The Court of Appeal has given judgment on the case of Re E (Children: Blood Transfusion) in which it dealt with two appeals from teenagers who argued that first instance judges were wrong to order that it was lawful for them to receive blood transfusions if it became necessary to do so in the course of medical treatment. The CoA rejected both cases.
The case of E, a 16-year-old girl, was concerned with an urgent decision of Mrs Justice Theis who made a declaration that it was lawful for the treating hospital to give blood products during an appendectomy if it was necessary to do so. E and her parents both objected as E was a Jehovah’s witness.
The second case, F, concerned a 17-year-old boy who had been involved in a motor bike accident and had damaged his spleen. He also objected to being treated with blood products on religious grounds. There were two hearings and at the second one, Mrs Justice Judd made a similar order to the case of E.
The point of law was the same in both cases – it was argued by those representing E and F that either the court had no jurisdiction to override the capacitous decision of a 16 or 17-year-old or that it should start with a strong presumption in favour of respecting the decision of the patient.
The CoA rejected both these arguments: if the first argument was correct then the inherent jurisdiction would not exist at all for 16 or 17-year-olds, and that is not the case. In the second case that was not the correct approach, but instead the court should adopt a three stage process:
(1) ascertain the facts to identify the risks in question;
(2) decide if intervention is required; and
(3) apply the welfare assessment
In many cases this will involve balancing the sanctity of life against the personal autonomy of the individual to make a decision which may put their own life in jeopardy. The court will always take account of the views of the child, and the older and more mature the child is then inevitably the greater the weight which will be given to his or her views.
The CoA concluded however that there will be situations where the views of a 16 or 17-year-old do have to be overridden in the most serious cases where death or very serious injury could result, if the risk which is presented to the court materialises, and in those cases “ where the gravity of the consequences and the imperative to preserve life may require the court to intervene.”
In both of the cases before the CoA it was found that the judges had made the correct decision on the basis of the information before them.
The case demonstrates the importance of bringing such situations to the court in the first place – very few, if any, clinicians would feel comfortable just accepting a refusal of treatment from a 16 or 17-year-old that could result in death or very serious injury, but in such cases, even if they are very urgent (as both were here) legal advice should be sought and if necessary, an application be made to the court. That way the responsibility for the decision rests with the court and the patient is given a proper opportunity to express their views.