In a new decision, the Court of Protection has ruled invalid an advance decision made in 2001 by a Jehovah's Witness concerning the refusal of blood or blood products. This case will be of interest to healthcare professionals caring for Jehovah’s Witnesses who refuse blood.
The matter concerned PW, an 80-year-old woman who had been a Jehovah’s Witness for most of her adult life. In 2001, PW signed an advance decision to refuse blood products if her life was at risk.
The matter was heard by the Court of Protection at an out-of-hours hearing in September 2021 following an application by the NHS Trust responsible for the hospital in which PW was being treated. At that time, PW had developed severe anaemia following internal bleeding caused by an ulcerated gastric tumour. The Court heard medical evidence that PW was at risk at any time of sudden bleeding. If sudden bleeding occurred and was left untreated, PW would ‘almost certainly’ die.
If PW was given a blood transfusion, investigations could take place to consider the treatment options available to her. The immediate risk to PW’s life would be significantly reduced and, given her condition, she would be likely to survive the treatment and live for another five to ten years.
The decisions that the Court had to make related to PW’s mental capacity, the validity of her advance decision and her best interests. However, PW had Alzheimer’s dementia and was assessed to lack capacity to make decisions about her treatment. The Court accepted the Applicant Trust’s evidence that PW lacked capacity. The Court’s next consideration was PW’s advance decision.
The Court had to decide whether PW’s advance decision was valid under the Mental Capacity Act 2005. If it was found to be valid, PW’s decision to refuse a blood transfusion would have to be respected. If it was found to be invalid, in light of PW being found to lack capacity, the Court would have to decide whether the blood transfusion would be in PW’s best interests.
Section 25(2) of the MCA 2005 states that an advance decision is not valid if the person who made it has:
- Withdrawn it;
- Subsequently conferred authority on a donee(s) under a Lasting Power of Attorney (‘LPA’) to give or refuse consent to the treatment to which the advance decision relates; or
- Done anything that is clearly inconsistent with the advance decision.
The arguments in this matter focussed on whether section 25(2)(c) applied.
The Court referred to various evidence in support of this, including that PW had not updated or reviewed her advance decision since 2001 or discussed it with her family. The Court also considered the lack of preference or instructions in an LPA signed by PW less than one year ago, PW’s earlier instructions that a Do Not Resuscitate (‘DNR’) notice should be removed from her medical notes, and wishes and feelings recently expressed by PW.
The Trust felt that PW had acted in a way that was clearly inconsistent with the advance decision and that a blood transfusion was in her best interests. The family agreed that the blood transfusion was in PW’s best interests. PW’s litigation friend the Official Solicitor’s position was that the advance decision should be respected as PW had not acted in a manner that was ‘clearly’ inconsistent with it.
The Court concluded that PW had done something clearly inconsistent with the advance decision, and as such, PW’s advance decision was invalid under section 25(2)(c) MCA 2005.
In light of PW being found to lack capacity and the advance decision being invalid under the MCA 2005, PW’s best interests had to be considered by the Court.
The Court concluded it was in PW’s best interests to have the life-sustaining blood transfusion, and that the decision was lawful and in accordance with PW’s human rights.
This matter sets out the issues the Court must consider under the MCA 2005 when faced with the question of whether an advance decision is valid. The decision highlights the importance of individuals ensuring any advance decisions are regularly reviewed and updated as necessary in accordance with paragraph 9.29 of the Mental Capacity Act Code of Practice.
If you require assistance in respect of advance decisions, mental capacity to make decisions about medical treatment or any other matters concerning mental capacity law, please do not hesitate to get in touch with our team of experts.