Senior Judge to Revisit Case-Law on Authorizing Medical Treatment Against Wishes of Mature Minor

by Corney 10 Replies latest jw friends

  • Corney

    Nearly two weeks ago, Sir James Munby, a Privy Council member, formerly a Law Commission Chairman, High Court's Family Division President, and a Lord Justice of Appeal, issued a short emergency order in a blood transfusion case closely resembling McEwan's The Children Act.

    Here are some excerpts:

    2. The case involves the deeply troubling question of whether a blood transfusion should be administered to a young woman who is almost, not quite, 16, against her profound religious beliefs. X is a Jehovah's Witness. She has explained to me, in very powerful and moving words, the basis of her belief and the fact that, recently, she was baptized in accordance with the teachings and the beliefs of her church.
    3. These cases always involve enormous difficulty because there is an inevitable tension, at least on the law as it appears to be, between the duty of the court and the heartfelt wishes of the young person who, as in X's case, has what for shorthand I will call 'Gillick competence'. X is, if she will allow me to say so, mature and wise beyond her years ...
    8. Mr [Shane] Brady's argument, which is powerful and demands much fuller response than I can give it today, is that to impose this form of treatment on X is to impinge impermissibly upon her autonomy as, I emphasise, a Gillick competent child of almost 16. He submits that the law has moved on, not merely in consequence of the Human Rights Act 1998, but in more general developments, so that the position which had seemingly been reached by the Court of Appeal ... in the early 1990s no longer reflects the law as it is. Those are powerful arguments which deserve full analysis and proper consideration. Unhappily, we do not have time for that today ...
    10. It seems to me that I have, for the purposes of today, to approach this matter on the basis of the law as it currently appears to be. The law, put very shortly and simply, is that the court pays great respect to, and takes very seriously indeed, the expressed wishes and feelings of a Gillick competent child and, in particular, the religious views and the religious faith held by a Gillick competent child and her family ...
    12. However ... in the final analysis, there may be situations, particularly where serious risk to health or life itself is concerned, where the duty of the court, although having regard to the views of a Gillick competent child, is to decline to give effect to them.
    13. The overriding obligation of the court is to act in the best interests of X ... it may be appropriate for the court to decide, with regret, but nonetheless firmly, not to give effect to the strongly held views and the strongly held religious beliefs ...
    14. Mr Brady, in an enormously helpful and detailed skeleton argument for which I thank him, has put together arguments suggesting that this view of the law is in need of urgent re-analysis and review, partly in the light of the Human Rights Act 1998, partly in the light of more general recent legal developments, and partly in the light of the very important decision of the Supreme Court of Canada to which he powerfully drew my attention: AC v Manitoba ...
    15. In those circumstances, it seems to me that the answer is that I have to authorise the giving of this blood transfusion ... In saying that, and in coming to this conclusion, I emphasise to X, who, as I am saying this, is watching me and listening over the Teams link, that I have very much in mind and have paid very careful attention to everything she has said. I appreciate in particular that, if this order is made, she will, again, have the same reactions as she described in very powerful and moving language she had on the two previous occasions when she had a transfusion. I do not, in any way, minimise the significance of that to her. I do not in any way minimise the profound significance to her of the fact I am overriding her strongly held religious beliefs. However, it does seem to me, in the light of the evidence I have heard, that were I not to take that course, I would be running a very real risk indeed, and an impermissible risk, of really serious harm to, not merely her future health and welfare but, potentially, even to life itself.
    18. ... It is a matter of profound concern to me that, for whatever reason, this case has come back before the court, having previously been before the court in May ... in a tremendous rush and in circumstances approaching medical crisis ... [I]t has had the profoundly adverse consequence, the profoundly troubling consequence, that the court has not been able to deal with it in the way in which, ideally, the court would wish to deal with it.
    19. It would be nothing short of intolerable if I were simply to make the order I have made and left the matter to await the next potential crisis ... It seems to me imperative that the court, sooner rather than later, and before we have the next crisis, is able to give proper attention to Mr Brady's very important submissions so that the next time, if there is a next time and the case comes back to court, there will be a clear legal framework available for the resolution of the next crisis. I would like the parties to consider how best we could deal with that.
    20. There is also, although on one view, this is a matter for the next occasion, the question of whether the court should make, as it were, an order covering similar eventualities over the next two years until X reaches the age of 18. That is a matter which needs to be dealt with urgently and as part of this urgent hearing which I have in mind. However, it does seem to me something which is going to require careful argument because ... I have little doubt the court has power to make such an order, I will require considerable persuasion that it is proper for the court to make such an order in this kind of case.
    21. It does seem to me that the proper way forward to avoid this unfortunate scramble to justice, because that is all we have been able to achieve today, is to make sure that these important issues that Mr Brady very properly wants to raise, can be dealt with in early course at a hearing where there has been adequate time for preparation, adequate time for argument and adequate time for judicial reflection.
  • Corney
  • DesirousOfChange

    What a unique idea: Don't let children die unnecessarily.

  • careful

    As usual, thanks Corney, for keeping us up-to-date on this. The Gillick competency notion is UK-Commonwealth one. Do you, or anyone else here, know how EU or USA courts feel about his legal idea? It's ironic that it came about from the desire for contraception by those under 16 yo who wanted to keep their parents in the dark about it, something the WTS would never condone, yet is being used by WTS lawyers for the blood issue.

  • 3rdgen

    I know of a case in California (USA) where a baptized girl who was almost 17 at the time, (over 20 years ago) developed Leukemia. She was the daughter of a career Pioneer and the Presiding Elder, very bright and articulate and was able to convince the judge to allow her to decide not to receive a blood transfusion. She soon died.

    I had once been in their congregation and knew the entire family well. Even though I was a true believer at the time, I was devastated that this beautiful person was suddenly gone because of a rather flimsy doctrine.

  • Phizzy

    Surely if they allow a child to make such decisions the child could be a against Vaccines, or any other medical treatments, and refuse them, whether the Parents wanted that child to have them or not, it would be crazy for the Courts and Governments to change the Law.

    There would be a huge Body Count if they did.

  • Diogenesister

    Thank you for posting.

    Thank goodness the judge seems to be saying we need to ensure this doesn't keep coming back to court every time she needs a transfusion because, despite her heartfelt wishes and "Gillick competency' he thinks risk to her life too severe (funny how every JW kid is deemed bright and articulate in these cases, because they've been fully primed!!) It seems the darn parents put her through a court case every time she needs blood (she's almost certainly got leukemia)

    God I feel so passionate about these cases I want to scream. I get so upset.

  • Corney

    Sir Judge Munby issued a further judgment on that case:

    After lengthy analysis, he affirmed "the continued validity" of the rules established in the early 1990s, rejecting the challenges raised by Shane Brady, including those relating to alleged incompatibility with the European Convention on Human Rights:

    2 It is conventional wisdom that no child (that is, someone who has not reached the age of 18) has such an absolute right, and that even if the child is Gillick competent (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112) or, having reached the age of 16, comes within the ambit of section 8 of the Family Law Reform Act 1969, the court, in the exercise of its inherent parens patriae or wardship jurisdiction, can in an appropriate case – typically thought of as being a case where the consequence of the child's decision is likely to be serious risk to health or death – overrule the child's decision, either, as the case may be, vetoing some procedure to which the child has consented or directing that the child should undergo some procedure to which the child is objecting. That conventional wisdom is founded on the decisions of the Court of Appeal in In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and in In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64.

    3 In the present case that conventional wisdom has been challenged and put to the test. It is said that, whatever was or was not decided in those two cases, this is not the law. Times have changed, it is said. Views as to the proper balance between medical paternalism and patient autonomy have altered, with the balance, it is said, continuing to move against the former and in favour of the latter. The Human Rights Act 1998 has fundamentally changed the legal landscape as also, in this particular context, it is said, has the Mental Capacity Act 2005. And there have been other developments in the law; especial reliance is placed upon what is, on any footing, the very important decision of the Supreme Court of Canada in AC and Others v Manitoba (Director of Child and Family Services) 2009 SCC 30, [2009] 2 SCR 181, [2009] 5 LRC 557. These are important arguments that require the most careful consideration, not just because of the consequences for X, the child with whom I am concerned, but because of their potential impact on the law generally.

    162 At the end of this lengthy analysis, my clear and firm conclusion is that the learning in In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64 emerges unscathed from Mr Brady's attack. The change for which he contends is a matter for Parliament, not the courts.

    In the same time, the court refused to issue a "rolling order" covering future medical crises over the next two years until the child, who suffers from sickle cell syndrome, reaches the age of 18.

    1. Corney
    2. DesirousOfChange

      It seems to me that I have, for the purposes of today, to approach this matter on the basis of the law as it currently appears to be.

      What a unique point of view for someone versed in the law.

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