The recent decision of Mr Justice Peter Jackson in NHS Foundation Trust v T (2016) EWHC 2980 (Fam) found the administration of blood products to a two year old boy, T, without the express consent of Jehovah’s Witness parents to be lawful.
The young boy, who suffers from low blood platelet count, and is suspected to have a medical condition affecting his production of bone marrow, has spent a considerable amount of time subject to hospital investigation and alternative treatments.
Although the need for blood products is not yet immediate, it is thought to be imminent and is likely to be a form of ongoing treatment in the future. T’s Consultant Paediatric Haematologist argued that such treatment was necessary to prevent a very serious deterioration in his health.
Despite their inability to provide parental consent due to their faith, T’s parents did not actively oppose the application, instead leaving the decision to the court. They submitted letters fully explaining the position in which they found themselves and emphasised how they wished forms of treatment other than the administration of blood treatment to be considered. This was supported by the Trust.
The court concluded that it was in the child’s best interests that the application of the blood treatment be supported unequivocally so that his health can be supported, the absence of which could lead to ‘very serious and possibly even fatal consequences as time went on’. Mr Justice Peter Jackson concluded that the treatment will only be given after consultation with the parents and that blood products or blood will only be used if there is no clinically appropriate alternative.
Noticeably, Convention Rights were not referred to in this judgement, a significant departure from the Northern Irish case, Re S (2013) NiFam 8. This case involved a 26-year-old with severe learning disabilities who needed several teeth extracting under general anaesthetic. His mother, a Jehovah’s Witness, had refused consent to the possibility of giving him a blood transfusion in the unlikely event of the patient experiencing severe bleeding. In this case, Morgan LCJ, accepted that the facts engaged Articles 2 (right to life), 3 (inhuman or degrading treatment) and 8 (private and family life) ECHR. However, when considering the proportional application of these rights, Morgan LCJ argued that a medical necessity could not be regarded as inhumane or degrading. When compared with the possible risk of severe bleeding, Morgan LCJ was willing to engage these rights so as to permit the use of blood products – but only in the very limited circumstance that their use was necessary in order to preserve the 26 year old’s life.