oct ewj 24 online - Flipbook - Page 64
The Older Child and Medical
Treatment Decisions - Mental
Capacity or Competence?
Re J (Blood Transfusion: Older Child: Jehovah’s Witnesses) [2024] EWHC 1034 (Fam) is a
characteristically thoughtful judgment from Cobb J, concerning whether authorisation should be
given to provide a 17 year old Jehovah’s Witness with blood products in a planned operation. In
analysing the legal framework, Cobb J was taken to the decision of the Court of Appeal in E v
Northern Care Alliance NHS Foundation Trust and F v Somerset NHS Foundation Trust [2021]
EWCA Civ 1888 (‘E and F’). He resisted, however, the submission by the Trust that the decision set
out the proposition that there can be a point in cases involving the medical treatment of those under
that 18 that “the discretionary powers on the court to intervene convert into a duty on the court to
intervene to preserve the young person’s life” (paragraph 33).
treatment, I am conscious that “that is not the invariable
outcome” (per Re E & F at [65]). To be faithful to the rich
seam of pronouncements in this area I wish to emphasise that
judicial ‘respect’ for the ‘views of the mature child’ is not a tokenistic mantra; it must be given true meaning, and where
appropriate, full effect. To some degree this is demonstrated by
the decisions of Moor J in A South East Trust v AGK[2019]
EWFC 86 and to the decision of Cohen J in A Teaching Hospitals NHS Trust v DV (A Child) [2021] EWHC 1037
(Fam), where the objections of young people to the administration of blood products held sway. However, the distinguishing feature between those cases and this is that in AGK
and DV no significant opposition was offered by the medical
profession to the minor’s objections.
Cobb J noted at paragraph 35 that:
I do not interpret the remarks in Re E & F set out in the
foregoing paragraphs (§33/34) to mean that where proposed
medical intervention carries with it any risk of loss of life, the
court is obliged to authorise treatment so as to preserve the
young person’s life. That would be to negate the lodestar of
welfare in the widest sense. Nor do I believe that those remarks
are intended to contradict the earlier remarks about the two
transcendent factors in play when considering the welfare of
a mature young person (see [50] Re E & F, and §31 above).
When considering authorising medical treatment which is opposed by a competent young person (using ‘competent’ in the
context of Gillick above), it is crucial that the court should
consider, among other factors, the chronological age and level
of maturity of the individual young person, their intelligence
and understanding of the issues and risks, the nature of the
specific decision to be made, objectively the full set of risks involved both ways (of having or not having the treatment and
its consequences), the reasons given by the young person for
their decision, and the prospective quality of the life to be lived
should the unwanted treatment be successful in preserving the
minor’s life. As the Court of Appeal made clear in Re E & F
it is important that the court identifies:
45. J is only a matter of weeks away from being an adult as
a matter of law. He has limited – but nonetheless evolving –
experience of mature decision-making; he has first-hand experience of the death of someone of whom he was fond. He already shows many attributes of adulthood. I found him to be
an impressive young man with clear thoughts and expression.
I am satisfied that he knows his own mind, and is aware of the
risks to which he is exposing himself in declining blood products in the unlikely event that they would be needed in this operation. J’s clear and unequivocal decision in this regard, and
his reasoning, are rooted in his faith; I respect his well-recognised right under Article 9 of the ECHR to manifest and observe his religion. The Applicants recognise that J’s beliefs
about blood products are “long held and considered”. I accept
that if I were to accede to this application and blood products
were therefore administered intra-operatively or post-operatively, this would be likely to affect J’s sense of self-determination, his fidelity to the tenets of his religion, and the quality of
his life going forward. I am satisfied that while blood products
may save his life, their administration against his wishes would
lead to him experiencing a much reduced quality and enjoyment of that saved life, and he would be ‘tormented’ by
having other blood in his veins.
“… the factors that really matter in the case before it, gives
each of them proper weight, and balances them out to make the
choice that is right for the individual at the heart of the
decision” ([52]).
Applying the legal framework set out in E & F to the
facts of the case before him, Cobb J found that, although it was very small, the risk of serious haemorrhaging did exist, and that there was a need for
intervention, such that the need to consider authorising the giving of blood could not be avoided.
As to J’s welfare, Cobb J made clear he had:
44. […] found this to be an extremely finely balanced decision
which directly and poignantly engages the “two transcendent
factors” referred to in Re E & F, namely the preservation of
life and personal autonomy. It is plain that the subject young
people in Re E & F felt “aggrieved” ([5]) that their views
were overridden, and I am satisfied that J would feel the same.
Even though the body of case law to which I have been referred has generally concluded with a decision in favour of
EXPERT WITNESS JOURNAL
46. Having weighed all of the matters outlined above, I have
concluded that in this case it is in J’s best interests for his own
decision to refuse the administration of blood or blood products
in surgery to prevail, and I propose therefore to refuse the
application for the court’s authorisation to administer blood
products in the event of emergency in the upcoming operation.
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