England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		26 February 2014

Mr Justice Peter Jackson:

1. On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah's Witness. The application came into the urgent applications list at short notice. When it was made, the medical view was that LM might not survive for as long as a day in the absence of a blood transfusion and that even if one was given, she might still die. A decision had to be taken there and then. I took the view that it was not practicable or necessary for a litigation friend to be appointed.
2. At the end of the hearing I granted the application and made the following declaration:

It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.

3. Very sadly, LM died early on the morning of 26 February, a few hours before judgment was to be handed down.
4. This judgment concerns these questions:

• Did LM (before she became unable to do so) have the capacity to make a decision to refuse a blood transfusion?

• If so, did her decision apply to her later circumstances?

• Alternatively, if the answer to either of the above questions was 'no', was the Trust's proposal to withhold a transfusion in her best interests?

5. The hearing on 18 February lasted for something over one hour by video link from Newcastle. Mr Speker, the Trust solicitor, called evidence from Dr C, the clinical lead, who is a Consultant in Anaesthesia and Intensive Care Medicine. Also taking part from Newcastle were Mr R, an elder of the Jehovah's Witnesses who had known LM since 1975, and Mr P, the Chairman of the Hospital Liaison Committee for Jehovah's Witnesses. In London, the hearing took place in open court and was attended by a representative of the Press Association.
6. LM had no known relatives. She had a background history of depression and paranoid schizophrenia and in the past had received compulsory treatment. She had been a Jehovah's Witness since the 1970s at least.
7. In the middle of January 2014, LM was seen by a consultant psychiatrist, who had known her for seven years. He felt that her mental health was as good as he had known it for a number of years.
8. On 6 February 2014, LM was admitted to hospital by ambulance, having been found wandering and confused outside her home. She had a number of bruises, suggesting recent falls. From the outset of her admission it was known that she was a Jehovah's Witness and her notes were marked that she was not to receive blood products in any circumstances.
9. Over the days following her admission, LM made some improvement, but on 11 February, she was found to be bleeding from a large duodenal ulcer. Tests revealed a falling and dangerously low haemoglobin level, the lowest figure being 37 against a normal measure of 120-150 and the figure at the time of the hearing being 47.
10. On 11 February, a senior nurse from the liaison psychiatry team assessed LM. He found no evidence of active psychotic illness but some mild confusion. In general, she was not psychiatrically unwell and her presentation appeared appropriate.
11. On 12 February, LM was seen by two doctors in the gastroenterology team. She told them that she was adamant that she would not want treatment with any blood products. They felt that she had full capacity to make this decision with an awareness of the consequences.
12. Although an advance decision form (MCA s.24) is available at the hospital, there is no indication that it was offered to LM and there is no record of her wishes other than that recorded in the notes. Had she been made aware of the possibility of making an advance decision at a time when she was considered to have capacity, it would have given her the opportunity to record her decision in a clearer way.
13. On the afternoon of 13 February, LM's condition markedly deteriorated. She was admitted to the High Dependency Unit under the care of Dr C. By this time her physical condition had deteriorated to the point that she required intubation, ventilation and sedation and clearly lacked capacity to make or communicate a decision.
14. Dr C said that at the time of the hearing, profound anaemia was significantly compromising LM's survival prospects. A blood transfusion would improve her chances but it was possible that she would not survive even with that intervention.
15. Apart from his direct involvement over a period of five days, Dr C had reviewed the medical notes and spoken to LM's GP, to the gastroenterology team, the critical care team, the consultant community psychiatrists and the staff nurse. He had consulted the Trust's Assistant Medical Director and the Chair of the Trust's Clinical Ethics Committee.
16. The Trust had also approached the Independent Mental Capacity Advocate service, who indicated that they would not need to be involved because church colleagues of LM were available to the medical team.
17. In this context, I heard from Mr R, who first met LM in 1975 and had known her ever since. He last saw her shortly before her admission. He brought letters from three other members of the congregation who knew her. Mr R described LM as a formerly active member of the congregation who fully subscribed to the tenets of the faith (including its opposition to blood transfusion) and had taught them to others, although she had become less engaged in recent years. Her beliefs on the question had been consistent. He says that if LM had been able to speak for herself she would have been distraught at the prospect of receiving a transfusion.
18. Speaking on his own behalf, and expressing the united medical view, Dr C said that the evidence available to him suggested that during her time in hospital and up to 13 February LM had had capacity. There was no evidence that mental illness had interfered with her decision-making. He considered that her decision applied to her life-threatening situation, which was an unfortunate but natural progression from her underlying condition. He considered that her clearly stated views should be respected.
19. Dr C said that the treating doctors intended to continue to withhold blood products, recognising that this compromised their ability to provide full care. LM would continue to receive full active medical care in all other respects in an attempt to bring her through until it became clear that all attempts were futile. At that point the team would act in her best interests as with any critically ill patient.
20. The Trust's submission was that LM had clearly made her wishes known even with knowledge of death. Alternatively, if it was a matter of best interests, the Trust did not wish to act against her wishes, being concerned to respect her individual dignity.
21. Addressing the question of capacity, I find as follows:

1) Prior to the afternoon of 13 February, LM had the capacity to decide whether to accept or refuse a blood transfusion. There is no evidence that her underlying mental illness rendered her unable to make a decision (MCA s.2(1)). The presumption of capacity (s.1(2)) was not displaced and the criteria for capacity (s.3) were on the balance of probabilities met. I am satisfied that LM understood the nature, purpose and effects of the proposed treatment, including that refusal of a blood transfusion might have fatal consequences.

2) The decision taken by LM prior to her loss of capacity was applicable to her later more serious condition. There was no difference in kind and I am satisfied that she intended her decision to be effective in the circumstances that subsequently arose.

22. In consequence, I find that LM made a decision that the doctors rightly considered must be respected.
23. In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. It is also of relevance that a transfusion might not have been effective to save her life.
24. The right to life (Art. 2 ECHR) is fundamental but it is not absolute. There is no obligation on a patient with decision-making capacity to accept life-saving treatment, and doctors are neither entitled nor obliged to give it.
25. The remainder of this judgment concerns an application for a Reporting Restriction Order made by the Trust on 24 February. At the hearing on 18 February I indicated that I would grant such an order subject to the proper procedures being followed, which eventually they were. I intended to formally make the order when handing down judgment on 26 February, but LM's death intervened. Accordingly, I heard further submissions from Mr Speker and Mr Farmer about the appropriate course to take.
26. The court has jurisdiction to make an order during the lifetime of a patient that will continue to have effect after death unless and until it is varied: Re C (Adult Patient: Restriction of Publicity After Death [1996] 1 FCR 605. The situation here is different in that the patient is no longer alive. The unusual circumstances raise interesting questions about the court's jurisdiction to restrict the reporting after a person's death of information gathered during proceedings that took place during her lifetime.
27. It seems to me that the proper approach is to make an order that preserves the situation until the time comes when someone seeks to present full argument on the question. I will say no more than that for the present
28. I make a Reporting Restriction Order preventing the naming of LM, and the medical and care staff who looked after her and the two Jehovah's Witnesses who participated in the proceedings. It does not prevent the naming of the Trust or the hospital, nor discussion of the underlying issues or the court's procedures. Anyone affected by the order may apply to vary or discharge it, whereupon its terms or existence will be looked at afresh.
REPORTING RESTRICTION ORDER

IMPORTANT: PENAL NOTICE

If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized. You should read the order carefully and are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge this order.

UPON reading the written submissions of the Applicant's Solicitor

IT IS RECORDED THAT:

29. On 18 February 2014 the Court considered an application for a declaration as to the lawfulness of LM's treating clinicians withholding blood transfusions and the administration of blood products notwithstanding that such treatment would reduce the likelihood of her dying and might prevent her death.
30. The application was made without notice due to the extreme urgency of LM's condition and was heard by Mr Justice Peter Jackson sitting at the Royal Courts of Justice, Strand, London WC2A 2LL. The hearing took place in the presence of Mr. Brian Farmer, Press Association. The hearing, including the discussions about the Reporting Restriction Order, took place in public (subject to the reporting restrictions contained in this Order). Mr Justice Peter Jackson granted the declaration on the basis that the Applicant would make an application for a Reporting Restriction Order forthwith.
31. An application for a Reporting Restriction Order was made on 24^th February 2014 and was considered by Mr Justice Peter Jackson on 25^th February 2014. The parties were not represented at this hearing. The court considered written submissions from the Applicant.
32. The Court read the following documents:

(i) Statement of Barry Speker, solicitor for the Applicant

(ii) Applicant's legal submissions.

33. This Order was made with notice having been given to CopyDirect on 24^th February 2014.
34. On 26^th February 2014, LM died.
35. The circumstances are set out in the judgment of Mr Justice Peter Jackson given on 26^th February 2014.

ORDER

36. Duration

Subject to any different order made in the meantime, this Reporting Restriction Order shall have effect until further order.

37. Who is bound

This Order binds all persons (whether acting by themselves or in any other way) and all companies (whether acting by their directors, employees or agents or in any other way) who know that this Order has been made.

38. Publishing Restrictions

This Order prohibits the publishing or broadcasting, in any newspaper, magazine, public computer network, internet site, social network or media including Twitter or Facebook, sound or television broadcast or cable or satellite programme service, of

(a) the name and/or address of:

(i) The Respondent LM, whose details appear in Schedule 1 to this Order;

(ii) Any person formerly caring for LM;

(iii) The members of the Jehovah's Witness faith whose details appear in Schedule 2 to this Order.

(b) any picture being or including a picture of any of the above;

(c) any other material that is likely to lead to or is calculated to lead to the identification of any of the above;

IF BUT ONLY IF such publication is likely to lead to the identification of those referred to in paragraph (a) above as being connected to these proceedings.

39. Other Restrictions

No publication of the text or a summary of this Order (except for service of the order under paragraph 7 below) shall include any of the matters referred to in paragraph 3 above.

40. What is not restricted by this Order

Nothing in this Order shall prevent any person from or from:

(1) Discussing the issues raised by this case or reporting or commenting on procedures in the Court of Protection.

(2) Publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication.

(3) Seeking or publishing information which is not restricted by paragraph 3 above.

(4) Inquiring whether a person or place falls within paragraph 3 above.

(5) Seeking information relating to the Respondent while acting in a manner authorised by statute or by any court in England and Wales.

(6) Seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 3 to this Order below.

(7) Seeking or receiving information from anyone who before the making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).

(8) Publishing information which, before the service on that person of this order, was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.

41. Service

Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by the Applicant (and may be served by any other party to the proceedings):

(i) by service on such national and local newspaper and sound or television broadcasting or cable or satellite or programme services or internet service providers as they think fit, in each case by fax or first class post or e-mail addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator or internet service provider (in the case of an internet service) or the administrator of any social network or media sites and/or to their respective legal departments; and/or

(ii) on such other persons as the parties may think fit, by personal service.

42. Further applications about this Order

The parties and any person affected by any of the restrictions in paragraphs 3-5 above may make an application to vary or discharge it to a Judge of the Court of Protection (Mr Justice Peter Jackson if available) on not less than 48 hours notice to the Applicant.

Order dated: 26^th February 2014