Overruling the capacitous refusal of blood

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.

Anyone who treats 16- and 17-year-olds will know that we presume these young people have capacity, but that this can be overruled by the courts to save their lives. How should this power be exercised?

It is a paradox that the law should confer capacity upon young people, yet then deny them a right to decide whether to refuse life saving treatment. But English law is settled on this point. The court has the power to intervene in the best interests of a young person, even if the effect is to overrule a decision that would have been determinative if they had been 18 or over. However, although we understand this power exists, how should it be exercised when clinicians are concerned about the possibility that blood could be required?

In joined cases at the Court of Appeal, two young people, Jehovah’s Witnesses, had refused blood transfusion. E was a 16-year-old girl with acute appendicitis who needed an appendicetomy. The preferred approach was laparoscopic. The anaesthetist and surgeon regarded the possibility of requiring transfusion as largely theoretical; but were unwilling to proceed because E had stated in writing that she would not consent to the administration of blood products. She was supported in this decision by her parents. Accordingly, the hospital made an urgent application to the High Court, asking for a declaration that it would be lawful to provide blood transfusion in the event of clinical necessity. The High Court granted this declaration.

F was a 17-year-old boy who lacerated his spleen when he came off his motorbike. Imaging revealed haemoperitoneum, but he remained haemodynamically stable and initial conservative management was uneventful. Nevertheless, F’s surgeon remained anxious on the day after the accident that primary bleeding might yet continue; and that secondary haemorrhage might also ensue. The surgeon readily conceded that compulsory transfusion could be a ‘serious affront to F’s personal views or may cause him serious psychological harm…’ but maintained that on balance, a blood transfusion would be in his best interests, should the need arise. In the High Court hearing that followed, F gave evidence, expressing his gratitude to his doctors, but explained that he had decided not to have any blood products ‘…because of my faith and relationship with my God and creator’. His parents supported their son’s decision.

The High Court noted that had F been 18 (which he would have been in 7 months’ time) his treatment would have been ‘entirely a matter for him’. However, since F was only 17, the judge made a declaration to allow transfusion within the next 21 days should it be necessary.

It was because of the similarity of the contingent decisions which clinicians faced in dealing with these two young people that the Court of Appeal heard the cases together. This court gave helpful guidance as to how the compulsive power should be exercised.

First, the facts must be established, in particular to identify the risk the patient is running. The court made plain the distinction between the risk of an event occurring (its probability) and the risk from the event occurring (it’s consequences). In the cases of E & F, the consequences of uncontrolled haemorrhage without transfusion were grave, irrespective of a very low probability that this risk would crystallise. Secondly, was it necessary to intervene immediately, or could the compulsive decision reasonably be deferred? This would depend on the facts: Would it be realistic to expect a fair and timely court decision at the point a crisis occurred? Thirdly, if intervention is found to be immediately necessary, then the final and decisive stage of decision-making is the welfare assessment. The court reviewed the wealth of common law authorities, finding that time and again, the primacy of the welfare principle overrules the decision of the capacitous young person.

For these structured reasons, the Court of Appeal endorsed the High Court decisions. This three-stage model will be useful for us in future similar cases.