Blood products and Jehovah’s Witnesses: An NHS Trust v C NHS Trust & Ors

In An NHS Trust v C NHS Trust & Ors [2019] EWHC 3033 (Fam), CX, now fourteen, had been diagnosed with lymphatic cancer when he was three. He was treated successfully, but in 2019 his cancer returned [1]-[2]. As a result of the chemotherapy that he was to receive, it was likely that his blood counts would drop significantly and that he would need transfusions of blood products [5]. Both CX and his mother were Jehovah’s Witnesses: each was willing to consent to the proposed chemotherapy, stem cell harvesting and the return of the stem cells following chemotherapy, but would not consent to the administration of blood and/or blood products – which the doctors believed to be a necessary and integral part of CX’s recovery [6]. CX’s treating physicians were firmly of the view that, without the option of supporting his treatment with blood products, it would not be safe to proceed with it [16-17]. Nevertheless, CX and his mother had said that they would ‘respect the law and any decision reached by the court if it does not accord with their personal religious beliefs’ [7]. The applicant NHS Trust sought a declaration that it was both lawful and in CX’s best interests to receive blood and blood products as a part of his treatment. MacDonald J had set out the fundamental principles of law in this area in Plymouth Hospitals NHS Trust v YZ and ZZ [2017] EWHC 2211 (Fam) – including the principle that ‘The views of the child must be considered and be given appropriate weight in light of the child’s age and understanding’ [9].

In the opinion of Roberts J, CX was ‘plainly an intelligent child who is more than capable of making many decisions for himself’. He had written to her setting out some of his reasons for deciding not to accept blood transfusions as part of his treatment plan and his letter included a clear statement that he had taken the decision on his own account: ‘he was baptised into his faith after much thought and because he wanted to express his love to his God’. He would feel angry and upset if he had a treatment forced on him that he did not want. He would agree to treatment with blood fractions – because it was permitted by his religion – but queried why the doctors were not prepared to try using blood fractions as an alternative to blood products. And if full blood transfusions were necessary, he asked that he should be given ‘as little as possible’ [10]. The view of the Guardian who had spent some time with CX was that he appeared to have ‘both an age-appropriate understanding and awareness of his own unique circumstances’ [11].

In the normal course of events, consent to medical treatment for a child under 16 was given either by the parents in the exercise of their parental responsibility by operation of law or, if the child was competent to make the decision, by the child: see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 [12] – the principle often referred to as ‘Gillick competence’ [13]. Nevertheless, following the analysis of the Court of Appeal in Re R (A Minor)(Wardship: Consent to Treatment) [1992] Fam 11, [1992] 1 FLR 224, it was clear that even where a child under the age of 16 had been found to be Gillick competent, the court had the power to override his or her decisions where it was in the child’s best interests for it to do so [14].

Roberts J concluded that CX was Gillick competent to make the decision as to whether or not to undergo the proposed treatment [22]. He had questioned whether or not the treatment could go ahead with a trial of blood fractions as opposed to blood products – but that was unlikely to be a viable option [23].  Without the proposed treatment, she was satisfied that there was a very significant and material risk that CX’s cancer would spread [25]. She concluded, therefore, that even though CX was Gillick competent, it was undoubtedly in his best interests to undergo the planned treatment; and she made a declaration that it was both lawful and in CX’s best interests to receive blood and blood products in the course of the proposed treatment plan [26].

Cite this article as: Frank Cranmer, "Blood products and Jehovah’s Witnesses: An NHS Trust v C NHS Trust & Ors" in Law & Religion UK, 21 November 2019, https://lawandreligionuk.com/2019/11/21/blood-products-and-jehovahs-witnesses-an-nhs-trust-v-c-nhs-trust-ors/

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