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.

Courts in England pass no judgement on but give considerable weight to families’ religious beliefs provided they are legally and socially acceptable. The child’s interests remain, however, paramount in all aspects of their upbringing, including religious matters. How has this been reflected in clinical practice during the last thirty years?

In a case decided soon after the Children Act 1989 came into force, a judge, weighing religious influences when deciding where a child should live, provided guidance: ‘It is no part of the court’s function to comment upon the tenets, doctrines or rules of any particular section of society... (their) impact ...upon a child’s future welfare must be one of the relevant circumstances to be taken into account by the court...’ This translates easily into clinical practice, in terms of the respect that should be shown to religious traditions and practices, incorporating them within an overall treatment strategy.

Dealing with a 16 month girl with type 1 spinal muscular atrophy (SMA), who was conscious and able to recognise her parents, but required ventilatory support, a judge heard that life sustaining treatment would delay death without significantly alleviating her suffering. Her orthodox Jewish parents believed that their religion did not permit them to contemplate a course of action that would indirectly shorten her life. The court held that withdrawal was in the child’s best interests, and that it could not direct the doctors to provide treatment unwillingly. The judge acknowledged the desperate situation the parents found themselves in, but did not address the religious foundation for their refusal of consent to withdraw treatment.

In the case of J, 5, whose father was a Muslim and mother a Christian, the Court of Appeal had to adjudicate on the father’s Specific Issue Order that J should be circumcised, an act opposed by mother. The court found that circumcision was not in the child’s interests, because of his mother’s opposition and the fact that only a small number of his peers were circumcised. The court found in terms that ‘...the legal priority was the welfare of the child, not the religious wishes of the parents’. An explicit distinction was drawn between religious upbringing and religion; ‘...(N)o matter what religion the child belonged to at birth, the child’s own perception of their religion derived from involvement in worship and teaching within the family’.

In 2000, a court had to decide on the separation of conjoined twins, in circumstances where one twin would have to die to enable her sister to live. Their Roman Catholic parents believed that the fate of their children should be left in the hands of God, and that ending the life of one of their daughters to promote the survival of the other was wrong. The parents pleaded to prevent the operation. They were ‘…quite happy for God’s will to decide...’ Sympathising with the cruelty of the agonising choice faced by the parents, the court explicitly indicated that the ‘...value of each life in the eyes of God and the eyes of the law is equal’, and heard submissions from the Roman Catholic Archbishop. In concluding, the court noted that its ultimate decision would have no reference to religious teaching or individual conscience.

Where there was religious conflict between a Muslim mother and a Hindu father over in which religion the children (8 and 9 years old) should be raised, the court made no order on the matter, finding that ‘...(C)hildren of mixed heritage should be allowed to decide for themselves which, if any, religion they wished to follow’. It was in the children’s best interests to continue their lives as before, enjoying the best of both worlds.

In Re MB, the parents were refusing to agree to withdrawal of treatment in their 18 month son with type 1 SMA. The father, a practising Muslim, believed that it ‘...was not right for people to choose whether another person should live or die’ and that ‘...No-one knew exactly when God who gives life takes it. We all have a certain time to die and should leave the decision to God’. Perhaps for the first time, in Re MB, the court explicitly took no account of the father’s beliefs in the balance sheet to determine the child’s best interests, noting that an objective balancing exercise cannot be affected by whether the parent happens to adhere to one particular belief, or none.

In a judgement considering a seven month old with haemophagocytic lymphohistiocytosis who urgently needed a bone marrow transplant, her parents opposed the treatment, believing their daughter should enjoy life that remained to her, whilst forgoing the transplant. The mother’s conviction was that God would heal her child: ‘We strongly believe that God has the ability to heal her...our belief in a miracle gives us the ability to make decisions for her quality of life, even if short term’. In response, the court found that the presence or absence of religious faith was irrelevant. Whilst respecting the parents’ faith, the judge left entirely out of account any possibility of miraculous cure.

A separating couple were in the Family Court, disputing the arrangements for the care of their four year old boy. One concern of the father was that the mother might bring the boy up as a Jehovah’s Witness. The judge took the opportunity to set out guidance on how compromises over religious upbringing might be reached in these circumstances, but the recurring theme of the judgement was that any decision made must be taken in the context of the child’s welfare. Parental wishes are not determinative in this situation.

Further evidence that parental religious beliefs can play no part in the balancing exercise is drawn from M, whose need for haemodialysis was a matter of anxious consideration by his doctors. The consultant making the decision in relation to this 7-8 kg child had consulted extensively throughout the country, and conceded to the court that the countervailing factors (for and against haemodialysis) were so delicately balanced that they could easily require review. It was in this context that the parents opposed treatment, believing entirely in the power of prayer. The court was satisfied that their opposition was ‘...predicated on the strength and vibrancy of their faith’, but even in this most finely balanced matter, their beliefs were irrelevant to the determination of M’s welfare.

In the recognition of death itself, whilst parental beliefs hold no sway in court they can influence the fate of their child. A full term baby was asphyxiated by umbilical cord prolapse, leading to birth with no cardiorespiratory output. Although resuscitated, within two weeks of birth the baby, following two Death by Neurological Criteria assessments, was diagnosed with irreversible brain stem death. Despite this diagnosis of death his parents, referring to their beliefs as Muslims, refused to agree to withdrawal of care, thus ventilation and feeding were continued whilst the situation could be addressed. The parents explained that their Imam had advised them to resist extubation, because whilst his heart beat the child’s hope of recovery remained. Faced with head shrinkage due to cerebral liquefaction, the case went to the High Court. The resulting appeal was heard four months later, when his death at the age of two weeks was retrospectively confirmed.

In religious matters, the interests of the child remain the paramount consideration. ‘Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make choices for themselves’.

Religious influences in medical decisions made for children