Re E (A Minor)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Year | 1992 |
| Date | 1992 |
| Court | Family Division |
WARD, J
Child – medical treatment – child of 15 in serious condition – treatment involving blood transfusions – child and parents Jehovah's Witnesses – refusing treatment – whether court in wardship should give leave for treatment.
Wardship – medical treatment – child of 15 – treatment involving blood transfusions – child and parents Jehovah's witnesses – refusing treatment – whether court would give leave for treatment.
The child, a boy, was aged 15 years and 10 months. He was taken ill and admitted to hospital on 8 September 1990 where he was found to be suffering from leukaemia. The conventional treatment involved the administration of four drugs. As a result of the effect of two of those drugs, it was necessary for blood transfusions to be administered from time to time. Given that treatment, there was an 80% to 90% chance of full remission. The child and his family were Jehovah's Witnesses and it was contrary to their faith to permit blood transfusions. An alternative treatment gave only a 60% chance of remission. As the child, supported by his parents, indicated his refusal of a blood transfusion, the hospital adopted the alternative course of treatment. Within two weeks the child's condition had deteriorated to the extent that the child's life was threatened. The hospital warded the child and sought the leave of the court to treat the child as they considered necessary, including the transfusion of blood.
Held – (1) It was submitted that the application was an abuse of the process of the court because, as the child was so close to his 16th birthday, it would be wrong for the court to intervene. By s 8 of the Family Law Reform Act 1969 a minor aged 16 could consent to medical treatment. Even if it was right, as it was argued, that a minor could refuse treatment by virtue of s 8 of the 1969 Act, that did not apply in this case as the child was not yet 16.
(2) A parental right to determine whether or not a child under 16 would have medical treatment terminated if and when the child achieved a sufficient understanding and intelligence to enable him or her to understand fully what was proposed: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. In the present case, the sufficiency of understanding and intelligence involved a comprehension by the child of the pain and distress he would suffer by refusing the treatment involving blood transfusions. He had no realization of the full implications which lay before him in the process of dying. The child was not, therefore, of sufficient understanding and intelligence to make his own decision. If the case had
depended upon that factor, it would have been held that the child's veto was not a binding one, the child not being in a position to take the decision.
(3) The circumstances required the court to make a decision. In doing so, the court must regard the child's welfare as the first and paramount consideration. The judgment of what the child's welfare dictated was to be exercised objectively. But regard had to be paid to the position of this child as a boy of growing maturity living in the religious society that he did. Whether or not he was of sufficient understanding to give or withhold consent was not the issue before the court. The child's wishes were an important factor and, as he was nearly 16, a very important matter which weighed heavily in the scales. He appreciated the consequences if not the process of his decision to refuse a medical intervention which might save his life. He was close to the time when he might be able to take such a decision. Therefore, the court should be slow to interfere. But it should consider to what extent his refusal of treatment was the product of his full and free informed thought. The influence of the teachings of the Jehovah's Witnesses was strong and powerful. The child might assert his views but his volition had been conditioned by very powerful expressions of faith. It could not be said that at the age of 15 his will was fully free. The risk of serious infection from a blood transfusion was infinitesimal and not a risk which would have stood in the father's way but for his religious convictions. Therefore, when balancing the wishes of the father and son against the need for the chance to live a precious life, it had to be concluded that their decision was inimical to the child's well-being. As a result, the hospital would be given leave to treat the child as they considered necessary, including the administration of blood transfusions.
Nicholas Vineall on behalf of the hospital authority.
Richard Daniel on behalf of the parents.
James Munby, QC for the Official Solicitor.
MR JUSTICE WARD.This matter comes before me on the application of a hospital authority which seeks the leave of the court to treat a young boy, A, in such manner as they consider necessary, including the transfusion of blood and blood products. They seek that relief under a summons in wardship which was issued pursuant to an undertaking they gave me two nights ago when on an ex parte application made to me as the duty Judge I gave leave for that to be done. In order that the proceedings may be constituted I made A a ward of court until further order, and I invited the Official Solicitor to act as his guardian ad litem. I gave liberty to apply on short notice and restored the matter for hearing today. So it came back before me shortly before midday, which is ten long hours ago.
The matter is one of life and death, and it is for that reason that I give judgment at this late hour on this Friday evening, although all will appreciate that it is difficult eloquently or as felicitously as I would wish, to marshall my thoughts and compose my words.
The facts which give rise to this unique application are these. A will be 16 on 6 December 1990, having been born, it follows, on 6 December 1974. He is the middle child of the defendants; he has an elder sister, H, who is married, and a younger brother, P, aged ten. He is a boy of ordinary average intelligence, a boy of considerable athletic prowess – big and strong and, until the catastrophic events of the
last few weeks, fit and healthy. He proudly proclaimed that he had scarcely ever been ill in his life. He was on holiday during the summer when he first felt certain pains in his stomach. They grew progressively worse and on a Saturday when he was watching his...
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