Jehovah’s Witnesses and blood transfusions for 16- and 17-year-olds: E & F

In a guest post, Elijah Z Granet looks at the latest case on blood transfusions and Jehovah’s Witnesses.

Introduction

Can a minor approaching the age of 18 refuse to consent to life-saving blood transfusion on religious grounds stemming from membership in the Jehovah’s Witnesses? In E & F (Minors: Blood Transfusion) [2021] EWCA Civ 1888, the Court of Appeal examined this question of the clash of Gillick competence and the inherent jurisdiction of the Court (not, pace McEwan, the Children Act).

Facts

The facts of the two appeals are straightforward: E & F were aged 16 years 8 months and 17 years 5 months, respectively, and required emergency medical treatment which might involve blood transfusion. Both E & F objected, as practising Jehovah’s Witnesses, and the hospitals involved sought and received High Court declarations authorising the use of blood transfusions against the patients’ will, on the basis of the Court’s inherent jurisdiction. These declarations proved unnecessary, as no complications arose which required transfusion, but E & F remained aggrieved that the declarations were ever made in the first place, regarding them as an infringement of their autonomy.

Decision

For Sir Andrew McFarlane P, delivering the judgment of the Court, the starting point on the necessity of protecting a minor’s welfare was Re W (A Minor) (Medical Treatment: Court’s Jurisdictions) [1993] Fam 64, where an anorexic teenager attempted to refuse treatment for her condition. The facts were not precisely amenable to the present case—for a start, anorexia is a mental disorder which removes capacity of choice—but the dicta of the presiding judges indicated that the Court must first protect the life of the child even when that involves overriding the child. The President excerpted (at [55]) a long passage from Re W, per Balcolmbe LJ, which itself included an approving quote from an unreported Jehovah’s Witnesses case heard by Ward J (In re E (A Minor)) that the Court “should be very slow to allow an infant to martyr himself”. This was further validated, the President found (at [59]), by Sir James Munby in Re X (A Child) (No. 2) [2021] 4 WLR 11, where Re W was held to be compatible with the relevant articles of the ECHR.

The case law was thus fairly firmly on the side of the overriding power of the Court to disregard a mature minor’s interests in favour of the “imperative to preserve life”. [63] This is not a universal rejection of a minor’s refusal to treatment, as in A Teaching Hospitals NHS Trust v DV (A Child) [2021] EWHC 1037 (Fam), Cohen J had allowed for a riskier plan of treatment in the absence of blood transfusion. However, there was never a point where a minor was sufficiently capacitous that they could exercise sovereign control over their medical decisions, and in effect, oust the Court’s inherent supervisory jurisdiction. [66]  Counsel for E & F tried to rely on the Canadian case (on similar facts) of AC v Manitoba  (Director of Child and Family Services) 2009 SCC 30; [2009] 2 SCR 181, but ran into the slight complication that, as the President noted (at [68]), in that decision (which had been quoted extensively earlier), “the Supreme Court of Canada [per Abella J] expressly preserved its powers” to override the decisions of 16- and 17-year-olds.

When this was applied to the facts to the respective cases, the President found (at [72[ & [78]) that E’s and F’s religion had been given full consideration by the judges at first instance (Theis J and Judd J, respectively), and a careful balancing act had been followed. The decisions ultimately reached by the first instance judges were thus well within the province of the Court to reach, and the appeals were to be dismissed.

Commentary

The President rightfully distinguished this case (at [71]) from the tragic circumstances of Manchester University NHS Foundation Trust v Fixsler [2021] 4 WLR 95, which involved a 2-year-old on life support. The autonomous will of a near-adult had the quality of being a ‘transcendent factor’ (ibid) on a par with the need to preserve life. The job of a judge considering whether to override the autonomous will of a near-adult is to give enormous weight to the minor’s views. Yet, the Court’s role as the parens patriae to all minors in the jurisdiction means that, even with all the consideration, balancing, and respect it is possible to judicially give, it is very, very, reluctant, to paraphrase the decision quoted above, to ever let a minor become a martyr. The Court is the guarantor of a child’s Art 2 ECHR rights just as much as it is of her Art 9 ECHR rights.

This balancing act was thoughtfully considered by the Court at [73]:

“[…] As to Mr Achonu’s [Counsel for E & F] rhetorical question about the message that the outcome sends to young people, the answer is that the law, in common with all major religious faiths, has a profound respect for the value of human life. Article 2 of the European Convention provides that everyone’s right to life shall be protected by law. Once a young person becomes an adult, decisions about whether to accept or reject medical treatment become theirs absolutely, but before that age the court must act upon its objective assessment of the young person’s best interests, even where this conflicts with sincere and considered views.”

It is true that this can seem an arbitrary distinction, particularly where someone might be days (or seconds) away from reaching the age of majority. This is particularly true in, for example, Wales, where a 16-year-old is capacitous enough to vote, but not to have full autonomy in her medical treatment. Yet, when we return to the “transcendent factor” of the preservation of life, which is just as zealously regarded by the law as by religion, it seems sensible that the architecture of the law includes a margin of error, extending supervision and the highest and most anxious levels of protection into the first few years of maturity. The alternative, as suggested by counsel in this case, of simply treating the wishes of a 16-year-old as determinative as those of an adult, runs the unacceptable risk, however small, that the lives of immature or vulnerable 16– to 18-year-olds might be avoidably lost.

The limits on the liberty of conscience and bodily autonomy imposed on 16- & 17-year-olds like E & F are difficult and undoubtedly distressing, but, it is submitted, remain a proportionate exercise of the overriding interest of the State and of virtually every philosophical and religious tradition in protecting the lives of the innocent.

Elijah Z Granet

Cite this article as: Elijah Z Granet, “Jehovah’s Witnesses and blood transfusions for 16- and 17-year-olds: E & F” in Law & Religion UK, 21 December 2021, https://lawandreligionuk.com/2021/12/21/jehovahs-witnesses-and-blood-transfusions-for-16-and-17-year-olds-e-f/

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