L.M., MI and NH, were patients of various public hospitals in Namibia who were sterilized through bilateral tubal ligations without their informed consent. They claimed that the sterilization procedures were conducted because they were HIV-positive.
In 2010, L.M., MI and NH brought a petition before the High Court of Namibia, against the Namibian Government. They claimed that the following rights guaranteed in the Namibian Constitution had been violated: the right to life in terms of Article 6 of the Constitution; the right to liberty in terms of Article 7 of the Constitution; the right to human dignity under Article 8 of the Constitution; the right to equality and freedom from discrimination under Article 10 of the Constitution; and the right to found a family guaranteed in Article 14 of the Constitution.
The parties in this case agreed that a sterilization procedure is unlawful unless informed consent is obtained. The Court considered under its analysis if the medical practitioners, who worked at a Namibian government state hospital, performed sterilization procedures without obtaining informed consent from the petitioners. The Court analyzed what constituted informed consent relying in the South African case of Castel v. De Greef (1994), which established informed consent could be broken down into three key components: “(a) First, the doctor had a duty to provide adequate and sufficient information to enable the patient make an informed decision. The information should enable the patient to appreciate the nature and extent of the harm or risk involved. (b) Second the consent must be clear and unequivocal, given freely and voluntarily, and should not be induced by fear, fraud or force. (c) Third, the consent must be comprehensive,and must extend to the entire transaction inclusive of its consequence.”
The Court was clear when established that the Namibian Government in this case had the duty to provide evidence that the petitioners gave an informed consent to the medical practitioners to carry out the sterilization procedures.
While assessing the evidence, the Court evaluated the situation of every petitioner. Regarding L.M, there was no medical records indicating that she had requested sterilization or expressed any interest to undergo this procedure. She did not sign any form specifically relating to sterilization. Notably, her consent was obtained during labor, and in circumstances in which there was no proper counselling given, including information regarding alternative methods of contraception to the procedure of sterilization.
Furthermore, regarding MI and NH, the Court found that there was no medical record indicating that either the procedure or alternative methods of contraception had been explained to them. However, they did sign a consent form for the sterilization procedure. Like L.M., MI’s and NH’s consent was obtained from them while they were in labor.
The Court found that despite the petitioners having signed consent forms, there was no evidence that the health providers had given adequate and sufficient information to them under circumstances in which they fully appreciated the consequences of sterilization. There were no records to demonstrate that informed consent was properly obtained. The Court determined that the Namibian Government did not prove that its agents had properly obtained informed consent from all three petitioners before sterilizing them and therefore the sterilizations were unlawful.
On the second claim presented by the petitioners, where they argued the existence of a discriminatory treatment against them due to their HIV-positive status, the Court held that the petitioners failed to substantiate their claim based on the evidence presented.