Clinical law updates
On these pages I discuss the clinical law on which our nursing and medical staff rely when caring for our patients.
Mr Robert Wheeler, director, department of clinical law
Reasons for refusing blood
A middle aged woman fell down the stairs of a bus. She suffered fractures of her femur and tibia, and was awaiting open fixation of these bones. Her surgeon predicted a 50% chance of the patient (D) requiring blood product transfusion.
It transpired that D and her mother were both Jehovah’s Witnesses. D's mother was a committed Witness and she did not believe that it was in her daughter’s best interests to have a blood transfusion, since this was contrary to the belief of their religious group. D had autism and mild learning difficulties, and the hospital asserted that she lacked capacity to decide whether or not to have a transfusion.
It was for this reason that the hospital applied to the Court of Protection to seek a declaration that it would be lawful to transfuse if need be. The court heard that two clinicians had assessed D’s capacity, and agreed that she did not appear to understand that she might need a transfusion, nor could she link the need for an operation with the potential for also needing blood products transfused. The patient was nevertheless aware that her leg was broken, that she needed surgery and that without surgery she could not go home. D was clear that she wanted surgery and she wanted to go home; she expressly said that she did not want to die. The court found that she could not retain, use or weigh the information relating to the consequences of refusing blood, thus lacking capacity for this decision.
The court reviewed the evidence on D’s beliefs and her commitment to the Jehovah’s Witnesses. D attended religious services. She could recite the scriptures but gave no indication of whether she understood them or believed them, or the extent to which they played an important role in her life. D could not explain why blood transfusion was prohibited under her religion. The court found that ‘although D described herself as a Jehovah’s Witness she was not someone for whom those beliefs were central to her personality or sense of identity’. This view was supported by those of the Official Solicitor, noting that she did not strongly identify herself with the beliefs of the Jehovah’s Witnesses.
Having concluded that D’s religious beliefs were not being overridden, the court then turned its attention to the issue of whether there was disproportionate interference with D’s rights to cultural beliefs, lest her opposition to blood transfusion be viewed as cultural rather than religious. It became clear that she was ‘not too concerned about having a transfusion’. D’s mother would not consent to a transfusion but neither did she object to it if necessary. She supported D having the operation.
The court did not get a sense that D would ‘…feel deeply upset…or that she would feel a deep conflict’ with her religious beliefs if surgery and transfusion was declared lawful. Accordingly, the judge had ‘no hesitation’ in finding that the operation was in D’s best interests.
The judgement in no way rides roughshod over the respect clinicians must give to the refusal of blood by any adult with capacity. But it does focus attention on the extent to which, when dealing with a patient brought up within a Jehovah’s Witness household, an incapacitated patient understands the implications of refusing blood products.
Nor does the decision alter our approach to any patient who lacks capacity to refuse blood, despite the existence of an order allowing us to administer it. Naturally, we should take every opportunity to refrain from the administration of blood products whilst that avoidance remains consistent with the patient’s best interests.
Department of clinical law, July 2019