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I must confess I still believe

Posted on February 5, 2020 by suesspiciousminds

 

It is such a quintessential movie moment, the killer slinks into the confession box and breathlessly tells all to the priest on the other side who fumbles nervously at his rosary – he knows the truth, but can never tell…

This doesn’t come up very often in family law – insert your own withering remark about Catholic priests here if you wish. This, however, is a case that not only relates to it, but helpfully gives us a Victorian era criminal law authority for the legal sanctity of the confession box.

(It is also timely because I had to break off from House of Games last night for a short debate as to whether or not Reverends who appear on television HAVE to wear the dog collar even when they are on a game-show, so ecumenical matters are at the forefront of my mind this week)

 

Lancashire County Council v E & F [2020] EWHC 182 (Fam) (04 February 2020)
http://www.bailii.org/ew/cases/EWHC/Fam/2020/182.html

 

This arose from a case in which the mother spoke to the members of her Jehovah’s Witnesses Church about allegations that the father had sexually abused the children.  The Jehovah’s Witnesses Community also spoke with the father about these matters and it seems carried out their own investigation.

Within care proceedings, the Local Authority wished to see those notes.  The Jehovah’s Witnesses Community opposed that, and when a witness summons was issued sought to set it aside.  They were willing to provide the records relating to the conversations that they had had with the mother (who was consenting to the production) but not those with the father.

  1. Mr Achonu argues there is a duty of confidentiality by elders or Ministers of religion and they are unable to disclose information which has been communicated to them in the course of confidential “spiritual counselling” without the express consent of the individuals concerned. He says that that duty of confidentiality is protected by article 9 of the European Convention on Human Rights (ECHR). In the light of this argument he says that A and B are prepared to disclose information given to them by the Mother, because she has provided her consent, but not by the Father because he has not given consent. It is not at all clear how in practice this would work, given that much of the information sought relates to both of them. However, this issue is somewhat academic given the conclusions I have reached in this judgment.
  3. Mr Achonu argues that A and B are under a spiritual duty not to disclose confidential religious communications and that if such confidence is breached then individuals might no longer confide in their ministers.
  5. He relies by analogy on the approach in the Police and Criminal Evidence Act 1984 (PACE) Schedule 1, and the provisions therein, which protect confidential information, including that relating to spiritual counselling in s.12 (b), and a balancing exercise has to be undertaken under Schedule 1 of PACE when disclosure of such records is sought. He argues there is an analogy with the position in R v H 2019 1 WLR 3744 where the Court of Appeal refused to order the disclosure of discussions between an offender manager and an offender. The Court said that it would only order such confidential discussions to be disclosed if there was a very good reason, because it would be contrary to public policy to do so. I note that at [39] the boundaries of the confidentiality being asserted are expressly said to be “apart from child protection issues….“. Therefore this case is of no assistance to Mr Achonu on the facts of the present case.

 

Ouch.

  1. R v H at [53 states];
      1. Firstly, it would in our view be contrary to public policy to breach the confidentiality of discussions of the kind save for very good reason. Such discussions are not subject to privilege in the sense that something a defendant or appellant tells his lawyers would be; and the internal rules of Camden social services (or of any other local authority’s officers) are not binding in the courts; but we regard them as well drafted, sensible and worthy of respect. There is a distinction between disclosure necessary to avoid imminent future criminality (in particular a threat to someone’s life or safety) and the obtaining of admissions to past offences. It would be extremely unfortunate if convicted defendants (whether young or adult) were deterred from speaking to those charged with their supervision or rehabilitation until any appeal against conviction had been dealt with.
  3. Mr Achonu argues that the communications with A and B, and the documents sought under the witness summons, should be treated in the same way as a religious confession. He relies on R v Hay (1896) 2 F&F4, which is cited in Archbold at 12-21, as support for the proposition that; “the position of priest and penitent has not been authoritatively decided, but the tendency of judicial dicta is that, while in strict law the privilege does not exist, a minister of religion should not be required to give evidence as to a confession made to him.”

 

Well, if you don’t think we’re about to look at R v Hay and find out what it is all about, then you don’t know me very well.

 

In R v Hay, a priest was found to have a stolen watch, and had thus (unwittingly received stolen goods). The police wanted to know who had sold him the watch and the priest refused.  At a trial, the priest had to give evidence. He refused to answer questions as to who had sold him the watch.

The Judge said :-

I have already told you plainly I cannot enter into this question. All I can say is you are bound to answer. From whom did you receive that watch. On the ground I have stated to you, you are not asked to disclose anything that a penitent may have said to you in the confessional. That you are not asked to disclose; but you are asked to disclose from whom you received stolen property on the 25th of December last. Do you answer it or do you not?

When the priest continued to refuse to answer the Judge sent him to prison for contempt.

 

The decision of the Court was that whilst the priest could legitimately refuse to answer any question about what had or had not been said to him in the confessional, he could not extend that beyond it even if it were about a parishioner who came to confession. The watch had not been sold to him in the confession box, so the protection did not apply.

I’m afraid I can’t find a link to the judgment, but the Wikipedia page gives more detail for those who are interested.

https://en.wikipedia.org/wiki/R_v_Hay

 

It immediately seems to me that the church was on a sticky wicket trying to rely on R v Hay as authority for not disclosing the evidence, because the case is very specific that it applies only to evidence obtained in the confessional.

Mr Achonu argues that the duty of confidentiality is not limited to the confessional but can have a wider remit. He says that any information revealed during spiritual counselling is subject to the duty of confidentiality. It is not entirely clear to me what would be covered by spiritual counselling, but given that A and B are refusing to produce any information about what they knew or what investigations were made unless consent is given, it would appear to be being argued that all information relating to the alleged sexual abuse was related to spiritual counselling and thus confidential.

 

Hard to be sure when you can’t see the documents to see what was and wasn’t spiritual counselling, but it seems a thin argument. The thinness of the argument is emphasised when Canadian authorities are produced in aid. Unless Lancashire is suddenly transplanted to Quebec, it is going to be of limited value.

  1. Mr Achonu relies on a Canadian Supreme Court case R v Gruenke [1991] 3 RCS 263. The issue was whether the communications between the Defendant, who was accused of murder, and her pastor were protected by common law privilege or under the Canadian Bill of Rights. The approach of the Court was not to apply a strict approach to what was a confession, see [291], but to look at all the relevant circumstances and apply what is known in Canada as the Wigmore criteria. These are set out at p.284 as follows;
      1. 1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

3. The relation must be one which in the opinion of the community ought to be sedulously fostered.

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

  1. These criteria are very similar to the approach taken in article 9(1) and (2). The communications must fall within the said religious duty of confidentiality and if they do so any order to disclose must meet a proportionality test.

 

Given that the purpose of disclosure is to assist the Court in deciding what harm, if any, the children suffered and thereafter to make decisions about their welfare, it is hard to see proportionality coming to the aid of the Church here.

 

 

Conclusions

  1. There are a whole series of reasons, some overlapping, as to why the witness summons should be upheld and disclosure ordered and why I reject Mr Achonu’s submissions.
  3. Firstly, there is no evidence that the material sought through the witness summons was in any sense a confession or akin to a confession. It appears that the allegation of sexual abuse came to the elders’ attention because the Mother reported it, not because the Father confessed to the elders, or sought spiritual counselling. The elders then carried out some form of investigation and met with the Father, probably on more than one occasion. It is possible that at some point the Father “confessed”, but I have no evidence this was the case. In any event, the investigation cannot itself amount to a confession. Therefore, to the degree that there is a duty of confidentiality in relation to a confession, which I am prepared to assume on the basis of R v Hay, but not decide, it would not arise here.
  5. Secondly, the material that the Council seeks also does not, on the evidence, amount to “spiritual counselling”. There was an investigation into E’s allegations. The whole focus of Mr Achonu’s submissions on this point appears to me to be misconceived. To describe the material sought as being the product of spiritual counselling is to focus on the Father and concerns about his religious confidentiality, rather than on the child. The elders appear to have been neither carrying out an investigation into the child’s allegations and how she could be protected, nor providing spiritual counselling to the Father. Mr Achonu’s submission in my view provides a plain example of his clients, with or without the agreement of the Congregation more widely, putting the Father’s interests above those of the child.
  7. Thirdly, and in any event, the Congregation’s own policy, certainly that of 2013 and probably the 2018 version, indicate that where a conversation amounts to spiritual counselling but indicates that a child may be at risk of harm, then it “will be conveyed to the extent necessary to ensure that the policies and procedures herein expressed shall be properly followed so as to safeguard children.” In the 2018 policy at para 5, it says that the elders will be told to report the matter if the child is still at risk of abuse. It seems highly likely that E was still at risk of abuse up to July 2019, yet the elders did not report the allegations.
  9. The stance that Mr Achonu has taken in this case, namely that the material will only be disclosed when the individual consents, is not reflected in either of the policy documents and he could give me no support for that approach.
  11. There does appear to be a strong suspicion that the Congregation’s own published guidance, both 2013 and 2018 was not followed, not just by A and B, but also by more senior figures in the Congregation. From a child safeguarding viewpoint this is deeply troubling, not least because the policy documents are ones which seem to be produced for public consumption but not to be effective to protect children.
  13. To the degree it is argued that although there might have been a requirement under the policy to report the allegations earlier, that does not mean that the information should now be disclosed, I reject that suggestion. The information held by the Congregation has the potential to be highly relevant both for the future protection and wellbeing of E and F, but also of other children. The information is likely relevant to three key questions for the Court – whether the threshold findings of fact in respect of the Father are made out; whether the Mother failed to protect E; and what future risk the Father poses to E if she lives with her Mother. It is also potentially highly relevant to whether the Father poses a risk to other children. This is a situation which is concerned with future child protection, and not simply past criminality, it therefore falls on the other side of the line applying the approach in R v H at [53].
  15. Fourthly, Mr Achonu accepted that whether the duty of religious confidentiality is examined through the common law or article 9 it is not an absolute duty. This is clear from the caselaw, R v H, R v Hay and the words of article 9(2). Respect for A and B’s religious beliefs is given by article 9(1), but that is qualified by article 9(2) including in the interests of public safety, the protection of health and morals, and the protection of the rights and freedom of others. It could not be more obvious that a freedom to manifest ones religious beliefs must give way to the need to protect a child from sexual abuse. That balance is to some degree reflected in the two policy documents, but has not been reflected in A and B’s approach to this case. The evidence points inexorably to A and B having protected their and the Father’s religious beliefs at the expense of the protection of the child.
  17. Fifthly, it therefore follows that the witness summons and the requirement for full statements from A and B, together with the documents sought are a proportionate interference in A and B’s right to manifest their religion. The interference in their religious rights is in my view relatively slight, given the terms of the two policy documents and the fact that the information does not appear to have been given in a confession or in any real sense as spiritual counselling. The other side of the proportionality balance is that the need for the protection of E and F, as well as other children is a highly weighty if not overriding factor. 

 

 

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Blood transfusion and Jehovah’s Witnesses part 2

Posted on May 1, 2014 by suesspiciousminds

 

Nottinghamshire Healthcare NHS trust and RC 2014

http://www.bailii.org/ew/cases/EWCOP/2014/1317.html

 

 

This one came before the Court of Protection earlier this year, and I wrote about it here

 

https://suesspiciousminds.com/2014/04/14/ethical-dilemmas-and-blood-transfusions/

 

Where Holman J was sympathetic to the hospitals decision not to impose blood transfusions on someone who did not want them, even though there was an argument that they COULD impose them under s63 of the Mental Health Act, but decided he needed the patient to be represented through the Official Solicitor and to hear full argument before deciding the case.

 

It is important to remember throughout that the Trust were minded to follow RC’s wishes and not administer blood transfusions (even life-saving ones) against his will, but because of the risk that this could contribute to his death, they wanted to seek a declaration from the Court of Protection / High Court that it was acceptable to do this.

 

 

[Peculiarly, this judgment never once mentions that earlier judgment, but it would be astronomically surprising if Nottinghamshire had two different Jehovah’s Witnesses who were self-harming and refusing blood transfusions and the doctors sought a declaration that they wanted to respect his wishes even though it might result in his death, so I think it is the same case]

 

Mostyn J gives a very thoughtful judgment, and draws on some important jurisprudence and philosophy

 

8. In principle, every citizen who is of age and of sound mind has the right to harm or (since 1961) to kill himself. This is an expression of the principle of the purpose of power found in the Declaration of the Rights of Man and of the Citizen (1793) and in John Stuart Mill’s essay On Liberty (1859) where he stated at pp14 – 15:

“That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his body and mind, the individual is sovereign”[1]

9. Thus Judge LJ in St George’s Healthcare NHS Trust v S [1969] Fam 28, 43 stated:

“Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it.”

10. This right applies equally to detained citizens. In Home Secretary v Robb [1995] 1 FLR 412 Thorpe J stated:

“…every person’s body is inviolate and proof against any form of physical molestation …. The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner”

 

 

 

However, there are three sets of circumstances in which a person’s autonomy over their own body can come into question and where the State might override their decisions

 

 

13. There are three circumstances where adult citizens may have treatment or other measures imposed on them without their consent.

i) Adults lacking capacity who pursue a self-destructive course may have treatment forced upon them in their best interests pursuant to the terms of the MCA.

ii) Similarly, adults who have capacity but who can be categorised as “vulnerable” and who as a consequence of their vulnerability have been robbed of the ability to give a true consent to a certain course of action, may also have treatment or other measures imposed on them in their best interests pursuant to the inherent jurisdiction of the High Court (see DL v A Local Authority [2012] 3 WLR 1439, and Re SA (Vulnerable adult with capacity: marriage) [2006] 1 FLR 867).

iii) Under the Mental Health Act 1983 (“MHA”) a detained patient may have treatment imposed on him or her pursuant to section 63 which provides, so far as is relevant to this case:

“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, … if the treatment is given by or under the direction of the approved clinician in charge of the treatment”

At first blush section 63 strikes one as an illiberal provision, given that it applies to all detained mentally ill patients who may well not lack capacity (as here). However, it can be well justified when one reflects that the treatment in question may be needed not merely for the protection of the patient but also for the prevention of harm to others, given the violent eruptions to which mental illness can give rise

 

 

On the first of those, the Judge very carefully considered the capacity issue and determined that RC had capacity to decide to refuse blood transfusions and the fact that his decision was centred on religious beliefs did not diminish his capacity

 

33 A fundamental principle under section 1(2) MCA is that capacity is to be assumed unless it is established, on the balance of probabilities, to be lacking. The effect of section 2 and section 3 MCA is that a person will lack the capacity to make a decision if, by reason of mental disorder, they are unable to understand, or retain, or use or weigh up the information relevant to that decision, or to communicate their decision. In this case Mr Francis QC correctly argues that the only the possible question relates to whether RC is able to weigh information in the balance. In his report Dr Latham says:

“His ability to weigh the risks of refusing blood against his religious beliefs is difficult to describe because his religious beliefs effectively create, in his mind (and others) an absolute prohibition on blood products and so there is relatively little “weighing” when it comes to this decision.”

34 This aspect of the test of capacity must be applied very cautiously and carefully when religious beliefs are in play. In his essay John Stuart Mill speaks of the prohibition in Islam on the eating of pork. He describes how Muslims regard the practice with “unaffected disgust”; it is “an instinctive antipathy”. There can be no circumstances where a Muslim could “weigh” the merit of eating pork. It is simply beyond the pale. So too, it would appear, when it comes to Jehovah’s Witnesses and blood transfusions. But it would be an extreme example of the application of the law of unintended consequences were an iron tenet of an accepted religion to give rise to questions of capacity under the MCA.

35 I therefore place little emphasis on the fact that a tenet of RC’s religious faith prevents him from weighing the advantages of a blood transfusion should his medical circumstances indicate that one is necessary.

36 I am completely satisfied on the evidence and so declare that RC has full capacity to refuse the administration of blood products.

 

 

That rules out the possibility that the Court could declare under the MCA that the treatment was in RC’s best interests, because RC has capacity to say no.

 

 

Mostyn J agreed that the Trust were right to have sought the guidance of the Court before finalising a decision about whether to impose blood transfusion treatment under s63 of the Mental Health Act

 

21 In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a “full merits review” of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.

 

 

Was this, as a matter of fact and law, a s63 case in any event? Mostyn J eventually concludes that it is, and that the Trust COULD theoretically administer the blood transfusions against RC’s wishes

 

27 Both the treating clinician, Dr S, and the independent forensic psychiatrist Dr Latham made written reports, attended a meeting (by telephone) and gave oral evidence to me. They were almost unanimous. They agreed that:

i) RC suffers from a mental illness namely antisocial and emotionally unstable personality disorders. This is a disturbance of the functioning of the mind, which is one of the classic definitions of mental disorder.

ii) However, he has full capacity to refuse blood products. His refusal derives almost exclusively from his religious faith. Further, he had full capacity to enter into the advance decision on 4 April 2014. Further still, his decision to adopt the religion of the Jehovah’s Witnesses was made with full capacity.

iii) So far as RC’s capacity to harm himself is concerned on occasions he does so with full capacity. However, on other occasions, particularly at times of severe emotional distress, it is likely that he does so without the capacity to choose to self-harm.

iv) RC harms himself with the intention of distracting himself from distressing thoughts and feelings. He does so without really thinking about the consequences and dangers. However his view is that it is his body and therefore his choice to damage it.

28 Where they disagreed was whether the administration of a blood transfusion amounted to treatment which prevented the worsening of a symptom or manifestation of RC’s mental disorder. Dr S was of the opinion that it plainly was. Dr Latham disagreed. He wrote in his report

“In my opinion, it is crucial that any “treatment” for mental disorder provided under the direction of an approved clinician is recognised as a treatment for mental disorder in psychiatric terms and is given [as] a direct consequence of the symptom or manifestation of the mental disorder. In this regard, the treatment of force-feeding for eating disorders could be recognised as a “treatment” but I think it is highly unlikely that a blood transfusion could be. This in my view, might provide a way to “draw a line” so as to ensure proper protection of people’s right to refuse treatment where they have capacity to do so.

In conclusion, any treatment with a blood transfusion is not, in my opinion a treatment for mental disorder, nor is it treatment for a symptom of that mental disorder. It is a treatment for a physical consequence of a symptom of the mental disorder; hypovolaemic shock or life-threatening anaemia. This consequence is not wholly as a result of the self harm but contributed to by his treatment with warfarin. The treatment with warfarin is unrelated to his mental disorder.”

29 Miss Watson, who represents RC, adopts this reasoning and states that it is in fact consistent with the authorities. Miss Dolan, who represents the NHS trust, and Mr Francis QC who acts as advocate to the court, disagree and suggest that a proper interpretation of the authorities must lead to a conclusion that Dr S is right and that a blood transfusion would plainly amount to treatment of a symptom or manifestation of the underlying mental disorder.

30 If I were confined to the literal words of sections 63 and 145(4) I think I would agree with Dr Latham and Miss Watson. However, the authorities have supplied a definition which is some distance from the meaning of the literal words. In St George’s Healthcare NHS Trust v S at 747F Judge LJ stated that “section 63 of the Act may apply to the treatment of any condition which is integral to the mental disorder”.

On reflection I am in agreement with Mr Francis QC’s analysis. It cannot be disputed that the act of self harming, the slashing open of the brachial artery, is a symptom or manifestation of the underlying personality disorder. Therefore to treat the wound in any way is to treat the manifestation or symptom of the underlying disorder. So, indisputably, to suture the wound would be squarely within section 63. As would be the administration of a course of antibiotics to prevent infection. A consequence of bleeding from the wound is that haemoglobin levels are lowered. While it is strictly true, as Dr Latham says, that “low haemoglobin is not wholly a manifestation or symptom of personality disorder”, it is my view that to treat the low haemoglobin by a blood transfusion is just as much a treatment of a symptom or manifestation of the disorder as is to stitch up the wound or to administer antibiotics

 

 

In this case, where the hospital did not intend to go against the patient’s wishes, that decision may not have too much importance, but it has wider implications for other patients. If a mentally ill person is self-harming and bleeding, then s63 of the MHA can be used, the Court have ruled, to administer a blood transfusion.   [Although see the next portion of the article to see that this is very substantially qualified]

 

 

The next question was, having established that the Trust COULD do this under s63, SHOULD they?

 

 

41 Finally I turn to the declaration which is sought pursuant to the inherent jurisdiction of the High Court concerning the decision of Dr S not to invoke the powers under section 63 MHA. In her first witness statement at paragraph 8 she stated

“I have some ethical difficulty in using the MHA to override a capacitious patient’s wishes based on religious wishes and I would not choose to use my MHA powers to override his advanced (sic) decision”

42 In my judgment, conducting, as I must, a full merits review, I conclude that the decision made by Dr S is completely correct. In my judgment it would be an abuse of power in such circumstances even to think about imposing a blood transfusion on RC having regard to my findings that he presently has capacity to refuse blood products and, were such capacity to disappear for any reason, the advance decision would be operative. To impose a blood transfusion would be a denial of a most basic freedom. I therefore declare that the decision of Dr S is lawful and that it is lawful for those responsible for the medical care of RC to withhold all and any treatment which is transfusion into him of blood or primary blood components (red cells, white cells, plasma or platelets) notwithstanding the existence of powers under section 63 MHA.

 

 

That would seem then to be that s63 MHA could be used to administer a blood transfusion to a patient who was refusing it, but where that patient has capacity to refuse it and gives reasons, it would be wrong to impose it on them, and acceptable for the hospital to withhold that treatment.

 

The distinction, I suppose, being a patient who says “I don’t want any treatment” and one who expresses a decision to refuse blood transfusions. It is a little bit tricky to square this decision (which I think is right) with the Brady decision to impose force-feeding under s63 on Ian Brady (which I personally think was wrong).

 

Both involve the use or not of s63 for treatment which comes lawfully within the section, but this case involves more consideration of whether, having established that s63 COULD be used, it SHOULD be used

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Ethical dilemmas and blood transfusions

Posted on April 14, 2014 by suesspiciousminds

 

This is part one of a Court of Protection decision about a very difficult case, throwing up ethical dilemmas.

Nottinghamshire Healthcare NHS Trust and J

http://www.bailii.org/ew/cases/EWHC/COP/2014/1136.html

The features are so complex that it almost reads like an exam question designed to push the law to its breaking point, but tragically involves a real person.

J is a 23 year old, detained under the Mental Health Act – he has a personality disorder.

. A symptom of his disorder is that “he engages in significant self-harm through self-laceration and bloodletting, most recently by opening his brachial artery”. As I understand it, it is not the opinion of the treating psychiatrist that he suffers from any kind of delusions or delusional disorder. His intelligence is within the range of normal and he appears (although this may require further exploration) to have capacity both to make decisions with regard to his medical treatment and also to instruct lawyers to conduct litigation on his behalf.
he “has a long history of significant and repeated self-harming behaviour. His self-harm includes self-strangulation with ligatures and plastic bags, burning himself, and self-injury, including head-butting and self-laceration. He frequently re-opens wounds to aggravate an existing injury and cause further damage and blood loss.”

J signed an advance directive, specifying that he did not want to accept blood transfusions. His parents are Jehovah’s Witnesses and it seems that he had regained that faith.

4. Another aspect of this case is that, because of some history of thrombosis, he is prescribed the anti-coagulant, Warfarin, which has the effect that when he does bleed, he bleeds more profusely than he might otherwise do. Another aspect of the case is that his parents are of the Jehovah’s Witness faith. I understand (although this may later be corrected) that for an appreciable period of time he did not himself profess that faith, but in the last few months he has apparently embraced it and now professes and adheres to the tenets of that particular faith. I have been told in counsel’s case summary that “He has stated that he now practises his religion by praying, reading the bible and reading The Watch Tower magazine. He reports that his religion is important in his life. He remains in contact with his father, who supports him in his faith.” As is widely known, a tenet of the faith of Jehovah’s Witnesses is a prohibition on receiving by transfusion blood or blood products.
5. According to counsel’s case summary, “On 1 February 2014 when in prison he seriously cut his right arm, opening his brachial artery at the antecubital fossa with a razor blade. He had significant blood loss and his haemoglobin fell to an extremely life-threatening level. He was admitted to intensive care and a blood transfusion was advised. He refused blood products on the basis of his Jehovah’s Witness faith. The treating hospital abided by his expressed wish, believing it to be capably stated.” Happily, he in fact survived that event without any blood being transfused.
The Judge looked at the advance directive and circumstances in which it was signed and concluded this

it appears to me that this is clearly an advance decision which was made with capacity and is valid within the meaning of, and for the purposes of, those provisions, and is also one which is applicable to the treatment described in the advance decision, namely a treatment which is transfusions into him of blood or primary blood components (red cells, white cells, plasma or platelets). I am therefore willing to declare on an interim basis that that written advance decision is valid and is applicable to that treatment, not withstanding that (a) his life may be at risk from the refusal of treatment, and (b) he is a patient detained under the Mental Health Acts.
I.e that J had capacity to make the decision that he did not want blood transfusions. Ordinarily, that would be that.

But, when the Mental Health Act comes into play, things become more difficult. There is the power under the MHA s63 for a hospital to provide medical treatment even where the patient does not consent – in effect overriding that objection; IF the medical treatment is for the mental disorder from which he is suffering

“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering…if the treatment is given by or under the direction of the approved clinician in charge of the treatment.”
The narrowness or otherwise of s63 has been litigated before (most notably in Ian Brady’s case, where feeding him with tubes was held to be a s63 treatment, even though he rationally understood that his hunger strike would result in his death)

There appears to be clear authority, and in particular the decision of the Court of Appeal in B v Croydon Health Authority [1995] Fam 133, to the effect that the expression “medical treatment given to him for the mental disorder from which he is suffering” is wide enough to extend to medical treatment for physical conditions caused or arising as a result of the underlying mental disorder. Thus if a detained patient suffers from the mental disorder of anorexia, it may be lawful to force-feed that patient as part of “medical treatment given to him for the mental disorder from which he is suffering.” If a detained patient cuts himself as a result of a self-harming mental disorder, then it may be lawful under that section to treat and stitch up the cuts. It is little or no extension of that approach that if, as a result of the mental disorder from which he is suffering, a patient cuts himself and bleeds so profusely that he needs a blood transfusion, it is part of the “medical treatment…for the mental disorder from which he is suffering” to give a medically necessary blood transfusion. So the question arises in this tragic situation, on the particular facts of this case (he being a detained mental patient), as to the interrelation between the provisions of the Mental Capacity Act 2005 in relation to advance decisions and the power under section 63 of the Mental Health Act 1983 to give medical treatment notwithstanding the absence of a consent.
So, it appears that the hospital could legally authorise blood transfusions even though J was objecting to them and had capacity to make that decision.

But, the hospital (I think very properly) felt uncomfortable about doing that, and wanted to place the issues before the Court
13. The dilemma is very well expressed in the statement by the treating psychiatrist, who says,
“I am…aware…that because [the patient] is a detained patient under section 63 of the Mental Health Act I have a power, as his responsible clinician, to override even a capable refusal of medical treatment [viz the advance decision] where that treatment is for the consequences of his mental disorder. It is my opinion that his self-harming behaviour that gives rise to the need for blood products is a direct consequence of his mental disorder and that hence I could use section 63 powers to enforce treatment with blood products upon him despite his capacitous refusal. I have some ethical difficulty in using the Mental Health Act to override a capacitous patient’s wishes based on religious wishes and I would not choose to use my Mental Health Act powers to override his advance decision.”
14. Pausing there, it can at once be seen why I said earlier in this judgment that this case raises ethical issues, for there is the treating doctor herself saying that she professionally feels “some ethical difficulty” in overriding his advance decision even though she has a power to do so under section 63 of the Mental Health Act 1983 and even though he might otherwise die. She continues in her statement:
“However, because of the significant consequences of abiding by his advance decision, which could result in his death, I seek a declaration from the Court as to (1) whether the advance decision is valid and applicable (on taking account of the context that he is refusing life-saving treatment for self-harm which is medicated through his mental disorder) and, if so, (2) whether in coming to my view that blood products should not be enforced upon him in the light of a valid and applicable advance decision, I have correctly struck the balance between the right to freedom of religion and the Article 2 right to life of a detained patient.”

 

The hospital were therefore of the view that although they COULD exercise their power under s63 MHA to compel blood transfusions, they did not feel that they SHOULD.

Pausing there, a question arises as to whether the Court is the right place to make decisions about medical ethics. As Holman J points out (though in neater language than I use) – If you want law, Courts are the right place, if you want ethics you may be in the wrong place.

I must stress at once that it is never the business of a court in these sorts of situations to make any kind of ethical decision. That is a matter for doctors alone, applying such guidance, if any, as they can obtain from their professional medical bodies. All the court can do is state the applicable law and, where appropriate, apply it in the form of a legal, though not necessarily an ethical, decision.

 

The Court felt uncomfortable about trying to resolve this dilemma without someone speaking on behalf of J, and decided that J’s voice had to be heard before any decision could properly be made

16. The passage that I have just quoted from the statement of the psychiatrist very clearly highlights the terrible dilemma in this case. On the one hand, this young adult has made a clear advance decision, whilst apparently having capacity to do so, that, because of his religious beliefs, he utterly refuses consent and positively directs that he should not be transfused with blood or blood products. On the other hand, he is compulsorily detained, both as a prisoner and now in a psychiatric hospital, where, so far as possible and lawful, the state is under obvious duties to protect him, as the consultant psychiatrist identified in the above passage. He has a right to life under Article 2 of the European Convention on Human Rights; but, under other articles of that Convention, he has a right to freedom of religion and a right to respect for his private life, which includes his own bodily integrity.
17. I have been asked today to make an interim declaration that “it is lawful for those responsible for the medical care of the respondent to act in accordance with his written advance decision and withhold treatment by blood transfusion or with blood products in accordance with his expressed wishes notwithstanding the existence of powers under section 63 of the Mental Health Act 1983.” That is not a declaration which I feel equipped or am willing to make after a hearing of this kind in which I have heard representations from only one side and which is not on notice to the patient or any other person. It is of the essence of the application to the court that this is an issue of very considerable difficulty. Precisely because it is one of such difficulty, it is not one upon which the court can judicially and responsibly rule without hearing and considering so far as possible the arguments on both sides of the issue.
It will be interesting to know how part two develops.

The continuing dilemma for the court is that, unless somebody such as the Official Solicitor engages in this case, there may be no contrary argument. The present position of the patient seems to be that he utterly refuses to consent to a transfusion even if that has the effect of his dying as a result of his self-harming acts (even if those acts are not themselves done with suicidal intent). The position at the moment of the consulting psychiatrist, and therefore of the Trust, is that, notwithstanding the power under section 63, they should not in fact exercise it. Thus, the present position seems to be that if the physical restraints are removed and he is able again to cause profuse bleeding, he may die, whether he intends to bring about his death or not. If there is a contrary argument that the power under section 63 should be positively exercised in circumstances such as this, then it will be very important indeed for the court to hear it.

 

If I were making a prediction, it would be that the Court will decide that the hospital COULD use s63, but fall short of saying that they SHOULD. I think that the Court will probably make the declaration that the Trust seek

“it is lawful for those responsible for the medical care of the respondent to act in accordance with his written advance decision and withhold treatment by blood transfusion or with blood products in accordance with his expressed wishes notwithstanding the existence of powers under section 63 of the Mental Health Act 1983”

But Article 2, and the authorities on the article 2 right to life are probably going to play a significant role in the decision, and I think it could go the other way.

To be clear, the Court cannot MAKE the hospital perform the blood transfusions, but declining to make the declaration that they seek that they SHOULD NOT do it and honour J’s advance directive makes life very uncomfortable for them if they decide not to.

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Blood transfusions, jehovah’s witness and court of protection

Posted on February 27, 2014 by suesspiciousminds

The decision of the Court of Protection in Newcastle Upon Tyne Hospitals Foundation Trust and LM

http://www.bailii.org/ew/cases/EWHC/COP/2014/454.html

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

    1. This judgment concerns these questions:

 

    • 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

    1. 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.

 

    1. 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.

 

    1. 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. The Trust’s submission was that LM had clearly made her wishes known even with knowledge of death. Alternatively, if it was a matter of best interests, the Trust did not wish to act against her wishes, being concerned to respect her individual dignity.

 

    1. Addressing the question of capacity, I find as follows:

 

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.

    1. In consequence, I find that LM made a decision that the doctors rightly considered must be respected.

 

    1. 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.

 

  1. 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   
  2.     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
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  4.  
  5. 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.
  6. 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 [1996] 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.
  7. 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
  8. 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.

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