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Blood Feuds: Conflicts between Doctors and Jehovah Witness Patients refusing Blood Transfusions.

By Jamal Ross

A 45 year old male is

admitted into the Emergency

room after a traumatic head

injury in a near-fatal car

collision. He is a Jehovah’s

Witness and his wife is

adamant that he would not

want any procedure that

w o u l d r e q u i r e b l o o d

transfusions as it goes

against his beliefs. His

Physician, Dr Parker, claims

that he is incompetent and

proceeds to treat the man for

his injuries.

The case study at hand

presents many problems

for the moral philosopher

and also raises pertinent

legal quest ions that

resonate broadly under

the fo l l owing areas :

capac i ty to consent ,

patient autonomy and

confidentiality. In this

essay, I will present the

l e g a l a n d e t h i c a l

implications, discounting

s o m e o f t h e f i n e r

linguistic nuances, which

will be beyond the scope

of this essay. Therefore,

the terms ‘competence’

and ‘capacity’ will be used

s y n o n y m o u s l y

throughout.

The patient, a 45-year-old

man, has suffered severe

head injuries in a road

accident. The practicing

physician, Dr Parker,

expresses an urgency to

carry out a surgical

Each year Jehovah’s Witness patients refuse blood transfusions and die from fairly simple complications. Is this ever justified?

April

201

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procedure in order to relieve

the pressure on his brain.

Failing to do so could result

in irreversible damage to

cognitive function. The main

issue, however, is that the

p a t i e n t i s u n a b l e t o

communicate and seems to

be dysarthric, which is likely

t o b e d u e t o e i t h e r

permanent damage incurred

to the left hemisphere of the

b r a i n o r t e m p o r a r y

depression from cranial

fractures. He is ‘assumed’ to

lack the capacity to give

consent to treatment, since

according to section 2(1) of the

mental capacity act 20052

(MCA) he is unable to make a

d e c i s i o n b a s e d o n a n

‘impairment of the mind’

which may be permanent or

fugacious3. Furthermore, the

MCA code of practice (COP)

highlights ‘drowsiness’ and

‘head injury’ as being two of

t h e m a n y c l i n i c a l

manifestations of sufficient

‘impairment’4.

On 7th April 2005, the Mental

Capacity Act (MCA) received

Royal Assent and came into

practice on 1st April 2007.

This was really a statutory

interpretation of common law

practices employed2 prior to

its implementation. The legal

definition of incapacity was

derived from Dr Jay Eastman3

and accepted by Thorpe J in

Re C (Adult : Refusal of

Treatment)4 then later refined

by Butler-Sloss LJ in Re MB

( A n A d u l t : M e d i c a l

Treatment)5 where he outlined

that capacity required the

fulfillment of three criteria:

comprehending information,

retaining that information,

and weighing it in the balance

to arrive at a decision. Yet, in

section 1(3) of the MCA it

states that ‘all practicable

steps’6 must be undertaken to

help the patient make a

decision and hence the doctor

has a duty to enhance patient

autonomy7. Moreover, section

3(2) alludes to the means that

may be used for patients to

evidence a choice such as ‘sign

language or visual aids’8.

In this particular instance, Dr

Parker has only observed a

f a i l u r e o f v e r b a l

c o m m u n i c a t i o n b u t t h e

patient may sti l l retain

sufficient cognitive and motor

skills to gesture towards a

series of visual depictions

presenting the available

options. Moreover, people only

lack capacity ‘completely’ in

very specific conditions such

as locked-in syndrome where

even the most minimal forms

of communication such as

blinking are absent2,3. The

declaration, therefore, of the

patient as incompetent is

neither resolute nor justified

on the grounds of his inability

to phonetically string words

into a coherent sentence.

“It is astonishing how many innocent children die because of these outdated tenets.”

Danny Haszard

Protestor and Blogger , USA

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One of the main concerns arising from

this case is the knowledge that the

patient is a devout Jehovah’s Witness

(hereafter JW). His wife has informed

Dr Parker that he would refuse to have

blood products administered to him.

Consequently, Dr Parker would be held

liable for the tort of battery if he chose

to perform surgery without his

informed consent, particularly if it was

found at a later stage that the patient

did actually have sufficient capacity to

evidence a choice.

In NHS trust v Ms T (Adult Patient:

Refusal of Medical Treatment)2, a very

significant ethical conundrum arises.

Previously, in Re MB3, Butler-Sloss LJ

asserted that ‘ irrationality…may be a

symptom or evidence of incompetence’4.

Ms T’s basis for refusal of blood

transfusion stemmed from her ‘belief’

that her own blood was evil and would

contaminate any blood administered to

her, thus increasing the likelihood of

her committing acts of evil. Whilst it is

arguable that the reasoning behind JW

blood refusal is dubious, it is not

considered ‘irrational’ like Ms T’s

personal belief. Rather, it is considered

to be superrational – that is to say,

beyond the scope of reason and purely

intuitional. JWs believe that blood

transfusions are a type of ‘eating’ of the

blood, through the veins, which

supposedly contravenes the tenet

‘ a b s t a i n f r o m b l o o d ’ 5 . T h i s

‘misconception of reality’6 of ‘eating’

blood through the veins may be a

semantic extrapolation of the term

intravenous ‘feeding’7. However, blood

injected directly into the bloodstream

circulates and functions as components

of the blood, not as an ingested source

of nutrition. Thus, blood transfusion is

really a form of cellular ‘organ’

transplantation8. It seems therefore,

that this ‘religious’ maxim is not purely

intuitional, as once supposed, but its

derivation is evidently from the faculty

of reason. Nonetheless, it is a claim

that can easily be disproved by a

posteriori scientific observation. Why

then, are ‘irrational’ claims2, made by

religious bodies, exempt from the same

scrutiny as a personal ‘belief’ affirmed

by an individual such as Ms T?

Paragraph 2.9 of the MCA code of

practice states that in an emergency,

treatment cannot be delayed while a

person gets support to make a

decision3. It is conceivable that

relieving pressure on the brain may

restore the patient ’s abi l i ty to

communicate. Thus, the only sensible

and appropriate steps might be to ‘keep

a person informed of what is happening

and why’4. Worthy of particular note is

section 4(3)5 whereby the physician

should consider whether the patient

would, at some time throughout the

course of treatment, regain his6

capacity. Thus, Dr Parker could

reassess the patient during or after this

treatment to find out whether he would

o b j e c t t o f u r t h e r p r o c e d u r e s .

Furthermore, as stated in F v West

Berkshire [1990]7, ‘there is no practical

difficulty arising from operating on a

patient who is expected to regain

capacity’8. This scenario, however,

poses some very unique challenges in

that the emergency procedure is

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‘Jehovah’s Witness Believers do not donate blood but often receive fractions of blood from other donees.’

Daily Mail , jan 2010

extremely invasive such that it may compromise

both the patient’s bodily and moral integrity.

Decision-making for incompetent patients: The search for eudaimonia.

Since the enactment of the MCA 2005, the best

interests policy2 has been embraced in a

statutory framework. Of the factors that are to

be considered by the decision maker, a few

considerations regarding consultation are

particularly germane to this scenario, namely:

consultation of anyone engaged in caring for the

person3, anyone interested in his welfare4, any

donee of a lasting power of Attorney5 or any

appointed deputy by the court6.

An evident corollary of this best interest policy

is the need to search the register of LPA’s to

determine if the patient has appointed a proxy.

Still, personal welfare LPAs can only be used

when the donor loses capacity to make a

decision2. Since I am of the view that this

patient has not lost sufficient capacity in so far

as being unable to show preference for a course

of action, it seems unlikely that a proxy would

be consulted at this stage.

Incompetent PatientsWho is the rightful Decision Maker?

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If one assumes, however, for the sake of

argument, that the patient does lack full

capacity to make a decision. It follows that if an

appointed proxy under an LPA does exist then

they may be consulted although they do not

possess the authority to consent to or refuse life-

sustaining treatment, unless this is explicitly

mentioned in the LPA2. In the case that ongoing

decision-making powers are required then an

application may be taken to the court of

protection for a single order or an appointed

deputy with no conflicts of interest3. Therefore,

the expression of the patient’s wife has very

little credibility and is not as influential in the

decision-making process as she would presume.

Furthermore, it is particularly unusual that the

patient, despite being a ‘devout’ JW, failed to

write an advanced directive disclosing his

opposition to blood products.

From a phenomenological point of view,

assumed by the likes of Edmund Husserl

(1859-1938), Jaffrey’s wife is unable to enter his

subjectivity, as it is a first-person perspective2.

JS Mill’s utilitarian view contests the above

position, since for him, those without the mental

capacity to make these decisions justifies the

use of paternalism3. Thus, the assumption is

that what is ‘best’ for a person can be

determined by another individual, which raises

the question: Is someone really the ‘same’

person they were yesterday? One could argue

that the continual rearrangements of neural

networks4 occurring throughout the course of

life, creates a shroud of uncertainty especially

as a ‘person’s wishes and feelings may change

following incapacity’5. Essentially, we must try

to avoid the Aristotelian concept of akrasia: that

is acting against one's own better judgment6.

This may occur when sufficient understanding

of the decision-making process is beyond the

patient’s cognizance, and ipso facto they will not

be acting as an autonomous agent. In support of

this, it can be argued that medicine is a moral

practice whereby doctors reflect on what ‘ought’

to be done and make value judgements2.

Therefore, a patient-directed model may result

in people failing to express their autonomy

based on the mistaken judgement of value.

Confidentiality: Imparting private matters.

The MCA outlines that ‘decision-makers must

respect the right to confidentiality of the person

who lacks capacity’2. Due to the nature of this

decision, it has huge implications for how the

patient is viewed by his wife and others in

society. Thus, the doctor-patient relationship

and the duty of the decision-maker is a

confidential affiliation, which may have to be

less consultative with family members2. In a

study conducted in 2005, it was found from a

cohort of 385 doctors, 35.6% believed that family

ties gave people a right to be informed, such

that the formality of asking the patient for their

consent to disclosure is not required3. A Kantian

view may suggest that such an action is not in

accordance with the categorical imperative4 as it

is not universal. In other words, if all doctors

were to employ this practice then it would be

self-stultifying and patients would no longer

entrust private health matters onto their

physicians.

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The Watchtower society (hereafter

WTS) is a legal organisation that

connects the many different JW

congregations around the world. Its

leaders have a very influential effect on

what medical treatments are deemed

acceptable by the JW congregation and

they assume the unwavering position

that blood transfusions are unlawful2,3.

However, The Associated Jehovah’s

Witnesses for Reform on Blood

(AJWRB) is composed solely of JWs

who object to the WTS blood policy, as

they argue there is no biblical basis for

this belief4. In addition to this, they are

of the view that other JWs should be

informed about this recalcitrant

ideology whenever they refuse blood

transfusions on religious grounds. This

dissenting view is very much supported

by the writings of Dr Osamu Muramoto

who asserts that the medical profession

should aim to pursue rational non-

interventional paternalism5, which

would, according to Muramoto, reveal

that most JWs are not adequately

in fo rmed to make autonomous

decisions. In essence, this practice

involves doctors forming conceptions of

what is best for the patient then

arguing rationally with them6.

"However, if YOU had understood what this means, 'I want mercy, and not sacrifice,' YOU would not have condemned the guiltless ones.”

Matthew 12:7

‘Abstain From Blood’Acts 15

Blood BanksBlood Banks at King’s College Hospital.

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Perhaps, one of the most intriguing

aspects of this groups activities are

their views on confidentiality; namely

t h a t J W s s h o u l d b e g r a n t e d

confidentiality should they accept blood

to reduce fear of ‘disfellowship’2.

This creates a very viable way in which

the patient may accept blood products

without fear of retribution from the JW

community. As a consequence, the

wife’s request to be ‘kept informed of all

aspects of his healthcare’ creates yet

another disparity between family life3

and patient care. Confidentiality is a

vested ‘personal’ right, and may be

extended to include family, at the will

of the individual, but we cannot

presuppose that marital titles annul

this requirement. Yet, in saying that, it

is not an absolute right to the extent

where it is in the ‘protection of morals’4.

Arguably, disclosure of this patient’s

condition and the treatment he is

receiving, to his wife, may be in

protection of his moral integrity.

Additionally chapter 5 of the MCA

(2005)2 suggests that people involved in

the care of the patient should be

c o n s u l t e d a b o u t t h e i r w i s h e s .

Therefore, it is fundamental that one

determines the relationship between

the wife and patient, to attest whether

or not she is indeed his primary carer.

If, however, there is someone else who

assumes this position as primary

caregiver, then his or her account of the

patient’s volitions may be a more

current and accurate reflection of his

autonomy. Furthermore, the GMC

guidance still insists that Doctor’s

should seek the approval of the

incompetent adult in regards to

disclosing information to relatives3.

Whilst there may be a valid dispute in

the respect for personal confidentiality,

in this case, it may not be considered

an issue of major concern, as Hale LJ

makes clear:

‘There is a clear distinction

between disclosure to the

media for the view of all and

disclosure to those with

interest in having the

information…’ 2.

In a like manner, the Data Protection

Act3 (1998) states that ‘fair’ and ‘lawful’

processing of data can occur when a

patient lacks capacity providing that it

‘protects their vital interests’4. Thus,

the issue becomes whether we consider

disclosure to be in the interests of the

patient.

The doctor must consider the beliefs

and values that may influence the

decision of the patient if he had

capacity5. On the other hand he must

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also have regard for any other factors

he may consider2, which may include

the AJWRB dissident views. This

dichotomy correlates with the early

fears that the provisions of the act

depend largely on how they are

interpreted by clinicians2. The legal

p r e s s u r e s o n t h e h e a l t h c a r e

infrastructure for pursuing less

restrictive alternatives3 coupled with

insurmountable JW blood refusals are

forcing an emergence of safer4 bloodless

t e c h n o l o g y 5 . M o r e o v e r , e t h n i c

minorities are underrepresented in the

blood database so encouraging blood

c o n s e r v a t i o n m a y o f f e r w i d e r

therapeutic potential. Dr Peter H.

Earnshaw of Guy’s Hospital proclaims

that ‘there are already cheaper and

safer alternatives’6. One of the most

sobering insights presented by this case

is the clash between the axiomatic life-

extensionist views that we tend to hold

as a society and the regard for personal

autonomy. Indeed, whilst rational non-

interventional paternalism (RNIP) may

save more lives, it poses yet another

problem: Where do we draw the line

between RNIP and undue coercion?

As a final point, the Chinese familial

model2 of decision-making, in my

opinion, safeguards autonomy in some

cases where the liberal model may not.

Ultimately, the role of family in

surrogate decision-making is pivotal in

protecting individual autonomy, yet, at

“Persons are exploited if others secure a benefit by using them as a tool or resource so as to cause them serious harm.”

Munzer, 1990

Outsourcing Blood reserves are often sold to other countries as it has become a big multi-million dollar industry. The fact that JW accept blood fractions yet do not donate adds to the growing demand for blood.

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least in Western society, there seems to be a

paradigm shift towards ‘patient-directed’ care.

Still, five years on from the implementation of

the MCA in 2007, it still remains largely

unclear as to whether this statutory framework

really offers faultless protection of the patient’s

autonomy.

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References

Bibliography

Textbooks

Harrison-Barbet , Mastering Philosophy, 2nd ed (2001)

Jackson, Medical Law. 2nd ed ., Oxford: Oxford University Press, (2010)

Herring, Medical ethics and law, 3rd ed .,Oxford: Oxford University Press, (2010)

T h e m o r a l l a w : K a n t ’ s groundwork of the metaphysic of morals (trans and ed., H.J. Paton) London:   Hutchinson   &   Co.  Ltd.,  1964,

Journals

Gunn, The meaning of incapacity, (1999) Medical Law Review, 2, Spring 1994

Anonymous. Questions from readers. The Watchtower 1951 Jul1: 415.

Muramoto O. Bioethics of the refusal of blood by Jehovah’s W i t n e s s e s : p a r t 1 . S h o u l d bioethical deliberation consider dissidents’ views? Journal of Medical Ethics 1998;24:223-30

Johnston   C.,   Liddle   J.   The   Mental  Capacity  Act   2005:  a  new  framework  for   healthcare   decision-­‐making.  Journal   of  medical   ethics   (2007)  vol.  33  (2)  pp.  94-­‐7

R .   Dresser ,   ‘L i fe ,   Death ,   and  Incompetent   Patients   :   conceptual  inSirmities   and   hidden   values   in   the  law   (1986)   28   Arizona   Law   Review  373;  ‘Missing  Persons’  supra  n.  99

‘Dworkin   on   Dementia:   Elegant  Theory,   Questionable   Policy’   [1995]  Hastings  Center  Report  32.

S a v u l e s c u , R a t i o n a l n o n -interventional paternalism: why doctors ought to make judgements of what is best for their patients, (1995) Journal of medical ethics

Donnelly, Best Interests, Patient Participation And The Mental Capacity Act 2005, (2009) Medical Law Review 17, Spring 2009, pg. 26

C a r c e l e s , B a l a n c i n g c o n f i d e n t i a l i t y a n d t h e information provided to families of patients in primary care, (2004) Journal of Medical Ethics.

Malyon , . Trans fus ion- f ree treatment of Jehovah’s Witnesses: respect ing the autonomous patient’s motives, (1998) Journal of medical ethics

Ridley, Jehovah's Witnesses' refusal of blood: obedience to scripture and religious conscience, (1999) Journal of medical ethics.

Elder (pseudonymous), Why some Jehovah's Witnesses accept blood and conscientiously reject official Watchtower Society blood policy, (2000) Journal of Medical Ethics

Muramoto, Bioethics of the refusal of blood by Jehovah's Witnesses: Part 2. A novel approach based on rat ional non- intervent ional paternalism, (1998) Journal of medical ethics

Rinaldi, A Bloodless Revolution, (2005) EMBO reports, vol 6, No 8

Mun Chan, Sharing Death And Dying: Advance Direct ives , Autonomous And The Family, (2004) Bioethics vol, No 2.

Gilbar, Medical Confidentiality within the family: The Doctor’s Duty Recons idered , ( 2004 ) International Journal of law, Policy and the Family 18, pp. 195-213

Barth-Rogers and Jotkowitz, E x e c u t i v e A u t o n o m y , Multiculturalism and Traditional Medical Ethics, (2009) vol 9, No2 pp 39-40

Cases

Re MB (An Adult : Medical Treatment) [1997] 2 FLR 426

R e C ( A d u l t : R e f u s a l o f Treatment) [1994] 1 WLR 290

Re   AK   (Adult   Patient)(Medical  treatment:   consent)   [2001]  1   F.   L.R.  129

NHS trust v Ms T (Adult Patient: Refusal of Medical Treatment) [2004] EWHC 1279 (Fam)

F v West Berkshire [1990] [1990]  2  AC  1  HL.

R. (On the application of S) v Plymouth City Council 2002] EWCA Civ 388

Statutes

Mental Capacity Act [2005]

Mental Capacity Act [2005] Code of Practice

Data Protection Act [1998]

The Human Rights Act [1998]

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European Directive 95/46/EC on the protection of individuals with Regard to the Processing of Personal Data and on the free Movement of Such Data

Websites

Sebast ian Seung: I am my connectome, (2010) TED Talks. URL = <http://www.ted.com/talks/sebastian_seung.html> Last accessed: 1/2/2011

Kraut, Richard, "Aristotle 's E t h i c s " , T h e S t a n f o r d Encyclopedia of Philosophy (Summer 2010 Edition), Edward N. Zalta  (ed.), URL = <http://p lato .stanford .edu/archives /sum2010/entries/aristotle-ethics/>. Last accessed: 28/1/2011

Confidentiality: Protecting and Providing Information (GMC: London, 2004) avai lable at <www.gmc-uk.org/standards/default.htm> Last accessed: 28/1/2011

T r a n s f u s i o n - A l t e r n a t i v e Healthcare: Meeting patient needs and Rights.<http://www.watchtower.org/e/v c a e / a r t i c l e _ 0 1 . h t m > L a s t accessed: 26/1/2011