oct ewj 24 online - Flipbook - Page 65
ity to make a decision which the medical professionals do
not like. The more respectful approach, I would
suggest, is agree that they have that ability, and then
focus clearly in on whether there is some countervailing
factor of sufficient strength to override it.
47. The order must reflect my conclusions about J’s
competence to participate in this litigation without a guardian,
and to make decisions about the planned medical treatment. I
shall declare that it is lawful, being J’s decision and in accordance with his best interests, for his treating clinicians not to administer whole blood or primary blood products, even if in the
opinion of the treating clinicians the transfusion of blood or
blood products may preserve J’s life, or prevent severe permanent
injury or irreversible physical or mental harm. I shall further
provide that if prior to the procedure J consents to having such
blood or blood products, such treatment will be provided as long
as his clinicians consider this to be clinically indicated.
One oddity about J’s case, though, is that Cobb J
framed the question of J’s ability to make the decision
as a matter of Gillick competence.[1] At paragraph
24, Cobb J had no hesitation in concluding that:
J is a competent young person with an understanding, maturity, and intelligence which equips him well to make his own
decision, and give consent, in relation to the medical treatment issues, in line with the principles discussed in Gillick v
West Norfolk and Wisbech Area Health Authority and Another [1986] AC 112 at 171 (Lord Fraser), and 186 (Lord
Scarman). I consider that he is capable of appreciating fully
the nature and consequences of the treatment which is proposed for him; all of these issues are questions of fact (Gillick
at p.189/190). I am equally satisfied that the views which he
expressed are authentically his own, free from influence of his
parents or others.
In a postscript, Cobb J relayed that the surgery did
proceed, that it was successful, and the post-operative
period has passed without complication.
Comment
For those working with Jehovah’s Witnesses, this
guidance from the Association of Anaesthetists of
Great Britain and Ireland may be of assistance.
Cobb J’s statement that the need for judicial respect
for the views of a mature child is clear and important.
It is also clear and important that this case was framed
as one where J was recognised as having the ability to
make his own decision, the relevant question being
whether it should be overridden. This is very much in
line with the decision of Munby J in NHS Trust v X, the
most detailed post-Human Rights Act 1998 analysis of
the position of children who wish to refuse treatment. In
NHS Trust v X, Sir James Munby also made the important point that (at paragraph 78) consent and refusal are
two sides of the same coin of the child’s ability to make a
decision. That approach is important, because it helps
avoid the temptation to deny that the child has the abil-
Cobb J does not appear to have been addressed on
this point, so it is not clear the extent to which his
observations reflect a considered discussion of the
matter.
By contrast, Sir James Munby was addressed in detail
on this in NHS Trust v X at paragraph 77, and set out
his views as follows:
(1) Until the child reaches the age of 16 the relevant inquiry
is as to whether the child is Gillick competent.
(2) Once the child reaches the age of 16:
(i) the issue of Gillick competence falls away, and
Optimum
Medicolegal
Specialists in the rapid turnaround of psychiatric
medicolegal reports by a panel of Consultant Psychiatrists.
Over 3,500 reports for legal firms and private
organisations completed since 2009
Our Expert Witnesses have extensive Courtroom experience
Consultations available at:
St John Street, Manchester
Harley Street, London
Optimum Medicolegal also have multilingual experts, details available upon request
Address: Suite 202, 792 Wilmslow Road, Didsbury, Manchester M20 6UG
Tel: 0161 207 0204 Email: info@optimummedicolegal.com
EXPERT WITNESS JOURNAL
63
O C TO B E R 2 0 2 4
