POSITION OF THE LAW ON THE APPLICATION OF A PARTICULAR FORM OF MEDICAL TREATMENT ON A CHILD

CASE TITLE: ESABUNOR & ANOR v. FAWEYA & ORS (2019) LPELR-46961(SC)

JUDGMENT DATE: 8^TH MARCH, 2019

 PRACTICE AREA: MEDICAL LAW

LEAD JUDGMENT: OLABODE RHODES-VIVOUR, J.S.C.

 SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Medical Law.

FACTS

The 1st appellant, a child of one month old was rushed to the Chevron Clinic by his mother, the 2nd appellant.  Dr Faweya, the 1st respondent, examined him and found that the child was suffering from severe infection and anemia (lack of blood). Antibiotics (generic ciprofloxacin) were administered on the child to help fight the infection. In the morning of the next day, Dr Faweya observed that the child was in very bad shape with poor colour, was convulsing and had poor breathing. The child was immediately placed on oxygen therapy. According to Dr Faweya it became increasingly obvious to him that the child desperately needed a blood transfusion to remain alive.

The child’s mother bluntly refused blood transfusion for her child. She made it clear that because of her religious beliefs, being a member of the Jehovah Witness Sect she cannot consent to her child receiving blood.

Acts 15:29 in the Bible says in part:

“Keep abstaining from blood…”

Jehovah Witnesses believe that the Bible commands that they do not ingest blood included through transfusion.  ​The next day, the learned counsel for the Commissioner of Police, Lagos State moved an Originating Motion Exparte before the Chief Magistrate pursuant to Section 27 (1) and (30) of the Children and Young Person’s Law Cap 25 of Lagos State.

The relief sought was:

“that the medical authorities of the Clinic of Chevron Nigeria Limited Lekki Peninsula Lagos be allowed and are hereby permitted to do all and anything necessary for the protection of the life and health of the child TEGA ESABUNOR and for such further order or orders as the Court may deem fit to make in the circumstances.”

After hearing counsel, the Chief Magistrate granted the application under its inherent jurisdiction. On receipt of the Order of the Chief Magistrate blood transfusion was administered on the 1st appellant by the 1st respondent on the same day. (i.e. 12 May, 1997). The 1st appellant got well and was discharged. His mother took him home. On 15 May, 1997 the 2nd appellant filed an application on notice wherein she sought for the setting aside of the order made on 12 May, 1997. The application was unsuccessful. It was dismissed on 21 May, 1997.

The appellants’ were dissatisfied with the proceedings before the Chief Magistrate, so they approached the High Court for a certiorari order and damages. In a considered Ruling delivered on 28 May, 2001 the learned trial judge refused their prayers and claims.

The appellants’ were not satisfied with the Ruling of the High Court. They filed an appeal. It was heard by the Court of Appeal, Lagos Division and was dismissed hence this appeal to the apex Court.

ISSUES FOR DETERMINATION

The Apex Court determined the appeal on the following Appellants’ issues:

(1) Whether the learned Justices of the Court of Appeal misdirected themselves when they abandoned the issue of jurisdiction of the Chief Magistrate Court which they earlier set out to determine.

(2) Whether the Court of Appeal was right in affirming the decision of the High Court which refused to quash the Orders and the proceedings before the 5th respondent for lack of jurisdiction.

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

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

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

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

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

DECISION/HELD

On the whole, the appeal was unanimously dismissed for lack of merit.

RATIOS:

• MEDICAL LAW – RIGHT OF A PATIENT: Position of the law on the application of a particular form of medical treatment on a child
• JUDGMENT AND ORDER- ORDER OF CERTIORARI: Circumstances where the remedy by certiorari proceedings would be granted
• JURISDICTION- JURISDICTION OF THE MAGISTRATE COURT: Whether a Chief Magistrate has inherent jurisdiction to prevent the commission of a criminal offence
• PRACTICE AND PROCEDURE- ISSUE OF JURISDICTION: Whether a decision of a Court on the issue of jurisdiction must have jurisdiction mentioned