The decision of the Court of Protection in Newcastle Upon Tyne Hospitals Foundation Trust and LM
Readers may be aware that followers of the Jehovah’s Witnesses faith are staunchly opposed to blood transfusions and will not accept them for themselves, even if that means losing their life. There has been quite a lot of litigation in the past about children whose parents have that faith, who require blood transfusions. A somewhat uneasy accommodation has been reached whereby the parent won’t agree but won’t stand in the way of the Court making an order that the child must have a blood transfusion.
An adult Jehovah’s Witness is legally entitled to refuse blood transfusion for themselves. It may seem silly and reckless to us, but it is a central part of their belief and faith, and they are entitled to make that decision for themselves.
That leaves one gray area – what happens where an adult Jehovah’s Witness lacks capacity and then needs a blood transfusion if they are to survive? What should the Court decide is in their best interests?
Not sure there’s a right answer here, and I expect it might cause some debate in the comments section.
On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah’s Witness. The application came into the urgent applications list at short notice. When it was made, the medical view was that LM might not survive for as long as a day in the absence of a blood transfusion and that even if one was given, she might still die. A decision had to be taken there and then. I took the view that it was not practicable or necessary for a litigation friend to be appointed.
In this case, the Judge made the following declaration
It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.
Sadly, LM died before judgment could be given
- Did LM (before she became unable to do so) have the capacity to make a decision to refuse a blood transfusion?
- If so, did her decision apply to her later circumstances?
- Alternatively, if the answer to either of the above questions was ‘no’, was the Trust’s proposal to withhold a transfusion in her best interests?
The Court heard from witnesses about LM’s capacity and her wishes and faith
- In this context, I heard from Mr R, who first met LM in 1975 and had known her ever since. He last saw her shortly before her admission. He brought letters from three other members of the congregation who knew her. Mr R described LM as a formerly active member of the congregation who fully subscribed to the tenets of the faith (including its opposition to blood transfusion) and had taught them to others, although she had become less engaged in recent years. Her beliefs on the question had been consistent. He says that if LM had been able to speak for herself she would have been distraught at the prospect of receiving a transfusion.
- Speaking on his own behalf, and expressing the united medical view, Dr C said that the evidence available to him suggested that during her time in hospital and up to 13 February LM had had capacity. There was no evidence that mental illness had interfered with her decision-making. He considered that her decision applied to her life-threatening situation, which was an unfortunate but natural progression from her underlying condition. He considered that her clearly stated views should be respected.
- Dr C said that the treating doctors intended to continue to withhold blood products, recognising that this compromised their ability to provide full care. LM would continue to receive full active medical care in all other respects in an attempt to bring her through until it became clear that all attempts were futile. At that point the team would act in her best interests as with any critically ill patient.
1) Prior to the afternoon of 13 February, LM had the capacity to decide whether to accept or refuse a blood transfusion. There is no evidence that her underlying mental illness rendered her unable to make a decision (MCA s.2(1)). The presumption of capacity (s.1(2)) was not displaced and the criteria for capacity (s.3) were on the balance of probabilities met. I am satisfied that LM understood the nature, purpose and effects of the proposed treatment, including that refusal of a blood transfusion might have fatal consequences. 2) The decision taken by LM prior to her loss of capacity was applicable to her later more serious condition. There was no difference in kind and I am satisfied that she intended her decision to be effective in the circumstances that subsequently arose.
- In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. It is also of relevance that a transfusion might not have been effective to save her life.
- The right to life (Art. 2 ECHR) is fundamental but it is not absolute. There is no obligation on a patient with decision-making capacity to accept life-saving treatment, and doctors are neither entitled nor obliged to give it
- The next issue was delicate and difficult – should there be a Reporting Restriction Order preventing LM’s real name being made public? All of the law on RROs relate to living persons and that made it uncertain as to whether an RRO could be made – the Judge took the pragmatic view that he would make the order and if anyone really wanted to litigate the issue then they could do so at a later stage
- The remainder of this judgment concerns an application for a Reporting Restriction Order made by the Trust on 24 February. At the hearing on 18 February I indicated that I would grant such an order subject to the proper procedures being followed, which eventually they were. I intended to formally make the order when handing down judgment on 26 February, but LM’s death intervened. Accordingly, I heard further submissions from Mr Speker and Mr Farmer about the appropriate course to take.
- The court has jurisdiction to make an order during the lifetime of a patient that will continue to have effect after death unless and until it is varied: Re C (Adult Patient: Restriction of Publicity After Death  1 FCR 605. The situation here is different in that the patient is no longer alive. The unusual circumstances raise interesting questions about the court’s jurisdiction to restrict the reporting after a person’s death of information gathered during proceedings that took place during her lifetime.
- It seems to me that the proper approach is to make an order that preserves the situation until the time comes when someone seeks to present full argument on the question. I will say no more than that for the present
- I make a Reporting Restriction Order preventing the naming of LM, and the medical and care staff who looked after her and the two Jehovah’s Witnesses who participated in the proceedings. It does not prevent the naming of the Trust or the hospital, nor discussion of the underlying issues or the court’s procedures. Anyone affected by the order may apply to vary or discharge it, whereupon its terms or existence will be looked at afresh.