Taking the history from relatives

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing staff, medical staff and other professions rely on when caring for patients.

BNK (‘B’) was thirty-six, a man with Noonan’s syndrome associated with a severe learning disability and autism. He had a number of broken teeth in his upper jaws, with only the roots remaining. He loved sugary foods and refused to brush his teeth. Dental extraction was anticipated but B lacked the capacity to provide consent; moreover he was expected to object to the extent that the need for both physical and chemical restraint was foreseeable. He had a history of resistance to medical interventions, but those who cared for him were concerned that dental pain and sepsis may be causing or exacerbating his recent combative behaviour. The hospital Trust had identified options for his care; including the option of taking no action, as B was likely to prefer. Unsurprisingly, this was not clinically acceptable; thus either dental clearance or conservative dentistry were put before the court as viable options, although both would require general anaesthesia. Conservative dentistry was held to be in his best interests, with the caveat that if the teeth could not be restored, a clearance should follow, under the same anaesthetic.

There was a very low risk that blood or blood products might be required.

It transpired that B's father was a Jehovah's Witness and would object in principle to his adult incapacitated son being given blood in any event. The court understood that B's 'Hospital Passport' (December 2022) recorded that he was a Jehovah's Witness...and that a Health Action Plan (October 2023) included the statement '...I am a Jehovah's Witness and cannot have a blood transfusion.'

No further comment as to B's status as a Jehovah's Witness appears in the judgment, but the Trust and B's father agreed that the issue of transfusion was '...so unlikely that it does not need to be resolved. Should a medical emergency arise....(the court was told)...it would arise slowly, and there are non-blood products that can be used...the situation will either not eventuate or there will be time to bring the matter back before the Court for authorisation.' At father's invitation, the court agreed to say no more about the issue of blood transfusion.

Having heard evidence, the court found that B lacked the capacity to consent for dental treatment under anaesthesia; and that this treatment was in his best interests.

It would have been interesting if B's father had chosen to pursue his son's status as a Jehovah's Witness. The capacitous adult is entitled to refuse any treatment; including life-saving treatment of blood transfusion, whether or not clinicians (or the courts) take the view that this would be beneficial. We will never know whether the court, given the opportunity, would have found as a fact that B had made a valid advance decision to refuse life-saving treatment; had wishes or feelings relating to blood transfusion; or B's adherence to beliefs grounded in faith.

But the case does reflect a significant clinical legal dilemma. We occasionally encounter adult patients who may or may not have possessed, at some stage in their lives, mental capacity; but present for treatment as incapacitated patients. When we meet the patient, their relatives may assert as a fact that previously, the individual made certain prior decisions and held certain opinions, but none of these assertions can immediately be confirmed. If, as in B's case, those assertions can be set to one side as currently irrelevant, and the patient can be properly treated, this is a perfectly satisfactory outcome. But if reasonable treatment demands that those assertions of fact are either verified, or discounted; any necessary help must be sought, either from one's immediate colleagues, adult safeguarding resources in the Trust or local authority, or the Trust solicitors.

Re BNK (Dental Treatment) [2023] EWCOP 56

Mr Robert Wheeler
Department of clinical law
June 2025