COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE WARD)
B e f o r e :
LORD JUSTICE BUTLER-SLOSS
LORD JUSTICE STAUGHTON
Room 392, oyal Courts of Justice, and 2 New Square,
Lincoln's Inn, London WC2A 3RU.)
appeared for the Appellant.
MR ALLAN LEVY Q.C. and MR PETER RANK (instructed by The Smith Partnership)
appeared for the Respondent (Plaintiff).
MR RICHARD DANIEL Q.C. (instructed by Messrs Hatchett Jones & Kidgell)
appeared for the Respondent (Second Defendant).
MR DAVID STEMBRIDGE Q.C. and MR. STEPHEN OLIVER-JONES (instructed by the Solicitors to the Health Authorities)
appeared for the Respondents (First and Third Defendants).
Crown Copyright ©
The right to choose
The role of consent
Miss T.'s history
The first court hearing
"Dr. F. told me 'that [Miss T.] was under the influence of the narcotic drug Pethidine. Her demeanour late on that Sunday evening was drowsy and detached. He expressed the opinion that she was not fully compos mentis; that she was not fully rational in making an assessment of her medical condition being unaware how critical her condition was; and that she was not fully rational at the time of signing the refusal. In those circumstances I considered (at 1.30 a.m.) that I had no option but to grant the interlocutory relief that was sought by way of a declaration that in the circumstances, which were then prevailing, it would not be unlawful for the hospital to administer a blood transfusion to [Miss T.] despite the absence of her consent because that appeared manifestly to be in her best interests."
The second court hearing
"In my judgment two questions therefore arise. Firstly, was that refusal to consent which was maintained throughout that period which culminated in the caesarean section a valid refusal of blood transfusions at the time it was expressed. Secondly, does it remain her settled intention in the emergency which has now arisen where her life may be forfeited if she does not undergo that treatment?
As to the first question I make these findings of fact. (1) Although she was under the influence of the painkilling Pethidinee, she had not lost her mental faculties and she was sufficiently alert, though tired, to be able to understand the questions asked of her and to answer them comprehensively and comprehendingly. Though racked with pain she was still capable of balanced judgment. She was mentally competent and she had the capacity to decide for herself. I recognise that this finding stands in stark contrast to the finding that was implicit in my decision on Wednesday night/Thursday morning. That change of my perception of the case arises from the unhappy fact that Dr. F. had changed his evidence completely. He no longer maintained the stance he had advanced to me on the telephone. He acknowledged in his affidavit now filed in support of the application and repeated in his oral evidence taken on Friday, that 'Miss T.'s conscious level was somewhat clouded although she was fully orientated and appropriate in her verbal responses did not make any inappropriate comments and showed no signs of hallucination. Furthermore, she showed no signs of hesitation in answering my questions regarding blood transfusions and I was therefore satisfied that she was capable of understanding and signing a declaration of refusal of blood products as relating to her subsequent obstetric procedure.'
(2) I find that Miss T. reached this decision under the influence of her mother. I cannot find that it was undue influence of the kind which sapped her will and destroyed her volition, but I am satisfied that the pressure of her mother, the very presence of her mother, the mother's fervent belief in the sin of blood transfusion, the patient's desire to please her mother, despite their troubled relationship, all of this contributed to the focus of attention being drawn to blood transfusion before anyone else had ever contemplated its need. Despite all of that I am driven to conclude that the decision was a voluntary one and was not vitiated by any undue influence.
(3) As I have indicated, I reject the evidence of the midwife that she read the form to Miss T. The midwife gave Miss T. no explanation at all and I find, like Bristow J. in Chatterton v. Gerson, that this refusal of consent was a refusal in form only and not in reality.
(4) Nonetheless the several expressions of refusal to the staff nurse, to Dr. F., to the midwife, refusals maintained in the presence of the Plaintiff and her boyfriend, whom I accept remained unaware that she had actually signed a form of refusal, were valid refusals which bound and which continued to bind the hospital.
I therefore answer my first question in the affirmative and I do find as a result that Miss T. had the capacity to make a valid refusal of blood on that Sunday afternoon and evening.
The answer to the second question is much, much, more difficult and I confess to having agonised all night to reach my conclusions. My difficulty is compounded by the succinctness and cogency of the Official Solicitor's submissions which were made with obvious distaste, but in the due and proper fulfilment of their duties as the Guardian Ad Litem of this disabled girl. I have expressed a general thanks to all counsel but special thanks should be recorded to the Official Solicitor and to Mr. Michael Nicholls of his Department for the rapid response to my cry for help and for the superb way in which the Official Solicitor and Mr. Butler, who holds his brief, have responded. There is very considerable force in the submission that once a refusal to treatment is expressed and held to be valid and binding on the hospital, as I have found, then that consent or that refusal should continue to prevail and dictate the outcome of this case. If and insofar as there are any presumptions which assist in my conclusions (and I instinctively dislike introducing presumptions in reaching a decision of fact as crucial as this), the presumption that a state of affairs continues until the evidence suggests that it no longer pertains is more to the point than the submission of Mr. Levy that the sanctity of life is so vital an interest to protect that if I am in any doubt that should take precedence. I cannot approach the case in the way Mr. Levy urges. The burden of proof is upon the Plaintiff. He must satisfy me that it will be lawful to administer a blood transfusion in the circumstances now prevailing and so I ask myself, has Miss T. evinced a settled intention to refuse a transmission of blood come what may, even if that refusal costs her her life? These factors seem to me to bear upon that decision.
(1) Miss T.'s motivation; Though her motivation is irrelevant in the sense that it matters not why she took the decision she did, I find that the reason for her refusal of a blood transfusion arises because it is contrary to the beliefs of the Jehovah's Witnesses.
(2) the depth of Miss T.'s faith: I regard it as necessary to make findings as to that. I take into account, among other factors, these:
(a) she was incarcerated in this belief by her mother during her early teenage years.
(b) she has rejected that faith.
(c) her own view as expressed to the ante-natal clinic was that she had no religion.
(d) as she discussed with her father when they were recently reconciled, she has ceased to be a Jehovah's Witness. He had seen nothing in her lifestyle and her actions which led him to believe that she was then or wished again to become a Jehovah's Witness.
(e) she lived a life which is quite contrary to the practices and beliefs of that faith. I accept the evidence of her boyfriend in that regard. There is no evidence that after the mother's appearance on Sunday Miss T. renounced her adopted lifestyle, sinful as it is in the eyes of the faith. She gave no indication to her boyfriend or to her father that she had repented of her sinful ways and I have no evidence from the mother to suggest that she had.
(f) she proclaimed herself to the staff nurse to be an ex-Jehovah's Witness and the notes were recorded accordingly.
(g) she had gone to Kingdom Hall only in order to please her mother, that is the evidence of the boy friend and I accept it. Her adherence to some of the beliefs has been inspired by and is to that extent under some pressure not amounting to undue pressure from her mother.
(h) I have no evidence at all from her mother or from any other source that Miss T.'s following of some of the beliefs and some of the practices is so well thought out or deeply considered or sincerely held that the conviction is one which would necessarily lead her to an irrevocable refusal.
My conclusion of the strength of her faith is that her convictions are in fact not so deep-seated or so fundamental as to constitute an immutable decision by her as to her way of life - or her way of death. In my judgment she remains capable as she has demonstrated herself to be capable of renouncing the tenets of the faith to suit her own chosen way of life. She stands in very stark contrast to Mrs. Malette in Canada.
(3) the manner in which her decision was announced: The first intimation of it came out of the blue, but I cannot ignore the fact that she has persisted in it. That persistence must however be seen against the background of the following factors: (a) the weakness of her faith as I have found it; (b) the fact that no explanation was ever offered to her by anyone in medical authority as to the risks that a refusal to have a blood transfusion presented to her health indeed to her life. I do not enter upon the controversy as to what duty, if any, lay upon the medical advisers to give her that advice: that no explanation whatever was given is an accepted fact in the case; (c) when she raised the question of blood transfusions the only response was to lull her into a sense of false security, both the staff nurse, in her express words, and Dr. F. in his demeanour and the obstetrics staff nurse explicitly, all sought to indicate that it did not much matter since there appeared to them to be no prospect of a blood transfusion becoming necessary. They had genuinely believed that the risk of a blood transfusion was minimal and they said so. By omission therefore, and it is an understandable though regrettable omission in the circumstances, they did not address the possibility which has now become a reality that a blood transfusion may be a life-saving procedure. (d) Miss T. was misinformed. The question, as she asked it of Dr. F., was a question seeking a reassurance. It was a question bristling with the lingering doubt that some other procedure than the transfusion of blood may be necessary and may be imperative for her health. The answer she was given was false. I do not charge Dr. F. with deceit, but his reassuring her that there were other means of transfusion was an error. It was perhaps part of his general attempt to calm her fears, but it is a potent indication that there was an underlying fear and she was not properly informed that no alternative was available. (e) there is, to put it negatively, no evidence that she did wish to persist in a refusal of a blood transfusion even if it was at risk to her life. I conclude that in those circumstances the court should proceed with caution in determining whether a generalised refusal, as expressed by Miss T., is evidence of a settled continuing intention to refuse blood in all circumstances.
(4) Finally, I have the unchallenged evidence from her father, supported by her boyfriend, with no evidence from the mother to contradict it, that, as I noted in his evidence, 'I have no doubt in my mind that [Miss T.] would take blood rather than die.' There is nothing to contradict that view and much to support it.
I find that her refusal does not cover the emergency which has now arisen which was outside her contemplation and the contemplation of others at the time she expressed her opposition to a blood transfusion. I find that the refusal she then gave to the administration of blood was a refusal which took no account of the likely change in her circumstances. I do not find that the refusal as made evinced a settled intention on her part to persist in that refusal even if it is injurious to her health and when the best interests for her health require that blood be transfused to her. Given that she is now at this moment incapable of giving or refusing a consent to the treatment which it is necessary in her interests, perhaps to save her life and certainly to advance her cure, I do not find myself satisfied that the refusal is a continuing one, evincing a settled intention on her part to persist in it and accepting, as I do, the father's evidence that she would rather have blood than die, I declare that it shall be lawful for the hospital, in the circumstances prevailing, to administer blood to her, that being in her best interests."
The hearing in the Court of Appeal
(a) Miss T. had been involved in a road traffic accident four days earlier with effects which were not fully known.
(b) She was 34 weeks pregnant and must have been anxious as to the health of her baby.
(c) She had developed a severe pneumonia and, whether as a result of the accident or the pneumonia or both, was in severe pain.
(d) She had for the previous 24 hours been receiving narcotic drugs and antibiotics and was in a state in which it was necessary to give her oxygen.
(e) She appeared to her father to be disorientated and, according to the original evidence of Dr. F., to be "drowsy, detached and not fully compos mentis".
(f) The matrimonial history of father and mother suggests that Miss T.'s mother is a deeply committed Jehovah's Witness, who would regard her daughter's eternal salvation as far more important, and more in her daughter's best interests, than lengthening her terrestial life span.
(g) We do not know what the mother said to Miss T., because she has not chosen to tell the court, but it appears to be the fact that on the two occasions when Miss T. raised the issue of blood transfusions, she did so suddenly and "out of the blue" without any inquiry from hospital staff and immediately following occasions when she had been alone with her mother.
Guidance for doctors and hospitals
The conflict of principle
Capacity to decide
The vitiating effect of outside influence
The scope and basis of the patient's decision
The role of the courts
1. Prima facie every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death. Furthermore, it matters not whether the reasons for the refusal were rational or irrational, unknown or even non-existent. This is so notwithstanding the very strong public interest in preserving the life and health of all citizens. However the presumption of capacity to decide, which stems from the fact that the patient is an adult, is rebuttable.
2. An adult patient may be deprived of his capacity to decide either by long term mental incapacity or retarded development or by temporary factors such as unconsciousness or confusion or the effects of fatigue, shock, pain or drugs.
3. If an adult patient did not have the capacity to decide at the time of the purported refusal and still does not have that capacity, it is the duty of the doctors to treat him in whatever way they consider, in the exercise of their clinical judgment, to be in his best interests.
4. Doctors faced with a refusal of consent have to give very careful and detailed consideration to what was the patient's capacity to decide at the time when the decision was made. It may not be a case of capacity or no capacity. It may be a case of reduced capacity. What matters is whether at that time the patient's capacity was reduced below the level needed in the case of a refusal of that importance, for refusals can vary in importance. Some may involve a risk to life or of irreparable damage to health. Others may not.
5. In some cases doctors will not only have to consider the capacity of the patient to refuse treatment, but also whether the refusal has been vitiated because it resulted not from the patient's will, but from the will of others. It matters not that those others sought, however strongly, to persuade the patient to refuse, so long is in the end the refusal represented the patient's independent decision. If, however, his will was overborne, the refusal will not have represented a true decision. In this context the relationship of the persuader to the patient - for example, spouse, parents or religious adviser - will be important, because some relationships more readily lend themselves to overbearing the patient's independent will than do others.
6. In all cases doctors will need to consider what is the true scope and basis of the refusal. Was it intended to apply in the circumstances which have arisen? Was it based upon assumptions which in the event have not been realised? A refusal is only effective within its true scope and is vitiated if it is based upon false assumptions.
7. Forms of refusal should be re-designed to bring the consequences of a refusal forcibly to the attention of patients.
8. In cases of doubt as to the effect of a purported refusal of treatment, where failure to treat threatens the patient's life or threatens irreparable damage to his health, doctors and health authorities should not hesitate to apply to the courts for assistance.
"At issue here is the freedom of the patient as an individual to exercise her right to refuse treatment and accept the consequences of her own decision. Competent adults, as I have sought to demonstrate, are generally at liberty to refuse medical treatment even at the risk of death. The right to determine what shall be done with one's own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority."
"To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunities or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else's."
"The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence."
"As no Court has ever attempted to define fraud so no Court has ever attempted to define undue influence, which includes one of its many varieties. The undue influence which Courts of Equity endeavour to defeat is the undue influence of one person over another; not the influence of enthusiasm on the enthusiast who is carried away by it, unless indeed such enthusiasm is itself the result of external undue influence. But the influence of one mind over another is very subtle, and of all influences religious influence is the most dangerous and the most powerful, and to counteract it Courts of Equity have gone very far. They have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there has been no proof of the actual exercise of such influence; and the Courts have done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which render proof of it impossible."
"Of this 'fraud' Lord Hardwicke says: Equity 'goes further than the rule of law; which is, that it must be proved, not presumed.' The rule of law thus described still prevails in the Probate Court, where it is not enough to prove a relation between testator and beneficiary, which in the Court of Equity would require the beneficiary to displace the presumption of undue influence by proving independent advice to the testator."
Limited Refusal - the scope of her decision
"... to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.
On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish."
Order: Appeal dismissed; no order for costs save legal aid taxation of plaintiff's costs; leave to appeal to the House of Lords granted.