Appeal Heard On Sterilisation Claims

THREE judges of the Supreme Court yesterday reserved their judgement on an appeal against a High Court decision in which government was held liable to compensate three women who claimed they were sterilised in State hospitals without having properly consented to the procedure.

Chief Justice Peter Shivute and Judges of Appeal Gerhard Maritz and Sylvester Mainga reserved their judgement on government’s appeal against the judgement, delivered by High Court Judge Elton Hoff at the end of July 2012, after hearing oral arguments from lawyers Tim Bruinders, representing government, and Natasha Bassingthwaighte, who opposed the appeal on behalf of the three sterilised women.

The three women, whose identities may not be revealed because they are HIV-positive, lodged a test case against Government in 2008. They claimed they were sterilised during Caesarian section operations without having given their informed consent for such a medical procedure to be performed. They also claimed they had been sterilised because they were HIV-positive, and that this constituted impermissible discrimination on the grounds of their HIV status.

Each of the women is claiming N$1 million from government for having been sterilised without their informed consent. Each also claimed N$200 000 from government for having allegedly been sterilised because of their HIV status.In his judgement in the High Court, Judge Hoff found that it had been proven that the women did not give their informed consent for the sterilisation operation to be done. However, he dismissed the second leg of their claims when he found that no convincing evidence that the women had been sterilised because of their HIV status had been placed before the court.

While Judge Hoff has found government liable to compensate the three women over the sterilisations, the matter would still have to return to the High Court for a decision on the amount of money to be paid to the plaintiffs as compensation if the Supreme Court decides to dismiss government’s appeal against the High Court’s judgement.

Senior counsel Bruinders argued yesterday that the Supreme Court should find that Judge Hoff made an error when he ruled in favour of part of the three plaintiffs’ claim.

When each of the plaintiffs signed a consent form in which she gave her permission for the sterilisation operation to be performed she was aware of what she was giving her consent for, he argued. The evidence before Judge Hoff also showed that the medical procedure that was to be performed on them was explained to the three women before they signed the consent forms, he argued.

Bassingthwaighte argued that the evidence showed it is not considered acceptable to obtain a patient’s consent for her sterilisation when she is in the throes of labour pains. She argued that each of the plaintiffs signed a sterilisation consent form while she was experiencing severe labour pains and that none of them had been scheduled to undergo a sterilisation operation when initially admitted to hospital.

The first plaintiff in the case was 26 years old when she was sterilised with the birth of her third child at Oshakati State Hospital in June 2005. Her second child had been stillborn, the court heard.

The second plaintiff, then aged 33, was sterilised when her third child was born at Katutura State Hospital in December 2007.

The third plaintiff is the mother of six children, the court heard. She was 41 years old when she was sterilised at Katutura State Hospital in October 2005. She had attempted to terminate her last pregnancy about six months before her last child was born, the court was also informed.

Bassingthwaighte represented the plaintiffs on instructions from the Legal Assistance Centre. Bruinders, assisted by Esi Schimming-Chase, was instructed by the office of the Government Attorney.

Source : The Namibian