Re PW (Jehovah's Witness: Validity of Advance Decision) v University Hospitals Birmingham NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 22 September 2021 |
| Neutral Citation | [2021] EWCOP 52 |
| Court | Court of Protection |
[2021] EWCOP 52
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Poole
Ms Kohn (instructed by Bevan Brittan LLP) for the Applicant Trust
Ms Khalique QC (instructed by the Official Solicitor) for the Respondent
And Ms W and Ms J, daughters of PW, appearing in person
Hearing dates: Heard Out of Hours between 17–18 September 2021
This judgment was delivered following an out of hours hearing conducted by telephone. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the respondent and members of her family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
Mrs W has been a Jehovah's Witness for most of her adult life. She is now 80 years old and is in a perilous condition in hospital. She has severe anaemia following internal bleeding due to an ulcerated gastric tumour. The medical evidence to the court is that, in her current state and while the tumour remains, she is at risk at any time of sudden bleeding which if untreated would almost certainly end her life. With blood transfusion that immediate risk would be significantly reduced so that she would be able to undergo investigations and then surgical or possibly other treatment for her tumour and, given her general condition, she would be likely to survive the treatment and might live for another five to ten years.
An adult who has capacity to make a decision about receiving blood transfusion and who found themselves in Mrs W's position, could refuse blood transfusion and their decision would have to be respected, even if the decision were likely to have fatal consequences. Likewise, by s.26 of the Mental Capacity Act 2005 (MCA 2005), when a person who has lost capacity to make a decision about blood transfusion has previously made an advance decision which meets the requirements of the Act, is applicable to the treatment, and which remains valid, the advance decision has effect as if she had made it and had had capacity to make it at the time when the question arises whether the treatment should be carried out.
Mrs W is the respondent, PW, to this application made by University Hospitals Birmingham NHS Foundation Trust, the Trust responsible for the hospital where Mrs W is currently being treated. Mrs W has Alzheimer's dementia. Assessment by a Consultant Geriatrician at the hospital has concluded that she lacks capacity to make decisions about her treatment. However, enquiries made by a doctor at the hospital revealed the existence of an advance decision made by Mrs W in 2001 which appears to have been held on a register of such decisions made by Jehovah's Witnesses. Mrs W's advance decision clearly includes a decision to refuse blood or blood products even if her life is in danger. All parties accept that the advance decision was properly made and is applicable to the decision whether to refuse or consent to blood transfusion. The question for the court, if Mrs W lacks capacity to make a decision whether to consent to or refuse blood transfusion, is whether the advance decision is valid within the meaning of the MCA 2005. If it is, then her decision must be respected even though she may well die as a consequence. If it is not valid, and she lacks capacity to make the decision, then the court is required to assess what decision should be made on her behalf, in her best interests.
Under s.25(2) of the MCA 2005, an advance decision is not valid if the person who made it has withdrawn it, subsequently conferred authority on a donee or donees under a Lasting Power of Attorney to give or refuse consent to the treatment to which the advance decision relates, or if the person,
“… (c) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.”
There is no evidence that Mrs W remembers making the advance decision but there is no evidence that she has withdrawn it. In 2020 Mrs W donated Lasting Power of Attorney ( LPA) to her four children appointing them to make decisions about her health and welfare on her behalf. This was registered with the Office of the Public Guardian. She did not give any specific instructions to the attorneys about treatment with blood transfusion or anything else, but she elected not to give her attorneys authority to give or refuse consent to life-sustaining treatment on her behalf.
When her capacity to make decisions about her medical treatment was being assessed in hospital, Mrs W expressed her agreement to having a blood transfusion. Thirty minutes later she said that she did not consent. The Trust relies on this as being clearly inconsistent with the advance decision remaining Mrs W's fixed decision. The Trust contends that her statements and actions render the advance decision invalid pursuant to s.25(2)(c) of the MCA 2005.
The key issues for the court to determine are:
a. Does Mrs W have capacity to refuse or consent to blood transfusion?
b. If she lacks capacity in that respect, is her advance decision to refuse blood transfusion valid?
c. If she lacks capacity to refuse or consent to blood transfusion and her advance decision is invalid, is it in her best interests to be administered blood transfusion?
I heard this application as the Out of Hours Business Judge in the Court of Protection. The application was made in the evening of 17 September 2021. The hearing was conducted by telephone between 11.45 pm on 17 September 2021 and 3.25 am on 18 September 2021. I appointed the Official Solicitor to act as Mrs W's litigation friend. The Official Solicitor was represented by Ms Khalique QC. She and the Official Solicitor had very little time to prepare for the hearing. Ms W and Ms J, two of Mrs W's four children, attended and spoke on behalf of all the siblings. Mrs W is widowed and I was not made aware of any other significant family members. Ms Kohn represented the applicant Trust. I received witness statements and heard oral evidence from Mr A, Consultant Surgeon and Dr J, Consultant Geriatrician, from the Trust. I was provided with photographed copies of the advance decision and LPA, and notes recorded on computer by Dr J of his assessment of Mrs W. There was no other evidence. All parties proceeded on the basis that a determination had to be made with urgency given the extent of the risk to Mrs W and the consequences should such risk materialise.
At the conclusion of the hearing, I communicated my decision to the parties and said that I would provide a written judgment explaining my decision as soon as practicable. In short my decisions on the key issues are:
a. Mrs W lacks capacity to refuse or consent to blood transfusion.
b. Mrs W's advance decision is not valid.
c. It is in Mrs W's best interests to undergo blood transfusion to restore and maintain her haemoglobin at or above 10 g/dl.
Due to the urgency of the out of hours hearing and the limited evidence available this judgment does not include a level of detail that would be expected following a longer court process.
Mrs W's Circumstances
The evidence establishes that Mrs W is 80 years old. She is a Jehovah's Witness. Her late husband was a very committed Jehovah's Witness. Her children believe that she joined the denomination to be a “good wife” to him but they also told me that she continued to attend meetings, including by a video link facility, until very recently when she went into a care home. Earlier this year, I was told by Ms W, her mother was admitted to hospital and it was noticed that a Do Not Resuscitate (DNR) notice had mistakenly been put in her medical records. Mrs W spoke to staff at the hospital to ensure that it was removed. I accept Ms W's assertion that at that time her mother did not raise the issue of being given blood.
Mrs W has Alzheimer's dementia. She also suffers from cardiomyopathy and hypertension and has been on aspirin. On 12 September 2021 she was admitted to the Trust's hospital vomiting blood. She was admitted to the surgical ward. A CT scan revealed what appeared to be a Gastro-intestinal stromal tumour (GIST). Endoscopy showed an ulcerated tumour in the fundus of her stomach. Mr A told me that Mrs W's haemoglobin on admission was 8.7 g/dl but fell to 5.0 g/dl on 15 September and was 5.1 g/dl on 17 September 2021. The normal range for a woman of Mrs W's age would be 12–15 g/dl. The initial level of 8.7 g/dl was indicative of anaemia but not sufficiently low to consider blood transfusion. Haemoglobin of 5.0 g/dl was indicative of severe anaemia and would normally prompt transfusion.
It was recorded in her hospital notes at some point after admission that she was a Jehovah's Witness. That may have been information given to medical or nursing personnel by Mrs W or by one of her family. Mr A's first involvement with Mrs W was on 17 September. He was however able to view the notes when giving evidence and reported to the court that on 16 September 2021 there had been a discussion with a haematologist who advised as to alternative supportive measures including EPO and iron. Mr A said that he would not expect a haematologist to have been contacted were it not for the fact that Mrs W was a Jehovah's Witness. Mr A told the court that the surgical team would decide whether blood transfusion was required without the need to confer with a haematologist. In his professional opinion there was an...
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