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JANUARY 5, 2016

Namibia Supreme Court Upholds Patients’ Rights and Religious Freedom

The Supreme Court of Namibia has ruled to protect a patient’s right to bodily self-determination and personal autonomy in making treatment decisions. The Court also recognized the validity of a written advance directive informing health-care providers of the patient’s treatment wishes.

Childbirth and a Medical Emergency

The legal case before the Court concerned the health of Efigenia Semente, one of Jehovah’s Witnesses. In preparation for the birth of her third child, Mrs. Semente informed her physician that she would not accept blood transfusions because of her religious convictions. She also gave him an advance medical directive in the form of a durable power of attorney. In this document, Mrs. Semente expressed her unequivocal refusal of blood and designated her husband as her health-care agent to make decisions for her if she became incapacitated.

The physician safely delivered her daughter on September 8, 2012, but Mrs. Semente required postdelivery surgery. Her husband, as her health-care agent, consented. However, complications arose during the surgery, and the physician wished to administer a blood transfusion. Mr. Semente refused on his wife’s behalf, consistent with her advance medical directive. The doctor successfully operated without a blood transfusion, but Mrs. Semente came out of surgery with low hemoglobin levels.

High Court Intervention

On September 13, 2012, while Mrs. Semente was recovering from surgery, her eldest brother applied to the High Court of Namibia to be appointed as her legal curator so that he—instead of her husband—could direct her medical treatment. Although neither Mrs. Semente nor her husband received notice of her brother’s application, the court conducted a hearing in their absence and ordered her brother appointed as curator. Her brother thereafter directed the medical staff to transfuse Mrs. Semente against her will, but she repeated her refusal and resisted their efforts, thus preventing the transfusion.

When Mrs. Semente learned that the court had appointed her brother as her curator, she made an urgent application to the High Court to rescind the order. She argued that she was of sound mind when her brother applied for curatorship and that her brother’s authorization of a blood transfusion violated both her religious beliefs and her right to bodily self-determination. The court dismissed her application and allowed her brother to continue as her curator.

Although Mrs. Semente’s doctor testified that she would die without a transfusion, her condition improved with nonblood medical management, and she was discharged from the hospital on September 26, 2012, without being transfused. However, the High Court had appointed her brother as her curator indefinitely. Viewing the curatorship as a violation of her personal autonomy and basic human rights, Mrs. Semente appealed to the Supreme Court of Namibia.

“The facts of this matter concern some of [the] most essential human rights issues likely to arise in litigation. They relate to the right to bodily autonomy, the right to freely practice one’s religion, and the freedom from discrimination.”—Supreme Court of Namibia.

Supreme Court Judgment

On June 24, 2015, the Supreme Court of Namibia upheld Mrs. Semente’s fundamental rights and rescinded her brother’s curatorship. The Supreme Court condemned as “entirely inappropriate” the lack of notice to Mrs. Semente and her husband and the High Court’s one-sided hearing that appointed Mrs. Semente’s brother as her curator.

The Supreme Court highlighted that the Namibia Constitution guarantees personal liberty and human dignity as the basis of patient autonomy. The Court stated: “The principle of patient autonomy reflects that it is a basic human right for an individual to be able to assert control over his or her own body. . . . Medical practitioners must inform their patients about the material risks and benefits of the recommended treatment but it is up to the patient to decide whether to proceed with a particular course of treatment.”

“It is a basic human right for an individual to be able to assert control over his or her own body.”—Supreme Court of Namibia.

Ultimately, in reviewing Mrs. Semente’s competency to refuse blood transfusions, the Supreme Court concluded that the High Court gave insufficient weight to her durable power of attorney. The Supreme Court further stated: “Written advanced directives which are specific, not compromised by undue influence, and signed at a time when the patient has decisional capacity constitute clear evidence of a patient’s intentions regarding their medical treatment.”

The Supreme Court also addressed the question of whether a child’s right to be raised by her parents restricts her parents’ right to choose their medical treatment. After reviewing international case law, the Court concluded that “the right to choose what can and cannot be done to one’s body, whether one is a parent or not, is an inalienable human right.”

The Supreme Court of Namibia has strengthened the right to bodily self-determination and has recognized advance medical directives as evidence of a patient’s values and treatment choices. By upholding the rights to bodily integrity and religious freedom, the Supreme Court has protected basic human dignity and liberty for all Namibians.