Blood transfusions are a common and often lifesaving procedure. However, some groups, such as Jehovah’s Witnesses, forbid blood transfusions on religious grounds. Recently, the Royal College of Surgeons issued new guidelines on what to do when a person rejects a transfusion based on religious belief. However, these guidelines need further clarification to make it easier for surgeons to act fully in line with developments in English law when it comes to children.
In recent years, there has been a move away from paternalistic medicine, where the doctor always knows best, and a move towards “shared-decision making” – a process that is enshrined in English law. This means that the patient is informed of all the risks and, together with the doctor, they make an informed decision.
The issue of transfusion refusals is becoming increasingly important because the population of Jehovah’s Witnesses is growing, as well as people who refuse blood transfusions for reasons unrelated to religion. And the guidelines make a good attempt to give direction to surgeons who have to grapple with potentially life-threatening situations involving the refusal of blood transfusions using a patient-focused approach.
Clarity on adults
There is a very clear picture about how surgeons should manage adults who refuse such intervention, and there is further practical advice on how they should comply with legal, ethical and regulatory obligations. If these adults have capacity, then their wishes should be respected. If they do not have capacity, the surgeons must act in the patient’s best interests. In emergency situations, as well as surgeons acting in the patient’s best interests actions must also be in line with any advance decision by the patient – if a document is available detailing their wishes.
However, the guidelines are too clear cut in the way they depict the issue of refusals in the case of children. They don’t grapple sufficiently with the developments in the law that have happened since the Gillick case in 1982.
The Gillick case was brought by Victoria Gillick in 1982 in attempt to prevent doctors from giving contraceptive advice and treatment to children under 16-years-old, without informing or receiving consent from their parents. It was eventually dismissed and the judge said that if a child had enough maturity, understanding and intelligence regarding their medical treatment – known as a “standard for capacity” – then they could make decisions on this without parental consent.
While English law deals with the capacity of 16 to 17-year-old children under the Family Law Reform Act 1969, decisions about children under the age of 16 still rely heavily on the Gillick case and its subsequent developments.
However, the standard for determining capacity has changed since Gillick and it is now pitched at a higher level – which is more difficult for children to reach because it can include, in some instances, a requirement to demonstrate an ability to understand the implications of the consequences of refusing treatment. This can become an almost unattainable standard. Additionally, case law dealing with children has now shifted much of its focus from respecting the autonomy of children to adopting an increasingly more paternal approach.
Children – overruled
In all cases that have been to the English courts, children who have refused transfusions have been found to lack the capacity to make these decisions. Therefore, the courts have consistently overruled the decisions of children.
The guidelines state that overruling in the courts “has been the outcome of the majority of cases relating to the refusal of blood”. However, the guidelines should have avoided using the phrase “majority of cases”: no case in English law has upheld a child’s wish to refuse a blood transfusion because doing so has been seen, by the courts, to conflict with the child’s best interests.
Therefore, satisfying the requirements of Gillick in terms of understanding and intelligence is not enough for children under 16. There is a strong likelihood that the wishes of children possessing these characteristics will still be overruled. This means that the standard of capacity under Gillick is not the only yardstick by which the validity of the decision of the child is measured. It is worth noting that cases in English law have also explained that even if a 16 to 17-year-old child has the relevant capacity, his or her wishes may also be overruled by the courts.
Refusing a blood transfusion is, of course, a very serious decision to make, and so the guidelines are right to urge surgeons to be mindful of their obligations to patients. However they are not completely up to scratch in terms of how they tease out some nuanced developments in the law that have the potential to impact on children. More needs to be done to determine what decisions could be made in the courts.
There are, indeed, flaws with the current approach in English law, but the guidelines must work within it and reflect the context of the law as it stands. The guidelines could, however, be more specific in the way in which they discuss the law, and particular focus could be given to legal developments post-Gillick in relation to children under 16.