In PW (Jehovah’s Witness: Validity of Advance Decision), Re  EWCOP 52, Mrs W, aged 80, had Alzheimer’s. She was seriously ill in hospital with potentially fatal internal bleeding from a gastric tumour and the evidence was that a blood transfusion and surgery could mean that she would live for another five to ten years. However, she had been a practising Jehovah’s Witness for most of her adult life, . Her medical team had concluded that she lacked capacity to make decisions about her treatment, but she had made an advance decision in 2001 – which appeared to have been held on a register of such decisions made by Jehovah’s Witnesses – to refuse blood or blood products even if her life was in danger. All parties accepted that the advance decision had been properly made .
The question for the court was whether, if Mrs W lacked capacity to make a decision whether to consent to or refuse a blood transfusion, her advance decision in 2001 was valid within the meaning of the Mental Capacity Act 2005 .
In 2020, she had given her four children Lasting Power of Attorney (LPA), registered with the Office of the Public Guardian, to make decisions about her health and welfare on her behalf. She had not given them any specific instructions about treatment with blood transfusion or anything else, but she had elected not to authorise them to give or refuse consent to life-sustaining treatment on her behalf . Further, she had expressed her agreement to having a blood transfusion and had then withdrawn it thirty minutes later , and when a “Do Not Resuscitate” (DNR) notice had been put in her medical records by mistake she had spoken to staff at the hospital to ensure that it was removed .
The Trust argued that her initial consent followed by refusal was inconsistent with allowing her advance decision to stand and that her statements and actions had rendered her advance decision invalid pursuant to s.25(2)(c) Mental Capacity Act 2005, under which an advance decision is not valid if the person making it “has done anything else clearly inconsistent with the advance decision remaining [her] fixed decision” . Mrs W lacked capacity to make a decision about her treatment, the evidence established that she had acted in a way clearly inconsistent with her advance decision being her fixed decision, and it was therefore in her best interests to undergo blood transfusion .
Her daughters told the court that their mother was not able to make such decisions for herself because of her dementia, but that they were sure that she wanted to live and to be treated. They, too, considered that it was in her best interests to undergo transfusion .
For the Official Solicitor, acting on Mrs W’s behalf, it was submitted that, whatever the views of her children, Mrs W had been a Jehovah’s Witness for many years and had continued to attend meetings until very recently, even attending by videoconference during the COVID-19 pandemic. She had not withdrawn her advance decision and, therefore, “It ought to be respected and her autonomy should not be overridden”. Further, s.25(2)(c) required acts to be “clearly” inconsistent with the advance decision remaining Mrs W’s fixed decision, and the evidence did not reach that standard .
After an emergency hearing by telephone, Poole J had concluded that Mrs W lacked capacity to refuse or consent to blood transfusion, that her advance decision was not valid, and that it was in her best interests to be transfused . In his subsequent written judgment, he explained that, on the evidence, it was clear that Mrs W had also lacked capacity to conduct litigation – which was why he had directed that the Official Solicitor should be appointed litigation friend to act on her behalf .
It was not disputed that Mrs W’s advance decision in 2001 met the requirements subsequently set out in the Mental Capacity Act 2005 and the MCA Code of Practice . She had made her advance decision as a practising Jehovah’s Witness in accordance with her beliefs, it included “very clear and robustly worded statements that Mrs W would refuse blood and blood products even if her life was threatened” and there was no evidence before the court that she had made it under undue influence . However, in the twenty years since she had made it, though she had not revoked or withdrawn it she had not updated or reviewed it, nor had she ever discussed it with her family, who had been unaware of its existence – though “I must take into account the disdain which Mrs W’s children have for the denomination, which may have dissuaded Mrs W from discussing her advance decision with them” .
Poole J was satisfied that, on the balance of probabilities, Mrs W had done things that were clearly inconsistent with her advance decision remaining her fixed decision:
“She granted to her children, whom she surely knew were hostile the Jehovah’s Witnesses denomination, authority to make decisions about all medical treatment, other than life-sustaining treatment, on her behalf should she lose capacity to make such decisions for herself, without mentioning to them or including in the written LPA any preference or requirement not to receive blood transfusion or blood products. The advance decision was widely drawn and did not restrict the refusal of consent to blood transfusion or blood products by way of life-sustaining treatment. Her actions at the time of granting the LPA were … clearly inconsistent with the advance decision remaining her fixed decision” .
Similar considerations applied to her requesting the removal of the DNR notice, without qualification and without telling her children or doctors about the advance decision or that she would refuse a blood transfusion or blood products .
In conclusion, he was satisfied that it was in Mrs W’s best interests to be transfused .
Would you say, Frank, that this was a case decided on its unique facts, applying existing principles to those facts, rather than one that laid down new principles applicable in a large number of cases? (I admit not having read the judgment myself.)
I think, on balance, the former.
It is disappointing that people are not allowed to die peacefully, especially when they are demented. While doctors and others should not kill, they need not strive, officiously, to keep alive, it appears that the legal profession does not agree with that doctrine proposed by Arthur Hugh Clough in the 19th Century and endorsed by Issac Asimov in the 20th.
Fair point: but judges in the Court of Protection have to make incredibly difficult decisions almost every day on which they sit – and the bottom line is that they have to make them in accordance with the law, whatever their personal feelings might be. I reckon that they have just about the most unenviable job in the legal profession of England & Wales.