A Predilection not a Presumption: Court of Appeal clarifies approach for determining serious medical treatment cases for capacitous young persons.

Simon Lindsay and Ruth Atkinson-Wilks recently acted for Somerset NHS Foundation Trust in the matter of E & F (Minors: Blood Transfusion) [2021]. In this case, the Court of Appeal was asked to deal with the tricky issue of whether the Court can override a capacitous young person’s decision to refuse medical treatment.

Key points for practitioners:

• A Court can override the refusal of a capable child; where a practitioner faces this situation the case should be referred to Court urgently
• In an emergency, the practitioner can lawfully intervene to save life without Court sanction but that would be unlikely to apply where it was known that the refusing child was capable and an emergency could arise
• It is imperative that applications to Court are made in time to allow the Court to gather and consider evidence to avoid injustice.

The Court of Appeal considered two cases together. The first case concerned E, aged 16 and 8 months, who required surgery to remove her appendix having being diagnosed with acute appendicitis. The chance of E suffering a bleed during the surgery was estimated to be 1000 to 1:2000 but if the likelihood did emerge, there could be fatal consequences for E if blood was not provided.

The second case concerned F, aged 17 and 5 months who suffered injury to his spleen following a motorbike accident which left him at risk of a bleed. The likelihood of F suffering a bleed was less than 10% but if it did occur, surgery (and a blood transfusion) would likely be required within 30-60 minutes to save his life.

Both E and F were clear in their objections to receiving blood products on the basis of their faith as one of Jehovah’s witnesses. There was no dispute over their capacity to make such a decision.

The High Court initially granted authorisation for E and F to receive a blood transfusion if required but these decisions were appealed. E and F argued that the Court should not have overridden their capacitous wishes as the risk of them requiring a blood transfusion was so remote.

In its Judgment dismissing the appeal, the Court of Appeal clarified that when making welfare decisions for capacitous young persons, the court must give a predilection to the child or young person’s wishes and feelings but that this is not determinative and it is not a presumption. The seriousness of the consequence for the young person’s decision and the imperative to preserve life may require the court to intervene. Autonomy and preservation of life are the two key factors that will need to be balanced.

The court rejected the argument regarding the remoteness of the risk. The Court made a clear distinction between the risk of an event happening (its probability) and the risk from the event occurring (its consequence). The court held that, when making a decision in a case where the likelihood of a crisis is low but the consequences may be extreme, the court cannot simply ignore the risk any more than the doctors can.

The Court expressed doubt that the Trusts could have relied on emergency powers to give blood products to E and F as the treatment had clearly been foreseen and refused.

This judgment therefore provides some clarity to clinicians when faced with capacitous young persons refusing treatment. Even if the likelihood of the young person requiring the treatment is remote, if the consequence of the refusal is serious, it would be best practice to seek authorisation from the Court.

Bevan Brittan frequently advises clients on serous medical treatment cases and applications to the High Court under the Inherent Jurisdiction.

If you would like more information, please contact Simon Lindsay.