M.D.P.D.T. v. Okonkwo [2001] 7 NWLR (Pt. 711) 206, per Ayoola, JSC:

“The patient is free to decide whether or not to submit to treatment recommended by the doctor. If the doctor making a balanced judgment that advises the patient to submit to the operation, the patient is entitled to reject the advice for reasons which are rational or irrational or for no reason.”

“In several cases, the courts have refused to override the patient’s decision, in others, they have found ways round the problem of the paramountcy of the patient’s consent. What is important is that in no case has the decision to override the patient’s decision been left with the medical practitioner or the hospital.”

Notes:

The summary of the above statement of the law is that every adult patient has a right to refuse life-saving treatment prescribed by a medical doctor. Note, the rejection may be for a good or stupid reason or for no reason at all. That’s it! The doctor has no power to force any patient to undergo a particular treatment even if such treatment is capable of saving the life of the patient. It is absolutely immaterial that the patient is at the very point of death.

For some time, it was clear and acceptable that doctors lack the power to coerce any patient to accept a particular prescribed treatment. However, uncertainty in the law came about when an issue arose at to whether the doctor can in turn become liable for the death of the patient who had refused treatment. In other words, what options are available to the doctor in the event that a patient refuses treatment. Ayoola, JSC (as he then was), gave a perfect guide:

“Since the patient’s relationship with the practitioner [i.e., the doctor] is based on consensus, it follows that the choice of an adult patient with a sound mind to refuse informed consent to medical treatment, barring state intervention through judicial process, leaves the practitioner helpless to impose a treatment on the patient. That helplessness presents him with choices. He could terminate the contract, and, I would say, callously, force the patient out of his clinic or hospital; he could continue to give him refuge in his hospital and withdraw any form of treatment; he could do the best he could to postpone or ameliorate the consequences of the patient’s choice. To a large extent, the practitioner should be the judge of the choice that may be better in the circumstances. The choices become a question of personal attitude rather than one of professional ethics.”

In making the above statement, his Lordship explained that: “…The dying are more often in need of comfort than of treatment.” By this, the doctor has, amongst others, the option to simply provide comfort to the patient, without more. This clarification became necessary owing to the facts of the instant case of M.D.P.D.T v. Okonkwo where a woman suffered some complications after delivery. The doctor in charge recommended blood transfusion. The woman and her husband roundly rejected this based on their religious belief as members of the Jehova’s Witnesses. The doctor discharged her. She was taken to another hospital by her husband with clear notes signed by both couple stating that blood transfusion must not be administered and another note from the previous doctor explaining that blood transfusion had been rejected. The second doctor (the Respondent), who is also a member of Jehova’s Witnesses, treated the woman without transfusing blood. However, the woman died. Trouble began. The deceased woman’s mother and her uncle lodged a petition against the Respondent at the Medical and Dental Practitioners Disciplinary Tribunal (“The Appellant” or “The Tribunal”).

The Respondent was accused and charged before the Tribunal for medical negligence and infamous conduct in a professional respect contrary to “Medical Ethics”. The particulars of the charges are that the Respondent failed to transfuse blood in spite of the necessity of same, failed to transfer the woman to a bigger hospital and also readily accepted not to transfuse blood because he is a Jehova’s Witnesses faithful. The Respondent pleaded not guilty, maintaining that he would have transfused blood if the deceased woman and her husband had not objected. He also stated in his defence that he did not transfer the woman because of the confidence reposed in him and expressed in writing by the deceased’s husband.

The Tribunal found the Respondent liable concluding that the Respondent was not criticized for holding ‘this religious belief’ or for respecting the religious belief of others, but for holding on to the patient knowing fully well that the correct treatment cannot be given in the face of failure to obtain consent. He was suspended for 6 months. The Respondent’s appeal to the Court of Appeal was successful as the decision of the Tribunal was set aside. The Appellant’s appeal to the Supreme Court was dismissed.

The Supreme Court unequivocally stated that the right of a patient to consent to medical treatment was a fundamental right founded on right to privacy, freedom of thought, conscience and religion. Ayoola, JSC explained it succinctly thus:

“The right to privacy implies a right to protect one’s thought, conscience or religious belief and practice from coercive and unjustified intrusion; and, one’s body from unauthorised invasion. The right to freedom of thought, conscience or religion implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary to one’s religious belief. The limits of these freedoms, as in all cases, are where they impinge on the rights of others or where they put the welfare of society or public health in jeopardy.”

Right of patient not absolute.

The last sentence in the above statement by Ayoola, JSC simply indicates that the right of the patient to consent to treatment is not an absolute right. Thus, where the the rights of others or where the welfare of the society or public health is in jeopardy, the right would be limited. Thus, for instance, if there is an outbreak of an epidemy like ebola, the victims can be confined and treated (even against their wish) for the safety of others. Ayoola, JSC puts it expressly for avoidance of doubt:

“Where, for instance, the health and safety of society is under threat, for instance in an epidemic, public health and safety may be given a higher weight than the individual’s human rights.”

The case of children

Now, it was convenient to uphold the rights of the deceased woman and her husband in M.D.P.D.T v. Okonkwo not to accept blood transfusion being members of Jehova’s Witnesses. However, in the case of children, different rule applies. Parents cannot authoritatively decide for their children thereby denying them life-saving treatment. In the recently decided case of Esabunor v. Faweya (2019) LPELR-46961(SC), the Courts stepped in to save the life of a child who needed blood transfusion to live but the parents decided otherwise. The facts as recounted by the Court was that the 1st Appellant, a child of one month old was rushed to a hospital 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 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. The doctor remained unyielding. An application (brought under the Sections 27 (1) and (30) of the Children and Young Person’s Law Cap 25 of Lagos State) was filed by the Commissioner of Police, Lagos seeking authority to save the child’s life. The Magistrate granted the application authorising the doctor to to do all and anything necessary for the protection of the life and health of the child. On receipt of the Order of the Chief Magistrate, blood transfusion was administered on the child by the doctor on the same day. (i.e. 12 May, 1997). The child got well and was discharged. His mother took him home but later prepared for legal battle which lasted for over 20 years. They lost all the way to the Supreme Court and their claim for damages dismissed.

Interestingly, the child who would have probably died twenty years ago was named as the 1st Appellant. It is not certain what the disposition of the child (now grown up) actually is in relation to the case. But that is not our major concern though. Our main concern is the pronouncement made by the Supreme Court, relying on the case of M.D.P.D.T v. Okonkwo. Rhodes-Vivour, JSC did not disappoint. Hear him:

“All adults have the inalienable right to make any choice they may decide to make and to assume the consequences. 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. See M.D.P.D.T. v Okonkwo (2001) 7 NWLR (Pt.711) p. 206. When a competent parent or one in loco parentis refuses blood transfusion or medical treatment for her child 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.”