E & F (Minors: Blood Transfusion)
How should the Court exercise its power to overrule the decision of a competent minor?
Summary
In E & F (Minors: Blood Transfusions), the Court of Appeal considered appeals brought by two young people, both Jehovah's Witnesses who conscientiously reject blood transfusions. They appealed orders in which it was declared that, although they were Gillick competent to decide whether to consent to or refuse a blood transfusion, it would nevertheless be lawful for their doctors to administer blood in the course of an operation if that become necessary to prevent serious injury or death. Given that no crisis arose in either case, the declarations never formally came into effect.
The key question for the court was how the State, acting through the court, should exercise its power to overrule the capacitous decision of a mature minor, and in particular a young person aged 16 or 17.
In E's case, she was diagnosed with acute appendicitis and needed urgent surgery, which would involve diagnostic laparoscopy (a low-risk examination procedure), followed by a laparoscopic appendectomy (removal of the appendix by keyhole surgery), but if that was not possible, by an appendectomy by open procedure. There was a risk, albeit very small, of severe surgical bleeding intraoperatively and there was therefore the possibility that a blood transfusion would be needed without which there was a 'very theoretical possibility" of E bleeding to death. E provided her written consent to the surgery but wrote that she did not consent to blood transfusions.
The hospital trust filed an urgent application in the High Court, which was heard the same day by Theis J. The treating consultant anaesthetist (Dr A) provided a written statement. E and her father attended the hearing. Cafcass Legal also attended through a solicitor and Cafcass officer. After hearing evidence, Theis J gave a brief judgment in which she recognised E's wishes, expressed not only by herself but with the assistance of her parents and Guardian, as well as her age and level of understanding. She weighed against that the medical evidence that the procedure needed to be undertaken otherwise there was a risk of rupture with consequent risks of infection and sepsis.
F had lost control of his motorbike on a bend. He was admitted to hospital and diagnosed with a grade 3 laceration involving a quarter to a third of his spleen. With this kind of injury, there can be primary or secondary bleeding. Primary bleeding happens at or shortly after the time of the injury; whilst secondary bleeding may occur later, as a result of a clot loosening that can then lead to catastrophic bleeding.
An application was filed at court for an order declaring that it was lawful and in his best interests for the doctors to provide blood and blood products in the event of an emergency arising from his injury. The trust initially sought an order for 100 days, but reduced it to 21. Judd J heard from two medical witnesses, as well as F and his parents. She determined that she needed to give very great weight to F's views, given his age (17 and a half), understanding and competence, but that they still form part of the best interest analysis. She decided to make the declaration sought by the Trust.
The central argument made on appeal was that there is a strong presumption in favour of a young person's capacitous; and that decision should only be rebutted where, on the balance of probabilities, the decision would cause serious harm or death. It was wrong for the courts to intervene in these cases, because the risks were remote and the young persons' decisions were "reasonable and safe ones" (para 38(4)).
In his judgment for the Court, Sir Andrew McFarlane (President) observed that the inherent jurisdiction is available in all cases concerning minors (so persons under the age of 18) and "[T]hat has always been so and any change must be a matter for Parliament" (para 44). When the court is being asked to exercise its inherent jurisdiction, there are three stages:
- The first is to establish the facts;
- The second is to decide whether it is necessary to intervene; and,
- The final and decisive stage is the welfare assessment.
The next question is whether immediate action is necessary or whether the decision can be postponed. It ultimately depends on the facts and how realistic it is to expect a fair and timely decision if a crisis arises.
Finally, there is the welfare assessment. The authorities require that the assessment is undertaken from the individual's point of view and the court seeks to identify his or her best interests in the widest sense. That analysis does not, however, take place in a vacuum. The Court observed that (para 50):
"The law reflects human nature in attaching the greatest value to the preservation of life, but the quality of life as experienced by the individual must also be taken into account. The views of the parents of a baby or young child are always matters of great importance. Likewise, our common experience leads us to pay increasing regard to the views of children and young people as they grow older and more mature."
When undertaking such assessments in medical treatment cases for competent young people, it involves the "balancing of two transcendent factors: the preservation of life and personal autonomy" (para 53). The leading decision is Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam 64. There is no presumption in favour of the mature adolescent's decision, contrary to the appellants' submission; rather, welfare is the overriding principle. The court must act upon an objective assessment of the young person's best interests, even if this conflicts with their sincere and considered views (para 73). The court accordingly dismissed the appeals.
Comment
The judgment provides extremely helpful guidance as to how the court should approach these applications, and therefore how practitioners should draft them, in terms of (i) the three stages and (ii) the central task of weighing the two transcendent factors identified above. An undifferentiated list of factors does not help, particularly if that list is extracted from a case concerning a small baby with a brain injury rather than concerning a capacitous child approaching adulthood (para 71). A court should therefore focus on Re W and this decision (para 71).
Another important tip is that, whilst recognising the pressure under which urgent orders are drafted, the court emphasised the importance of ensuring they accurately reflect the court's decision.
Finally, the Court noted that the first court order in F's case contained a recital to the effect that "if a declaration was not made the clinicians would be able to treat him "using their emergency powers in the event of an emergency overnight"". Whilst not expressing a concluded view, the Court made the following obiter comments (para 24):
"Doctors undoubtedly have a power, and may have a duty, to act in an emergency to save life or prevent serious harm where a patient lacks capacity or cannot express a view, for example because of unconsciousness. However, we very much doubt that such a power exists in respect of treatment that has been foreseen and refused by a capacitous patient. It is doubtful whether such circumstances can properly be described as an emergency."
Practitioners therefore need to be extremely cautious in relation to relying upon clinician's "emergency powers".
