Law Report: Decision on treatment did not cover emergency: Re T. - Court of Appeal (Lord Donaldson of Lymington, Master of the Rolls, Lord Justice Butler-Sloss and Lord Justice Staughton: 30 July 1992

Where an adult patient had refused to consent to treatment which in the clinical judgement of the doctors was necessary, the doctors should consider (1) whether the patient's capacity to make the decision had been affected by the effects of shock, pain or drugs; (2) whether the patient's capacity had been overborne by outside influences; and (3) whether the patient's decision had been intended to apply to the particular circumstances which had arisen.

The Court of Appeal gave reasons for affirming Mr Justice Ward's decision that it would be lawful in the emergency situation for the hospital authorities to administer blood to Miss T.

Miss T was brought up by her mother who is a fervent Jehovah's Witness. Miss T was not a Jehovah's Witness by baptism or otherwise. In 1989 when Miss T was 17 she went to live with her paternal grandmother. In July 1992, when Miss T was 34 weeks pregnant, she was involved in a road traffic accident. She developed pneumonia and was given pethidin, a painkiller, and antibiotics in hospital.

She went into labour and was to have a Caesarean section. Having been alone with her mother, who as a Jehovah's Witness would not accept transfusions of blood or blood derivatives derived from the body tissues of another, Miss T indicated she did not want a blood transfusion. She was told that other solutions could be used and reassured that blood transfusions were not often necessary after a Caesarean section. Miss T signed a form of refusal of consent to blood transfusions. The baby was stillborn.

Miss T's condition deteriorated and she is now unconscious. Miss T's father and the father of the baby, who are not Jehovah's Witnesses, applied to the court for a declaration as to whether it would be lawful to administer a blood transfusion.

Mr Justice Ward decided that although Miss T was capable of reaching a decision as to her treatment, her refusal did not cover the emergency situation which had arisen, and in the circumstances it would be lawful for the hospital to administer blood to her if that was in her best interests.

James Munby QC and Christopher Butler (Official Solicitor) for the Official Solicitor representing Miss T; Allan Levy QC and Peter Rank (The Smith Partnership) for Miss T's father; David Stembridge QC and Stephen Oliver-Jones (Legal Department, West Midlands Health Authority) for the health authorities.

LORD DONALDSON MR said that the appeal was not about the 'right to die' but about the 'right to choose how to live'. That was quite different, even if the choice might make an early death more likely. An adult patient who, like Miss T, suffered from no mental incapacity had an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments offered.

The right of choice existed notwithstanding that the reasons for making the choice were rational, irrational, unknown or even non- existent. That was so notwithstanding the very strong public interest in preserving the life and health of all citizens.

Determining whether or not adults had in fact exercised the right to choose was sometimes difficult and problems could arise determining what precisely they had chosen.

In the classic emergency situation with an unconscious patient, the practitioner could lawfully treat the patient in accordance with his clinical judgment of what was in the patient's best interest. In such circumstances the next of kin had no legal right either to consent or to refuse consent, although contact with the next of kin, if the interests of the patient would not be affected by any consequential delay, might reveal that the patient had made an anticipatory choice.

The presumption that every adult had the capacity to decide could be rebutted. An adult might be deprived of the capacity by temporary factors, such as unconsciousness or confusion or other effects of shock, fatigue, pain or drugs used in their treatment.

Doctors faced with a refusal of consent had to give very careful and detailed consideration to the patient's capacity to decide at the time when the decision was made.

The more serious the decision, the greater the capacity required. If the patient did not have the requisite capacity, they were free to treat him in what they believed to be his best interests.

Although the patient was entitled to receive advice and assistance from others, doctors had to consider whether the decision was really that of the patient and should be alert to the possibility that the patient's capcity or will to decide had been overborne and the patient might not mean what he said.

Doctors also had to consider the true scope and basis of patient's decision and consider whether at the time the decision was made it was intended to apply in a changed situation. The decision might have been so intended, or it might have been of more limited scope, or it might have been based on a false assumption.

Forms of refusal in hospitals should be re-designed to separate the hospital's disclaimer of liability from the patient's declaration of his decision with a full appreciation of the possible consequences. What was required was that the patient knew in broad terms the nature and effect of the procedure to which consent or refusal was given.

In cases of doubt as to the effect of a purported refusal of treatment, where failure to treat threatened the patient's life or irreparable damage to his health, doctors and health authorities should not hesitate to apply to the courts for assistance.

Lord Justice Butler-Sloss and Lord Justice Staughton concurred.