CASE OF THE WEEK: ESABUNOR & ANOR. V. FAWEYA & ORS.(2019)LPELR-46961(SC)

CASE OF THE WEEK:

ESABUNOR & ANOR. V. FAWEYA & ORS.(2019)LPELR-46961(SC)

ISSUE:

  1. Whether a refusal to give consent to blood transfusion because of religious beliefs amounted to an attempt to commit a crime.

FACTS OF THE CASE

Tega Esabunor was born on 19thof April, 1997 at the Chevron Clinic, Lekki Peninsula in Lagos. Within a month of his birth he fell gravely ill. His mother took him back to the Chevron Clinic on 11 May, 1997 for urgent treatment. Dr. Tunde Faweya who treated the baby boy found that the baby boy urgently needed blood transfusion.

His parents made it abundantly clear to the doctor that on no account should their child be given blood transfusion. Their reason being that there were several hazards that follows blood transfusion such as contracting Aids, Hepatitis etc and that as members of the Jehovah’s Witness sect, blood transfusion was forbidden by their Religion but Dr. Tunde Faweya did not agree with them.

The next day, Dr. Tunde Faweya on behalf of the medical authorities of the Clinic and through the Lagos State police sort permission from the court under Section 27 (1) and (30) of the Children and Young Person’s Law Cap 25 of Lagos State, to be allowed and permitted to do all and anything necessary to protect the health and life of the child.

After hearing the lawyer representing the Lagos State Police, the Chief Magistrate granted the application and gave the order. With the permission of the Chief Magistrate, Dr. Tunde Faweya administered blood transfusion on the child on the same day.

The child got well and was discharged. His mother took him home. On 15th of May, 1997 his  mother filed an application in court where she asked the court to quash the permission given to the clinic but their application was unsuccessful and was consequently dismissed.

The mother, dissatisfied with the ruling of the Chief Magistrate, approached the High Court for an order of Certiorari( to review the decision of the magistrate court and quash it) and damages of N10 million. In a considered ruling delivered on May 28, 2001 the learned trial judge refused her prayers and claims.

The mother, still not satisfied with the ruling of the High Court, filed an appeal. The Court of Appeal, Lagos Division, heard it and agreed with the decision of the High Court. Further dissatisfied, she appealed to the Supreme Court.

The Supreme Court agreed that the court of appeal was correct in holding that the mother’s refusal to give consent to blood transfusion for her child amounted to an attempt to commit a crime and an attempt at deliberately allow the child to die.   It held as follows:

That an adult who is conscious and in full control of his mental capacity, and of sound mind has the right to either accept or refuse blood transfusion (medical treatment). The hospital has no choice but to respect their patients’ wishes but when it involves a child, different considerations apply and this is so because a child is incapable of making decisions for himself and the law is duty bound to protect such a person from abuse of his rights as he may grow up and disregard those religious beliefs. It makes no difference if the decision to deny him blood transfusion is made by his parents.

The Court went further to say that when a competent parent or legal guardian refuses blood transfusion or medical treatment for her child or ward on religious grounds, the Court should step in, consider the baby’s welfare, i.e. saving the life and the best interest of the child, before a decision is taken. These considerations outweigh religious beliefs of the Jehovah Witness Sect. The decision should be to allow the administration of blood transfusion especially in life threatening situations.

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