Court name
High Court
Case number
216 of 2012
Title

Ex parte: Chingufo In re: Semente v Chingufo (216 of 2012) [2012] NAHC 247 (25 September 2012);

Media neutral citation
[2012] NAHC 247
Coram
Parker AJ













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: A 216/2012








In the ex parte
application of:








ARSÉNIO ABEL
CHINGUFO
......................................................................APPLICANT



In re: EFIGENIA
SEMENTE








EFIGENIA SEMENTE
..................................................................................
APPLICANT



and



ARSÉNIO ABEL
CHINGUFO
..................................................................RESPONDENT








Neutral citation:
In re Efigenia Semente; Semente v Chingufo (A 216/2012) [2012]
NAHCMD 2 (25 September 2012)








Coram: PARKER AJ



Heard: 15
September 2012



Delivered: 25
September 2012








Flynote: Medical
treatment – Adult patient – Consent to treatment –
Freedom to refuse treatment only subject to patient being competent
to exercise such freedom and need to save life of another, eg unborn
baby.








Summary: Medical
treatment – Adult patient – Consent to treatment or
refusal to treatment – Patient’s right based on his or
her freedom of individual (or personal) autonomy – Patient
refusing blood transfusion on basis of her religious faith as a
Jehovah’s witness – Right to decide one’s own fate
presupposes a capacity to do so – Where patient is comptos
mentis
patient is not competent to exercise right to refuse
medical treatment – Court entitled to order suitable treatment.










ORDER






  1. that Mrs Efigenia
    Semente’s (applicant’s) non-compliance with the forms
    and service provided in the rules of court is condoned and the
    rescission application is heard as one of urgency.










  1. that Mrs Efigenia
    Semente’s rescission application is dismissed with costs.










  1. that Dr Gideon Herbert
    Burmeister or any other suitable medical practitioner or
    practitioners as directed by Dr Burmeister or by any other doctor in
    accordance with the practice at the Medi Clinic Hospital, Windhoek,
    is authorized and directed to render appropriate medical treatment
    or medical procedures to Efigenia Semente, and such medical
    treatment or procedure shall include a blood transfusion.










  1. that Mrs Efigenia
    Semente shall pay costs of the rescission application and the
    counter application on the scale as between party and party.











JUDGMENT










PARKER AJ:








[1] The instant
proceeding is multifaceted. It consists of a rescission application
and an opposition to it and a counter application and an opposition
to it. On 13 September 2012 the court heard an ex parte
application on urgent basis brought by the applicant Arsénio
Abel Chingufo in In re Efigenia Semente.








[2] The court there took
the view that the matter was urgent so much so that it permitted the
applicant Chingufo to move his application without any papers have
been filed. In that behalf, Mr Corbett, counsel for the applicant
Chingufo, adduced viva voce evidence from Chingufo. Chingufo is the
older brother of Mrs Semente (the subject matter of the ex parte
application and in the present proceeding (as fully discussed below)
and from Dr Burmeister. Dr Burmeister is a Specialist Obstetrician
treating Mrs Semente at the Medi Clinic Hospital, Windhoek, where Mrs
Semente is hospitalized. I accept that Chingufo is the older brother
of Mrs Semente and he brings the application as a member of ‘the
family’ and on behalf of ‘the family’.








[3] The court having been
satisfied that a case had been made out for the grant of the relief
sought made the following order (‘the 13 September 2012
order’):








(a)
The forms and procedures provided for in the rules of court are
dispensed with and the matter is heard on an urgent basis;








(b)
The applicant, Arsénio Abel Chingufo, is appointed as a
curator to the person of Efigenia Semente;








(c)
The curator so appointed is authorised to instruct a medical
practitioner(s) to render appropriate medical treatment to Efigenia
Semente and consent to any such medical procedure on her behalf, such
medical procedures to include a blood transfusion and any other
procedure and/or treatment considered appropriate by such medical
practitioner(s).’








[4] On 15 September 2012
Mrs Semente represented by Mr Heathcote SC (assisted by Mr Denk
before Mr Denk was asked by the Court to withdraw for conduct
unbecoming of a legal practitioner practicing without a Fidelity Fund
Certificate and thereafter assisted by Mr Rukoro), brought an urgent
application by notice of motion in which she seeks the rescission and
setting aside of the 13 September 2012 order and costs on the basis
that that order was erroneously sought or erroneously granted. Mrs
Semente’s application is supported by her founding affidavit,
an affidavit of Mr Emmanuel Semente (the husband of Ms Semente) and
an affidavit of Dr Reinhardt Sieberhagen, ‘a psychiatrist in
private practice’.








[5] Chingufo has not only
moved to reject the rescission application, he has also brought a
counter application to the application of Mrs Semente whereby
Chingufo seeks the relief set out in the notice of motion (as amended
by Mr Corbett from the Bar on account of the oral evidence given by
Dr Burmeister that a moment before the commencement of the present
proceeding he received a call from Mr Semente that Dr Burmeister had
been removed as Mrs Semente’s doctor. No evidence was led to
establish upon what authority Mr Semente did that. Anyway, I have
only mentioned this piece of evidence to explain Mr Corbett’s
submission from the Bar to amend the relevant portions of the prayers
in the counter application.








[6] Mr Corbett adduced
the evidence of Chingufo, Dr Burmeister and Prof. Dr Pieper, a
Specialist in pediatrics and neourotomy, or suchlike field (as I
could gather from Prof. Dr Pieper’s evidence) in support of
Chingufo’s case.








[7] The present
proceeding involves a tug of war around the hospital bed (at the Medi
Clinic Hospital, Windhoek) of Efigenia Semente (the applicant in the
rescission application and respondent in the counter application).
Mrs Semente, according to the evidence of Dr Burmeister (who at all
material times was treating Mrs Semente, as aforesaid), which I
accept, needs a blood transfusion to survive after a Caesarian
section to deliver her baby and thereafter an operation to remove her
uterus. If he had a free hand, Dr Burmeister would have administered
a blood transfusion but felt prevented from doing that because while
preparing Ms Semente for the Caesarian section prior to going into
the theatre Mrs Semente gave him a copy of ‘Durable Power of
Attorney for Health’. Dr Burmeister understood that document to
indicate that upon her religious beliefs as a member of the Jehova’s
Witness, Mrs Semente did not want a blood transfusion.








[8] The instant
proceeding revolves around the enjoyment of basic human rights
guaranteed by the Namibian Constitution. In that regard, at the
outset, I make the crucial point that from the oral evidence adduced
in support of the case of Chingufo, I find that it is not the case of
Chingufo that Mrs Semente is not entitled to enjoy her right to
freedom to practice any religion and manifest such practice
guaranteed to her by Article 21(1)(c) of the Namibian Constitution.
That being the case, whether or not there has been a ‘law’
in Namibia that has imposed ‘reasonable restrictions on the
exercise of’ that freedom is of no moment in this proceeding.
Up to and during the hearing it was never the case of Chingufo that
Mrs Semente’s enjoyment of her Article 21(1)(c) right should be
restricted. Furthermore, the motive of Mrs Semente for refusing blood
transfusion is also of no consequence in the present proceeding. Mr
Chingufo does not ask the court to look into any such motive.








[9] Nor is that all. As I
understand Mrs Semente’s case, which is ably argued by Mr
Heathcote, Mrs Semente also seeks protection of her personal liberty
under Articles 7 and 8 of the Namibian Constitution. In that behalf,
as I see it, Mr Heathcote correctly conflates these two apparently
related basic human rights, which – as I say – are
guaranteed by the Namibian Constitution into what some text writers
refer to as freedom of ‘individual autonomy’ (eg Mark
Janis et al, European Human Rights Law, 1996 at 268) or
freedom of ‘personal autonomy’ (eg S A Strauss, Doctors
Patient and the Law
at 31-32, referring to John Stuart Mill’s
famous essay On Liberty (1859), Cambridge University Press
edition (1989) at 13).








[10] I did not hear
Chingufo (in his oral evidence) or Mr Corbett to say that Mrs Semente
should be denied her personal liberty or her freedom of individual
autonomy. From the evidence I do find rather that the essence of the
case of Mr Chingufo is based on two pillars. The first pillar is that
Mrs Semente is not compos mentis to exercise her right to
refuse treatment in the form of blood transfusion. The second pillar
is that Mrs Semente’s enjoyment of her freedom of individual
autonomy should be considered against the child rights of Mrs
Semente’s eight-day’s old baby boy that was delivered by
Caesarian section and, indeed, the child rights of her other two
children and the interests of the larger family and society in
general.








[11] The case of Mrs
Semente is that the two pillars upon which Mr Chingufo relies for his
case have no merit: they cannot stand in law. I shall now proceed to
consider the first pillar first for obvious reasons. The exercise of
Mrs Semente’s freedom of individual autonomy depends upon
whether she is competent to exercise such freedom.








[12] Geoffrey Robertson
QC writes in his insightful and famous work Freedom, the
Individual and the Law
(1993) at 459 thus:








As
a Canadian court pointed out, in stopping a hospital from transfusing
blood to save the life of a card-carrying Jehovah’s Witness:








At
issue here is the freedom of the patient as an individual to exercise
her right to refuse treatment and accept the consequences of her own
decision. Competent adults are generally at liberty to refuse medical
treatment even at the risk of death. The right to determine what
shall be done with one’s own body is a fundamental right in our
society.” ’








This statement was
approved by the English Court of Appeal in Re T (Adult: refusal of
medical treatment)
(1992) 4 ALL ER 649 (CA) which also involved a
tug of war around the hospital bed of a woman who had been brought up
as a Jehovah’s Witness, and who needed a blood transfusion to
survive after an operation. In a drugged state, and after talking to
her mother (a Jehova’s Witness), she indicated she did not want
a transfusion and lapsed into unconsciousness. Her father and her
boyfriend, who were not members of the faith, urged a High Court
judge at 11 p.m. at night to save her life by ordering medical staff
(who were twiddling their thumbs) to give her a transfusion. The
Court of Appeal approved the order, because of doubt about T’s
real wishes (her mother had exerted undue influence) but confirmed
the right of patients to decide their own treatment if they were
capable of doing so by ratiocination, even if their conclusion was
irrational.








[13] Thus, it was held in
Re T that although prima facie every adult had the right and
capacity to decide whether he would accept medical treatment, even if
a refusal might risk permanent injury to his health or even lead to
premature death, and regardless of whether the reasons for the
reasons for the refusal were rational or irrational, unknown or even
non-existent, if an adult patient did not have the capacity at the
time of the purported refusal and continued not to have that
capacity, or if his capacity to make a decision had been overborne by
others, it was the duty of the doctors to treat him in whatever way
they considered, in the exercise of their clinical judgment, to be in
his best interests. On the facts, the doctors had been justified in
disregarding T’s instructions and in administering a blood
transfusion to her as a matter of necessity since the evidence showed
that T had not been fit to make a genuine decision because of her
medical condition and that she had been subjected to the undue
influence of her mother, which vitiated her decision to refuse a
blood transfusion. The appeal was therefore dismissed.








[14] In my opinion the
golden thread that runs through the Canadian case and Re T is
that just because adults have the right to choose, it does not follow
that they have in fact exercised that right ‘The right to
decide one’s own fate presupposes a capacity to do so’
(per Lord Donaldson of Lymington MR in Re T at 661f-g).








[15] From the evidence of
Dr Burmeister who, at all material, as I have said more than once, is
the Specialist doctor treating Mrs Semente, I make the following
factual findings. Mrs Semente is awake at the Intensive Care Unit and
she has been put on a respirator. As a result of massive bleeding
following upon the Caesarian operation and the subsequent removal of
her uterus, her blood count is so low – that is, at below the
normal blood count of 7 – that she does not get enough oxygen
to the brain and all her vital organs at this stage. The consequence
of this is that ‘she is not 100% functioning mentally’
(to use Dr Burmeister’s words). I understand Dr Burmeister to
mean that Mrs Semente is not fully in control of her mind: she is not
compos mentis.








[16] Mrs Semente on the
other hand, relies on the affidavit evidence of Dr Reinhardt
Sieberhagen (mentioned previously) to challenge Dr Burmeister’s
evidence that Mrs Semente is not compos mentis. I make the
following crucial and critical factual finding about the conduct of
Dr Sieberhagen and his affidavit. Dr Sieberhagen is not involved in
treating Mrs Semente. He does not say he practices at the Medi Clinic
Hospital. He did not have – at least – the professional
courtesy to ask Dr Burmeister to allow him ‘to perform(ed) a
psychiatric evaluation in respect of Mrs Semente’, as he states
in his affidavit. In this regard, I accept Dr Burmeister’s
evidence (given in response to the court’s question) that it is
not permissible and, therefore is unethical in medical practice for a
doctor to have professional consultation with a patient in a hospital
that he or she is not treating. On that account it would be
unjudicial for this court to accept Dr Sieberhagen’s affidavit
on any ‘psychiatric evaluation’ that, he says, he
performed on Mrs Semente. To accept the affidavit and deal with it as
evidence in this court would amount to judicial encouragement of
unethical behaviour in the medical profession and bring the
administration of justice into disrepute. Accordingly, I reject Dr
Sieberhagen’s affidavit as irrelevant. It cannot be admitted
into evidence in this proceeding.








[17] It follows
inevitably that the only medical evidence respecting the competency
or otherwise of Mrs Semente to exercise her freedom of individual
autonomy is that of Dr Burmeister. And I find that Dr Burmeister’s
evidence on the point under consideration is not so far-fetched that
it can be rejected. I rather find it to be cogent, credible and
relevant. His evidence is that Mrs Semente is not compos mentis.
Consequently, I hold that, upon the authorities referred to
previously, Chingufo has established that Mrs Semente is not compos
mentis
, and so she is not competent to exercise her freedom to
refuse blood transfusion upon the basis of her freedom of individual
autonomy. Having so found, it is otiose to consider Chigufo’s
second pillar mentioned previously. It is for this reason that I do
not find it necessary to consider the evidence of Prof Dr Pieper, a
highly qualified medical specialist in her field.








[18] Accordingly, I hold
that the 13 September 2012 order was not erroneously sought or
erroneously granted. Mrs Semente’s rescission application
therefore fails. By a parity of reasoning I hold that Mr Chingufo has
established that he is entitled to the relief sought in the counter
application. His counter application, therefore, succeeds.








[19] For all these
reasoning and conclusions, the following order is made:









  1. that Mrs Efigenia
    Semente’s (applicant’s) non-compliance with the forms
    and service provided in the rules of court is condoned and the
    rescission application is heard as one of urgency.










  1. that Mrs Efigenia
    Semente’s rescission application is dismissed with costs.










  1. that Dr Gideon Herbert
    Burmeister or any other suitable medical practitioner or
    practitioners as directed by Dr Burmeister or by any other doctor in
    accordance with the practice at the Medi Clinic Hospital, Windhoek,
    is authorized and directed to render appropriate medical treatment
    or medical procedures to Efigenia Semente, and such medical
    treatment or procedure shall include a blood transfusion.










  1. that Mrs Efigenia
    Semente shall pay costs of the rescission application and the
    counter application on the scale as between party and party.
























-------------------------



C Parker



Acting Judge


















APPEARANCES













APPLICANT: R Heathcote SC
(with him A Denk), replaced by R Rukoro)



Instructed by LorentzAngula Inc.,
Windhoek.








RESPONDENT: A Corbett



Instructed by Du Plessis,
Roux, De Wet Attorneys, Windhoek.