THE three women who sued Government for a total of N$3,6 million after being sterilised in State-run hospitals won a significant part of their case in the High Court in Windhoek yesterday.
Government did not manage to prove that the three women had given their informed consent to be sterilised when they signed consent forms before the operations through which their ability to have children was ended, Judge Elton Hoff has ruled in a landmark judgement.
However, the three women did not succeed with another part of their legal action against Government. Judge Hoff ruled that they failed to prove that they were sterilised because of their HIV status.
The three plaintiffs had all been diagnosed with HIV before they were sterilised when their last children were born through Caesarian section operations. They claimed they were sterilised because they were HIV positive, and that this constituted impermissible discrimination on the grounds of their HIV status.
Judge Hoff found that no convincing evidence that this had been the case had been placed before the court.
Yesterday's judgement dealt only with the question whether Government should be held liable for damages which the three women claim to have suffered as a result of the sterilisations.
The court would still have to determine at a future stage what amount of money Government should be ordered to pay the plaintiffs in damages.
Each of them 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. These were the claims that were dismissed by Judge Hoff.
The first plaintiff in the case - because of their HIV status none of the plaintiffs may be identified by the media, Judge Hoff has directed - was 26 years old when her third child was born by Caesarian section at Oshakati State Hospital on June 13 2005, Judge Hoff recounted some of the evidence before him in his judgement.
Like the other two plaintiffs, she was already in labour when she signed a form in which she supposedly consented to being sterilised through a bilateral tubal ligation procedure.
The second plaintiff, then aged 33, was sterilised when her third child was born at Katutura State Hospital on December 9 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 on October 13 2005.
She was three months into her last pregnancy when she experienced severe pain and asked medical staff at the hospital to have the pregnancy terminated, the court heard. This request was turned down, and her pregnancy then proceeded to its conclusion.
Judge Hoff said it appeared to him that where sterilisation as a method of contraception is considered, the advantages and disadvantages of alternative methods of contraception should be explained to a patient in order for the patient to make an informed decision about which option she would choose.
The first plaintiff had been in labour for 13 to 14 hours when it was decided that her baby should be born by caesarian section, the judge recounted. When she then signed a consent form in which she agreed to be sterilised as well, she was in severe pain and at the height of labour, he said.
The consent obtained from her was given in circumstances in which consent should not be obtained from a patient, Judge Hoff stated.
In such circumstances, she could not have been given proper counselling about the options open to her, and the consent was not obtained in an unhurried fashion, he said.
A nurse told the court that she explained the sterilisation procedure and its implications to the second plaintiff when she was not experiencing contractions while she was in labour.
This was another example of consent being obtained from a patient in circumstances where she was at the height of labour, Judge Hoff said. He found that with regard to this plaintiff, too, Government did not show that she had given informed consent for the sterilisation.
The third plaintiff was in the same position, having also signed her consent form while at the height of labour, the judge found.
The plaintiffs were represented by senior counsel Dave Smuts and Natasha Bassingthwaighte, on instructions from the Legal Assistance Centre. Esi Schimming-Chase represented Government, on instructions from the Government Attorney.
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