Doctor banned for refusing to authorise blood transfusion

The High Court has dismissed a constitutional application by Dr Seleman Saidi, a Harare-based doctor who was disciplined for refusing to administer blood transfusions on religious grounds, ruling that his challenge was filed prematurely.

Justice Samuel Deme struck the application off the roll on the basis that Dr Saidi had failed to exhaust internal appeal processes available under the Health Professions Act before approaching the court.

"The present application was prematurely instituted before exhausting other legal remedies," Justice Deme said in his ruling, delivered in Harare.

Dr Saidi, a registered medical practitioner, had been found guilty of unprofessional conduct by the Medical and Dental Practitioners Council and the Health Professions Authority (HPA) after refusing to perform or authorise blood transfusions for patients, citing his religious belief that blood is sacred.

Following the disciplinary hearing, his medical practice was restricted to areas such as public health, forensic pathology, and histopathology, which do not involve administering blood transfusions.

Represented by Professor Lovemore Madhuku, Dr Saidi argued that his stance was protected by the Constitution, specifically the right to freedom of conscience under Section 60 and the right to freely choose and carry on a profession under Section 64.

"The applicant maintains his belief that blood is sacred and therefore he would not order or administer blood transfusions," Madhuku submitted, arguing that the restriction on his licence violated his constitutional rights.

Dr Saidi filed his case against the Medical and Dental Practitioners Council, the Health Professions Authority of Zimbabwe, and the Minister of Health and Child Care. The Minister did not participate in the proceedings, while Advocate Tawanda Zhuwarara represented the first and second respondents.

Zhuwarara argued that the doctor should have first appealed under Section 128 of the Health Professions Act before bringing a constitutional application. Justice Deme agreed, citing established legal principles that constitutional challenges should not bypass existing remedies.

"It is the settled position of our law that where there exist other remedies, a litigant may not approach a court on a constitutional basis and ignore the remedies at his disposal," the judge said, referencing a previous Constitutional Court ruling.

He further noted that the appeal process offered a more effective route, allowing for a direct review of the disciplinary body's decision while preserving the applicant's right to pursue constitutional relief later if necessary.

Justice Deme also criticised Dr Saidi's earlier decision to withdraw a pending appeal, describing his explanation as "vague and unconvincing."

He ruled that Section 85(2) of the Constitution, which provides for access to the courts, could not override the principle of subsidiarity, which requires litigants to first use available legal remedies before seeking constitutional intervention.

The application was struck off the roll with no order as to costs.

"This is a constitutional matter which does have a bearing on the public interest. An order that there shall be no order as to costs is appropriate in the circumstances," the judge ruled.

As a result, Dr Saidi remains barred from practising general medicine until he lodges an appeal through the Health Professions Authority, which must be determined before any constitutional challenge can be reconsidered.