Success in the Court of Appeal for four members of the Public Law team

The Court of Appeal considered two cases relating to blood transfusions for 16- and 17-year-olds in E&F (Minors: Blood Transfusion) [2021] EWCA Civ 1888. The judgment provides clarification on the scope of the inherent jurisdiction to authorise medical treatment decisions for young people against their wishes.

The Court of Appeal considered the cases of 'E' and 'F', who were respectively 16 and 17 years of age; the cases were unlinked, but presented similar legal issues. Both E and F were committed Jehovah's Witnesses, with families who supported their views. E and F had both come to be in hospital (E due to appendicitis, F following a road traffic accident), and there was a very small prospect that a crisis might emerge which would require urgent treatment by means of a blood transfusion to prevent them from coming to serious harm. E and F both had mental capacity to take decisions about their care and treatment for themselves. Although the prospects of either E or F needing a blood transfusion were very small – in E's case as low as 1 in 2,000 – if the crisis did arise, the risk of serious harm or death would be significant.

In each case, the treating hospital trust had made an application under the inherent jurisdiction of the High Court for orders in respect of their treatment. Theis J and Judd J, respectively in E and F's cases, made orders that the relevant trusts could treat E and F with blood products, but only if certain preconditions were met indicating that E and F were at risk of harm. E and F both recovered without these crises emerging, and neither actually received any blood products as part of their treatment.

E and F respectively appealed these decisions, and the cases were heard together in November 2021. Permission to bring the appeal was granted on the basis that the first instance decisions had been wrong on the facts of their case, with the court considering that 'the central argument made by E and F' was that the courts had been in error 'to override the decision of a capacitous young person' and:

'the starting point is a strong presumption in favour of a young person's capacitous decision. The decision should be respected unless there are very strong reasons for rejecting it. The presumption can only be rebutted where on a balance of probabilities the decision would cause serious harm or death. If it is not rebutted, the decision must be followed.'

The Court of Appeal dismissed the appeals. It accepted the arguments on behalf of the Trusts that it is a decision for Parliament to determine whether 16- and 17-year-olds should have complete autonomy, which it has not elected to do. Where a 'court is being asked to exercise its inherent jurisdiction' there are three stages for it to take into account: establishing the facts, deciding whether it is necessary to intervene, and 'the final and decisive stage is the welfare assessment.' Welfare is considered 'in the widest sense' and 'the assessment will be driven by circumstances that will vary widely from case to case.' The court considered that: 'Welfare assessments in medical treatment cases concerning young persons with decision-making capacity involve the balancing of two transcendent factors: the preservation of life and personal autonomy.'  While it was unlikely that E or F would need blood products, in view of their refusals, the Trusts were right to seek urgent court authorisation.

In the two appeals, the Court of Appeal considered that Theis J and Judd J had given 'considerable importance' to both the medical welfare of E and F, and the decisions they had taken for themselves. The Court of Appeal was clear that the first instance decisions were both 'certainly not wrong' to authorise the use of blood products in the circumstances of the cases.

Victoria Butler-Cole QC led Arianna Kelly for Northern Care Alliance NHS Foundation Trust in the case of 'E', instructed by Paul Allerston and Leah Selkirk of Hill Dickinson LLP; Parishil Patel QC led Francesca Gardner for Somerset NHS Foundation Trust in the case of 'F', instructed by Ruth Atkinson-Wilks of Bevan Brittan LLP.