A traditional firm with a modern approach
Judge overturns Jehovah's Witness's Advance Decision not to accept a blood transfusion
This case serves as a good example that Advance Decisions should be regularly reviewed and that the provisions of Lasting Powers of Attorney should be carefully drafted to ensure your wishes are clear and adhered to.
Mrs W was an 80-year-old Jehovah's Witness, living with dementia, urgently admitted to hospital because of a tumour that could cause sudden and potentially catastrophic bleeding, as a result of which she needed a blood transfusion. Mrs W was generally in reasonable health, and after treatment, she could live for another five to ten years.
Her late husband was a very committed Jehovah's Witness and after his death she continued to attend meetings, including by video link facility, until very recently when she went into a care home.
In 2001, Mrs W made an Advance Decision. By making an Advance Decision, you can refuse specific types of treatment if you lack capacity to make a decision about those treatments at some time in the future. Advance decisions are binding on medical professionals, but there are exceptions, as you will find out below. In her Advance Decision, Mrs W refused to receive blood or blood products even if her life was in danger. She did not tell her children that she had made an Advance Decision and they were unaware that she had made one. Mrs W never reviewed her Advance Decision.
The Mental Capacity Act Code of Practice states that "Anyone who has made an advance decision is advised to regularly review and update it as necessary. Decisions made a long time in advance are not automatically invalid or inapplicable, but they may raise doubts when deciding whether they are valid and applicable. A written decision that is regularly reviewed is more likely to be valid and applicable to current circumstances…".
In 2020 Mrs W made a Lasting Power of Attorney (LPA) appointing her 4 children as “attorneys” to make decisions about her health and welfare if she was unable to make those decisions for herself. In an LPA, you can express “preferences” as to how you would like your attorneys to act or what you would like them to take into account before making a decision for you. You can also give “instructions” telling your attorneys what they must or must not do. Mrs W did not state any preferences or give instructions to her attorneys about blood transfusions or anything else. She did, however, elect not to give her attorneys authority to give or refuse consent to life-sustaining treatment on her behalf.
Earlier in 2021 when Mrs W was very ill in hospital, she wished for a "Do Not Resuscitate" (DNR) notice to be removed from her medical notes and told her children that she would want to be resuscitated. In neither case did she qualify her views by saying she did not want to receive a blood transfusion as part of resuscitation.
Whilst it was held that Mrs W did not have capacity to make a decision about whether or not to receive a blood transfusion, she was able to express her views and beliefs. The doctors discussed the decision with Mrs W as follows: -
I asked her if she would have a blood transfusion – “I'd have to think about it.” I asked if she would have a blood transfusion if it meant this would save her life, and not having it may cause her to die – “In that case I would have it, if it was clean blood”. “What do you mean by clean' blood?”; “Blood free from diseases”.
When I said she had told other people she had refused blood in all situations she said, “maybe I did, I can't remember.”
“In that case I would have it, if it was clean blood…free from diseases”.
“I won't have a blood transfusion”. On saying that she would die without a blood transfusion, she repeated, “In that case, I'll die.”
Second conversation (30 minutes later)
On prompting about blood transfusions, she said “I won't have a blood transfusion”. On saying that she would die without a blood transfusion, she repeated, “In that case, I'll die.”
“Why can't I have tablets” – “they would work quickly enough” … “in that case I'll die”.
I said her family wanted her to have a blood transfusion and didn't want her to die. “That is their decision.”
I said that letting her die would be a very difficult decision, “I have made my peace with Jehovah and will talk to him then.”
After 5 minutes I asked, “what would happen if you refused a blood transfusion?” She answered, “I will die.”
The doctor said that he did not believe that Mrs W was capable of making a decision about whether not to receive a blood transfusion. He gave evidence in the hearing that: -
“I do not believe that she genuinely still believes in what she wrote many years ago. Her answers to my questions were formulaic and did not seem to reflect her real wishes. Her answers were also not consistent. I recognise that this assumption is based on a single meeting with her, and I do not have enough information about her to suggest that her Advance Decision is no longer valid. At one point today, however, it did not appear to reflect her wishes and feelings”.
The judge understood that in the first conversation there was a degree of thought process by Mrs W, whilst in the second he believed Mrs W met the description of some dementia sufferers who mask their inability to reason and process information by resorting to formulaic sayings which are a comfort to them.
Mrs W’s children were of the view that their mother had been pressurised into making her Advance Decision and was indoctrinated. They believed that Mrs W had made the Advance Decision, because her late husband, was a committed Jehovah's Witness, and she went along with him as a "person who likes to please" and wanted to be a "good wife".
It fell to Mr Justice Poole to consider whether Mrs W’s Advance Decision was binding or not. Even if validly made, an Advance Decision will not be binding if the person who made it has: -
- withdrawn it;
- subsequently made a Lasting Power of Attorney giving their attorneys the power to give or refuse consent treatment to which the Advance Decision relates; or
- has done anything else clearly inconsistent with the Advance Decision.
In the circumstances, Mrs W had neither withdrawn her Advance Decision nor made her LPA in such a way that would revoke it. Mr Justice Poole had to consider whether Mrs W had done anything clearly inconsistent with the Advance Decision. Taking the above into account, Mr Justice Poole decided that Mrs W had done things which were clearly inconsistent with the Advance Decision, in that she: -
- knew that her attorneys were hostile to the denomination to which she belonged and still did not set out any preferences or instructions in her LPA;
- requested the removal of the DNR, without telling her children or her clinicians about the Advance Decision or that she would refuse a blood transfusion;
- had given the doctor reason to doubt that she genuinely still believed in what she wrote many years ago in the Advance Decision.
Having found that the Advance Decision was not binding, Mr Justice Poole came to a decision that it was in Mrs W’s best interests to receive a blood transfusion.
It should be noted that the hearing was conducted by telephone between 11.45 pm on 17 September 2021 and 3.25 am on 18 September 2021. The parties did not have access to all the medical records or other evidence that may have been relevant. As such, it is important that documents which are likely to be available in an emergency, such as Advance Decisions and LPAs, clearly reflect your wishes. It is therefore alarming that the Office of the Public Guardian revealed last year that only 1 in 10 LPAs contain any preferences or instructions.
If you would like to find out more about Advance Decisions or Lasting Powers of Attorney, get in touch with one of our teams in Winchester, Alresford, Sunningdale or London. Alternatively, you can contact us by telephone on 01962 841041 or email email@example.com.