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 and medical staff rely on when caring for patients.

CX is 14. 10 years ago he was treated successfully for his lymphatic cancer. Now relapsed with a different phenotype of the disease, stage four, he faced three courses of chemotherapy, intervening assessment and ultimately stem cell treatment.

There was a 95% chance that blood transfusion would be required. C and his mother are Jehovah’s Witnesses. Neither would consent for C to receive blood or blood products.

To provide C and his family with an independent assurance that his best interests were being upheld, the Trust sought a declaration from the court that transfusion of blood was lawful. The court found that C was Gillick competent to make decisions relating to his treatment, although did not make a finding as to whether he was competent to refuse blood. The paediatric oncologists giving evidence to the court indicated that without the support of blood transfusion it would not be safe to proceed with the treatment of C’s cancer. The court was told that there were no case reports of patients who had developed these two different forms of cancer.

Both the child and his mother had made it clear from the outset that they would respect the law and any decision reached by a court, even if that did not accord with their personal religious beliefs.

C had written to the court. He noted that this was a decision that he had taken on his own account; he was baptised into his faith after much thought and because he wanted to express his love to his God. He made it clear to the judge that were he forced to receive the blood, he would feel angry and upset ‘…because (the judge) would be forcing upon him something which he did not want’. C queried why he was not offered blood fractions as an alternative to blood products, since his religion permitted treatment with blood fractions, which he could therefore agree to.

Set against this was C’s clearly expressed wish to survive his relapsed illness. This he had expressed to both the court and to his Children’s Guardian, the latter appointed to present the court with an independent view of where his best interests lay. As the judge put it, ‘…C himself has given voice to his own human instinct to survive his illness. He is clearly a courageous individual who has faced his current predicament with both dignity and obvious strength of character.’

Balancing C’s forcefully expressed wish to survive against the reverence with which he held his religious beliefs, the judge came to the conclusion that it was ‘undoubtedly’ in C’s best interests to undergo the planned treatment. Accordingly, a declaration was made that it was lawful to administer blood and blood products in the course of that treatment plan. The judge reminded the Trust of the importance of considering any alternative forms of management which might be undertaken to reduce the use of blood where feasible, so that C’s wish to receive ‘…as little (blood) as possible’ could be honoured.

We have all observed the conflict that emerges when the patient’s view of optimum treatment does not coincide with that of the clinician. This case can be distinguished by the eminent lack of conflict. Rather, C’s family took a measured and dignified approach to a grave difficulty forced upon them by a 14 year old boy’s cancer relapse. As in any family, his mother was possessed by an overwhelming wish for his life to be saved; she loved him dearly. Holding parental responsibility, she had the legal authority to consent for blood transfusion, but her religious convictions precluded this. Equally C, Gillick competent, can provide consent, but was unable to do so for the same reason. The clinicians required consent, without which the transfusion would be unlawful, so could not proceed.

Happily the High Court, although not strictly providing consent, nevertheless was able to declare, under its inherent jurisdiction, that transfusion was lawful. The clinicians could proceed with treatment, C will be given the chance of survival that he craves, and his mother will hopefully have her son restored to her, since she at the earliest stage indicated she would abide by the law.

It is unusual to see the legal transaction between a child, his Jehovah’s Witness parent and his clinician set out so clearly. All involved want the patient to live, but the clinician needs consent, and the Witnesses are for honourable reasons unable to provide it. By various methods, the courts can render the transfusion lawful despite the lack of consent from child or family. We wish C well in his treatment.

Robert Wheeler
Department of clinical law
January 2020

Acquiescence, not consent