An even more difficult decision by John Bolch

Yesterday I wrote about the difficult decisions that family court judges have to make, citing the example of a particularly acrimonious children dispute involving allegations of child abuse. But it gets more difficult than that. Much more difficult.

Take, for example, the recent Court of Protection case Newcastle Upon Tyne Hospitals Foundation Trust v LM.

The case concerned LM, a gravely-ill 63-year-old woman who was a Jehovah’s Witness. She had a background history of depression and paranoid schizophrenia. On the 6^th of February she had been found wandering and confused outside her home. She was taken to hospital by ambulance. The hospital was aware from the outset of her admission that she was a Jehovah’s Witness, and of her wish not to have a blood transfusion – her notes were marked that she was not to receive blood products in any circumstances.

Unfortunately, on the 11^th of February, LM was found to be bleeding from a large duodenal ulcer. On the afternoon of the 13^th of February her condition deteriorated markedly and she was admitted to the hospital’s High Dependency Unit. Doctors found that she was suffering from profound anaemia, which was significantly compromising her survival prospects. A blood transfusion would improve her chances.

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A decision had to be made urgently as to whether LM should be given a blood transfusion. The hospital was obviously aware of LM’s religious beliefs, but it was not clear whether, before she became unable to do so, LM had had the capacity to make a decision to refuse a blood transfusion and, if so, whether that decision applied to her later circumstances.

The NHS Trust therefore applied, on the 18^th of February, to the Court of Protection for a declaration that it would be lawful to withhold a blood transfusion from LM. The application was heard as a matter of urgency the same day. By that time 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. The court therefore had to make a decision there and then.

It fell to Mr Justice Peter Jackson to make the decision. After hearing what evidence was available, he found firstly that prior to the afternoon of the 13^th of February LM had the capacity to decide whether to accept or refuse a blood transfusion, and secondly that the decision taken by her prior to her loss of capacity was applicable to her later more serious condition.

LM’s decision to refuse a blood transfusion therefore had to be respected. Accordingly, Mr Justice Jackson 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.

LM died early on the morning of the 26^th of February.

There can surely be no more difficult decision that any judge in this country should have to face than one involving the life and death of another human being. Judges in other Divisions may have to make decisions of great importance to the litigants involved, even concerning the liberty of individuals, but surely those pale into insignificance when compared to a life and death decision.

Once again, I would urge those who are so quick to criticise to stop and consider just what a difficult job our family judges are asked to do.