Kee, Pei-Teing --- "Refusal to Consent to Treatment on Religious Grounds" [1995] MurdochUeJlLaw 21; (1995) 2(2) Murdoch University Electronic Journal of Law

REFUSAL TO CONSENT TO TREATMENT ON RELIGIOUS GROUNDS

Author:	Pei-Teing Kee School of Law, Murdoch University
Issue:	Volume 2, Number 2 (July 1995)

Introduction

The refusal of consent to treatment is an area of medicine and the law which raises a whole myriad of legal, ethical and moral issues. It raises questions about the appropriateness of the intervention of the courts, the right to self-determination, the im portance of the principle of the sanctity of life as compared to considerations about the quality of life, the scarcity of resources and the extent to which medical practioners should continue to provide treatment for patients who are suffering from terminal and incurable illnesses. The refusal to consent to treatment on religious grounds is a narrower section of this area which raises special issues of its own.

An analysis of the scenario of the refusal by Jehovahs' Witnesses (a religious sect) to transfusions of blood or blood products can provide an interesting insight into the controversial debate on euthanasia. Probably the strongest argument in favour of voluntary euthanasia (termination of life by a positive act or an omission at a patient's request) is the relief of intolerable suffering and the inevitability of death without further treatment. In fact, it is becoming a commonly held view that the law should allow competent adults to receive help towards an immediate peaceful death if they suffer from an intolerable physical illness[1]. However, where patients refuse certain medical treatment on religious grounds, it is easy to envisage a situation that doe s not necessarily involve a terminal and incurable disease and involves very good prospects of recovery. An example of such a situation is a Jehovahs' Witness being admitted to the emergency ward after a great loss of blood due to a car accident, who could be effectively treated and physically restored with treatment including a blood transfusion. However, the patient has indicated that no blood transfusions are to be administered under any circumstances. Do factors such as the likelihood of total recovery and t he lack of 'reasonableness' of the ground for refusal to consent act to disentitle a competent patient his/her right to refuse treatment and thereby risk death?

The refusal by religious patients to consent to particular forms of treatment raises a number of other questions. Should religious patients be entitled to more expensive alternative forms of treatment which are less effective than the adminstration of blood? Should the courts be less willing to defer to the wishes of a patient who can only offer a religious objection to a particular treatment? Are greater restrictions to these patients' autonomy and right to self-determination justified? Is it a case of euthanasia at all? The patients are not refusing medical treatment all together and not necessarily seeking a "good death" but merely refusing a particular form of treatment.

 

The Legal Position

Much of the analysis which follows looks primarily at Australian and English cases involving Jehovahs' Witnesses and the refusal to consent to blood transfusions. However, there are some statutes relevant to this area that should be mentioned.

(i)         Minors

In all Australian jurisdictions, there is legislation which permits particular forms of treatment for minors without parental consent[2]. In Western Australia, Queensland, Tasmania, Victoria and the Australian Capital Territory blood transfusions may be given without parental consent if the child is in danger of death without the treatment[3]. In Tasmania, Victoria and the Australian Capital Territory two doctors must agree that it is impracticable to delay the transfusion as the child may die without it but in Western Australia and Queensland, it is sufficient that the blood transfusion is necessary to preserve the life of the child and no second opinion is required[4].

In the Northern Territory, the Emergency Medical Operations Act 1973 (NT): ss. 2 and 3 authorises an emergency operation (which includes a blood transfusion) on a child without parental consent if it is not reasonably practicable to delay the operation until parental consent is obtained and teo doctors believe that the patient is in danger of dying or of sufferring a serious permianent disability. In South Australia, the Consent to Medical and Dental Procedures Act 1985 (SA): ss. 6(2), (3), (5), (6) dispenses with the need for consent if the emergency procedure is required to meet an imminent risk to the life or health of the child although a second opinion should be taken unless this is not reasonably practicable. In New South Wales, the Children (Care and Protection) Act 1987 (NSW): s. 20A dispenses with the consent requirement if the treatment is necessary to save the life of the child or prevent serious damage to his/her health.

Skene states that legislation authorising doctors to give children blood transfusions to save the child's life (even if parents object) was introduced after a number of cases in which parents who were Jehovah's Witnesses refused permission for blood transfusions for their children when doctors felt it was necessary to save life[5]. Skene, by way of example, refers to the early decision of Jehu's Case (unreported decision of Supreme Court of Victoria, March 1960) where a man was convicted of manslaughter of his child as he refused permission for a blood transfusion principally because of his religious belief[6]. Skene adds that there were a number of other old cases where parents were found criminally liable for refusing or failing to seek treatment for a sick child on religious grounds but does not specify these[7]. Thus, it appears that the legislation was passed not only to protect the lives and health of children by ensuring they receive necessary emergency treatment regardless of parental consent but also to protect parents from criminal liability by allowing doctors to intervene against parental wishes when necessary.

Although one would expect that this legislation would clarify the situation of minors needing blood transfusions objected to by parents, a number of recent Australian cases have, nevertheless, come before the courts. One such case arose due to the concern of a doctor about the interpretation of the relevant provisions under one of these pieces of legislation.

In the case of Dalton v Skuthorpe (unreported decision of Supreme Court of New South Wales, 17 Nov. 1992, No. 5094 of 1992), the medical practitioner was not certain that he was permitted to act under s. 20A of the Children (Care and Protection) Act 1987 (NSW) as during the operation to be carried out on the child, it was felt that a blood transfusion may become necessary to alleviate "an appreciable risk of serious damage to the child's health", which may not amount to the same thing as it being "necessary to prevent serious damage to the child's health" under the Act. Unfortunately, McLelland J could not determine the issue of whether the situation was covered by s. 20A as the the case was one of urgency and there was insufficient time. His Honour, after making the child a ward of the court, nevertherless granted an order authorising the medical staff of the relevant hospital to carry out medical treatment including a blood transfusion, believed to be "necessary to save the child's life or to prevent serious damage to the child's health including the alleviation of appreciable risk of serious damage to the child's health" (my emphasis). Had His Honour taken the time to interpret the provisions of s. 20A and arrived at the same order, the effect would have been to expand their meaning to encompass a greater number of situations where the doctor would be authorised to administer a blood transfusion.

It is of interest to note that in following the guiding principle that the court should act so as to advance the "best interests and welfare of the child concerned", McLelland J not only considered the evidence of the particular doctor as important but also the fact that the defendant mother only had a "limited ground of opposition" to the blood transfusion"[8]. From the outset, he expressed that in his opinion it was important to note that the only ground put forward in opposition to the orders sought by t he Director-General of Family and Community Sercices was one based on religious beliefs (that is, that blood transfusions were forbidden in particular passages of the Bible). Perhaps His Honour considered that a religious ground for refusal to consent was unreasonable. However, this is not for certain as it could be that McLelland J was referring to the lack of a technical legal ground of opposition or felt that the defendant's ground of opposition was trivial in the urgency of the situation.

In Marchant v Finney (unreported decision of Supreme Court of New South Wales, 31 July 1992, No. 3599 of 1992), there was no suggestion, as there was in Dalton v Skuthorpe, that s 20A of the Child (Care and Protection) Act 1987 (NSW) may not extend to a case in which the doctor is of the opinion that a blood transfusion is necessary to alleviate an appreciable risk of serious damage to a child's health (as opposed to being "necessary, as a matter of urgency ... to save the child's life or to prevent serious damage to the child's health")[9]. The case arose not because of fear of not coming within the terms of s. 20 A but the doctor was concerned that if he operated upon the child and a blood transfusion was involved, without a sanctioning court order, the relationship between himself and the defendant (father of the baby) "would deteriorate and might have adverse effects on the future care and treatment that he was able to give to the child"[10]. The baby was born with spina bifida. Her life was in danger unless an operation to close a lesion was carried out immediately. Waddell CJ accepted the medical evidence that the treatment could not be carried out by orthodox means without creating the possiblity of a need for a blood transfusion, remote though that may be. The evidence as to the nature of the emergency which arose in relation to the child was such as to raise no doubt that the doctor could administer a blood transfusion without parental consent if he was of the opinion that it was necessary to save the child's life or to prevent serious damage to her health as provided in s 20 A. Thus, he found no reason to depart from the orders made by Cohen J on the ex parte application of the Director-General of Community Services authorising that treatment.

Counsel for the defendant argued that in the circumstances of the emergency, the doctor did not need the intervention of the court to authorise a necessary blood transfusion and that the plaintiff should, therefore, be liable to pay for the costs of the defendant of the proceeding. Waddell J disagreed as the orders were granted by Cohen J because the doctor was of the opinion that they were necessary to preserve a relationship between himself and the defendant which would be in the interests of the child. Therefore, the intervention of the court was held to be justified in this case although not in every case and contrary to the argument of the defendant, the application was not totally unnecessary or misconceived.

Waddell CJ made a very valid comment on how doctors should handle emergency situations with children of Jehovah witnesses. His Honour said that it is highly desirable that court intervention be avoided by adequate counselling as to the application of s. 2 0A[11]. Where such counselling has failed then an application to the court may be made. However, there may be occasions where court intervention may be warranted to preserve a doctor patient relationship.

It is submitted that an ex parte application should not have been made in the first place. The parents should have been notified of the application, allowed to appear before the judge and be present to hear medical evidence as to the necessity of the blood transfusion like the parents in Rolands v Rolands (1983) 9 Fam LR 320 at 321. One can imagine that the parents of the child would have been distressed from being excluded from participating in the decision concerning their child. The disagreement regarding blood transfusions could have been resolved by counselling about the application of s. 20A. Affidavits sworn by the parents when they sought the discharge of the orders made by Cohen J stated that although they refused consent on religious grounds, they would "respect the authority of the law as expressed in s. 20A of the Child (Care and Protection) Act"[12].

The case of Birkett v Director General of Family and Community Services (Unreported decision of Supreme Court of New South Wales, 3 Feb. 1994, No. 3161 of 1991) is important as it clarified the requirements of s. 20 of the Child (Care and Protection) Act 1987 (NSW). The baby's mother brought proceedings on behalf of her child as his tutor as the result of the administration to him of transfusions of blood products against parental consent. Before the birth of the child, she gave written notification expressly withholding her consent on religious grounds and forbidding administration of blood or its derivatives to either her or the child during the coming stay in the hospital even where necessary to save her from death. Her husband signed and supported the direction.

Bryson J adopted as his starting point, that a blood transfusion, like much other medical treatment was physically invasive and would constitute battery if carried out by a doctor or anyone else without patient consent or legal excuse. However, he pointed out that difficulties arise where an infant patient is too young to be capable of giving consent. Although decisions relating to children are normally left to parents, this control is not absolute. Decisions by parents to grant or withhold consent to med ical treatment, like many other decisions they make in relation to the welfare of their children, may be overridden by orders and directions given by courts with jurisdiction to deal with the welfare of children (parens patriae jurisdiction). His Honour referred to Rolands v Rolands (1983) 9 Fam LR 320, Dalton v Skuthorpe and Marchant v Finney as illustrations of where the powers of courts have been exercised specifically in relation to cases where consent to blood transfusions have been withheld for religious reasons.

After referring to Lord Templeman's remarks in Gillick v West Norfolk and Wisbech Health Authority and Another [1985] UKHL 7; [1986] AC 112 at 200[13], Bryson J turned to assess the medical evidence to see if the blood transfusions were authorised under s. 20A of the Child (Care and Protection) Act 1987 (NSW). In His Honour's findings, "all the transfusions which were complained of in the plaintiff's case were lawfully authorised in accordance with the subsection"[14]. In the circumstances of urgency, His Honour commented that it was not practical for the doctors involved to make an application to the court for orders dealing with guardianship or medical treatment[15].

It was also acknowledged expressly that Dr Goh and Dr Barr spoke to the parents about the child's difficult situation and the need for a blood transfusion in an attempt to obtain parental consent. Dr Goh was effectively in control of treatment of the baby who was found to be suffering from gastro intestinal tract bleeding on the fourth day of its life. Treatment administered by Dr Davis, Dr Barr and Dr Mackie was analysed as being administered at the control and direction of Dr Goh.

The baby was born at Blacktown District Hospital but was transferred back and forth from that hospital and the Royal Alexandra Hospital for Children. The baby developed breathing difficulties, vomited blood and, in the view of Dr Goh, was in shock. Both D r Goh and Dr Davis feared that the baby was in imminent danger of dying "if the cardiovascular system was not made stable by a transfusion after massive blood loss and in the presence of continuing bleeding"[16]. A transfusion of blood products was administered in two parts at the Blacktown hospital. Two later transfusions took place at the Children's Hospital under the orders of Dr Barr and Dr Mackie respectively. The plaintiff conceded that the transfusion by Dr Barr was authorised by s 20A and Bryson J agreed. The evidence given by Dr Goh was found to be confirmed by that given by Dr Davis and His Honour had no difficulty in finding that the first transfusion was authorised.

It was the last transfusion, ordered by Dr Mackie, which led His Honour to analyse and clarify the requirements of s. 20 A. When cross examined, Dr Mackie said that when she administered the transfusion, she thought that there was "definitely a potential for a threat to the plaintiffs' life"[17]. However, Dr Mackie indicated the priority with which she needed the blood for the baby as "urgent", meaning blood was needed within one hour as opposed to "desperate", meaning blood was needed at once without matching. Bryson J found that she was authorised to make the transfusion under s. 20A Dr Mackie felt that the baby was in danger but not in imminent danger (unlike Dr Goh, Dr Davis and Dr Barr in their circumstances). Bryson J said "[t]here is no test of immin ent danger in subs. 20A(1)".

The test is one of necessity as a matter of urgency to carry out treatment in order to save the child's life or to prevent serious damage to the child's health and is determined according to the opinion of the medical practiti oner at the time - not according to objective facts determined retrospectively by the court[18]. His Honour stated that as a test of necessity it is a rather stringent requirement but it would be incorrect to introduce elements not found in s. 20A such as imminence of danger, inescapable essentiality of treatment or the exclusion of any possibility of the child's survival without the treatment[19]. In other words, "[t]here is no need to wait until the last before acting under the subsection"[20].

This case illustrates that the courts rely heavily on and attribute great weight to expert medical evidence in determining whether blood transfusions were authorised in the circumstances. It is difficult to envisage a court ever ruling against the opinion of doctors who profess that the treatment they gave to a child against its parent's wishes was necessary as a matter of urgency to preserve the child's life and health. The cases considered so far related to babies under a year old who were seriously ill and it is understandable that where minors are so young as to be incapable of expressing consent or refusal to consent, that the courts see the need to act quickly in the interests of preserving the life and health of the child. It is arguable that doctors, by reason of their medical training, medical practice and constant medical supervision in the case, would be in the best position to judge what would be in the best interests of a seriously ill baby.

The English courts have also overruled the religious objections of parents to blood transfusions in their attempts to safeguard the interests of the children involved. However, it is interesting to note that the doctors involved attempted the use of alternative products to blood products (contrary to the Australian cases considered) and it was only when that was unsuccessful that court intervention was sought.

In the case of Re S (a minor) (medical treatment) [1993] 1 FLR 376, a 4 1/2 year old boy was diagnosed as suffering from T-cell leukaemia with a high risk of death. Since the early 1980s, doctors have treated this condition by intensifying chemotherapy treatment and the result has been "highly encouraging with cures ... achieved in approximately 50% of cases treated"[21]. However, the treatment had strong side-effects and the transfusion of blood or blood products was essential in nearly all cases. The parents of the child were dedicated Jehovahs' Witnesses and all family medical records and instructions include their veto of blood transfusions. The doctor emphasised at the hearing that he had gone a long way to vary the conventional treatment to reflect the convictions of the parents by using non-conventional treatment without scientific evidence for it, not administering a blood transfusion despite falls in haemoglobin level and avoiding procedures that could lead to internal bleeding in rare instances. Medical evidence was to the effect that with leave to administer blood, the prospects of achieving a cure for the child would be in the order of 50% but without such leave, there would be no prospect of cure. Furthermore, providing the child could be cured , the quality of his life would be "reasonably good"[22].

Thorpe J granted the orders sought. His Honour was impressed by the sincerity of the faith of the child's father[23]. However, he was not prepared to allow those religious convictions to deny their child a 50% chance of survival and condemn him to inevitable and early death. Counsel for the defendant argued that there were risks inherent in the use of blood for treatment (eg, mismatch of blood types, contaminated blood transfusions). Thorpe J commented that those risks were so statistically tiny as to be minimal and would almost invariably be outweighed enormously by the advantages[24]. He also dismissed the argument that the child would suffer stress and problems in future from his parents' belief that his life was prolonged by an ungodly act since the fact that the responsibility for consent was taken from them by a judicial act would absolve their consciences[25].

In Re O (a minor) (medical treatment) [1993] 2 FLR 149 the court overruled the refusal of the Jehovah's Witness parents to blood transfusions also because there was need for a blood transfusion in the circumstances, the child's chances of survival were go od and the alternatives to blood had been attempted without success. The child concerned was a premature baby who suffered respiratory distress syndrome, a chemical deficiency affecting the oxygen-carrying capacity of blood.

Re E (a minor) [1993] 1 FLR 386 establishes the unwillingness of courts to deprive a child of a good chance of survival or recovery and the reasonably good quality of life that a blood transfusion can offer even if a child has reached a level of understanding to be able to express his/her wishes regarding treatment. The boy was almost 16, shared the religious objections of his parents and arguably competent to refuse medical treatment under English law[26]. He was suffering from leukaemia and the hospital authority sought leave to treat him in such manner they considered necessary, including the use of blood transfusions. Had the full treatment been followed, the hospital considered that there was an 80 % - possibly 90% - chance of remission without which would be reduced to perhaps only 60%. Conventional treatment involved drugs that attacked the bone marrow responsible for producing red blood cells so due to the veto on blood transfusions the hospital limited treatment to drugs which only attacked the le ukaemia cells. However the boy's condition deteriorated to dangerious levels. His chances of remission with the limited treatment had dropped to 40% or 50% as compared to 70% with full treatment.

Ward J found that s 8(1) of the Family Law Reform Act 1969 which entitled a 16 year old to refuse consent to medical treatment did not apply in this instance as he was not yet 16. He then turned to the principle in Gillick [1985] UKHL 7; [1986] AC 112 at 186, 188-189 that parental right to determine whether or not a child below 16 would receive treatment would terminate when the child has reached a sufficient understanding and intelligence to be capable of deciding on the matter. Ward J found that although the boy was of sufficient intelligence to be able to make decisions about his well-being, there were a range of decisions some of which were beyond his ability to fully grasp their implications. The doctor mentioned that the boy would become increasingly breathless and his fighting for breath likely to be a frightening struggle. Ward J felt that the boy did not sufficiently comprehend the full implications of the manner of his death or the distress his family would suffer from witnessing his sufferring, deterioration and death. Ward J, compelled by the welfare of the boy as his first regard and by the standard of the judicial reasonable parent, granted the order authorising the use of blood transfusions.

All these cases demonstrate that the courts are more than willing to overrule religious objections in order to safeguard a child's health and life. Important considerations have been the seriousness of the condition of the patient which required the transfusion, the lack of an appropriate use of an alternative to blood, the good prospects of recovery if blood transfusions were given and the fairly reasonable quality of life anticipated with that recovery. These considerations were not outweighed by the express refusal of the boy of almost 16 in Re E. Although Ward J said the boy was capable of making decisions about his own well-being, Ward J was extremely concerned at the sufferring and distress the boy would face if he was allowed to refuse the necessary transfusions. Some of His Honour's comments about the distress the boy displayed at the mention of his father's profound love for him and the boy not turning his mind to the full implications of the manner of his death and its effects upon the family were not necessarily factors which pointed to a lack of maturity. Adults are not excluded from reaching high points of emotion with regard to the care and concern shown from loved ones while seiously ill and from not addressing their minds to the fearful process of dying. Ward J's decision was arguably based on His Honour's desire to protect the boy from the distress he would otherwise suffer from his manner of dying and His Honour's view of what was in the boy's best interests.

(ii)            Competent Adults

Where a competent adult refuses blood transfusions on religious grounds, the courts cannot be dictated by its view of what would be in the best interests of the patient but must look to the validity of the refusal in terms of the capacity of the patient t o give it to determine whether it must be respected. In Malette v Shulman [1991] 2 Med LR 162, a 57 year old woman was seriously injured in a car accident and taken to the hospital unconscious. A nurse discovered in the woman's handbag a card signed by the woman identifying her as a Jehovahs' Witness and requesting that no blood transfusions be given to her under any circumstances, that she fully realised the implications of that position but did not object to the use of nonblood alternatives.

The doctor was informed about the contents of the card but personally administered blood transfusions to the woman when he formed the view that they were necessary to replace her lost blood and preserve her life and health. The woman made "a very good recovery from her injuries"[27]. She was discharged from hospital after 6 weeks and sued the doctor for negligence, assault, battery and religious discrimination. The trial judge accepted the plea of battery only, concluding that the card validly restricted the doctors right to give the patient blood transfusions and that there was no rational basis for ignoring that restriction. He awarded her damages of $20,000. The Ontario Court of Appeal affirmed Donnelly J's decision at trial.

Donnelly J said that the right to refuse treatment was an inherent component of the supremacy of the patient's right over his own body not premised on the risks of refusal. He said that however sacred life may be fair social comment admits that certain aspects of life are properly held to be of more importance. His Honour added that objection to treatment for religious reasons do not permit the "scrutiny of "reasonableness" which is a transitory standard dependent on the norms of the day" and that an objection with its basis in religion "is more apt to crystallize in life-threatening situations"[28]. The Court of Appeal also accorded very high priority to the principles of self determination and individual autonomy and viewed the issues in this case from the perspective that free individual choice in matters affecting the right to determine what would be done to one's own body was fundamental[29]. The Court of Appeal was of the view that Mrs Malette's right to protection against unwanted infringement of her bodily integrity outweighed the interest of the preservation of life and health and the protection of the integrity of the medical protection.

Dr Shulman could not avail himself of the exception to the general rule requiring a patient's prior consent although he was faced with an emergency situation because his notice of the Jehovahs' Witness card meant that the usual assumption that a patient would want emergency aids if capable of giving a consent was inapplicable[30]. The court found that there was no rational basis in the form of contradictory evidence for the doctor to doubt that the card was a true expression of the patient's wishes.

Despite the not unrealistic fears and doubts that the doctor had as to whether the patient had changed her religious beliefs before the accident; signed the card due to family or peer pressure; was fully informed of the risks of refusing blood transfusions when she signed the card; or, in the face of medical evidence of imminent but unavoidable death, might change her mind if conscious[31], the court found these were merely speculative inferences as the fact that the card was carried by the patient could be taken as continuing and current resolve to reject blood[32]. Thus, the case demonstrates that doctors must respect their patient's wishes provided that they were in a fit state to make them plain or have indicated them in advance[33]. Doctors cannot substitute their decision for the validly made decision of the patient.

Where there is reason to doubt the capacity of the patient to give a valid refusal or that a refusal was properly made, the court has overridden an adult patient's religious objections to blood transfusions: Re T (adult: refusal of medical treatment) [1992] EWCA Civ 18; [1992] 4 All ER 649. T was a 20 year old woman injured in a car accident while 34 weeks pregnant. She told a staff nurse that she did not want a blood transfusion, before any need for one arose, as she used to be a Jehovah's Witness and still maintained some beliefs. She later told the doctor of her refusal of blood transfusions and soon signed a form to that effect. After a caesarian section was performed and the baby was stillborn, T's condition deteriorated and she was transferred to intensive care. T's father  and C, the father of the baby, applied to the court and obtained a declaration authorising a blood transfusion. The Court of Appeal rejected T's appeal against the declaration. There were a number of grounds given for overriding T's refusal:

- T did not maintain a deep-seated Jehovah's Witness faith: she told her father recently that she ceased to be a Jehovah's Witness and also to the nurse initially, who made notes that T was an ex-Jehovah's Witness; also, her lifestyle was contrary to the practices of that faith;  - T expressed her refusal immediately following occasions when she had been alone with her devout Jehovah's Witness mother implying that her refusal was due to pressure by the mother; - T was misinformed as to the availability and effectiveness of alternative procedures; - T did not read the refusal form nor was the form explained to her although she signed it; - there was no evidence that T would have persisted with her refusal even at the risk to her life: the scope of her refusal was unclear as her decision to refuse was made before an emergency situation arose.

Thus the case shows that there may be scope for challenging the validity of a patient's refusal on the grounds that wrong information was given, the emergency that arose was not foreseen or the decision was unduly influenced by a relative or friend[34]. Another instance where the religious objection of a patient to a certain procedure was overriden was Re S (adult: refusal of medical treatment) [1991] 4 All ER 671. A 30 year old woman was in a life and death situation when she refused a Caesarean section on religious grounds. She was six days overdue to give birth, the baby's elbow projecting thorugh her cervix. There was a grave risk of a rupture of the uterus without the operation so her situation and that of her unborn baby was desperately serious. As the operation was necessary to save not only S's life but also that of her unborn baby, the court granted a declaration authorising the operation. The situation here was different from Malette as the life of an unborn child was involved. The judgment was just over a page long, the judge emphasising the desperation of the situation - a matter of "minutes rather than hours"[35].

The Ethical Position

Upon an examination of the cases concerning Jehovah's Witnesses refusing to consent to blood transfusions it is easy to argue that these cases are significantly different from euthanasia. Euthanasia is the practice of terminating a patient's life either by a positive act, like giving a lethal injection, or by withdrawing or withholding life-sustaining treatment[36]. The intention is to bring about a good, peaceful and painless death[37]. However, the refusal to a blood transfusion or to a caesarean section on religious grounds is not the same as refusing all treatment in order to hasten death. None of the cases considered involved parents wishing their child be released to death or adult patients asking for their lives to be ended. Parents wanted their child' s life and health to be preserved by active medical treatment but they did not want the use of blood transfusions.

In Mallette v Shulman [1991] 2 Med LR 162 at 166, the Court of Appeal emphasised that it was not called to consider the law applicable to the situation of an overall objection to the use or continued use of medical treatment to save or prolong life and th at "there [was] no element of suicide or euthanasia". Likewise, the Court of Appeal in Re T [1992] EWCA Civ 18; [1992] 4 All ER 649 at 652, 665, said that the case was not about the "right to die" as there was no suggestion that T wanted to die. Lord Donaldson had no doubt that the woman wanted to live and Butler-Sloss LJ stated at 665 that "Jehovah's Witnesses accept and take advantage of the same medical treatment as those who do not subscribe to their beliefs and are as anxious as anyone else to recover from any illness from which they may suffer".

The right to self-determination relates to the choice of treatment and not to the overall use of treatment. The British Medical Association indicated that while economic factors will always be important in the delivery of health care, their importance should not be overridding[38]. The court did not raise the issue of costs as a factor in determining whether doctors should obey the veto of blood in any of the above cases. However, in Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819, the Court of Appeal has said that a court cannot dictate that a patient must receive a certain treatment when this is contrary to clinical judgment, partly because such an order would not adequately take into account whether the health authority had sufficient resources to treat the patient or other patients who would probably benefit more from the use of scarce resources[39].

There is certainly a conflict between treating a patient according to his/her wishes or to parental wishes in the case of a minor and the "moral duty to use ... finite resources efficiently"[40]. Refusal of blood transfusions can result in the need to be admitted to intensive care and the requirement for additional expensive treatment[41]. Doctors in a recent article discussed the case of two men who were severely injured in a car accident but were still conscious and persisted in their refusal to blood trans fusions for religious reasons[42]. They respected their patients wishes and resorted to alternative treatment. One patient made a good recovery but the other died after a cardiac arrest. They felt obliged to respect the religious objections and thus deny scarce resources to other patients. Although immediate and preventable harm results when religious patients refuse blood transfusions, they were not to be denied the same commitment offered to smokers and heavy drinkers who have ignored medical advice resulting in expensive health care in later years[43]. In Finfer's view, until society decides what proportion of its resources should be spent on health care and, within that limit, on what it should be spent, "patients must be free to refuse treatments they find unacceptable without fear of being denied care"[44].

Conclusions

When courts override the religious objection to blood transfusions of parents for a seriously ill child, they are not so much compelled by the sanctity of life as they are by considerations of the need for the blood transfusion, the high prospects of recovery if a transfusion is administered and the reasonably good quality of life that recovery will bring. Where there is a competent adult patient, their wishes must prevail if they were indicated in advance or made with competence and the refusal was valid. It is important to understand that patients who refuse blood transfusions on religious grounds are not in the same situation as a patient seeking a hastening of death but just making in choice in treatment and not excluding treatment altogether.

Ethical considerations support the respect of religious objections by competent patients and active alternative treatment, although more costly, is medically justified and may result in unexpected survival. There are many who ignore medical advice to eat the right foods and exercise or to stop smoking or drinking but they are by no means deprived of costly medical treatment later required and neither should Jehovah's Witnesses who refuse recommended blood transfusions.

CASES

Birkett v Director General of Family and Community Services (Unreported decision of Supreme Court of New South Wales, 3 Feb. 1994, No. 3161 of 1991).

Dalton v Skuthorpe (unreported decision of Supreme Court of New South Wales, 17 Nov. 1992, No. 5094 of 1992)

Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112. Jehu (unreported decision of Supreme Court of Victoria, March 1960)

Malette v Shulman [1991] 2 Med LR 162.

Marchant v Finney (unreported decision of Supreme Court of New South Wales, 31 July 1992, No. 3599 of 1992)

Re E (a minor) (wardship: medical treatment) [1993] 1 FLR 386. 

Re O (a minor) (medical treatment) [1993] 2 FLR 149 Re S (adult refusal of medical treatment) [1992] 4 All ER 671

Re T (adult: refusal of medical treatment) [1992] EWCA Civ 18; [1992] 4 All ER 649

Rolands v Rolands (1983) 9 Fam LR 320.

STATUTES

Children (Care and Protection) Act 1987  (NSW):s. 20A. Consent to Medical and Dental Procedures Act 1985 (SA): s. 6. Emergency Medical Operations Act 1973 (NT): ss. 2-3. Human Tissue Act 1982 (Vic): s 24 Human Tissue Act 1985 (Tas): s 21 Human Tissue and Transplant Act 1982 (WA): s 21 Transplantation and Anatomy Act 1978 (ACT): s 23 Transplantation and Anatomy Act 1979 (Qld): s 20.

LIST OF WORKS CONSULTED

BOOKS

Australian Consumers' Association. Your Health Rights: the essential guide for every Australian Australasian Publishing Co., Sydney, 1988.

Bates, P. W., Dewdney, J. C. & the CCH Health and Medical Law Editors. Australian Health and Medical Law Reporter CCH Australia Ltd, Sydney, 1994.

Brody, B. A. (ed). Suicide and Euthanasia Kluwer Academic Publishers, Dordrecht (Netherlands), 1989.

Byrne, P. (ed). Ethics and Law in Health Care and Research John Wiley & Sons Ltd, Chichester (England), 1990.

Campbell, R. & Collinson, D. Ending Lives The Open University, Oxford (U.K.), 1991.

Caton, H. (ed). Trends in Biomedical Regulation Butterworths, Sydney, 1990.

Charlesworth, M. Life, Death, Genes and Ethics ABC Enterprises, Crows Nest (N.S.W.), 1989.

Darvall, L. Medicine, Law and Social Change Dartmouth Publishing Co. Ltd., Aldershot (England), 1993.

Dix, A., Errington, M., Nicholson, K. & Powe, R. Law for the Medical Profession Butterworths, Sydney, 1988.

Giles, R. For & Against: Public Issues in Australia Brooks Waterloo, Milton (Qld.), 1989, pp. 338-347.

Glover, J. Causing Death and Saving Lives Penguin Books, London, 1990.

MacFarlane, P. J. M. Health Law: Commentary and Materials The Federation Press, Sydney, 1993, pp. 167-179.

Mason, J. K. Medico-Legal Problems: Consent to Treatment and Non-Treatment The PostGraduate Legal Education Committee of the University of Western Australia, Perth, 1986.

Moreland, J. P. & Geisler, N. L. The Life and Death Debate: Moral Issues of Our Time Praeger Publishers, New York, 1990, pp. 62-822.

Otlowski, M. Active Voluntary Euthanasia: A Timely Reappraisal The University of Tasmania Law School, Hobart (Tas.), 1992.

Overberg, K. R. Mercy or Murder: Euthanasia, Morality & Public Policy Sheed & Ward, Kansas City (U.S.), 1993.

Skene, L. You, Your Doctor and the Law Oxford University Press, Melbourne, 1990.

Tay, A. Human Rights Commission Monograph Series No. 1: Human Rights for Australia Australian Government Publishing Service, Canberra, 1986, pp. 60-61, 92-97, 100-105.

REPORTS

British Medical Association Euthanasia: Report of the Working Party to review the British Medical Association's guidance on euthanasia British Medical Association, London, 1988.

Law Reform Commission of Western Australia Report on Medical Treatment for the Dying (Project No. 84) Law Reform Commission of Western Australia, Perth, Feb 1991.

The Western Australian Dying with Dignity Committee Dying with Dignity: Draft Interim Guidelines on Management April 1994.

JOURNAL ARTICLES

Baume, P "Living and dying: a paradox of medical progress" The Medical Journal of Australia Vol. 159, no. 11/12, December 1993, p. 792.

Otlowski, M. "Mercy Killing Cases in the Australian Criminal Justice System" (1993) 17 Criminal Law Journal 10.

Mendelson, D. "Medico-legal aspects of the 'Right to Die' Legislation in Australia" [1993] MelbULawRw 5; (1993) 19(1) Melbourne University Law Review 112. Smith, G. P. "Re-thinking Euthanasia and Death with Dignity: A Transnational Challenge" [1990] AdelLawRw 10; (1990) 12 Adelaide Law Review 480.

Lanham, D. & Woodford, S. "Refusal by Agents of Life-sustaining Medical Treatment" [1992] MelbULawRw 7; (1992) 18(3) Melbourne University Law Review 659.

Lanham, D. "The Right to Choose to Die with Dignity" (1990) 14(6) Criminal Law Journal 401.

Lanham, D. & Fehlberg, B. "Living Wills and the Right to Die with Dignity" [1991] MelbULawRw 21; (1991) 18(2) Melbourne University Law Review 329.

Thurston, B. B. "Sanctity of Life" (1991) 59 (1993) 61(3) Medico-Legal Journal 174.

Brace, J. W. A. "Treating Jehovah's Witnesses" British Medical Journal vol. 305, no. 6853, 5 September 1992, p. 588.

Dyer, C. "Court says doctors were right to treat Jehovah's Witnesses" British Medical Journal vol. 305, no. 6848, 1 August 1992, p. 272

Brahams, D. "Life-sustaining treatment for brain damaged child" (1992) 339(8807) The Lancet 1472 at 1473.

Brahams, D. "Consent for treatment of minors in wardship" 59(4) Medico-Legal Journal 266.

Brahams, D. "A Case of Measles - can children refuse treatment?" (1992) 61(1) Medico-Legal Journal 41

Brahams, D. "Religious Objection versus Parental Duty" (1993) 62(1) Medico-Legal Journal 232.

Brahams, D. "Right to refuse treatment" (1992) 60(3) Medico-Legal Journal 211.

Lyon, C. "What's happened to the child's right to refuse?" (1994) 6(2) Journal of Child Law 84.

Shield, J. P. H. & Baum, J. D. "Children's consent to treatment" British Medical Journal vol. 308, no. 6938, 7 May 1994, 1182.

Australian Law Reform Commission "Child euthanasia" Reform vol. 40, October 1985, 137.

Finfer, S., Howell, S., Miller, J. & Wilson-MacDonald, J. "Managing patients who refuse blood transfusions: an ethical dilemma" British Medical Journal vol. 308, no. 6941, 28 May 1994, 1423.

Parker, M. "Moral intuition, good deaths and ordinary practitioners" (1990) 16 Journal of Medical Ethics 28.

NOTES

[1] A 1986 source reported that 75% of the British public held this opinion: J. K. Mason & R. A. McCall Smith, Law and Medical Ethics (4th ed), Butterworths, London, 1994, p. 320.

[2] The following discussion on the legislation is taken from information in P. W., Bates, J. C., Dewdney, & the CCH Health and Medical Law Editors, Australian Health and Medical Law Reporter CCH Australia Ltd, Sydney, 1994, para. 17-420.

[3] Bates et al, para. 17-420: Human Tissue and Transplant Act 1982 (WA): s21; Transplantation and Anatomy Act 1979 (Qld): s 20; Human Tissue Act 1985 (Tas): s 21; Human Tissue Act 1982 (Vic): s 24; Transplantation and Anatomy Act 1978 (ACT): s 23.

[4] Bates et al, para. 17-420.

[5] L. Skene, You, Your Doctor and the Law Oxford University Press, Melbourne, 1990, p. 172.

[6] Skene, p. 268.

[7] Skene, p. 268. These cases were taken from a 1960 article which was not available in any of the university libraries in WA: P. Balmford, The Rights and Duties of Patients and Doctors in Relation to the Examination and Treatment of Children Proceedings of the Medico-Legal Society of Victoria, ix, 1960.

[8] Dalton v Skuthorpe (unrep'd dec. of Sup. Ct of NSW, 17 Nov. 1992 at p. 3)

9 Marchant v Finney (unrep'd dec. of Sup. Ct. of NSW, 31 July 1992 at p. 7); s 20A of Child (Care and Protection) Act 1987 (NSW).

[10] Marchant v Finney at 2.

[11] Marchant v Finney at 8.

[12] Marchant v Finney at 5. [13] to the effect that the court can decide where doctors and parents disagree or if time does not permit the doctor can give treatment vital to the survival or health of the child without parental consent: Birkett at 8.

[14] Birkett at 29.

[15] Birkett at 2.

[16] Birkett at 19, 21.

[17] Birkett at 24, 26.

[18] Birkett at 27.

[19] Birkett at 27.

[20] Birkett at 28.

[21] Re S at 2.

[22] Re S at 4.

[23] Re S at 4, 5.

[24] Re S at 5.

[25] Re S at 6.

[26] Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112.

[27] Malette v Shulman at 163.

[28] 63 OR (2d) at 272-273 (trial at first instance).

[29] Malette v Shulman [1990] 2 Med LR 162 at 165, 167.

[30] at 165.

[31] at 163, 166.

[32] at 166, 168.

[33] D. Brahams, "Jehovah's Witness Transfused without consent: a Canadian case", 58/1 Medico-Legal Journal 48 at 49.

[34] C. Dyer, "Court says doctors were right to treat Jehovah's Witness", British Medical Journal, vol. 305 no. 6848, 1 August 1992, p. 272.

[35] at 672.

[36] Mason & McCall Smith at 316-317, 322.

[37] Mason & McCall Smith at 316.

[38] British Medical Association, Euthanasia: Report of the Working Party to review the British Medical Association's guidance on euthanasia, British Medical Association, London, 1988, p. 18.

[39] M. A. Jones, "Managing patients who refuse blood transfusions: an ethical dilemma - The legal view", British Medical Journal, vol. 308, no. 6941, 28 May 1994, 1425. S. Finfer, S. Howell, J. Miller, K. Willett & J. Wilson-MacDonald, "Managing patients who refuse blood transfusions: an ethical dilemma", British Medical Journal, vol. 308, no. 6941, 28 May 1994, 1425.

[40] S. Finfer, S. Howell, J. Miller, K. Willett & J. Wilson-MacDonald, "Managing patients who refuse blood transfusions: an ethical dilemma - Major trauma in two patients refusing blood transfusions", British Medical Journal, vol. 308, no. 6941, 28 May 199 4, 1424.

[41] Finfer et al. at 1424.

[42] Finfer et al at 1423-1424.

[43] S. Finfer, "Managing patients who refuse blood transfusions: an ethical dilemma - Author's view", British Medical Journal, vol. 308, no. 6941, 28 May 1994, at 1425-1426.

[44] Finfer, at 1426.