Forced Medical Examination Breached Right to Dignity (Fiji)
Author: Womens UN Report Network
Date: October 6, 2015
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Forced Medical Examination Breached Right to
Dignity (Fiji) (top)
INTERIGHTS provided advice to the Fiji Human
Rights Commission in a case before the High Court of Fiji concerning a woman
subjected to a forced medical examination by police without her consent as part
of a criminal investigation. The judgment in the case of Fiji Human Rights
Commission v State was handed down on 8 November 2005, and draws heavily on
international and comparative law. In it the Court found a breach of the
plaintiff’s constitutional right to be treated with dignity, along with her
right not to be medically examined without consent, and she was accordingly
awarded compensation.
Read the judgment here.
___________________________________________________________________________________
N THE HIGH COURT OF FIJI AT
SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: 118093 Of
2002
BETWEEN:
THE PROCEEDINGS COMMISSIONER, FIJI HUMAN RIGHTS
COMMISSION
PLAINTIFF
A N D:
THE COMMISSIONER OF POLICE
FIRST
DEFENDANT
A N D:
THE ATTORNEY-GENERAL
SECOND
DEFENDANT
Dr S.
Shameem with Mr. U. Ratuvili for Plaintiff
Ms D.
Buresova for Defendants
Date of Hearing:
13th and 14th September
2005
Date of Submission by: 3rd October
2005
Date of Judgment:
8th November 2005
JUDGMENT
The Proceedings Commissioner brought these proceedings on
behalf of one Joti. Her allegation is that two named members of the police force
on 141h July 1999 forced her to undergo invasive medical procedure
without her consent. As such, the Proceedings Commissioner alleges that the
police breached Section 25(2) of the Constitution which provides for right to
freedom from scientific or medical treatment or procedures without the informed
consent and Section 27(1)(f) which gives an arrested or detained person the
right to be treated with humanity and respect for his or her inherent
dignity.
I shall call Joti complainant in this judgment. The
complainant alleges that on 11 ~ July 1999 while working at Village 6,
she found a new born baby in a toilet cubicle. The police were called. A few
days later she was taken to Central Police Station and escorted to CWM Hospital
where she was made to undergo a medical examination to find if she had given
birth recently.
The defence is that the police wanted the complainant to
undergo medical test to remove any doubt as to whether ~he was the mother of the
baby as her breast milk was flowing. The defendants deny forcing the complainant
to undergo medical test.
The plaintiff made extensive written submissions together
with relevant authorities. The defendants though asked to file submissions
failed to do so. This was the first, case of its type before the courts in Fiji
and the importance of submissions by the defendants should have been obvious to
them.
The plaintiff’s submissions considered the origins of the
tights at issue by referring to the Universal Declaration of Human Rights, the
International Covenant on Economic Social and Cultural Rights and how the
defendants’ breached those rights. The Second World War exposed spectacularly
the destructive capability of a state against its own citizens. Hence the
emphasis post war shifted away from how sovereign nations behaved towards each
other to how a state treated its own citizens.
POLICE POWERS ON RIGHT TO
PRIVACY:
Fiji is fortunate in having its own Bill of Rights
entrenched in the Constitution. This case concerns the balancing the powers of
police in investigating and detecting crime with a person’s right to his or her
personal privacy and to be treated with dignity,
The prime functions of the police is to preserve peace,
to concentrate on preventing the commission of crime, to protect life and
property, to investigate crime, to apprehend offenders and to preserve evidence
and to prosecute the offenders — Brooks v. Metropolitan Police
Commissioner — (2005) 2 ALL ER 489 (House of Lords). The powers of the
police in carrying out their duties are not limitless; there are parameters
within which the powers of police are to be exercised in carrying out their
duties. In the present case the opposite side of the balance is the right to
privacy. An adult individual of sound mind has a right to decide what may or may
not be done to his or her body. Anything done to the body without his/her
consent is unlawful — Chester v. Afshar — (2004) 4 ALL ER 587 at
593.
The Chester was a case of medical negligence but
the principles are equally well applicable to issues before me. Lord Steyn at
page 593 paragraph 14 stated:
“The starting point is that every individual of
adult years and sound mind has a right to decide what may or not be done with
his or her body … surgery performed without the informed consent
of the patient is unlawful …“
CONSENT TO MEDICAL
EXAMINATION:
Section 25(2) of our Constitution also uses the words
“informed consent”. Informed consent means consent obtained after
the person has been told what risks even though minimal or side effects are
involved in a treatment. Consent must be a willing consent; it must be
voluntary. In the present case although the complainant knew why she was being
examined, her consent shown by her signature on the medical report must be
viewed in the context of police detention with a shadow of police presence in
the background. The issue here is not so much with being informed as to what was
to be done but rather the nature of consent obtained.
The fact that the complainant went through a medical
examination is not in issue. The central issue is did she consent to the medical
examination. The vital time is the time of the examination not so much her state
of mind prior to the examination.
Both the plaintiff and also DWl Ravi Narayan said
that while at the Central Police Station she did not want to go to the hospital.
Therefore it is obvious that she was taken to the hospital against
her will.
The medical report of the complainant was tendered. It
too confirms that the complainant was distressed and angry with police for
bringing her there. However that medical report is signed by the complainant
giving consent to medical examination. There is evidence from DW2 Sarafina
Seinikoraciri that the form was signed in the presence of the doctor. The
medical examination was conducted with only the complainant, a nurse and doctor
being present. There were no police present there. The complainant said after
the examination she felt good.
Amongst all the facts one fact stands out and that is
that the complainant while in police custody underwent a medical procedure. I
find given the circumstances and a clear statement by the doctor of the
complainant’s distressed condition, the consent to the medical examination was
not freely given but with a shadow of police presence close by. The complainant
I believe realized that she could only get release if she went through a medical
procedure.
HUMAN RIGHTS COMMISSION ACT:
These proceedings were brought by the Proceedings
Commissioner under the provisions of Section 36 of the Human Rights Commission
Act 1999. The remedies which the Proceedings Commissioner may seek are
set out in Section 38 of the Human Rights Commission Act 1999 are inter alia
damages or declaration that the defendant has contravened the Bill of
Rights.
Section 39 sets out the damages which the High Court may
award under the Act. It reads
“39. — (1) In proceedings under
section 36 for unfair discrimination or a contravention of the Bill of Rights,
the
High Court may award damages against the defendant in
respect of any one or more of the following:
(a) pecuniary loss suffered or expense incurred by the
complainant or the aggrieved person as
a result of the conduct complained
of;
(b) expenses reasonably incurred by the complainant or
the aggrieved person in seeking redress for the conduct complained
of;
(c) loss of any benefit, whether or not of a monetary
kind, which the complainant or the aggrieved person might reasonably have been
expected to obtain but for the conduct complained
of;
(d) humiliation, loss of dignity and injury to feelings
of the complainant or the aggrieved person.
(2) Subject to subsection (3), the Commission must
pay any damages recovered by the Proceedings Commissioner under this section to
the complainant or the aggrieved person on whose behalf the proceedings were
brought”
CAN DAMAGES BE AWARDED FOR BREACH OF A
RIGHT?
The plaintiff has in her submissions urged the court to
grant $100,000.00 damages. The plaintiff has asked for exemplary damages. That
the court has the power to award damages for contravention of Bill of Rights
cannot be doubled. In fact in some cases damages may be the only appropriate
remedy. Section 41(1) of the Constitution permits persons whose rights have been
infringed to seek redress from the High Court. Redress is not confined to making
mere declarations; it also encompasses damages.
In Simpson v. Attorney-General (1994) 3
NZLR 667 (Baigent’s Case) the New Zealand Court of Appeal by a majority of 4 to
1 held that an action for breach of Bill of Rights was possible and that such
action was not conceived as a new tort but a “public law action directly
against the state for which the state was primarily
liable?
The Judicial Committee of the Privy Council in
Mohammed v. State — (1999)2 AC 111 at 1123 stated:
“The stamp of constitutionality on a citizens right
is not meaningless; it is clear testimony that an added value is attached to the
protection of the right”. Further Lord Hutton in Cullen v. Chief
Constabk~ — 2004 2 ALL ER 237 at 255 stated
“where a right is contained in a written constitution it
is accorded a special value by the courts and a breach of that right without
damage or harm can lead to an award of damages.”
Of course, anything which falls from the pen of Lord
Hutton is entitled to great respect but it may be stating the principle too
widely. The rights contained in the Bill of Rights provisions of our
Constitution are varied and if every breach were to result in a damage award it
would have serious consequences for state coffers. Our Constitution itself eaves
open the remedy to the discretion of the court. In many instances, a declaration
might suffice.
Taking an extreme case as an example. If a person, with
previous convictions and who was no stranger to courts, was arrested and charged
for an offence and is subsequently convicted on his own plea of guilty but the
police have not informed him of the right to counsel, ought such a person be
awarded damages for breach of such right. One wonders how the public would view
the administration of justice if this were to happen.
Really, one would need to realistically look at the
particular right, which is an issue, and how the breach of that right has
affected the applicant and the remedy in the final analysis is up to the court.
It need not be damages in every case but only in appropriate cases. I am of the
view that there is no automatic or prima facie right to damages in every case of
breach of a right contained in the Bill of Rights chapter of our
Constitution.
LEVEL OF DAMAGES:
First, the level of damages awarded must be harnessed
against the backdrop of social and economic conditions of Fiji and not by some
universal standards even though such rights may be universally applicable. We
cannot use level of awards given in economically advanced countries as a guide
to make awards in Fiji.
Secondly, the level of award must not be excessive but
restrained or moderate. I refer in particular to comments of Cooke P in
Baigent’s case at page 678 as follows
“As to the level of compensation, on which again there is
much international case law. I think that it would be premature at this stage to
say more than that, in addition to any physical damage, intangible harm such as
distress and injured feelings may be compensated for; the gravity of the breach
and the need to emphasise the importance of the affirmed rights and to deter
breaches are also proper considerations; but extravagant awards are to be
avoided. If damages are awarded on cause of action not based on the Bill of
Rights, they must be allowed for in any award of compensation under the Bill of
Rights so that there will be no double recovery. A legitimate alternative
approach, having the advantage of simplicity, would be to make a global award
under the Bill of Rights and nominal or concurrent awards on any other
successful causes of action.”
[underlining is mine for
emphasis]
More recently a differently constituted New Zealand Court
of Appeal in Minister of Immigration v. Udompun — 2005 NZCA 128 endorsed
the above remarks. In Udompun the court looked at a number of New Zealand
cases on Bill of Rights and it concluded that the objective of the Bill of
Rights remedy was “to vindicate human rights, not to punish or discipline
those responsible for the breach”— paragraph 177. Hammond J at paragraph
210 stated that “moderation is required in claims of this
character”.
The right being considered in Udompun was one of
human dignity. It dealt with rights of a Thai woman who was denied entry into
New Zealand and then held in a police cell for a period of two days pending her
departure. She did not speak English. She was not allowed change of clothes at a
time when she was menstruating. The Court of Appeal reduced the damages awarded
from $50000.00 to $4,000.00.
Thirdly, the plaintiff need not show outrageous or
oppressive conduct on part of the defendant. An outrageous conduct would attract
greater damages than mere inadvertent conduct. Hammond J. in Udompun at
page 213 stated:
“it should not be necessary to show oppressive conduct,
let alone maliciousness. The relevant question is how ought this behaviour
reasonably to be seen as infringing on human dignity, in the particular
circumstances of this case.”
APPLICATION OF LAW TO FACTS:
In the present case the police, had reasonable cause to
arrest the plaintiff based on the information they had. A new born baby was
found at a place where the plaintiff worked. The plaintiff’s
partner was away from her since 995. Her breasts were flowing with
milk.
The test the police wanted to be conducted were extremely
relevant. The test would show one way or another if the plaintiff had given
birth recently. As it turned out the test completely excluded the plaintiff as a
potential perpetrator of the crime. She was in police custody for roughly four
hours.
The plaintiff had the right to be treated with dignity.
It is a very fundamental and an important right. The police ought to have
respected her right not to be medically examined. Vaginal examination even by a
trained qualified doctor is an embarrassing experience. The fact that two very
junior police officers were asked to accompany the plaintiff may not have
assisted either. Had the investigating officer gone with the complainant, the
doctor could have spoken to him of patient’s unwillingness to go through the
medical examination and the whole episode avoided.
I also consider that the attitude of the plaintiff did
not assist much. When ASP Ravi Narayan explained to her that it was only proper
for her to go through a medical examination, there was no need for her to get
abusive. Further when she came back from hospital, she stated she went to ASP
Ravi Narayan and told him “You wait, I will see you’. She
expressed a desire to get back at Ravi Narayan, a desire to take revenge, which
is really not an objective of Bill of Rights. Its purpose is to encourage
persons to behave decently.
Paul Rishworth, Associate Professor at Auckland
University on human rights explains that “human rights, is, to a large
extent, tutelary. It is aimed at the reform of attitudes and social practices
that had previously been invisible to law … It creates the
conditions for a democratic and decent society in which people of
different beliefs live together happily in one country” — “Law
stories — Essays on the New Zealand Legal Profession” at
page 180.
I can understand the enthusiasm and zeal
of police in trying to find out the author of a crime but even in doing so, they
must maintain certain amount of decency below which their actions too become
suspect.
In this case, the plaintiff has not been charged so there
is no question of excluding unfairly or unlawfully obtained evidence. A mere
declaration will be no solace to the plaintiff. A monetary award is the only
logical remedy I believe. Some damages will need to be awarded. I fix the figure
for damages — a global figure at $5,000.00.
The plaintiff had also claimed pecuniary losses being
loss of wages under Section 39 of Human Rights Commission Act. According to the
statement of claim the plaintiff left her job at Village 6 on 3~ February 2000.
In her evidence she said she lost her job three or four months after the event.
I find no nexus given such a substantial intervening period that the loss of the
job at Village 6 was in any way related to the incident. Further full
particulars of amounts claimed were not provided at least four weeks prior to
hearing as undertaken in the statement of claim.
Accordingly, award the plaintiff damages in the sum Of
$5,000.00. I also award costs which I summarily fix in the sum of $2,000.00. For
sake of clarity the $5,000.00 is to be paid to the complainant and the costs of
$2,000.00 to be retained by the Human Rights Commission.
[Jiten Singh
JUDGE
At Suva
8th
November
2005
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