Currently one of the most controversial aspects of medico-legal practice is that of the provision of blood transfusions to patients who are Jehovah’s Witnesses, particularly the legal right of a Jehovah’s Witness parent to refuse a blood transfusion on behalf of their children.
As many doctors will be aware ordinarily with informed consent any minor under the age of sixteen must get parental consent to undergo medical treatment such as a blood transfusion. However, under the Irish constitution a potential conflict arises between a minor’s personal rights and the rights and duties of parents. For example, the constitution recognises the family unit as the “natural primary and fundamental unit group of society”, and provides that the State guarantees to protect the family it its constitution and authority. Similarly, the State acknowledges that the primary and natural educator of the child are the parents.
This potential conflict within the constitution was first addressed under the common law in a case involving the North Western Health Board. Here the Supreme Court was asked to decide whether the parents of a fourteen month old child could refuse consent for the medically necessitated phenylketonuria test to be carried out on the child. In that case the Supreme Court ruled that it only had a jurisdiction to interfere or provide for minors by virtue of the Child Care Act 1991 in exceptional cases where the parents for “physical or moral” reasons had failed in their duty to their child. Here the parents’ refusal to consent to the tests did not amount to such an exceptional case.
Overall, it would appear from this case that the Irish courts support the right of Jehovah’s Witness parents to refuse consent for a blood transfusion on behalf of their child on constitutional grounds, unless the parents had “for physical or moral reasons” failed in their duty to their children. However, a couple of recent high profile Irish cases would suggest that this legal position is possibly under threat.
Recent Irish case law has indicated a new approach to minor consent and blood transfusions. In the case of ‘Baby B’ in 2007 the National Maternity Hospital sought a Court Order to provide all necessary medical treatment to a premature baby, known as Baby B, including a blood transfusion. The parents of Baby B were Jehovah’s Witnesses and they opposed the application on religious and moral grounds. Here Justice Bermingham granted the application on the basis that that if he were not to grant the court order it would amount to “brinkmanship” and an “abdication of responsibility” as it would delay further life saving treatment as well as forcing the hospital to make a further legal application to the court.
Also in the case of ‘Baby Janice’ in 2004 the Jehovah’s Witness mother of baby Janice withdrew her consent to a life saving operation for her child’s clinical condition, namely a hole in the heart, on the grounds that it would involve the use of blood transfusions and blood products. However, Justice Finnegan overruled the mother, and authorised the operation and the subsequently necessitated blood transfusion by virtue of the fact that not only was it clinically justified in the circumstances, and in the child’s best interests, but also on the basis that baby Janice was made a ward of court.
It would, therefore, appear that the Irish courts are becoming increasingly willing to intervene in regard to the issue of Jehovah’s Witness parents and their refusal to give consent to a blood transfusion for their child.
However, it remains to be seen whether the courts will reaffirm through further case law that the refusal of a Jehovah’s Witness parent(s) to give consent for a blood transfusion on behalf of their child will be considered to be such a failure of that “physical and moral duty” as set out by the Supreme Court in the North Western Health Board case, hence justifying judicial intervention.
This issue of informed consent will be one of the many topical and controversial issues to be addressed in forthcoming RCPI Med Law Meeting on Informed Consent on Friday 3rd of April 2009.
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