State (oao HM (guardian) on behalf of CM (minor)) v Hospital Director of Queen Elizabeth Central Hospital & the Minister of Health (Judicial Review Cause 3 of 2021) [2021] MWHC 43 (15 June 2021)

Key Facts

Issues

• The court determined that the applicant had already initiated criminal proceedings via police reporting and that civil remedies (e.g., child maintenance under the Child Care Protection and Justice Act) were available. It concluded that pursuing judicial review alongside these remedies constituted an abuse of process, as required by Malawian law to prioritize existing legal avenues.
• The court examined the lawfulness of the Hospital Director's decision to deny a 15-year-old minor access to safe termination under Penal Code s.243, which allows termination to preserve a woman's life, including mental and physical health. The claimant argued the hospital failed to consider her deteriorating health due to pregnancy, while defendants contended no medical evidence supported her eligibility and that alternative remedies (criminal prosecution and child maintenance) were available.

Holdings

• The applicant has available criminal and civil remedies, making judicial review an abuse of process.
• The applicant did not request termination of pregnancy at the hospital, so no decision was made to review.
• The court dismissed the application for leave to apply for judicial review, finding no decision to review and the existence of alternative legal remedies.
• The court found the application to be an abuse of process due to existing legal remedies.

Remedies

Legal Principles

• The court applied the Wednesbury reasonableness test to assess whether the first defendant's decision to deny termination of pregnancy was unreasonable. It emphasized that judicial review can only be granted if the decision is so unreasonable that no reasonable authority would have made it.
• The applicant bore the burden to prove that her pregnancy posed a threat to her physical or mental health under section 243 of the Penal Code. The court found no evidence meeting this requirement in the medical records.

Precedent Name

• Lukongolo v Attorney General
• The State and Electoral Commission ex parte Sam Lemon Mpasu
• Longwe v Council of the University of Malawi
• The State v Chief Secretary to the President and Cabinet ex parte Muluzi
• In re Criminal case 42 of 2013 and related matters ex parte Peoples' Trading Center Limited
• Ridge v Baldwin

Cited Statute

• Courts (High Court) (Civil Procedure) Rules, 2017
• Penal Code
• Child Care Protection and Justice Act
• Constitution of Malawi

Judge Name

Passage Text

• In the facts before me, the applicant did not expressly let alone impliedly ask for termination of pregnancy. If she did, the request would have been recorded in the history of case column at OSC of QECH as prepared on exhibit 'GC 2'.
• The court finds that CM and guardian went to the hospital to get a record of her pregnancy. They did not seek medically performed termination because the pregnancy was a threat to the life and limb of the mother as section 243 of the Penal Code provides.
• With all this history, any application for Judicial Review in addition to the active remedy already under pursuit, therefore, becomes an abuse of process.