Reconciling Religious Freedom and Self-Destruction: A Review of the Kachasu Case

By Dr. O’Brien Kaaba and Hope Sthembile Homela

     February 10, 2024

What should a medical doctor treating a person who refuses a blood transfusion on religious grounds do if he feels the transfusion will save the patient’s life? Does religious freedom extend to rejection of life-saving medical intervention? The recent case of Kachasu (Suing as the Administrator of the Estate of the late Paul Kachasu) v Manda (Sued as Administrator of the Estate of the late Dr Francis Manda) and Others (Appeal No.163 of 2021) [2023] ZMCA 200 (30 August 2023) determined by the Court of Appeal dealt with these questions.

The case involved an 81-year-old prostate cancer patient, Paul Kachasu, who had expressly refused a blood transfusion due to religious beliefs as a Jehovah’s Witness. Kachasu had a Durable Power of Attorney of Health Care (DPA) expressing his refusal to blood transfusion unless non-blood alternatives were deemed appropriate by his treating physician. A DPA is a legal document that allows another person to make healthcare decisions on the patient’s behalf in situations where they cannot do so personally.

Despite this directive, the doctor treating him gave Kachasu a blood transfusion while unconscious in a bid to save his life. This action went directly against Kachasu's expressed wishes and directives documented in the DPA. Unfortunately, following the unauthorized blood transfusion, Kachasu passed away.

Following this event, the administrator of Kachasu's estate filed a lawsuit in the High Court, alleging assault and battery against the hospital and the physician who transfused him without consent. The High Court dismissed the case for want of jurisdiction. It held that the matter should have been brought as a constitutional claim by way of petition regarding the breach of fundamental rights and freedoms and not as a civil matter for battery and assault.

Dissatisfied with the Judgment, the Appellant appealed to the Court of Appeal, insisting that she had proceeded correctly before the High Court. The Court of Appeal decided in favour of the Appellant by holding that the administration of the blood transfusion against Kachasu's express refusal amounted to trespass to the person and was specifically battery, infringing upon Kachasu's right over his own body.

This article argues that the holding of the Court of Appeal in this matter is correct and is consistent with human rights standards. Although the Court of Appeal considered the matter dispositive on the common law tort of assault or trespass to the person, it highly relied on constitutional rights to arrive at the decision. The Court noted that the Constitution enshrines liberty and religious freedom as fundamental human rights.  According to the Court, the combined effect of these rights is to entitle a patient to the principle of autonomy. This entails that an adult of full capacity could refuse a blood transfusion, even if it was medically in his interest. In the words of the Court, “All patients have the constitutional right to determine what shall or shall not be done to them.” This, according to the Court, is what constituted individual self-determination.

To appreciate the significance and correctness of the decision of the Court, it is important to understand the nature and significance of religious freedom in a democratic society. For believers, religion is the prism through which life is experienced, events are interpreted and given meaning. This was accurately stated in the case of Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC (3): “For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth.  Religious belief can awaken concepts of self-worth and human dignity which form the cornerstone of human rights. Such belief affects the believer’s view of society and finds a distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions and frequently has an ancient character transcending historical epochs and national boundaries. For believers, then, what is at stake is not merely a question of convenience or comfort, but an intensely held sense about what constitutes the good and proper life and their place in creation.”

 

Considering the diversity of religions and incongruence of beliefs, freedom of religion and conscience invariably entails tolerance and accommodation of diversity. No religion should assume a controlling role. As Professors De Vos and Freedman have argued, it calls for the accommodation of “different and often diametrically opposed beliefs and views about the world while respecting and accommodating these diverse beliefs and views.”

The fact that some beliefs are bizarre, illogical or inconsistent with the views of the majority in society is not a sufficient basis to limit those rights.  Diversity entails that believer should not be put to the test of their beliefs in order to enjoy freedom of religion and conscience. Religious freedom cannot just be enjoyed on the terms of the majority or to the extent that the beliefs meet wide approbation in society. Was it to be the case, that it would not be a right but a privilege? As Justice Albie Sachs asserted: “The test for tolerance as envisaged by the Bill of Rights comes not in accepting what is familiar and easily accommodated, but in giving reasonable space to what is unusual, bizarre or even threatening.”

 

In other words, a democratic society recognising freedom of religion and conscience should accommodate even diametrically opposed beliefs and lifestyles. This, however, does not mean believers are free to ‘do’ whatever they please. While believers are free to ‘believe’ whatever they wish, considering that there are other human beings with a host of rights and entitlements, believers cannot carry out their beliefs into effect at any const. Respecting diversity and peaceful co-existence requires respecting the rights of others as well. As the African Commission on Human and Peoples’ Rights held in the case of Prince v South Africa (2004) AHRLR 105 (ACHPR 2004): “Although the freedom to manifest one's religion or belief cannot be realised if legal restrictions are preventing a person from performing actions dictated by his or her convictions, it should be noted that such freedom does not in itself include a general right of the individual to act in accordance with his or her belief. While the right to hold religious beliefs should be absolute, the right to act on those beliefs should not. As such, the right to practice one's religion must yield to the interests of society in some circumstances.”

The threshold, however, for restricting religious freedom is high. As long as the membership of a religion is voluntary members are free to leave if not content and religious views are not foisted upon them, then each religion should be left alone to police its membership and determine its goals and beliefs. Members of such religions are free to practice their faith and manifest it, even to the point of self-destruction, as in the present case. The only limit is when the expression of faith causes harm to others beyond mere sensibilities. This was recognised by the European Court of Human Rights in the case of Kokkinakis v Greece 1993 Ser A No. 260-A where it was held that: “The only limits on the exercise of this right are those dictated by respect for the rights of others where there is an attempt to coerce the person into consenting or to use manipulative techniques.”

The Court of Appeal, therefore, made the correct decision in the present case. The decision is not only sound at common law but is consistent with human rights standards. But, if, in furtherance of a religious belief a person of sound mind and competence refuses life-saving medical intervention, the state has no business forcing its goodwill against such a believer. It does not matter that a life would be lost. 

ABOUT THE AUTHORS

                                

Dr. O’Brien Kaaba teaches law at the University of Zambia and is a Senior Research Fellow at  Southern African Institute for Policy and Research (SAIPAR)

 

                                              

Hope Sthembile Homela is a legal Intern at Southern African Institute for Policy and Research (SAIPAR)