April 2013

Each year Jehovahs Witness patients refuse blood transfusions and die from fairly simple complications. Is this ever justied?

Blood Feuds:
By Jamal Ross

Conflicts between Doctors and Jehovah Witness Patients refusing Blood Transfusions.

A 45 year old male is The case study at hand linguistic nuances, which admitted into the Emergency presents many problems will be beyond the scope room after a traumatic head for the moral philosopher of this essay. Therefore, injury in a near-fatal car and also raises pertinent the terms competence collision. He is a Jehovahs Witness and his wife is adamant that he would not want any procedure that would require blood

l e g a l q u e s t i o n s t h a t and capacity will be used resonate broadly under s y n o n y m o u s l y t h e f o l l o w i n g a r e a s : throughout. capacity to consent,

The patient, a 45-year-old patient autonomy and transfusions as it goes man, has suffered severe confidentiality. In this against his beliefs. His head injuries in a road Physician, Dr Parker, claims essay, I will present the accident. The practicing that he is incompetent and l e g a l a n d e t h i c a l physician, Dr Parker, proceeds to treat the man for implications, discounting expresses an urgency to his injuries. some of the finer carry out a surgical

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 patient is unable to communicate and seems to be dysarthric, which is likely to be due to either permanent damage incurred to the left hemisphere of the brain or temporary 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 2005 2 (MCA) he is unable to make a decision based on an 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 the many clinical manifestations of sufficient impairment4.

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many innocent children die because of these outdated tenets.

Danny Haszard
Protestor and Blogger , USA

definition of incapacity was language or visual aids8. derived from Dr Jay Eastman3 In this particular instance, Dr and accepted by Thorpe J in Parker has only observed a Re C (Adult: Refusal of f a i l u r e of verbal Treatment)4 then later refined c o m m u n i c a t i o n b u t t h e by Butler-Sloss LJ in Re MB p a t i e n t m a y s t i l l r e t a i n (An Adult: M e d i c a l sufficient cognitive and motor Treatment)5 where he outlined skills to gesture towards a that capacity required the series of visual depictions fulfillment of three criteria: p r e s e n t i n g t h e a v a i l a b l e comprehending information, options. Moreover, people only retaining that information, lack capacity completely in and weighing it in the balance very specific conditions such to arrive at a decision. Yet, in as locked-in syndrome where section 1(3) of the MCA it even the most minimal forms states that all practicable of communication such as

6 2,3 On 7th April 2005, the Mental steps must be undertaken to blinking are absent . The Capacity Act (MCA) received help the patient make a declaration, therefore, of the

Royal Assent and came into decision and hence the doctor patient as incompetent is practice on 1st April 2007. has a duty to enhance patient neither resolute nor justified
7 This was really a statutory autonomy . Moreover, section on the grounds of his inability interpretation of common law 3(2) alludes to the means that to phonetically string words

practices employed2 prior to may be used for patients to into a coherent sentence. its implementation. The legal evidence a choice such as sign

One of the main concerns arising from circulates and functions as components this case is the knowledge that the of the blood, not as an ingested source patient is a devout Jehovahs Witness of nutrition. Thus, blood transfusion is (hereafter JW). His wife has informed really a form of cellular organ Dr Parker that he would refuse to have transplantation8. It seems therefore, blood products administered to him. that this religious maxim is not purely Consequently, Dr Parker would be held intuitional, as once supposed, but its liable for the tort of battery if he chose derivation is evidently from the faculty to perform surgery without his of reason. Nonetheless, it is a claim informed consent, particularly if it was that can easily be disproved by a found at a later stage that the patient posteriori scientific observation. Why did actually have sufficient capacity to then, are irrational claims2, made by evidence a choice. In NHS trust v Ms T (Adult Patient: Refusal of Medical Treatment)2, a very religious bodies, exempt from the same scrutiny as a personal belief affirmed by an individual such as Ms T?

significant ethical conundrum arises. Paragraph 2.9 of the MCA code of Previously, in Re MB3, Butler-Sloss LJ practice states that in an emergency, asserted that irrationalitymay be a treatment cannot be delayed while a symptom or evidence of incompetence4. pe rs on g e t s su ppo rt t o m a ke a Ms Ts basis for refusal of blood decision 3 . It is conceivable that transfusion stemmed from her belief relieving pressure on the brain may that her own blood was evil and would r e s t o r e t h e p a t i e n t s a b i l i t y t o contaminate any blood administered to communicate. Thus, the only sensible her, thus increasing the likelihood of and appropriate steps might be to keep her committing acts of evil. Whilst it is a person informed of what is happening arguable that the reasoning behind JW and why4. Worthy of particular note is blood refusal is dubious, it is not section 4(3)5 whereby the physician considered irrational like Ms Ts should consider whether the patient personal belief. Rather, it is considered would, at some time throughout the to be superrational that is to say, course of treatment, regain his 6 beyond the scope of reason and purely capacity. Thus, Dr Parker could intuitional. JWs believe that blood reassess the patient during or after this transfusions are a type of eating of the treatment to find out whether he would blood, through the veins, which 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 . supposedly contravenes the tenet Furthermore, as stated in F v West a b s t a i n f r o m b l o o d 5 . T h i s Berkshire [1990]7, there is no practical misconception of reality6 of eating difficulty arising from operating on a blood through the veins may be a patient who is expected to regain semantic extrapolation of the term capacity 8 . This scenario, however, intravenous feeding7. However, blood poses some very unique challenges in

injected directly into the bloodstream that the emergency procedure is

Jehovahs Witness Believers do not donate blood but often receive fractions of blood from other donees.

Daily Mail , jan 2010

Incompetent Patients

Who is the rightful Decision Maker?

extremely invasive such that it may compromise donee of a lasting power of Attorney5 or any both the patients bodily and moral integrity. appointed deputy by the court6.

Decision-making for incompetent patients: An evident corollary of this best interest policy The search for eudaimonia. is the need to search the register of LPAs to Since the enactment of the MCA 2005, the best determine if the patient has appointed a proxy. interests policy2 has been embraced in a Still, personal welfare LPAs can only be used statutory framework. Of the factors that are to when the donor loses capacity to make a be considered by the decision maker, a few decision2. Since I am of the view that this considerations regarding consultation are patient has not lost sufficient capacity in so far particularly germane to this scenario, namely: as being unable to show preference for a course consultation of anyone engaged in caring for the of action, it seems unlikely that a proxy would person3, anyone interested in his welfare4, any be consulted at this stage.

If one assumes, however, for the sake of to avoid the Aristotelian concept of akrasia: that argument, that the patient does lack full is acting against one's own better judgment6. 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 lifesustaining 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 patients wife has very 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. This may occur when sufficient understanding of the decision-making process is beyond the patients 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.

little credibility and is not as influential in the Confidentiality: Imparting private matters. The MCA outlines that decision-makers must respect the right to confidentiality of the person who lacks capacity2. Due to the nature of this decision, it has huge implications for how the patient is viewed by his wife and others in

From a phenomenological point of view, society. Thus, the doctor-patient relationship assumed by the likes of Edmund Husserl and the duty of the decision-maker is a (1859-1938), Jaffreys wife is unable to enter his confidential affiliation, which may have to be subjectivity, as it is a first-person perspective2. less consultative with family members2. In a JS Mills utilitarian view contests the above study conducted in 2005, it was found from a position, since for him, those without the mental cohort of 385 doctors, 35.6% believed that family capacity to make these decisions justifies the ties gave people a right to be informed, such use of paternalism3. Thus, the assumption is that the formality of asking the patient for their that what is best for a person can be consent to disclosure is not required3. A Kantian determined by another individual, which raises view may suggest that such an action is not in the question: Is someone really the same accordance with the categorical imperative4 as it person they were yesterday? One could argue is not universal. In other words, if all doctors that the continual rearrangements of neural were to employ this practice then it would be networks4 occurring throughout the course of self-stultifying and patients would no longer life, creates a shroud of uncertainty especially entrust private health matters onto their as a persons wishes and feelings may change physicians.

following incapacity5. Essentially, we must try

Abstain From Blood

Acts 15

The Watchtower society (hereafter "However, if YOU had understood WTS) is a legal organisation that what this means, 'I want mercy, connects the many different JW 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 Jehovahs 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

and not sacrice,' YOU would not have condemned the guiltless congregations around the world. Its ones. Matthew 12:7
who asserts that the medical profession should aim to pursue rational noninterventional paternalism 5 , which would, according to Muramoto, reveal that most JWs are not adequately informed to make autonomous decisions. In essence, this practice involves doctors forming conceptions of what is best for the patient then arguing rationally with them6.

Blood Banks Blood Banks at Kings College Hospital.

Perhaps, one of the most intriguing assumes this position as primary aspects of this groups activities are caregiver, then his or her account of the their views on confidentiality; namely patients volitions may be a more t h a t J W s s h o u l d b e g r a n t e d current and accurate reflection of his confidentiality should they accept blood autonomy. Furthermore, the GMC to reduce fear of disfellowship2. 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 wifes 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 morals4. Arguably, disclosure of this patients condition and the treatment he is In a like manner, the Data Protection receiving, to his wife, may be in Act3 (1998) states that fair and lawful 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 consulted about their wishes. Therefore, it is fundamental that one processing of data can occur when a patient lacks capacity providing that it protects their vital interests4. Thus, the issue becomes whether we consider disclosure to be in the interests of the patient. guidance still insists that Doctors 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.

determines the relationship between The doctor must consider the beliefs the wife and patient, to attest whether and values that may influence the or not she is indeed his primary carer. decision of the patient if he had If, however, there is someone else who capacity5. On the other hand he must

also have regard for any other factors Persons are exploited if others he may consider2, which may include

secure a benet by using them as a tool or resource so as to cause the AJWRB dissident views. This them serious harm.
dichotomy correlates with the early fears that the provisions of the act depend largely on how they are interpreted by clinicians2. The legal pressures on the healthcare infrastructure for pursuing less restrictive alternatives3 coupled with insurmountable JW blood refusals are forcing an emergence of safer4 bloodless technology5. Moreover, ethnic minorities are underrepresented in the Munzer, 1990 is the clash between the axiomatic lifeextensionist views that we tend to hold as a society and the regard for personal autonomy. Indeed, whilst rational noninterventional paternalism (RNIP) may save more lives, it poses yet another problem: Where do we draw the line between RNIP and undue coercion?

blood database so encouraging blood As a final point, the Chinese familial 2 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 model of decision-making, in my therapeutic potential. Dr Peter H. opinion, safeguards autonomy in some Earnshaw of Guys Hospital proclaims cases where the liberal model may not. that there are already cheaper and Ultimately, the role of family in safer alternatives6. One of the most surrogate decision-making is pivotal in sobering insights presented by this case protecting individual autonomy, yet, at

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

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 patients autonomy.

R . D r e s s e r , L i f e , D e a t h , a n d Rinaldi, A Bloodless Revolution, Incompetent Patients : conceptual (2005) EMBO reports, vol 6, No 8 Bibliography inSirmities and hidden values in the law (1986) 28 Arizona Law Review Textbooks 373; Missing Persons supra n. 99 Mun Chan, Sharing Death And Dying: Advance Directives, Autonomous And The Family, H a r r i s o n - B a r b e t , M a s t e r i n g Dworkin on Dementia: Elegant (2004) Bioethics vol, No 2. Philosophy, 2nd ed (2001) Theory, Questionable Policy [1995] Hastings Center Report 32.

References

Savulescu, Rational nonJackson, Medical Law. 2nd ed ., interventional paternalism: why Oxford: Oxford University Press, doctors ought to make judgements (2010) of what is best for their patients, (1995) Journal of medical ethics Herring, Medical ethics and law, 3rd ed .,Oxford: Oxford University Donnelly, Best Interests, Patient Participation And The Mental Press, (2010) Capacity Act 2005, (2009) Medical Law Review 17, Spring 2009, pg. 26 The moral law: Kants

Gilbar, Medical Confidentiality within the family: The Doctors Duty Reconsidered, (2004) International Journal of law, Policy and the Family 18, pp. 195-213 Barth-Rogers and Jotkowitz, Executive Autonomy, Multiculturalism and Traditional Medical Ethics, (2009) vol 9, No2 pp 39-40

groundwork of the metaphysic of morals (trans and ed., H.J. C a r c e l e s , Balancing Paton) London: Hutchinson & Co. c o n f i d e n t i a l i t y a n d t h e
Ltd., 1964,

Cases

information provided to families of R e M B ( A n A d u l t : M e d i c a l patients in primary care, (2004) Treatment) [1997] 2 FLR 426 Journal of Medical Ethics.

Journals

Re C (Adult: Refusal of M a l y o n , . T r a n s f u s i o n - f r e e Treatment) [1994] 1 WLR 290 treatment of Jehovahs Witnesses: Gunn, The meaning of incapacity, r e s p e c t i n g t h e a u t o n o m o u s Re AK (Adult Patient)(Medical (1999) Medical Law Review, 2, patients motives, (1998) Journal treatment: consent) [2001] 1 F. L.R. 129 Spring 1994 of medical ethics NHS trust v Ms T (Adult Patient: Refusal of Medical Treatment) Anonymous. Questions from Ridley, Jehovah's Witnesses' [2004] EWHC 1279 (Fam) readers. The Watchtower 1951 refusal of blood: obedience to Jul1: 415. scripture and religious conscience, F v West Berkshire [1990] [1990] 2 AC 1 HL. (1999) Journal of medical ethics. Muramoto O. Bioethics of the refusal of blood by Jehovahs Witnesses: part 1. Should bioethical deliberation consider dissidents views? Journal of Medical Ethics 1998;24:223-30 Elder (pseudonymous), Why some R. (On the application of S) v Jehovah's Witnesses accept blood Plymouth City Council 2002] and conscientiously reject official EWCA Civ 388 Watchtower Society blood policy, (2000) Journal of Medical Ethics

Statutes
Mental Capacity Act [2005] Muramoto, Bioethics of the refusal of blood by Jehovah's Witnesses: Mental Capacity Act [2005] Code Part 2. A novel approach based on of Practice rational non-interventional paternalism, (1998) Journal of medical ethics Data Protection Act [1998] The Human Rights Act [1998]

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

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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
Sebastian 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 Ethics", The Stanford Encyclopedia of Philosophy (Summer 2010 Edition), Edward N. Zalta (ed.), URL = <http:// plato.stanford.edu/archives/ sum2010/entries/aristotle-ethics/>. Last accessed: 28/1/2011 Confidentiality: Protecting and Providing Information (GMC: London, 2004) available at <www.gmc-uk.org/standards/ default.htm> Last accessed: 28/1/2011 Transfusion-Alternative Healthcare: Meeting patient needs and Rights. <http://www.watchtower.org/e/ vcae/article_01.htm> Last accessed: 26/1/2011

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