Jehovah’s Witnesses: A change of direction for ‘surgical’ children?
In the English common law, up to 2023, there were only four reported cases of hospitals applying to court because a capable child refused consent for blood transfusion perioperatively. They were all Jehovah’s Witnesses; 16 or 17 years of age. P potentially had an aorto-enteric fistula; E required appendicectomy; and for F it was uncertain whether a grade 3 splenic laceration would respond to conservative treatment without transfusion. DV required a repeat pulmonary metastectomy. In the first three cases, the courts held that whilst the young person was capable of making the decision to refuse blood, the law would not permit them to make this decision, and blood should be provided if necessary. For DV, in palliative care, the court noted that the hospital fully supported his plea to avoid blood should it be required intraoperatively, irrespective of the outcome. The judge concluded that refraining from using blood in these circumstances was lawful, but this decision could only be made by the court; the decision was taken out of the young man’s hands. Until now.
In 2024 a hospital trust had been alerted that J, a young person approaching his 18th birthday, required a pyeloplasty for pelvi-ureteric junction obstruction. But he refused to consent to blood or blood product administration, if this became necessary during the surgery. J had a strong religious objection to blood transfusion, as an article of his faith. He had been raised, and latterly baptised, as one of Jehovah’s Witnesses. The receipt of blood ‘…would carry for him …considerable lifelong social, mental and spiritual harm’.
As in the previous four cases, the court in J was approached in relation to the contingency of a transfusion required in a theoretical future intraoperative emergency. He had a four-year history of intermittent left loin pain, and a moderate left sided hydronephrosis. The left kidney contributed 19% of renal function. The court was told that in the majority of patients in J’s situation, pyeloplasty would lead to some recovery of renal function. Stenting the obstruction was considered (until J reached adulthood and could make his own decision with respect to blood products) but was by itself not considered to be the optimum treatment. J was otherwise healthy and able; an apprentice in electrical engineering.
J’s surgeons in evidence made their dilemma clear; telling the court that the requirement for blood transfusion was ‘…extraordinarily unlikely…but it could happen…I don’t want to be standing in the operating theatre watching a child die, when I could do something about it’. Alternatives to transfusion were discussed. The judge found that there was a risk (although very small) of significant haemorrhage related to pyeloplasty.
Perhaps for the first time in English law, it was accepted in J’s case that ’his own decision to refuse the administration of blood or blood products in surgery could prevail.’ In the judge’s words: ‘…I shall declare that it is lawful, being J’s decision…for his treating clinicians not to administer whole blood or primary blood products, even if … the transfusion… may preserve J’s life or prevent severe injury or irreversible…harm.’ In a postscript, the court confirmed that J’s surgery and recovery were entirely successful.
It was interesting that the judge viewed J’s capability to make this decision entirely through the lens of Gillick competence. Although at the age of seventeen, it would be usual to describe this capability as ‘capacity’, in line with the Mental Capacity Act 2005. As a High Court decision, the judgment can be relied on as a precedent to be followed by the lower courts, unless or until is overruled or reversed at appeal. Theoretically, J v Plymouth might be used as an authority for other Gillick competent children, of any age, to have their decision to refuse blood in similar circumstances declared lawful.
Perhaps this remains the crux of the surgical dilemma. One solution is to call on a surgical team (anaesthetist, scrub and operating department staff, and surgeon) who would collectively be prepared to resist, as the final resort, the burning desire to save a young life; and leave the O negative blood in that fridge. A distressing prospect.
University Hospitals Plymouth NHST v J &K &L [2024] EWHC 1034 (Fam)
Three ages of the Jehovah’s Witness. Archives of Disease in Childhood 2024 109 (7) 550-551
Mr Robert Wheeler
Department of clinical law