Legal update: Religious objection to medical treatment – when is court intervention required?
It is not uncommon for healthcare professionals to encounter patients who refuse certain forms of treatment on religious grounds. Where that refusal carries with it a significant risk of harm or even death, it can be an extremely distressing for those treating and caring for the patient. Such refusals most frequently arise in the context of Jehovah’s Witnesses whose religious tenets forbid the transfusion of blood and blood products.
It is important that acute hospital trusts have comprehensive policies in place addressing how these situations should be dealt with, when they arise, so that staff know exactly what steps to take and when legal advice should be taken.
The Jehovah’s Witness Hospital Liaison Committee have representatives in most acute hospitals trusts across the country who can provide a support service for both patients and healthcare professionals. They maintain a specialised database of relevant medical papers, articles and abstracts dealing with non-blood management strategies. They can put doctors in touch with specialists in the UK with extensive experience of treating patients to seek alternatives to blood transfusion.
Different considerations arise in relation to adults and children, and as between those who have and those who lack capacity to refuse a medical treatment.
Refusals by competent adults
- The general rule is that adults with capacity have an absolute right to refuse medical treatment, however seemingly reckless or irrational that decision might appear to be, and even if such refusal puts them at risk of a serious deterioration in their health or even death. The Mental Capacity Act 2005 (MCA) makes clear that a person is not to be treated as lacking capacity to make a decision merely because they make an unwise decision (s.1(4))
- Therefore, a refusal of medical treatment (including life-sustaining treatment) by a competent adult must always be respected and cannot be overruled by the court. The imposition of invasive medical treatment, no matter how well intentioned, on a competent adult without their consent will amount to assault and can result in those administering the treatment being subject to criminal and civil proceedings.
Refusals by adults lacking capacity
- Where an adult has been assessed as lacking capacity to make a decision to refuse the proposed medical treatment then, in the absence of a valid and applicable advance decision, the treatment can be administered if it is in their best interests (in accordance with MCA principles). But this is by no means a straight forward process given that the decision-maker must consider the patient’s reasonably ascertainable past and present wishes and feelings and any beliefs and values that would likely influence their decision if they had capacity (s.4(6))
- Where there is uncertainty as to whether or not the patient has made a valid advance decision to refuse a life sustaining treatment (such as a blood transfusion) this can place healthcare professionals in a difficult position and legal advice should be taken
- In order to be valid and applicable, MCA s.25(4)-(6) requires that an advance decision to refuse life-sustaining treatment must be in writing, signed by the patient, and witnessed and it must confirm that it is to apply even if the patient’s life is at risk. Advance decisions to refuse other forms of medical treatment do not require these formalities and can be can be either oral or in writing
- In the absence of reliable evidence of a valid and applicable advance decision, healthcare professionals should not simply assume that because a patient is known to be of a particular religion (i.e. a Jehovah’s Witness) that it necessarily follows that they adhere to all of the religious tenets (such as refusal of blood transfusion). Where there is no evidence of an advance decision, irrespective of the patient’s religion, healthcare professionals should treat the patient in accordance with best interests principles
- Where there is an indication of a relevant advance decision then (if time allows) careful enquiry should be undertaken to confirm its existence and validity. However, healthcare professionals should not delay in providing emergency life sustaining treatment to look for an advance decision if there is no clear indication that one exists. If there is clear evidence of a relevant advance decision, healthcare professionals should, as soon as possible, assess its validity and applicability, although sometimes the urgency of treatment is such that this will prove difficult to do in advance. Healthcare professionals are unlikely to face civil or criminal sanction if they have acted honestly and in accordance with good medical practice in these circumstances.
Refusals by children and young people
- Although the law enables a child under 16 who is of sufficient maturity and understanding (Gillick competent) to consent to their own medical treatment, their refusal of treatment can be overridden by parental consent or an order of the court
- Healthcare professionals are encouraged, where appropriate, to take account of children’s wishes and views in the best interests decision-making process, however, where a child is refusing medical treatment which is likely to result in significant harm or death then it is lawful for healthcare professionals to rely on parental consent. If parental consent is not forthcoming (which is often the case with parents who are Jehovah’s Witnesses) consent can be obtained from the court. Emergency life sustaining treatment should not be delayed pending parental consent or court order if it is deemed to be in the child’s best interests
- Although there is a statutory presumption that a young person aged 16 or 17 has capacity to consent to their own medical treatment there is no concurrent right to refuse medical treatment. The wishes and views of young people should always be carefully listened to by health professionals and weighed in the best interests decision, but ultimately a young person’s refusal can be overridden by parental consent or by court order if it is deemed to be in their best interests, this is most likely to occur when the refusal relates to life-sustaining treatment
- Under MCA provisions, a valid advance decision to refuse medical treatment cannot be made by a person under 18 (s. 24(1)).
Refusals by parents on behalf of children
- Where parental consent is required, a parent has no absolute right to refuse consent to medical treatment on behalf of their child on religious (or any other) grounds where the treatment is deemed to be in the child’s best interests
- Parental refusal of life sustaining treatment deemed by health professionals to be in the child’s best interests will, almost without exception, be overridden by the court
- Normally the consent of one parent (with parental responsibility) to the proposed medical treatment will suffice, even if the other objects on religious grounds. The exceptions being sterilisation or male circumcision procedures for which consent of both parents is required, or court authorisation
- The consent to medical treatment of a Gillick competent child or a young person aged 16/17 cannot be overridden by parental refusal.
When to apply to the court?
In relation to adults:-
- When there is uncertainty as to whether an adult has capacity to refuse medical treatment which is deemed to be in their best interests
- When there is uncertainty as to the validity or applicability of an advance decision made by an adult who lacks capacity.
In relation to children and young people:-
- When parents refuse to consent to treatment on behalf of their child which is deemed by healthcare professionals to be in the child’s best interests, particularly where that refusal places the child at significant risk of harm or even death
- When there is a disagreement between parents as to whether consent to a proposed medical treatment should be given
- Where a young person aged 16/17 refuses treatment which is deemed to be in their best interests, particularly where that refusal places them at significant risk of harm or even death and their parents refuse to consent on their behalf
- Where, even though parental consent has been obtained, a young person aged 16/17 or a Gillick competent child refuses life sustaining treatment, it is always recommended to make an application to the court for a best interests determination if time permits
Practical advice to healthcare professionals – adults
- A refusal of medical treatment, including life-sustaining treatment, by a competent adult must be respected
- Attempt to establish a patient’s religion on admission and enquire whether this will impact on their medical treatment. Any refusal of treatment should be documented in the patient records (along with an assessment of their capacity) and signed by the patient if possible. If the refusal relates to life sustaining treatment – it must comply with MCA s.25 formalities in order for it to be valid
- Where a patient is a Jehovah’s Witness it is important to clarify precisely what medical treatment they are refusing. Not all Jehovah’s Witnesses strictly adhere to the tenets of their religion
- Care should be taken to ensure that a patient is not under duress or undue influence from relatives or others when making a decision to refuse treatment. Where there is any concern in this regard, take legal advice
- Where a patient refuses medical treatment deemed by healthcare professionals to be in their best interests it is important to undertake an early capacity assessment having particular regard to the patient’s ability to understand the information relevant to the decision and their ability to use or weigh up the information as part of the decision-making process. The capacity assessment must be kept under review. If there is any uncertainty about a patient’s capacity to refuse medical treatment (particularly where that refusal is likely to have serious consequences for the patient’s health) take legal advice
- A suitably qualified doctor should provide advice to the patient on the proposed treatment and explain the risks and consequences of the refusal as well as any alternative treatments. Where the refusal relates to the administration of blood or blood products then consideration should be given to alternatives to blood transfusion that might be acceptable to the patient (i.e. blood salvage techniques)
- If an incapacitated patient has previously made a clear and unequivocal advance decision refusing specified treatment in specified circumstances, it must be followed unless there is good reason to doubt its validity. Where there is any uncertainty as to the validity or applicability of an advance decision take legal advice.
Practical advice to healthcare professionals – children and young people
- Attempt to establish early on whether the child, young person or their parents is of a religion which is likely to impact on medical treatment decisions
- Where the child, young person or their parents refuse treatment which is deemed by healthcare professionals to be in their best interests, a suitably qualified doctor should provide advice on the proposed treatment and explain the risks and consequences of the refusal as well as any alternative treatments. With the permission of the patient or their parents, the Jehovah’s Witness Hospital Liaison Committee can take part in these discussions
- A full record of discussions with the child/young person and their parents should be documented in the medical notes including details of wishes and intentions expressed
- Healthcare professionals should always listen to and have regard to any wishes or views expressed by a child or young person when making a best interests decision
- Where a child or young person refuses treatment which is deemed to be in their best interests it is lawful for healthcare professionals to treat the child with the consent of a parent who has parental responsibility. However it is always advisable to take legal advice where parents are seeking to override the refusal of a young person aged 16/17 or a Gillick competent child even if that treatment is deemed to be in their best interests
- In the case of refusal of a blood transfusion, early assessment should be made of whether transfusion of blood or blood products will become an issue. Most surgical procedures do not require or involve blood transfusions
- Where a refusal of treatment by a Gillick competent child, a young person aged 16 or 17 or their parents gives rise to a significant risk of harm or death, take legal advice
- Emergency life sustaining treatment should not however be delayed pending parental consent or court order if it is deemed to be in the child’s best interests.
When legal advice is indicated, NHS Trusts are strongly advised to consult their legal advisers at an early stage so as to avoid the need for an urgent or out of hours court application at a later stage. If unforeseen circumstances necessitate an urgent court application, it is usually possible for a telephone hearing to be arranged (24/7) within an hour before a duty High Court judge. Emergency life sustaining treatment should not be delayed pending court order if it is deemed to be in the patient’s best interests.
If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or firstname.lastname@example.org.