Guardian v State: On the Right to Life and the Right to Religion
By Taiwo Doherty
Religion is practiced with a lot of peculiar catechism and diverse idiosyncrasies. These vary from permissible dress code, manner of speech, dietary regulations, dictates for marital relationships, rituals, display of symbols and observance of holidays etc. Some of these religious tenets go further to restrict or prohibit certain acts, and in the particular context of this article, certain medical procedures. The various manifestations of religion are permissible fundamental rights. However, there may be instances where the right to manifest your religion or belief may intersect with another fundamental right- such as the right to life.
This article seeks to examine how the courts attempts to broker a compromise between these competing rights and determine whether the right to religion can indeed avail a person to deny another, particularly a dependent, his right to life and if it does, to what extent. The article further gives an exposition on the liability of medical practitioners in a quagmire involving the Hippocratic oath and an individual’s right to decide what treatment may be afforded him.
- The Intersection of Right to Life and Right to the Practice of Religion
Section 38 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief and freedom (either alone or in community with others and in public or private), to manifest and propagate his religion or belief in worship, teaching, practice and observance.
This right is a fundamental human right, recognized in all the major Human Rights Treaties. Article 18 of the Universal Declaration of Human Rights (UDHR) adopted by the United Nations in 1948, Article 18(1) of the International Covenant on Civil and Political Rights 1966 (ICCPR), and Article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) all guarantee freedom of thought, conscience and religion.
Section 33 of the Constitution also guarantees the right of every person to life. It provides that no person shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria. A person shall also not be regarded as having been deprived of his life in contravention of the constitution if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary:
- for the defense of any person from unlawful violence or for the defence of property;
- in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
- for the purpose of suppressing a riot, insurrection or mutiny.
The right to religion under the constitution has two components. The first is the right to freedom of thought, conscience and religion, which is the right to hold or to change one’s religion or belief. This right cannot be derogated from under any circumstances, even in time of public emergency. The second is the right to manifest one’s religion or belief, which, according to Articles 9(2) ECHR and 18(3) ICCPR, may be subject only to such limitations as are prescribed by law and is necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
The freedom to manifest religion or belief may be exercised either individually or in community with others, and in public or private. The freedom to manifest religion or belief in worship, observance, practice, and teaching encompasses a broad range of acts, which however, have to be exercised with consideration for the fundamental rights of others and subject to the protection of the freedoms of others as is necessary in a society governed by law. It therefore follows that these rights may be limited where they threaten the sanctity of certain aspects of social and lawful order.
The right to life is a sacred and fundamental right, and save for the exceptions provided by the constitution, nobody may be deprived of same. While an adult may have full control of the course of his life, children who have not attained the age of majority may be subject to the idiosyncrasies of their parents, guardians or whoever fills the void loco parentis. They inherit their parents’ names, manners and most times adopt their religious beliefs and dogma. The decisions that children make before attaining the legal age of majority are heavily influenced by the beliefs of the parents or guardians. In some instances, these decisions are wholly determined by the parents or guardians. While this may not be exactly dangerous, and in fact may be the lawful exercise of their responsibility for such a ward, what happens where this choice or decision by a guardian on behalf of his/her ward concerns the very existence of such a child?
- State interest in the continuity of life: judicial attitude
As a manifestation of their religious belief, there are religious sects that prohibit certain medical procedures which may be necessary for the continuity of life, in this instance, blood transfusion. While it may be logical to conclude that an adult may be within his/her right to refuse blood transfusion, which decision may in fact be damaging to his/her life, a conclusion that such an adult may make a similar decision of behalf of his/her ward would deservedly raise some concern. The attitude of the courts to this conundrum is quite interesting.
In the case of Esabunor & Anor v. Faweya & Ors (2008) 12 N.W.L.R (Pt 1102) pg. 793 at 794 C.A, the 1st Appellant had fallen sick barely a month after his birth. After observation, the medical personnel concluded the 1st Appellant would die without blood transfusion. The mother (2nd Appellant) declined based on her religious belief as a Jehovahs Witness. The police were alerted, and a court order was obtained from a Magistrate authorizing the management of the clinic to do everything necessary to save the life of the 1st Appellant. The 1st Appellant quickly got better after the blood transfusion. The mother appealed the order of the Magistrate Court to the High Court and then the Court of Appeal. Both appeals were dismissed.
The Court of Appeal enunciated on the limits to right to religious belief to the effect that: “although a person has a right to choose a course for his or her life, that right is not available to determine whether her son should live or die on account of her religious belief. In the instant case, the 1st and 2nd respondents acted upon an order of court duly procured by the commissioner of Police on behalf of the State. The authority or right of the appellants to withhold consent to the blood transfusion was therefore overridden by the court order.”
The Court further elaborated on the fact that overriding state interest may impugn the freedom of an individual to his religious beliefs when it observed that: “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 limit of these freedoms in all cases are where they impinge on the right of others or where they put the welfare of society or public health in jeopardy. The sum total of the right of privacy and of freedom of thought, conscience or religion which an individual has, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary.”
At this juncture, the question is- what factors would sufficiently invoke state interest in the exercise of an individual’s right to freedom of religion?
The Court of Appeal in Esabunor’s case strongly condemned the attempt by the 2nd Appellant to deny the 1st Appellant of his life based on her religious belief and held that: “the 2nd appellant’s religious belief had no bearing in the wanton dissipation of the 1st appellant’s life. Clearly, the 1st appellant, being an infant was incapable of giving consent to die on account of the religious belief of the 2nd appellant. The 2nd appellant’s desire to sacrifice the 1st appellant’s life is an illegal and despicable act, which must be condemned in the strongest terms”.
The attitude of the courts in a line of decided cases is that while an adult of full age and capacity may decide to refuse medical treatment where his/her life is at stake, the right to life of a child who does not have the capacity to give consent would constitute sufficient state interest to erode the freedom of religion of the child’s guardian. The courts have also held that the existence of a dependent may also impinge on the ability of an adult to decline a life-saving treatment. See M.P.D.T v. Okonkwo (2001) 7 NWLR (Pt 711) pg 206 S.C
- The Liability of Medical Practitioners
The Supreme Court has in the case of Medical and Dental Practitioners Disciplinary Tribunal v. Dr John Emewulu Nicholas Okonkwo (2001) 7 NWLR (Pt 711) pg 206 S.C, decided on the issue of liability of medical practitioners in circumstances where patients refuse life-saving treatments. This was a similar case of a patient refusing blood transfusion occurred, only that this time, it involved an adult. Mrs. Martha Okorie (the patient) and her husband were members of the Jehovah’s Witnesses community. Mrs Okorie was 29 years old and had just had a delivery and was admitted at a hospital. The hospital diagnosed her of a serious ailment and recommended blood transfusion. The patient and her husband refused to give their consent. The hospital discharged them with a note to read that they had suggested blood transfusion to the couple, and they had refused same on their own accord.
Upon their discharge, the couple proceeded to another hospital where they presented to the doctor, the Respondent in the case, a medical directive/release from liability and refused blood transfusion for the patient in very clear terms. The hospital management also recommended blood transfusion but proceeded to treat the patient without transfusing blood per the release from liability issued by the couple. The patient eventually died on 22nd August 1991.
The Respondent was charged before the Medical and Dental Practitioners Disciplinary Tribunal for acting contrary to his oath as a medical practitioner and thereby conducting himself infamously, and for attending to the patient in a negligent manner and thereby conducting himself in a professional respect contrary to medical ethics. Although the patient’s husband testified in favour of the Respondent, the Tribunal found the Respondent guilty of the charges for holding on to the patient knowing full well that the correct treatment cannot be given in the face of failure to obtain consent. However, both the Court of Appeal and Supreme Court set aside the decision of the Tribunal.
The Supreme Court per Hon. Justice Ayoola J.S.C instructed that a patient’s constitutional right to object to medical treatment or particularly, to blood transfusion on religious grounds is founded on fundamental right to privacy and freedom of thought, conscience, and religion, all guaranteed by the constitution. In that case, the Court held that: “the right to privacy implies a right to protect one’s thoughts, conscience or religious belief from coercive and unjustified intrusion; and one’s body from unauthorized 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.”
Thus, the Supreme Court recognized the right of a competent adult patient exercising his right to reject lifesaving treatment on religious grounds, thereby choosing a path that may ultimately lead to his death. The court further held that if a decision to override the decision of an adult competent patient not to submit to blood transfusion or medical treatment on religious grounds, is to be taken on the grounds of public interest or recognized interest of others, such as dependent minor children, it is to be taken by the courts.
Thus, the court absolved medical practitioners of the responsibility of balancing several interests including the constitutionally protected right of the individual, state interest, safety and welfare of the society, and the interest of the medical profession in preserving the integrity of medical ethics and reposed same in the courts of law.
It would therefore appear that where a medical practitioner is faced with a patient that refuses a lifesaving treatment, a proper course of action would be to submit such a case to the court to determine if there is sufficient state interest to override the individual’s exercise of his/her freedom of religion. The Court may however be more inclined to come to a finding that no injustice can be occasioned in upholding an individual’s right to privacy where the direct consequence of a decision not to submit to medical treatment is limited to the competent adult patient alone.
- Conclusion
Rights, even though fundamental and constitutionally guaranteed may not always be absolute. There are situations where the exercise of these rights may overlap and intersect. Where this happens, it is important that a compromise is reached, considering the individual’s right, in juxtaposition with the right of third parties, or even public policy/interest. While the courts may be tolerant of a competent adult patient’s decision to refuse lifesaving treatment, state intrusion into the exercise of this freedom has been justified by the Courts in situations where an infant who cannot give consent is involved or where such an adult has dependent minor children.
