The Daily Telegraph reported a recent case, Birmingham Children’s NHS Trust v B & C  EWHC 531 (Fam), in which Mr Justice Keehan gave permission for a baby boy to undergo blood transfusions during an operation notwithstanding his parents’ objections on religious grounds.
A was born on 7 February 2014 with complex cardiac defects including a hole in the heart. A successful interim procedure was performed to improve his oxygen levels while he waited for an operation scheduled for 14 February [para 3].
A’s parents, B and C, are Jehovah’s Witnesses. They did not wish to take part in the hearing and application but they e-mailed Keehan J with their views. They consented to A undergoing the recommended surgery but because of their religious beliefs could not consent to him receiving blood during the operation itself or subsequently, should the need arise. They explained that they understood that the court might well overrule their religious objections and order the surgery to take place with the necessary blood transfusions. They also explained that they did not wish to take part in the proceedings because they did not want to make them any more complex than necessary. In short:
“They will not actively try to prevent the treatment of their son, A. Nor do they actively oppose this application made by Birmingham Children’s Hospital” [para 4].
Dr B, a consultant paediatric cardiologist at Birmingham Children’s Hospital, gave sworn evidence by telephone that if the procedure was not carried out A was unlikely to survive beyond babyhood. The risks of the proposed surgery were relatively low; however, it could not be done without blood products being supplied to A during and possibly subsequent to the procedure. He further said that if the proposed operation was carried out successfully A’s prospects were excellent and that he would lead a normal life [para 5].
Keehan J said that in considering the application he had to consider A’s “welfare best interests” in the widest possible sense. The risks of the scheduled procedure were minimal but without it A’s chances of survival were extremely poor. He gave great weight to the fact that the parents consented to A undergoing the surgery because they understood and accepted that there was no choice if A was to survive [para 6]. He understood their religious objection to their baby receiving blood products during or subsequent to the surgery and he gave them great credit for not actively opposing the application despite their strongly-held beliefs [para 6]. However,
“Standing back and looking at A’s welfare best interests, I am in no doubt whatsoever that it is in his best interests to undergo the surgery that is proposed by Dr B tomorrow. On the basis that that is my view, it is inevitable that he must receive blood transfusions during the course of or subsequent to the surgery. Accordingly, I am again of the view, notwithstanding the parents’ understandable objections on religious grounds, that it is in A’s welfare best interests to receive blood products both during the surgery and, if necessary, subsequent to it” [para 8].
He therefore approved the following orders:
“(1) It is lawful and in A’s best interests that he undergo urgent heart surgery to switch his great arteries … which requires his blood to be passed through a heart bypass machine and a blood transfusion entailing the administration of blood and/or blood products.
(2) In any other immediately life-threatening situation where it is the professional opinion of those medically responsible for A that he is in need of the administration of blood and/or blood products, it shall be lawful for him to be given such blood and/or blood products without the consent of his parents…
(3) In any situation which is less than imminently life-threatening, those medically responsible for A shall consult with his parents … and will consider at every opportunity all alternative forms of management suggested by his parents to the administration of blood and/or blood products. In the event that those medically responsible for A conclude, after such consultation, that there is no reasonable alternative to the administration of blood and/or blood products, they shall be at liberty to administer such blood and/or blood products without the consent of his parents” [para 10].
Comment is largely superfluous, except perhaps to note that nowhere in his judgment did Keehan J refer to the parents’ Convention rights: possibly because B and C had not actively opposed the application and were not represented and possibly because the application related to a matter of some urgency. However, Convention rights were argued in a recent Northern Irish case, Re S  NIFam 8, which involved a 26-year-old with severe learning disabilities who needed several teeth extracting under general anaesthetic. His mother, a Jehovah’s Witness, had refused consent to the possibility of giving him a blood transfusion.
In that case (which we noted in the weekly roundup at the time) Morgan LCJ, sitting alone, ordered that blood products should be made available for the extractions against the unlikely event that S should experience severe bleeding. He accepted that the facts engaged Articles 2 (right to life), 3 (inhuman or degrading treatment) and 8 (private and family life) ECHR. However, a therapeutic necessity could not be regarded as inhuman or degrading [para 8]; and because of the possible risk of severe bleeding he was prepared to make the necessary declaration to permit the use of blood products – but only in the very limited circumstance that their use was necessary in order to preserve S’s life [para 9]. Article 9 (thought, conscience and religion) was not mentioned.