Q&A – 20 July 2015
Death due to transfusion refusal
I am a law student and have been reading about a group of persons who will not allow any form of blood transfusions, even if it means that they will die. Is this legal in Tanzania? Can a doctor not force them to have such a transfusion?
GH, Dar
This is a very controversial topic and we answer it with great caution.
A small group of people belonging to a certain religion do not accept blood transfusion or blood products, based on their reading of a holy book. It is true that when such group of people are in need of health care, their faith and belief is an obstacle for their proper treatment, and poses legal, ethical and medical challenges for doctors.
Our research reveals that there is no specific guideline in Tanzania that addresses the above. Our research from around the world, in common law countries like Tanzania, reveals that if a patient refuses a blood transfusion on religious grounds, the doctor is to respect such a wish even if it means that the patient will ultimately die.
We draw inspiration from a recent UK High Court application , a 63 year old lady, who had been part of this religious movement that refuses blood transfusions, was found to be bleeding from her duodenal ulcer. Discussing her plight with the gastroenterologists, she was adamant that she did not want treatment with any blood products; they were sure that she had full capacity to make this decision, and that she was aware that she could die without blood transfusion.
The conversation with the gastroenterologists was recorded in the notes, but no formal advanced decision to refuse lifesaving treatment existed.
Three days following her discussion with the gastroenterologists, the lady’s condition deteriorated, requiring ventilation and sedation. Henceforth, she lacked capacity for further decision making. Her doctors opined that a transfusion would improve her chances of survival. The doctors, not having gotten an advance decision for such a stage, approached the Court seeking a declaration that withholding transfusion would be lawful in her case.
The Court found that the lady had capacity during her early admission to decide whether to accept or refuse a transfusion; and that the advance decision she took prior to losing her capacity (to refuse transfusion) was both valid and applicable to her later more serious condition, when she had lost her capacity. It was therefore lawful to withhold transfusion. The lady unfortunately died on the day of the judgement.
The above is one of the most recent cases in England, and we believe that a similar decision would be reached in Tanzania. We believe that a patient’s religious belief are to be respected in the event that the patient refuses a blood transfusion, even if this leads to the patient’s death.
No right to appeal
There is a law that says there is no right to appeal for me to any other body including the Court of Appeal. Can this law be challenged? What should I do?
ET, Dar
Unfortunately you did not tell us what law you are referring to that disallows any appeals. The right to appeal is embedded in our constitution which states the following in article 13(6):
To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: (a) when the rights and duties of any person are being determined by the Court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the Court or of the other agency concerned; (b) no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence; (c) no person shall be punished for any act which at the time of its commission was not an offence under the law, and also no penalty shall be imposed which is heavier than the penalty in force at the time the offence was committed; (d) for the purposes of preserving the right or equality of human beings, human dignity shall be protected in all activities pertaining to criminal investigations and process, and in any other matters for which a person is restrained, or in the execution of a sentence; (e) no person shall be subjected to torture or inhuman or degrading punishment or treatment.
The above is a very important article in our constitution and as a person you have the right to appeal. Hence you can challenge that portion of the law that disallows you to appeal. The law is drafted by humans and mistakes do occur in drafting. Your lawyers can guide you further on the process for such a challenge as there might be a right of review provided for in the law.
Biased journalist misreporting
There is a well-known journalist who keeps on misreporting about certain proceedings in Court giving his opinion on what the judges should be doing and what they are not doing. It is obvious that he is being paid by someone, likely the other party, to try influence the way the judges think. Is this not an offence?
GB, Dar
Under section 114 of our Penal Code this is an offence. The section states that (1) any person who (d) while a judicial proceeding is pending, publishes, prints or makes use of any speech or writing, misrepresenting such proceeding, or capable of prejudicing any person in favour of or against any parties to such proceeding, or calculated to lower the authority of any person before whom such proceeding is being had or taken; is guilty of a misdemeanour, and is liable to imprisonment for six months or to a fine not exceeding five hundred shillings.
You can report this and hopefully some action will be taken against the journalist.