Advance Decision documents for medical treatment – when are they legally valid?

Legal update – refusal of blood transfusion case

Medical treatment and religious beliefs are often at odds with one another, with certain religions not permitting certain treatments.

Jehovah’s Witnesses usually refuse transfusions of whole blood products and the primary blood components, although some will accept the transfusion of derivative products, recombinant products and other similar products. In such circumstances an Advance Decision (AD) is often made, setting out the specifics of what the individual consents to should they be unable to communicate their wishes.

The recent out of hours hearing in University Hospital Birmingham NHS Foundation V PW (by litigation friend) [2021] EWCOP 52 dealt with the issues surrounding ADs and consent where an individual was deemed to lack capacity at the time of the treatment but not at the time of making the AD.

The hearing related to an 80-year old woman, PW, a Jehovah’s Witness who was in a perilous condition in hospital with severe anaemia following internal blooding due to an ulcerated gastric tumour. 

The medical evidence present to the court was that, in her current state and while the tumour remained, PW was at risk at any time of sudden bleeding, which if untreated would almost certainly end her life. 

However, with a blood transfusion that immediate risk would be significantly reduced so that she would be able to undergo investigations and then surgical or possibly other treatment for her tumour and, given her general condition, she would be likely to survive the treatment and might live for another five to ten years.

Any adult with capacity to make a decision about receiving blood transfusion and who found themselves in PW’s position can refuse blood transfusion and their decision would have to be respected, even if the decision were likely to have fatal consequences. 

Similarly, under sections 24-26 of the Mental Capacity Act 2005 (MCA 2005), when a person who has lost capacity to make a decision about blood transfusion has previously made an AD which meets the requirements of the MCA 2005, is applicable to the treatment, and which remains valid, the AD has effect as if they had made a capacitous decision at the relevant time .

All parties accepted that the AD previously made by PW was properly made and was applicable to the decision as to whether to refuse or consent to blood transfusion. The question the court had to answer was whether the AD valid within the meaning of the MCA 2005. If it was, then her decision must be respected even though she may well die as a consequence. If it was not valid, and PW lacked capacity to make the decision, then the court was required to assess what decision should be made on her behalf, in her best interests.

Under s.25(2) of the MCA 2005, an AD is not valid if the person who made it has withdrawn it, subsequently conferred authority on a donee or donees under a LPA to give or refuse consent to the treatment to which the advance decision relates, or if the person:

 “… (c) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.”  

PW suffers from Alzheimer’s dementia and during assessment it was concluded that she lacked capacity to make decisions about her treatment. However, enquiries made by a doctor at the hospital revealed the existence of the AD made by PW in 2001. 

The AD clearly included a decision to refuse blood or blood products even if her life was in danger. Upon explanation of the need to administer blood products and seeking her consent PW gave inconsistent statements, firstly consenting to treatment and then, 30 minutes later, refusing treatment. It became clear to the doctors upon assessment that PW was unable to retain the necessary information to make a valid decision at that time.

The factors considered by the Court in considering whether the AD was valid under the MCA 2005 were:

• The fact that the AD was made in 2001, approximately 20 years prior, without any updates or confirmations of intentions;
• The lack of comments made by PW to her children about blood products when setting up her Lasting Power of Attorney (LPA);
• The fact that no exclusions regarding blood products, despite signposting within the document, were made in LPA; and,
• The inconsistent statements made by PW to the treating doctors when posed questions regarding receipt of the blood products.

The ultimate finding as a result of these factors was that on balance PW had done something which was clearly inconsistent with the AD remaining her fixed decision, and the AD was therefore not valid.

The decision and full rationale behind the outcome can be found here.

Irwin Mitchell's Public Law team is on hand to answer any questions or concerns regarding the provision of medical treatment. More information can be found on our website.