An NHS Trust is legally entitled to withhold treatment from a Jehovah’s Witness, the High Court has ruled.
In Nottinghamshire Healthcare NHS Trust v RC, a man referred to as ‘RC’ had a history of emotional instability, antisocial behaviour and self-harming. Last year he was jailed for sexual assault. During his stay in prison, he become a Jehovah’s Witness.
In February this year, RC cut the major artery in one arm, and was admitted to a psychiatric hospital not long afterwards. While there he had be restrained from trying to re-open the wound. As a Jehovah’s Witness he objected to blood transfusions and signed a declaration that he should not be given a transfusion, under sections 24 and 26 of the Mental Capacity Act 2005.
Section 24 deals with ‘advance decisions to refuse treatment’, and section 26 with the ‘effect of advance decisions’.
The NHS Trust with responsibility for RC applied to the Court of Protection for declarations that RC had the capacity to refuse treatment and to self-harm; that his advance declaration would be legally valid should RC become incapable of consciously refusing treatment; and that a theoretical decision already taken by the doctor treating RC to withhold a blood transfusion in such a situation was lawful.
At the High Court, Mr Justice Mostyn noted that
“In principle, every citizen who is of age and of sound mind has the right to harm or (since 1961) to kill himself. This is an expression of the principle of the purpose of power found in the Declaration of the Rights of Man and of the Citizen (1793) and in John Stuart Mill’s essay On Liberty (1859) where he stated at pp14 – 15:
‘That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his body and mind, the individual is sovereign.’ ”
He considered the circumstances in which an individual could have treatment imposed on them. This could be done when the person was thought to lack the capacity to make their own decisions. However, said Mr Justice Mostyn, RC did have capacity to refuse treatment.
He also noted that a decision not to impose treatment on an individual is not subject to judicial review, unlike a decision to impose treatment.
“In my judgment where the approved clinician makes a decision not to impose treatment under section 63 [of the Mental Capacity Act], and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief.”
‘Declaratory relief’ is a court declaration on a legally uncertain issue.
Mr Justice Mostyn made the declarations sought, but added:
“I do not think that a formal declaration as to his capacity to harm himself is necessary or appropriate… However I record that I agree with the evidence that sometimes RC does, and sometimes he does not, have the capacity to inflict lacerations on himself.”
“In my judgment it would be an abuse of power in such circumstances even to think about imposing a blood transfusion on RC having regard to my findings that he presently has capacity to refuse blood products and, were such capacity to disappear for any reason, the advance decision would be operative. To impose a blood transfusion would be a denial of a most basic freedom. I therefore declare that the decision of Dr S is lawful and that it is lawful for those responsible for the medical care of RC to withhold all and any treatment which is transfusion into him of blood or primary blood components (red cells, white cells, plasma or platelets)…”
To read the judgement, please click here.