E v Northern Care Alliance NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane |
| Judgment Date | 14 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1888 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2021/0962 FD21P00281 FD21P00654 |
[2021] EWCA Civ 1888
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice Peter Jackson
and
Lady Justice Nicola Davies
Mrs. Justice Theis
Mrs. Justice Judd
Case No: B4/2021/0962
Case No: CA-2021-000019
FD21P00281
FD21P00654
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Achonu of Richard Cook Solicitors for the Respondent/Appellant
Victoria Butler-Cole QC and Arianna Kelly (instructed by Hill Dickinson LLP) for the Applicant/Respondent
Simon Achonu of Richard Cook Solicitors for the Respondent/Appellant
Parishil Patel QC and Francesca Gardner (instructed by Bevan Brittan LLP) for the Applicant/Respondent
Hearing date: 9 November 2021
Approved Judgment
E & F (Minors: Blood Transfusion)
Sir Andrew McFarlane, President:
This is the judgment of the Court.
Introduction
These are appeals brought by two young persons from orders made by judges of the Family Division in which it was declared under the inherent jurisdiction that, although the young persons were competent to decide whether to consent to or refuse medical treatment in the form of blood transfusion, it would nevertheless be lawful for their doctors to administer blood to them in the course of an operation if that became necessary to prevent serious injury or death.
The appellants are E, a girl who was aged 16 years 8 months at the time of the decision under appeal, and F, a boy who was aged 17 years 5 months at the time of the decision in his case. Each of them has been baptised as one of Jehovah's Witnesses and conscientiously rejects blood transfusions as an article of faith. Each was considered by their doctors to have the capacity to make decisions about their medical treatment, i.e. to be Gillick competent (see Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] AC 112). They had made their decisions independently and had the support of their parents.
Some decisions about medical treatment have to be made in the certain knowledge that a medical crisis has arisen. That was not the position here. The declarations were made in relation to the treatment that could be given if a crisis arose. That was statistically unlikely to happen, but if it did, the consequences were potentially very serious. Happily, no crisis arose in either case, transfusion did not occur, and both young persons were soon safely discharged from hospital.
In that sense, the declarations never formally came into effect. E and F are nevertheless aggrieved that their autonomy was overruled, and distressed by the process that occurred. In their applications for permission to appeal they advanced two main arguments. The first was that the State, acting through the court, has no power to overrule the capacitous decision of a mature minor, and in particular a young person aged 16 or 17. The second was that any such power was wrongly exercised in their cases. Permission to appeal was refused in relation to the first argument because it is settled law that the court has the power to intervene in the best interests of a minor even if the effect is to overrule a decision that would be conclusive if the young person had made it after reaching the age of 18. The real question, with which this judgment is concerned, is not whether the power exists, but how it should be exercised.
It is however important to acknowledge that in these cases the court is not simply concerned with the ‘wishes’ or ‘views’ of the Gillick competent young person, but with a treatment decision that would be effective in the absence of intervention by the court. We will therefore refer to the young person's ‘decision’ so that this important distinction is not overlooked.
The facts in E's case
In the late evening of Saturday 8 May 2021, E started to feel pain in the right side of her stomach. At 6.30 a.m. on Sunday 9 May, she attended her local general hospital with her mother. Appendicitis was diagnosed and she was transferred to another hospital that morning. At the second hospital she was told that she did not have appendicitis, and was discharged on the basis that she would return the following day for an ultrasound scan. The pain continued and E returned to hospital with her father on the morning of Monday 10 May. After the scan took place, she was told that she had acute appendicitis and needed urgent surgery. The surgery would involve a diagnostic laparoscopy (a low-risk examination procedure), followed by a laparoscopic appendectomy (removal of the appendix by keyhole surgery), but if that was not possible, by an appendectomy by open procedure.
During the course of the day, the risks and benefits of the operation were explained to E in detail by a consultant surgeon, Dr D and a consultant anaesthetist, Dr A. Dr A described the chances of severe surgical bleeding intraoperatively as being in the order of 1:1000 or 1:2000. Dr D said that the possibility of needing a blood transfusion was “extremely rare” and that without one there was “a very theoretical possibility” of E bleeding to death. E provided her written consent to the surgery but stated in writing that she did not consent to blood transfusions.
Other things being equal, E's operation would probably have taken place within a few hours, according to protocol. For two reasons that did not happen. In the first place, another person's surgical procedure took longer than expected, so her operation was put back to 9 p.m. and then it became too late to operate. Secondly, the doctors decided that they needed to clarify the question of whether they could administer a transfusion if that became medically necessary. E's father and the doctors discussed the issue with a member of the local Hospital Liaison Committee for Jehovah's Witnesses. Throughout this period, E was kept ‘nil by mouth’ so as to be ready for surgery, and continued to be in pain. In the early hours, she was started on intravenous fluids.
On the morning of Tuesday 11 May 2021, the hospital trust filed an urgent application in the High Court in which it asked the court:
“To consider whether it is in [E]'s best interests/declare that it is lawful for her to receive a blood transfusion in the event this is clinically required during appendectomy, notwithstanding her refusal, advanced decision and her parents' refusal due to their deeply held religious convictions as Jehovah's witnesses.”
The doctors considered that a delay of some hours was acceptable, despite the raised risk of infection from the appendix rupturing, but they determined that if a court decision could not be obtained by 5 p.m. the operation would go ahead then. In the event, the decision was given in time and at about 6 p.m. E had a successful laparoscopic appendectomy without blood transfusion. She returned home on Wednesday 12 May.
The hearing and decision in E's case
The Trust's application was heard by Mrs Justice Theis by video link, starting at 2 p.m. on 11 May. The Trust was represented by Ms Arianna Kelly, who provided a position statement that included some reference to the law. E and her father attended the hearing unrepresented. Cafcass Legal had been alerted and attended through Ms Shabana Jaffar, solicitor, and Ms Angela Adams, Cafcass officer.
The only written evidence before the Judge was contained in a 5-page statement from Dr A containing these passages:
“11. The likelihood of severe surgical bleeding intraoperatively is very small, I could not provide an exact risk but it is about 1:1000 to 1:2000 (ie “rare”). As a team we would minimise the risk of any bleeding through careful standard surgical approach, careful haemostasis using surgical techniques where possible, minimally invasive procedure, careful surgical positioning, a degree of hypotensive anaesthesia, maintenance of normal temperature and electrolytes, and medications such as tranexamic acid where appropriate.
19. As a clinical team, we feel it is in [E]'s medical best interests to receive blood products in the event these are required in order to keep her alive and healthy. The clinical team is willing and able to administer blood products if these are required, however we are acutely aware of [E]'s wishes and feelings. We therefore invite the Court to determine whether it is in [E]'s best interests to receive blood product treatment if such a treatment would be required in order to save her life.
Conclusion
22. [E] is a 16 year old girl with a long held and firm religious conviction that precludes treatment with any blood products. She therefore refuses blood products under any circumstance. She has clear capacity and understanding in my opinion to make this decision.
23. [E] requires urgent surgery for presumed appendicitis. There is a rare risk of major haemorrhage, which at its worst could put her life at risk. In this rare circumstance there is the possibility of blood products being the only treatment available to save her life.
24. If a blood product treatment was given in this rare circumstance it would override [E]'s expressed refusal of such treatment, and could have a detrimental effect on her mentally, socially and spiritually.
25. If a blood product treatment was not given in this rare circumstance it could result in her death.
26. As a clinical team we would like a ruling to determine whether we can accept [E]'s refusal to consent to blood product treatment if such a treatment would be required to otherwise save her life.”
The hearing began with arrangements being made for the Cafcass representatives to speak by video link to E and her father, a process that took about half an hour. When it resumed, Ms Kelly confirmed that the Trust did not take a...
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