HE v A Hospital NHS Trust

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Approved Judgment

This judgment was handed down in private but the judge hereby gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the patient and the members of her family must be strictly preserved.

Last Friday afternoon (2 May 2003) whilst I was sitting as urgent applications judge in the Family Division I heard a very urgent application made by a father desperate to save the life of his daughter. Speed was of the essence. The situation facing the court was so urgent and the consequences so desperate that it was wholly impracticable to attempt anything other than the briefest of hearings. There was no time to get everyone to court. The Official Solicitor, Mr Laurence Oates, reacted in the manner which generations of judges have come to expect of the successive holders of that distinguished office. He came over to court himself at very short notice. Such was the urgency that there was no time for me to give judgment before making the order. I now set out the facts and explain why I made the order I did.

The facts

The claimant HE and his family are Muslims. The second defendant AE is his daughter. She is 24 years old. Initially she was born and brought up as a Muslim. Her parents then separated and she and her brother went to live with their mother. The mother became a Jehovah's Witness and her children followed suit. AE was then brought up as a Jehovah's Witness.

Unhappily AE suffers from a congenital heart problem, which necessitated surgery when she was a child. She knew that further surgery would be necessary when she became an adult.

On 13 February 2001 AE signed a pre-printed 'Advance Medical Directive / Release' ("the Advance Directive"), her signature being witnessed by two Ministers of her Church. It reads as follows:

"I the undersigned [AE] born the 23 ^rd day of September 1978, being one of Jehovah's Witnesses with firm religious convictions have resolutely decided to obey the Bible command "Keep abstaining … from blood" (Acts 15: 28, 29). With full realisation of the implications of this position I HEREBY:

1 CONSENT (subject to the exclusion of the transfusing of blood or primary blood components) to all such necessary emergency treatment including general anaesthesia and surgery as the doctors treating me may in their professional judgement deem appropriate to maintain life.

2 DIRECT

(a) that such consent is temporary and only effective until such time as I am conscious and sufficiently capable of discussing further proposed treatment and giving informed consent;

(b) that such consent and any subsequent consent that I may give EXCLUDES the transfusion of blood or primary blood components but includes the administration of non-blood volume expanders such as saline, dextran, Haemaccel, hetastarch and Ringer's solution;

(c) that my express refusal of blood is absolute and is not to be overridden in ANY circumstances by a purported consent of a relative or other person. Such refusal remains in force even though I may be unconscious and/or affected by medication, stroke or other condition rendering me incapable of expressing my wishes and consent to treatment options and the doctor(s) treating me consider that such refusal may be life threatening; and

(d) that this Advance Directive shall remain in force and bind all those treating me unless and until I expressly revoke it in writing.

3 ACCEPT full legal responsibility for this decision and RELEASE all those treating me from any liability for any consequences resulting from such exclusion."

On 29 November 2002 AE was seen by a doctor in a hospital in the Midlands town where the family lives. She had aortic valve disease. The doctor's notes record her as being a Jehovah's Witness and show that the surgery then planned was to take place using erythropoetin to stimulate blood production without the use of blood products.

Unfortunately on 20 April 2003 AE was taken very seriously ill. She was rushed to London by ambulance. Her father tells me that as she left she said to her brother, in the presence of her maternal aunt, "I don't want to die." She was admitted on 21 April 2003 to the Adult Intensive Care Unit of the first defendant, a well-known London Teaching Hospital, where she is under the care of a consultant, Dr B. He tells me in a written statement dated 2 May 2003 that on admission AE was "clearly in extremis and had signs of overwhelming septic shock secondary to bacterial endocarditis". During this period of severe sepsis she had sustained significant damage to her peripheral circulation with extensive necrosis of her hands and feet which would likely require debridement or partial amputation – surgery which would be impossible without significant blood loss.

On admission AE's mother told the hospital that AE was a Jehovah's Witness and that consequently she should not receive blood or blood products as part of her treatment. During what Dr B calls "extensive and frank discussion" with the mother and other members of the family the consequences of this inaction were made clear: AE would have a very significantly increased risk of death, trivial haemorrhage could be fatal and the emergency valve surgery which she would require would be impossible. The mother and her relatives remained adamant that the hospital should abide by the Advance Directive "despite the greatly increased risk of death" and treatment continued accordingly.

According to HE, his daughter was sedated and has been unconscious ever since. With what Dr B describes as "aggressive intervention", including volume resuscitation, high dose vasopressors, steroid therapy, activated protein C and high volume haemofiltration, AE's condition was eventually stabilised. She no longer required vasopressors or renal support. Steps were taken to minimise blood removed for routine testing and haemopoesis was stimulated with erythropoetin and iron.

More recently her condition has deteriorated. By the time the matter came in front of me at 2.20pm on 2 May 2003 the position was desperate. In his statement (faxed to the court at about 1.30pm on 2 May 2003) Dr B said:

"Her condition has subsequently deteriorated with evidence of continued sepsis either arising from her heart or from her gangrenous feet. In parallel there has been a further decline in her haemoglobin level … and a progressive rise in her blood lactate level, suggestive of an impending terminal decline. It would seem inevitable that she will die within the next 24 hours with the current treatment that she is receiving, but that blood transfusion might slow or even reverse this deterioration. It is however by no means clear that blood transfusion would ensure her survival given the advanced state of her illness."

On the afternoon of Thursday 1 May 2003 there had been what Dr B calls a "further frank discussion" with the family in which the probable subsequent course of events was made clear by Dr B:

"Her mother and brother have remained adamant that she would not wish to receive blood products even given impending death, although her father, grandmother and fiancé insist to the contrary."

In his written statement dated 2 May 2003 her father describes the discussion:

"The consultant confirmed … that she must receive a blood transfusion immediately in order to live. The consultant also confirmed that if [AE] has a blood transfusion now that she will have a substantial chance of survival otherwise she will most certainly die within 36 hours from yesterday afternoon."

The father tells me that the hospital is unable to pursue this line of treatment because of the Advance Directive, taking the view that they could not override it without court intervention. His daughter is still unconscious and unable to express her views. He is convinced that had she been conscious now she would have consented to a blood transfusion. He says:

"In the circumstances I beg this Honourable Court to order that the [hospital] … proceed with any medical intervention [which] is required to keep [AE] alive including blood transfusion … This is the very last chance [AE] will have of surviving … time is running out … [AE's] situation is critical and [she] could die immediately if any complications arise."

There is a very important part of the father's statement that I think I should set out in full:

"I truly and sincerely believe that this consent order signed by [AE] should not be relied upon for the following reasons:-

(i) That [AE] had rejected her faith as a Jehova's [sic] Witness since December 2002. She was betrothed to be married to a Turkish man, [X] and that as a condition of the marriage that she would reject her faith as a Jehova's Witness and revert back to becoming a Muslim.

(ii) She has not attended any of the Jehova's Witness meetings/congregations and services, which she used to frequently attend twice weekly. She had promised her fiancé that she...