation in those
circumstances because there are very acceptable long term methods of
contraception which can be instituted at the same time of the
caesarean section without any problems e.g. an intra-uterous device,
and that it was not necessary to do what could be an irreversible
operation if there is doubt at all in the mind of the physician. Such
doubt would be present where the patient signs the consent form under
the duress of a painful, unstable, disturbing condition, which is the
painful labour. Sterilisation could be done around the six week
check-up when the patient comes back, through a laparoscope, which is
a one-day procedure. According to Dr Kimberg it has the disadvantage
that the patient would be subjected to two operations, but it would
at least ensure that by the time the patient actually signs for the
sterilisation, she is in a rational state of mind and has had the
time to think about it.







[31] Dr Kimberg agreed with certain
guidelines contained in literature discovered by the defendant to the
effect that the principle of informed consent must be applied as an
ongoing process; that it is compulsory in keeping proper record and
the prescribed information which needs to be recorded; that in the
case of litigation no record equals no defence; that records should
be complete, but concise and in chronological order; that the
disadvantages of tubal ligation is that it is very expensive to try
to reverse; that tubal ligation is not the best method for a woman
who is single and has not had a child or still wishes to have more
children; that there should be unhurried and skilled counselling as
an essential prerequisite to any sterilisation procedure, it should
take place without pressure in a language that is clearly understood;
that woman aged 30 years or less at the time of the operation are
more likely than an older woman to be dissatisfied and would seek a
reversal often because their domestic circumstances have changed;
that a record should be kept of what the patient was told of possible
risks and the instructions given to the patient; and that the
decision to be sterilised should have been taken before or during
pregnancy to avoid the risk of a rushed decision that may be
regretted later.







[32] Dr Kimberg conceded during
cross-examination that mistakes certainly occur during the recording
process and are more likely to occur if somebody is overworked,
stressed and working under a lot of pressure but that there are
certain vital information that have to be recorded such as the
details of counseling and information that has been is given to a
patient. Dr Kimberg, when it was put to him that State patients do
not sign consent forms when they consult with doctors (as is the
accepted practice testified by Dr Kimberg in private practice) but
sign a consent form when such a patient is being prepared for
surgery at the State Hospital, replied that it seems to be an
acceptable procedure as long as there has been a prior explanation.
It was put to Dr Kimberg during cross-examination that it is the
defence’s case that every pregnant woman who goes to Katutura
Antenatal Clinic is provided with antenatal care and as a subsidiary
of that antenatal care, family planning is provided when
contraception is discussed with patients in groups and in the
language of their respective preferences, including sterilisation and
alternatives. He replied that patients should or actually need
individual counselling.







First Plaintiff







[33] It is common cause that the first
plaintiff gave birth by way of an emergency caesarean section on 13
June 2005 at the Oshakati State Hospital because she was diagnosed
with a condition known as cephalic pelvic disproportion (CPD). A
sterilisation procedure was performed at the same time on the
plaintiff. At the time the procedures were performed the first
plaintiff was 26 years old. She had two previous pregnancies and
delivered normally though her second child was stillborn. She
completed Grade 10. Her home language is Oshiwambo. The first
plaintiff tested HIV positive in 2004 when she attended a health
facility in Grootfontein. Her first of several antenatal care visits
to the clinic was on 5 January 2005. According to her there was no
discussion about the concept of sterilisation and its applicability
to her. On 9 June 2005 she went to a clinic at Ongwediva for an
antenatal care visit where she discovered that she was discharging
blood in the waiting room. She was taken to Oshakati State Hospital
where she was informed that there was no dilation and was told to
come back 4 hours later. On 10 June 2005 at about 20h23 she had pain,
not severe and there was dilation. On 11 June 2005 she had
contractions and stayed in the vicinity of the hospital in the
waiting area. On 12 June 2005 her contractions were severe and she
was in pain. On 13 June 2005 she experienced severe pains. She told
the hospital personnel that she was unable to walk and was told to
lie down. She was then seen by a male doctor who examined her and
told her that she cannot deliver because she was very exhausted. The
doctor instructed a nurse that plaintiff be taken to the theatre to
undergo a caesarean section. The doctor spoke English. A nursing
student translated. The doctor did not mention anything about
sterilisation to her. She testified that before she could be taken to
the theatre a nurse came into the delivery room and told her that she
will be sterilised since all women who are HIV positive go through
that procedure. The nurse then brought documents for her to sign. She
did not know whether the documents were in respect of her consent to
undergo the operation or whether it was in respect of consent for
sterilisation. She was given these forms when she was on a stretcher
just before she went into the theater. The nurse did not explain
anything about the procedures she would be undergoing. It is common
cause that she signed only one document where she consented to “c/s
due to CPD and BTL”. She did not know what caesarean section or
the other acronyms on the consent form meant. She testified that the
way the nurse conveyed the information to her sounded forceful, and
that it was “a compelling thing”. She testified that she
was in severe pain and no alternatives to the procedure were
explained to her by the hospital personnel. She did not ask the nurse
any questions since it sounded that the nurse was forcing her. She
only discovered afterwards that she had been sterilised. She
testified that she felt very bad as a result of the procedure because
in her culture if a woman is unable to give birth then her in-laws
might tell her that the husband should divorce or desert her.







[34] When it was put to her during
cross-examination that both Dr Mavetera and nurse Angula will testify
that she requested sterilisation and was made aware at that stage
that the procedure is irreversible and that she would be unable to
bear any children, it was denied by the plaintiff. She disputed that
she actually used the Oshiwambo word for sterilisation when she
requested it. She denied that Dr Mavetera explained to her that the
reason for the cesarean section was because of her condition namely
that the baby’s head was too big to pass normally through her
pelvis. The plaintiff denied that a nurse translated to her stating
that it was a student nurse. She testified that she could read
English but was not asked to read the consent form but believed that
she signed the form to consent only to the removal of her child. She
testified that it was not her intention to be sterilised and that she
did not give consent for sterilisation.







[35] Innocent Mavetera testified that
he qualified as a general practitioner in 1995 and as a specialist in
obstetrics and gynaecology in the year 2000. He testified that he was
called by nurse Angula to review the plaintiff. He examined her and
found that the membranes were ruptured and the head of the baby could
not fit the pelvis and that she would not have a normal delivery. He
established that the plaintiff was on highly active antiretroviral
treatment (HAART) after talking to her. He ordered a caesarean due to
CPD plus BTL. He testified that he explained to the plaintiff that
since she cannot deliver on her own she was going to the theatre to
be operated on and to remove the baby. He testified that after he had
explained this the plaintiff decided that “she also wants to be
closed”. Since “closing patients” is not a routine,
especially when they come for caesarean section he explained what
sterilisation means and what her future chances are of having
children. The nurse would be translating and the patient would later
give consent after she has understood what was explained and the
patient would then sign the consent form. He testified that the
plaintiff was there for 14 to 15 hours in the hope that she would
deliver normally. According to him he would not have performed a
sterilisation if the plaintiff had no previous children, but since it
was her second live birth he thought it reasonable enough to do the
procedure. He testified that plaintiff would normally have decided on
sterilisation during antenatal care because sterilisation is a method
of contraception and normally contraception is discussed at the
antenatal clinic. He stated that the plaintiff did not sign the
consent form in his presence. In respect of a second consent form
dealing specifically with sterilisaiton he testified that at that
stage they never had it at the hospital and that the consent form
singed by the plaintiff was the standard form they used for all
procedures. He agreed that under normal circumstances it is highly
undesirable to use acronyms on consent forms but the circumstances
under which people work at State Hospitals are not normal e.g. a
doctor would see 50 to 90 patients a day. In respect of the acronyms
he testified that they are used in the health passport because it is
for fellow health workers to read and understand. He further
testified that because of their workload and shortage of personnel
“most of the things what we talk to our patients … we do
not write down”. He testified that he had no independent
recollection of the plaintiff given the large number of patients he
dealt with and because of the effluction of time, and gave his
evidence only with reference to his notes. He conceded during
cross-examination that even though the use of acronyms on hospital
records, like health passports, may be primarily for the benefit of
health officials, the use of acronyms on consent forms is
highly undesirable even more so in the case of an invasive procedure
such as a sterilisation. The witness conceded that nothing appears in
the health passport of the plaintiff to suggest that the
sterilisation procedure had been canvassed.







[36] Victorina Uuso Angula a
registered nurse and midwife who worked in the maternity ward for
over 18 years prepared the plaintiff and signed as a witness on the
consent form. She confirmed the plaintiff was informed of the reason
why the plaintiff had to undergo a caesarean section and testified
that it was at that stage that the plaintiff said she wanted to be
sterilised after the doctor had explained it to her. She testified
that she herself had also explained the contents of the consent form
to the plaintiff. She conceded that her notes did not record this
explanation and that it was a mistake made, and that due to the
urgency of the operation did not complete fully the medical record of
the plaintiff.







[37] It is clear from the evidence of
both Dr Mavetera and nurse Angula that they assumed that the
plaintiff knew what sterilisation was and that she understood the
consequences because she had attended antenatal classes where they
also assumed plaintiff was informed of all aspects concerning
sterilisation.







[38] It was submitted by Mr Smuts who
appeared on behalf of the plaintiffs, that this assumption relied on
was plainly for the purpose of dispensing with the need for a proper
explanation of the procedure and its risks and alternatives to it.







[39] Dr Mavetera conceded during
cross-examination that he should rather have advised the plaintiff to
come back for sterilisation after 6 weeks. He stated that that is
what they would normally do but couldn’t recall whether it was
done in this case. Nurse Angula’s response to the same question
was that a sterilisation can be done at any time and asked why should
the plaintiff be sent away just to be operated on for a second time.
It must, in the light of this response be accepted that plaintiff was
not advised to return after six weeks. If this was indeed normal
procedure nurse Angula would have said so.







Second Plaintiff







[40] The second plaintiff gave birth
by way of a caesarean section on 9 December 2007 at Katutura State
Hospital, Windhoek. At the same time a sterilisation procedure was
performed on her. She completed Grade 12 in Ondangwa and is able to
read, speak and understand the English language. She has three
children aged 17 years, 9 years and 3 years respectively. She was
diagnosed HIV positive in 2007 when she fell pregnant. She testified
that the counselling that she received was given by volunteers at the
Red Cross, but none from the nurses. The counselling related to
pregnant women knowing their HIV status and the importance of the
unborn baby be protected against the virus. She testified that no
further counselling was done but she continued to attend the
antenatal care clinic – only to check the progress of the
pregnancy. She testified that on 6 December 2007 she went to an
antenatal care session and that the nurse who examined her found that
the head of the baby had not turned downwards and referred her to a
doctor. The doctor confirmed that the foetus was in a breach
position. It appears that the doctor who examined her was Dr Gurirab.
The doctor advised her that she gives birth by way of caesarean
section because she had given birth to her second child through a
caesarean section and because of her HIV positive status. The doctor
also informed her that she would be sterilised and that she should
agree to that. She was informed that she would not be able to give
birth in future. The doctor did not ask her whether she wanted more
children or whether she wanted to consult with family members or
friends. She did not receive any counselling about sterilisation and
was not informed of the advantages and disadvantages of
sterilisation. She testified that she was not asked whether she
wanted to be sterilised and was told by the doctor that she was going
to be sterilised whether she wanted it or not. The manner in which
the doctor spoke made her afraid since he spoke in a “forceful
manner”. She testified that although she did not want to be
sterilised she did not ask questions because she was informed that if
she did not agree to the sterilisation he would not book her for the
caesarean section. On 8 December 2007 plaintiff started having
contractions. Between 19h00 and 20h00 these contractions became
severe and she asked her boyfriend to take her to hospital. She was
admitted about 23h00. She was in severe pain. She was laid on a bed.
Nurses came to observe her and later a nurse came to her with papers
or documents and with an intravenous drip. When she enquired about
the purpose of the document the nurse informed her that the doctor
had already explained it to her and that she only had to sign. The
nurse hurried her to sign the documents. In respect of the second
consent form, plaintiff denied that she wrote her name on the consent
form. She confirmed that she signed both consent forms at the same
time. She testified that she knew what a caesarean section was but
that she did not know what BTL meant, and that none of the contents
on the form was read to her. She was only told to sign. She testified
that the nurse was in a hurry and she herself did not read the
contents of this form. She did not know or understood that she was
sterilised but only became aware of it six weeks after the operation
when she came for a check up. She testified that when the doctor told
her she was going to be sterilised she knew the meaning of the word
because she had read about it but that it was not explained by either
the doctor or the nurse. She testified that she was made to
understand that there is a policy in place that women who are HIV
positive should be sterilised. No basis was provided for this
understanding.







[41] Quincy Gurirab a medical
practitioner graduated a the end of the year 2006 from the University
of Pretoria and started working for the Ministry of Health and Social
Services in January 2007. He did not have an independent recollection
of who the patient was and relied on his notes made in the antenatal
care passport. He saw the patient on 6 December 2007. He recorded
certain information and that the patient was booked for elective
caesarean section due to a breach presentation and this was also
recorded. He testified that he would have explained to her
what caesarean section was, the advantage, and disadvantages, and
would have made sure that she understood it. He would have explained
to her that sterilisation is a surgical procedure with its own
inherent risks with regard to anaesthesia and the procedure itself.
This explanation is however not reflected in the antenatal care
record. During cross-examination he conceded that there was no
inscription in the passport that alternatives to sterilisation had
been explained to the patient. He testified that since he did not
note BTL in the passport he was of the view that he did not mention
it to the patient. He testified that it was unlikely that he would
have raised the issue of a sterilisation with the patient.







[42] Even Maria Ndjala is registered
nurse who qualified as a midwife in the year 1986. She testified that
she prepared the second plaintiff for her operation and also obtained
her signature on the two consent forms. She testified that she would
have explained to the plaintiff that she was going to be sterilised
and would be unable to have any children in the future and that it
was irreversible. She would have asked the plaintiff whether she
understood and once she had agreed she would have given her the forms
to complete after she had given an explanation to her. She testified
that plaintiff wrote her name on the forms and signed the forms. Her
response to a question why she has given the explanation whilst the
plaintiff was in labour, was that labour is not continuous and that
she would have explained during the intervals when there were no
contractions and would stop when the patient was having a
contraction.







[43] Nurse Ndjala admitted during
cross-examination that she read the plaintiff’s antenatal care
record and when she saw the inscription “BTL” and another
inscription where there is reference to “Family plan: BTL”
she assumed that the plaintiff wanted to be sterilised and that
plaintiff had already been counselled. She admitted that the
instruction given to her by the doctor on 9 December 2007 was to
prepare the patient for a caesarean section only. She testified that
because of her assumption that the plaintiff had already been
counselled she did not consider it necessary to counsel her again.
She testified that she needed to obtain confirmation from the
plaintiff that she would still want to have a sterilisation. She
denied that she compelled or coerced the plaintiff into having a
sterilisation. It was put to her that the plaintiff’s evidence
was that she was told that she would have to have a sterilisation
because she was HIV positive, to which nurse Ndjala responded that
she has never heard of a person being sterilised because she is HIV
positive.



[44] Celest de Klerk a general
practitioner qualified at the medical school of the University of
Cape Town in the year 2003. She worked as a medical officer in the
Katutura Anti-Retroviral Clinic from 2004 until the year 2009. On 26
October 2007 she saw a female patient, the second plaintiff. She
testified that she made notes, inter alia, one on the outer
cover of the antenatal care record card where there is an inscription
“BTL”. She describes that a description “Family
plan – BTL” indicated that the plaintiff “opted”
for a sterilisation as a method of family planning after the birth of
her child. She testified that she would have discussed family
planning in general in layman’s terms and would have referred
to different options including sterilisation. If the patient opted
for sterilisation she would have made the inscription as it appears
on the antenatal care record of the plaintiff. She wrote “BTL”
on the cover of the antenatal care record to draw the attention of
personnel at the antenatal care clinic because the two clinics are
different and there for different purposes. She testified that she
made it clear that the plaintiff would still have time to go home and
consider the chosen option.







[45] It was put to Dr de Klerk during
cross-examination that the inscription may be interpreted differently
by another health official as meaning that it is something which was
merely raised with the patient or recommended to her and would not
necessarily be read as an accepted option. Dr de Klerk, after much
debate, conceded that an indication regarding family planning would
not necessarily be considered as final consent by the patient. She
also acknowledged and accepted the fact that the patient may have
opted at the time for sterilisation as a family planning method
cannot be relied on for purposes of claiming that she had given her
informed consent to the sterilisation procedure.



[46] Dr de Klerk testified that she
gave the patient information about family planning, and that issues
like how the procedure for bilateral tubal ligation is done, what the
risks are involved, what the consequences of the procedure would be,
the possibility of a reversal, would not have form part of the
discussion with the patient







Third Plaintiff







[47] The third plaintiff was born on
10 October 1964. She is not married and has six children from eight
pregnancies. She reached standard 5 at school. She has three children
with her current partner, a married man, with whom she has had a
relationship since 1990. The plaintiff was diagnosed with the HIV
virus in the year 2002.







[48] On 10 March 2005 when she was
about three months pregnant she was experiencing severe pain to the
extent that she felt like she was going to die as a result of the
pregnancy. She was unable to walk and had to be carried by her
partner to the car and thereafter had to be wheeled into the hospital
on a stretcher.







[49] She testified that she requested
that the pregnancy be terminated (“removed”) because she
feared that she was going to die. It is not clear what she meant by
the removal of the pregnancy because she also testified that her
“intention was not really for the child to be removed from my
stomach, only for that to be rectified by the doctors”.







[50] She was examined by more than one
doctor and was also taken for a sonar. She testified that the
conversation that took place between the health professionals amongst
themselves and at some point between the health professionals and her
partner was conducted in English which she could not understand. Her
partner eventually told her, pointing to the sonar, that the doctors
said that the baby is too big, that they cannot terminate the
pregnancy, and that she had to come for treatment.







[51] In a referral note written by Dr
Ithete on 10 March 2005 it was stated that plaintiff, 40 years old,
requested a termination of her pregnancy on medical grounds.







[52] The plaintiff testified that she
attended the antenatal care clinic on 4 May 2005. In respect of an
inscription “elective c/s + BTL” plaintiff stated that it
was not discussed with her and that she did not consent to it. On 12
October 2005 contractions started, and she took a tablet called
Neverapine, as instructed, and went to Katutura State Hospital where
she was examined by a nurse who wrote something in her passport. She
was in pain. She was informed to go somewhere and walk but was unable
to do so because of severe pain. The nurse later returned with a
doctor who examined her. After the doctor left a nurse returned with
a paper in her hand and told her to write. The nurse told her in
Oshiwambo to write her name (“shanga”) and repeated in
Afrikaans “skryf, skryf”. The plaintiff testified that
she put her name on the piece of paper whereafter she was told to get
onto a stretcher and was wheeled into a white room with big lamps.
She testified she did not understand anything contained in the
documents. She confirmed that she wrote her name on the two consent
forms and that she signed one but because the writing on the second
form (consent form for sterilisation) was faint she did not
acknowledge that it was her signature but did not exclude the
possibility that she signed it. She testified that she contemplated
normal delivery because she gave birth to her other children
naturally. At some stage after the operation she overheard two nurses
speaking in Oshiwambo that she had been closed.







[53] Erica Kamberipa Tjimbundu a
registered nurse qualified as a midwife during the year 2004 and
started working at Katutura State Hospital, the next year. She
admitted the plaintiff to hospital and recorded certain information.
The plaintiff complained of severe backache. She was not sure which
language was used but thought that they communicated in Oshiwambo.
She made an inscription “patient prepared for caesarean section
and BTL, consent signed by patient herself after the doctor explained
the operation to her and she signed”. She explained that the
consent for sterilisation form is explained to the patient by the
doctor and the doctor and patient would sign the form. The standard
procedure is that if a patient does not understand a certain language
an interpreter would be used. She testified how antenatal care is
provided at the State Hospital and that it is done in different
languages.







[54] She testified that the next set
of inscriptions made in the maternity record were made by a doctor.
The plan was to allow the labour to progress and keep the membranes
intact for sterilisation at a later stage. It appears from subsequent
evidence by Dr. Sichimwa and Dr Kronke that the doctor who made these
inscriptions was Dr Fong who was on duty during that evening. He was
not called to testify.







[55] Nurse Tjimbundu testified that
inscriptions made on 13 October 2005 at 08h35 were made during a ward
round with the consultant who was Dr. Kronke. It appears from the
notes that she was diagnosed as being in prolonged first stage of
labour and the plan decided by the doctor was for her to undergo a
caesarean section due to the prolonged first stage and sterilisation.
Dr Sichimwa testified that Dr. Fong made these inscriptions and also
confirmed that it was decided by the doctors that she must
have a caesarean section and a sterilisation.







[56] Nurse Tjimbundu testified with
reference to the consent form for sterilisation that her experience
was that the standard procedure was that the doctors are the ones
taking decisions. The procedures would first be explained to the
patient before she signs for the operation. She confirmed during
cross examination that it was the decision of the doctor as to what
was going to happen to this patient. She further testified that the
doctor should also sign the consent form to sterilisation. She
testified that when the plaintiff was admitted she assumed, based on
the notes contained on the front page of the ante-natal case record,
that the plaintiff had already agreed to a sterilisation and that she
did not have to discuss this issue with the plaintiff since it was
indicated on the ante-natal case record that the plaintiff had
accepted to be sterilised. She testified that it must have been Dr.
Sichimwa who explained the sterilisation procedure since he signed
the declaration at the bottom of the consent form for sterilisation.







[57] The notes in the maternity record
do not explain which doctor explained the sterilisation procedure to
plaintiff or what was explained to her. Nurse Tjimbundu testified
during cross examination that family planning provided at group
sessions at ante-natal classes would not constitute counseling in any
proper sense and individual counseling is still required. She
testified that during these sessions the patients are only shown the
different methods which are available and if a patient indicates
during an ante-natal care class that she wants a sterilisation, she
would be referred to a doctor for proper counseling. This she
confirmed during re-examination.







[58] Godfrey Sichimwa qualified in the
year 2004 from St Georges University in the West Indies as medical
practitioner and thereafter pursued post graduate studies at the
University of Witwatersrand in 2009 with the aim of becoming a
specialist obstetrician and gynaecologist. During August 2005 he took
up the post of medical officer within the Ministry of Health and
Social Services at Katutura State Hospital. On 13 October 2005, he
was on duty as medical officer. From inscriptions in the maternity
record it appears according to his testimony that the plaintiff had a
planned operation for a caesarean section and bilateral tubal
ligation but somehow did not turn up to be given a date for the
operation. She was in early labour and the plan was to allow labour
to progress and for a bilateral tubal ligation to be done at a later
stage.







[59] On 13 October 2005 at 08h35 when
ward rounds were done by Dr. Krönke, he was present. He
testified that due to the prolonged first stage of labour a caesarean
section would have been offered to the plaintiff and that in view to
her age, the number of children she had, and her retroviral status, a
bilateral tubal ligation would have been offered again since it had
already been offered in terms of the health records of the plaintiff.
He testified how he would have explained a caesarean section and a
sterilisation procedure to a patient, the risks involved, the nature
of the operations, how the procedures are done and that sterilisation
is one of the most effective contraceptives available. These would
have been explained in layman’s terms and in a language which
the plaintiff understands.







[60] In respect of the consent to
sterilisation, he confirmed that he signed the declaration at the
bottom of the form and stated that by virtue of his signature it
means that he would have been the doctor who had explained the
procedure to the plaintiff. He testified that the patient would sign
this form in the presence of the doctor but that it is possible that
a nurse will obtain the signature of the patient after the doctor had
explained everything to the patient. Once a patient has signed the
form the patient would be prepared for the theater.







[61] During cross examination, Dr.
Sinchinwa conceded that he is not able to state precisely what he did
with the plaintiff and that for recollection he relied on his notes
due to the large number of patient that are seen at the state
hospital (roughly 500 deliveries per month). He does not have any
recollection apart from his notes what specifically was said to the
plaintiff. He testified that he himself, Dr. Fong, and an intern were
present with Dr Krönke at 08h35 when an assessment was made by
the consultant, Dr. Krönke. Nursing staff were also present. He
testified that when the inscriptions were made at 08h35 by Dr. Fong,
would have been the time the explanation had been received by the
patient from the doctors. He testified that though prolonged labour
may be the underlying reason why a caesarean section would be
performed, a sterilisation would not be effected for that same
reason. He disputed that the plaintiff did not understand what was
explained to her and stated that he himself explained the procedure
to the plaintiff. Dr. Sichimwa admitted that from the medical record
of the plaintiff, no reason was indicated why she had to undergo a
sterilisation procedure. He further admitted that as the surgeon who
performed the operation that it was his responsibility to be
satisfied that the plaintiff had properly consented to the operation
and that a proper note should have been kept in this regard by him.
His explanation for failing to make any notes was that the stationery
used by the health professional at the State hospital did not provide
space for pre-operational notes, only for post-operational notes but
added that it is not a requirement for a surgeon to make notes before
doing the operation. He admitted that there was no note by a medical
officer that the plaintiff had consented to a caesarean section. He
however stated that there is a note on the consent form for an
operation for caesarean section, which form was signed by Dr Fong and
that it was Dr Fong who had explained the procedure to the plaintiff
even though Dr Fong did not perform the operation. He admitted that
Dr Fong doesn’t speak Oshiwambo. Dr Sichimwa stated that the
possibility was that Dr Fong explained the caesarean section
procedure to the plaintiff and that he explained the sterilisation
procedure. He also admitted that there was an obligation on him to
explain alternative contraceptive methods to the plaintiff. He agreed
that a patient should have been provided with an explanation
regarding the sterilisation procedure, the alternatives and that this
should have been recorded. The reasons given for the sterilisation
were that the plaintiff was at that stage over 40years old, her
retroviral status and her multiple pregnancies. These reasons
according to Dr Sichimwa were provided to the plaintiff which he
covered within a period of ten minutes with the aid of an
interpreter. He admitted that informed consent is an ongoing process
of which an important aspect is to inform the patient that she may
withhold consent. He however could not recall whether he informed the
plaintiff that she may withhold her consent to the sterilisation
procedure. Dr Sichimwa agreed that in terms of Ministerial policy
unhurried and skilled counselling is an essential prerequisite to any
sterilisation procedure. Dr Sichimwa agreed during cross-examination
that the decision that the plaintiff undergoes a caesarean section
was a “sudden decision”. It was also agreed that the
decision that the plaintiff should undergo a caesarean section was a
collective decision taken by himself, the consultant Dr Krönke
and Dr Fong. It was put to Dr Sichimwa that the caesarean section
might have been offered to the plaintiff but that it was the
decision of the medical professionals what should happen to
the plaintiff. He responded that the plaintiff was part of the
decision making process.







[62] Tshali Iithete a medical doctor
and a medical superintendent of the Ongwediva Medical Park in
Ongwediva in northern Namibia testified that he qualified as a
medical doctor in the year 200 from the University of Natal, Durban,
in South-Africa. He is Oshiwambo speaking. During the year 2005 he
was employed by the Ministry of Health and Social Services as a
medical officer at Windhoek Central Hospital as well as Katutura
State Hospital. He testified in respect of a referral letter written
by him on 10 March 2005 regarding the third plaintiff. The letter was
addressed to his colleagues and stated inter alia the
following:



I have discussed at length with
both patient and partner about current legislation (Namibia) on
termination of pregnancy and suggested PMTCT (which stands for
prevention of mother to child transmission) and possible elective
hysterectomy; also discussed for them to practice barrier method
contraceptive as husband still negative. Could you please kindly
assist whether T.O.P (termination of pregnancy) on medical grounds is
an option at all and … regards Dr T Iithete.”



He recalled the case because plaintiff
was one of the first patients with HIV requesting termination of
pregnancy on medical grounds. He testified that he spoke to the
plaintiff in Oshiwambo. He testified that what appears in the
referral letter was discussed with the plaintiff. He stated that he
referred the patient to the department of gynaecology to be seen by
the health officials there on 30 March 2005. The plaintiff was booked
for this date. He testified that the plaintiff did not express
anything about feeling unwell. He testified that the plaintiff came
there with her partner related her past experience and requested a
termination of pregnancy based on her past “pregnancy
experiences” and the previous loss of a baby due to HIV, and
that the plaintiff did not necessarily request the termination of
pregnancy on the basis of her medical condition. Dr Iithete testified
that both the plaintiff and her partner spoke to her. Dr Iithete
testified that the issue of elective hysterectomy was raised because
of the plaintiff’s previous history of severe bleeding.







[63] Dorothea Maria Krönke, a
witness called by the defence qualified as a medical doctor in 1985
in Germany. She started to work in Namibia at the State Hospital from
1987 until 1992. She returned to Germany where she qualified as a
specialist gynaegologist and thereafter returned to Namibia where she
worked at the Central Hospital as well as Katutura State Hospital.







[64] She testified that in 2005 the
antenatal clinic was run by sisters and nurses who were specially
trained for antenatal care and that there were regular group
counselling. During the group counseling different forms of
contraception are discussed including sterilisation. When she has a
discussion with a patient who does not understand English she would
make use of an interpreter. The third plaintiff arrived at the
hospital on 13 October 2005 at 18h50 when she was in early labour.
The plaintiff previously requested a termination of pregnancy on
medical grounds. The plaintiff has previously been observed by Dr
Kheiseb, the Head of the Department. The pregnancy was too advanced
for the termination thereof. The plan was to have an elective
caesarean section and a sterilisation. Her experience was that the
maternity ward at Katutura State Hospital was very busy with around
six thousand deliveries annually. In respect of the antenatal care
record of the plaintiff it was indicated in front of the document:
“wants BTL”. The third plaintiff was seen by Dr Fong the
previous evening who still had the hope that she might deliver
normally. The next morning this plan was reviewed and it was decided
that she had to undergo a caesarean section. It was recommended to
the plaintiff that a sterilisation be done simultaneously and that
this was discussed with the plaintiff. She testified that a patient
should not be counselled for the first time while she is in
active labour regarding the option of sterilisation. She testified
that in her capacity as a consultant she herself was not involved in
obtaining informed consent from the plaintiff.







[65] Dr Krönke, in response to a
statement during cross-examination that when it comes to
sterilisation counselling it must be done on a one-on-one basis,
stated that such sterilisation counselling is being done during group
counselling where all types of contraception are discussed, where
each and every contraception method is presented and this is regarded
as sufficient if a patient understands what has been conveyed to her.
Should a patient need further individual counselling that would be
arranged. She testified that there are simply too many patients at
the antenatal care clinic to counsel each and everyone on a
one-on-one basis. Dr Krönke, in response to a statement during
cross-examination that the people who attend the group counselling
and the antenatal clinic would be at different levels of education
and experience, stated that at these group counselling sessions the
health officials presume that the patients are at a low educational
level (since that was their experience) and counselling is being done
in very clear and simple words for everyone to understand. She
further testified that the health officials are experienced in
dealing with the group counselling on this basis. Her testimony in
respect of the third plaintiff was that she requested a termination
of her pregnancy and never mentioned acute pain or other problems as
the reason for wishing to terminate the pregnancy. If this had been
the case she would have examined the third plaintiff, would have
recorded it and would have changed the management immediately and
completely. Apart from being HIV positive, being elderly and being a
high risk pregnant patient, third plaintiff was found to be otherwise
stable and healthy. A caesarean section and a sterilisation was
recommended to the patient when she was three months pregnant and had
plenty of time to weigh her options. It was put to Dr Krönke
that if third plaintiff had understood that what was involved was a
sterilisation she would have made a booking for such a procedure. Dr
Krönke disagreed. She testified that under these circumstances a
booking would normally have to be made for a caesarean section, the
sterilisation being additional to that but the fact that a booking
was not made does not necessarily indicate that the patient did not
want the sterilisation since from her experience there are a number
of reasons why patients do not make bookings. Dr Krönke further
testified that it is not the common practice, and it is impractical
to send out reminders to patients when they do not adhere to their
appointments due to the sheer number of patients that are seen. She
testified that it often occurs that no booking has been made but a
patient would come at a time when it is necessary to do the surgical
procedure. The third plaintiff was booked for an elective caesarean
section due to her advanced age, the number of her previous
deliveries, her HIV status, and because of her prolonged labour. Dr
Krönke conceded during cross-examination, that there was no
consent given for sterilisation by the third plaintiff in discussion
with herself (i.e. Dr Krönke) and that there is no indication in
all the hospital records that plaintiff had given consent at any time
before she was in hospital and shortly before her surgery.







Evaluation of Evidence







[66] It is common cause that the
plaintiffs underwent sterilisation procedures and it is not disputed
that the required consent is more than just written consent, but
informed consent. It is furthermore also not disputed what
information should be made available to a patient in order to put
such a patient in a position to make an informed decision.







[67] The defendant’s medical
personnel accepted that it is a surgeon’s legal duty to obtain
informed consent from a patient although a registered nurse may be
requested to procure the patient’s signature on the consent
form. This is also in accordance with the ethical standards governing
health professionals, as set out in the guidelines for them issued by
the professional councils.







[68] In respect of the first plaintiff
it is common cause that the plan was that she would deliver
naturally. The plan changed when she was diagnosed with CPD. The
first plaintiff’s case is that she had no intention to have a
sterilisation. It is common cause that the plaintiff did not signed
any form dealing specifically with sterilisation. Dr Mavetera had no
independent recollection of what was said to the plaintiff and had to
rely on his contemporaneous notes. Dr Mavetera conceded that there
was no contemporaneous record of any request by the first plaintiff
or any expressed intention on first plaintiff’s part to have a
sterilisation in any of her medical records. Registered nurse, Angula
who had testified that she herself also explained the contents of the
consent form to the plaintiff also conceded that her notes did not
record that she had given this explanation. Both Dr Mavetera and
nurse Angula assumed that plaintiff was informed of all aspects
concerning sterilisation because she attended ante-natal classes. It
was also conceded by Dr Mavetera that it is highly undesirable to use
acronyms on consent forms. It is not disputed that the first
plaintiff had been in labour for 14 to 15 hours. It must be accepted
as testified by the plaintiff that she was in severe pain. It was Dr
Mavetera’s evidence that when he explained to the plaintiff
that he had to perform a caesarean section she decided that she
wanted to be closed i.e. wanted to be sterilised. The consent
obtained from the plaintiff for the sterilisation procedure was
obtained under circumstances (testified to by Dr Kimberg) under which
no consent should be obtained from a patent by a surgeon. It was
obtained at the height of labour, there could not have been any
proper counselling in the absence of any record of what information
had been provided to the plaintiff, and it certainly, in view of the
circumstances, was not obtained in an unhurried fashion. Dr Krönke
unequivocally accepted that consent should not be obtained during
labour – at least not obtained for the first time. Dr Mavetera
was of the view that it was reasonable to do a caesarean section on
the plaintiff aged 26 years at that stage due to the fact that it was
her second live birth. In view of the undisputed testimony of Dr
Kimberg that a woman aged 30 years or less at the time of the
operation is more likely to be dissatisfied with a sterilisation and
would seek a reversal, the decision taken by Dr Mavetera appears to
me not to be so reasonable as it was made out by Dr Mavetera under
those circumstances and sounded more like an afterthought, an ex
post facto
rationalisation. Dr Mavetera correctly conceded, in my
view, during cross-examination that he should rather have advised the
first plaintiff to return after six weeks for the sterilisation
procedure.







[69] It is apparent from the
authorities referred to supra that knowledge of the nature and
extent of the harm and risk and an appreciation thereof do not
necessary equal consent. Even though the evidence of the first
plaintiff had been criticised by Ms Schimming-Chase who appeared on
behalf of the defendant such criticism cannot detract from the
circumstances under which the first plaintiff’s consent had
been obtained, namely in circumstances in which the first plaintiff
could not have given informed consent in the sense referred to by the
authorities (supra).







[70] Dr Kimberg testified that one of
the factors which should be taken into account in reaching informed
consent is for a patient to be aware of and be able to evaluate
alternative options available after having been duly informed of such
alternatives. In this regard it would appear to me that where
sterilisation, as one of the methods of contraception, is considered
the patient should be informed of advantages and disadvantages of
alternative contraception methods. This in my view would enable such
a patient to truly make an informed decision. In respect of the
second plaintiff Dr Gurirab who testified that he would have
explained what a caesarean section was to the second plaintiff
including the advantages and disadvantages, conceded that such
explanation was not reflected in the ante-natal care record. He also
conceded during cross-examination that there was no inscription on
the passport that alternatives to sterilisation had been explained to
the second plaintiff. It should in my view be accepted (as testified
by Dr Gurirab) that he did not raise the issue of sterilisation with
the second plaintiff. In view of an inscription on the medical
record of the plaintiff it is likely that the doctor who performed
the caesarean on the plaintiff, raised the issue of sterilisation
with the plaintiff. Nurse Ndjala who testified that she would have
explained to the plaintiff that plaintiff was to be sterilised
significantly testified that the consent was given by the plaintiff
while she was in labour. She also assumed that the plaintiff wanted
to be sterilised in view of an inscription on the ante-natal care
record and that it was not necessary to counsel her again. Nurse
Ndjala also significantly testified that she would have given the
explanation to the plaintiff during intervals when there were no
contractions. She also admitted that the instruction which was given
to her on 9 December 2007 by the doctor, according to the notes
recorded on the maternity record, was to prepare the plaintiff for a
caesarean section only, there being no reference to a
sterilisation. This was another example of consent being obtained
from the plaintiff by a health official professional under
circumstances where the patient was in the height of labour. Dr de
Klerk conceded that the inscription on the ante-natal record made by
herself would not necessarily be read as an accepted option by the
plaintiff. Dr de Klerk also accepted that the fact that the plaintiff
may have opted for sterilisation as a family planning method cannot
be relied on for purposes of claiming that plaintiff had given her
informed consent to the sterilisation procedure. Dr de Klerk when
asked if she had been the surgeon performing the sterilisation
procedure would she have been satisfied if a patient signed a consent
form at their discussion, stated that she would not have been
satisfied







[71] Ms Schimming-Chase submitted that
the second plaintiff’s version was unreliable since she had
contradicted herself and that the testimony was not in line with
various inscriptions on her health passport and differ markedly from
the testimonies of defence witnesses. Even if it is accepted that she
was not an entirely satisfactory witness and her version should be
disregarded, the question remains, namely, did the defendant on the
version of the defence witnesses, having regard to the concessions
made, discharged its onus to prove informed consent was given by the
plaintiff on a preponderance of probabilities ? I think not.



[72] In respect of the third plaintiff
it appears from the notes made on 13 October 2005 that the third
plaintiff was in a prolonged first stage of labour and the plan
decided by the doctors was for her to undergo a caesarean and a
sterilisation. Dr Krönke testified that in her capacity as a
consultant she would not have obtained any consent from the third
plaintiff.







[73] Dr Sichimwa testified that he
must have explained the sterilisation procedure to the plaintiff. He
further testified that he had assumed from the notes made by Dr
Krönke on 30 March 2005 that the sterilisation procedure was
canvassed with and explained to the plaintiff on that day. This was
an incorrect assumption based on the evidence of Dr Krönke. Dr
Sichimwa conceded that he had no independent recollection of what was
specifically said to the plaintiff and had to rely on his notes.
There is no reason apparent from the medical records why a
sterilisation procedure was performed. His reason for failing to make
notes is a poor excuse.







[74] Nurse Tjimbundu testified that
the doctors would decide the required treatment in respect of
a specific patient. The impression which is gained from the evidence
of defence witnesses who had testified regarding what information is
conveyed during group sessions in respect of family planning and
regarding the different contraception methods appear to sufficient
information and that individual counselling is not only unnecessary
but also impractical. Nurse Tjimbundu’s evidence contradicted
this impression where she testified that family planning at group
sessions would not constitute counselling in any sense and that
individual counselling is still required.







[75] The importance of proper and
complete record keeping is best demonstrated if one has regard to
what happened in respect of the third plaintiff. As conceded by Dr
Krönke during cross-examination there is no indication in all
the hospital records that the plaintiff had given consent at any time
before her surgery.



[76] Regarding the consent forms
signed by the plaintiff this was another demonstration where a
patient was required to sign consent forms during the height of
labour. It was accepted, for the reasons mentioned by the witnesses,
that such a practice is highly undesirable.







[77] I am not convinced even should I
have regard only to the evidence of the witnesses called on behalf of
the defence that the defence has discharged its onus on a
preponderance of probabilities that the third plaintiff has provided
informed consent in respect of the sterilisation procedure done on
her.







[78] It must be stated that one has an
appreciation of and sympathy for the abnormal circumstances, as
testified by the witnesses, under which physicians and other health
professionals must work at State Hospitals.







[79] Regarding the issue of group
counselling when family planning is discussed Dr Kimberg testified
that individual counselling is required. In view of the testimony of
Dr Krönke and other health professionals individual counselling
due to the large number of patients is simply impractical. I agree
that even though individual counselling may be an ideal situation in
which to do proper and skilled counselling one should not close one’s
eyes (figuratively speaking) to the realities encountered at State
Hospitals. I can see no reason why group counselling cannot be
adequate and sufficient, provided that skilled counsellors are
engaged and information is conveyed in languages which are understood
by the patients requiring such counselling.







[80] In respect of the first claim I
am of the view that the defendant has failed to discharge its onus to
prove that all three the plaintiffs had given informed consent in
respect of their respective sterilisation procedures and that the
plaintiff’s should succeed in respect of this claim.



[81] In view of this finding I deem it
unnecessary to deal with the alternative claim.







[82] In respect of the second claim
the plaintiffs allege that the sterilisation procedures were
performed on them because of their HIV status and that this resulted
in an unlawful practice of impermissible discrimination against them.
Since the plaintiffs claim that they were sterilised because they
were HIV positive I am of the view that the onus is on them to
prove this to be the case on a preponderance of probabilities.







[83] I am of the view that there is no
credible and convincing evidence that the sterilisation procedures
had been performed on the plaintiffs due to the fact that they are
HIV positive. The second claim stands accordingly to be dismissed.







[84] In the result the following
orders are made:








  1. The first claim in respect of each of
    the plaintiffs succeeds.








2. The second claim in respect of each
plaintiff is dismissed.























________



HOFF J























ON BEHALF OF THE 1st
3rd PLAINTIFFS: ADV. D SMUTS SC



ASSISTED BY ADV. N BASSINGTHWAIHTE







Instructed by: LEGAL ASSISTANCE
CENTRE















ON BEHALF OF THE DEFENDANT: ADV. E
SCHIMMING-CHASE







Instructed by: GOVERNMENT ATTORNEY