Judge: Lieven J
Citation:  EWCOP 19
This was an urgent out of hours telephone application made by the applicant Trust for an order enabling it to provide a blood transfusion to DE in the event that it should become clinically necessary.
DE was a 49 year old woman who suffers from autism and mild learning difficulties. She and her mother were Jehovah’s Witnesses. On 11 April 2019 DE suffered a serious break to her left femur and tibia. She required surgical fixation of the femur and possibly the tibia. There was said to be a risk that during the operation DE would require a blood transfusion or blood products.
The Trust had assessed DE as lacking capacity to make decisions about whether to accept a blood transfusion or blood products.
The court heard oral evidence and submissions over the telephone, but adjourned the application overnight so as to allow the Official Solicitor lawyer to visit DE and seek her views.
The Official Solicitor lawyer’s attendance note of that visit recorded that he had visited DE and met her with her mother and brother. DE said that she was a Jehovah’s Witness but made it very clear that she wanted the operation to happen as soon as possible. She could not explain why blood transfusions were prohibited under the religion. She did not appear too concerned about having a transfusion.
Having met with DE, Official Solicitor agreed that the order should be made.
The Court accepted the evidence that DE lacked the capacity to make the decision as to whether to accept blood transfusion if clinically necessary. The Court also held that clinically it would be in DE’s best interests to have a blood transfusions in the event that it becomes clinically necessary. The Court articulated the central issue as “the degree to which DE’s wishes and feelings would be overborne by a decision to allow a blood transfusion, in the light of her being a Jehovah’s Witness; and therefore whether there was a disproportionate interference in DE’s article 8 rights.”
The Court found that “although DE described herself as a Jehovah’s Witness she was not someone for whom those beliefs were central to her personality or sense of identity.” The Court’s view gained at the oral hearing was reinforced by the information from the Official Solicitor, namely that DE was not strongly identifying herself with the beliefs of Jehovah’s Witnesses, and indeed her mother supported the operation going ahead. Unsurprisingly therefore the Court granted the Trust’s application.
This case is interesting in the finding that, while DE identified as a Jehovah’s Witness, this was not central to her sense of self. It is not entirely clear from the evidence whether DE had been baptised as a Jehovah’s Witness and had actively chosen to live as one, or whether she was regarded as one because she had been brought up in a Witness household and had not made a deliberate choice to embrace the faith and live as one. Ordering transfusion in respect of the former is clearly more serious than the latter. We should further emphasise that this case was very fact specific, and should, in particular, not be taken as licence to override refusals by Jehovah’s Witnesses by clinicians – this was undoubtedly a case requiring consideration by the Court of Protection. For guidance more generally in relation to medical decision-making involving Jehovah’s Witnesses, we recommend the Association of Anaesthetists’ Anaesthesia and peri-operative care for Jehovah’s Witnesses and patients who refuse blood (July 2018).