Young person refusing blood transfusion

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.

In summary, a 16 or 17 year old refusing blood in England must be given blood if it is in his or her best interests so to do. A recent case has taught us that in the face of parental opposition to urgent therapy, the court must be contacted by telephone for a declaration that the treatment is lawful, if time permits.

But if there is no time to contact the court, the young person must not be allowed to die for want of blood.

It goes without saying that clinicians will make every effort to persuade the young person and her family that blood transfusion is in her best interests. For the purposes of this bulletin, we will assume that this is so.

Such persuasion should involve the Hospital Liaison Committee of the Jehovah's Witnesses. A 'consent' form for Jehovah's Witnesses is available, which paradoxically does not record their consent; but it allows the patient or parent to record their understanding that transfusion will be administered if there is no other clinical manoeuvre that can be used to avoid the use of blood. Such acquiescence as a substitute for consent, when combined with blood product administration in the patient's best interests is considered sufficient to legitimise the transfusion.

In the unusual event that the young person stands alone in refusing blood, whilst her patients sanction its transfusion, their consent is sufficient to make it lawful to administer the blood, since the patient has yet to reach adulthood (when parental rights to consent instantly evaporate).

The Family Law Reform Act 1969 shows us that at 17 she is a child; adulthood commences on the 18th birthday. It is true that this legislation gave 16 and 17 year olds the right to provide consent to treatment, by creating a presumption that they were competent to do so. But subsequent case law makes it crystal clear that in England, such minor may not choose to die for want of blood or food.

Whilst this may seem internally inconsistent, reflection on your clinical practice reveals how the doctrine operates. If a young person refuses to consent for treatment of a painful or inconvenient condition which nonetheless threatens neither life nor limb, then after a reasonable amount of persuasion, you will acknowledge his autonomy, and abandon your attempt at treatment. You may quietly anticipate that the onerous nature of his illness is likely, in time, to force him to reconsider his position.

This happens countless times every day in the NHS, and reveals that the FLRA 1969 operates satisfactorily. No litigation has arisen from this pragmatic approach to a young person’s right to control their own destiny.

But when a young person threatens to ‘throw away’ her life by refusing food or blood, the courts (not the state) step in, and consistently create an exception to Parliament’s intentions in the FLRA 1969 by refusing to accept that this young person can formulate a competent wish to die. It is due to this judicial obstinacy that the young person who is competent by the virtue of being 16 or 17 years remains unable to elect to refuse life. It seems likely that at least some young lives are saved in this fashion.

The last time such a case was reported was of Re R (A Minor)(Blood transfusion) [1993]. The law has been firmly settled for 20 years.

The section 8 (Children Act 1989) specific issue order was designed specifically with this in mind, at the behest of the Jehovah's Witness community, among others. This order permits the court to exercise its power over (in this case) the specific issue of blood transfusion; whilst leaving the rest of the rights and responsibilities conferred by parental responsibility firmly with the parents. With such an order, transfusion is permissible. In desperate circumstances, such an order, or its oral equivalent, can be obtained over the telephone from a High Court judge in a matter of 30 minutes. This can be done through the site manager, who will direct you to the appropriate person to make this call, depending on the time of day. Perhaps it is for this reason that no similar contested litigation has been reported since 1993.

But if there really is insufficient time (i.e. less than 30 minutes) to make this application, then if the child will die without transfusion, and all feasible clinical alternatives and adjuncts to transfusion have been exhausted, then blood must be given to save the child's life, despite the refusal of patient and parents. English courts have never allowed litigation to commence against a clinician who saves a life in good faith.

Robert Wheeler
Department of clinical law
September 2014