Today’s correspondent is ‘… a Paramedic in South Australia working for SAAS’. They tell me that:

Last week we attended a gentleman who was bleeding. Luckily the bleeding was controlled but there was a long extrication period.  

Upon us being ready to leave and over an hour into the job, a minister of religion arrived and stated he was the patient’s minister. One of the reasons for his arrival was to ensure we did not give the patient blood as he was a Jehovah witness. The patient was alert and orientated throughout and at no time indicated he did not want blood (not that it became a discussion at any time).

After the job we were discussing the legalities around this, our ethics and a conscious versus unconsciousness patient, child v adult and lifesaving treatment.

Do you have any thoughts/legal precedent around this?

I received a later email that said:

Further to my last email, I have found legislation that clearly states a JW that has capacity can refuse blood so my question no narrows to an unconscious pt where no substitute decision maker is available and we give blood are we protected by -emergency medical treatment in the best interest of the patient?

I will address the matter from the original question.

There is much written on Jehovah’s Witnesses and what blood products they (generally) will and won’t accept.  Northern Health, ‘the major provider of acute, maternity, sub-acute, mental health, specialist, community and home-based services in Melbourne’s rapidly growing outer north’ for example publish a whole page of resources to assist practitioners when treating Jehovah’s Witnesses – see https://www.northerndoctors.org.au/jehovas-witness-resources/.  The Jehovah’s Witnesses themselves publish Medical Information for Clinicians  – see https://www.jw.org/en/medical-library/medical-information/, see also ‘Why Don’t Jehovah’s Witnesses Accept Blood Transfusions?’.

Respect for patient autonomy says that a patient’s wishes as to medical care must be respected.  A person can refuse treatment for any reason or for no reason. The administration of treatment without the patient’s consent, where the patient has the capacity to give consent, is unlawful.  It follows that of course a member of the Jehovah’s Witnesses can refuse blood products and that decision must be honoured regardless of the potential outcome for the patient.  There is not ‘duty to save a life’ that outranks a duty to honour a person’s decision about what is or is not acceptable health care to them.  If a person honestly believes that ‘obedience to God …[and] respect for him as the Giver of life’ requires them to ‘abstain from blood’ then that is their decision and if that is more important to them than life itself no doctor or paramedic is in a position to argue that point or to override their decision.

If the patient is not competent then the decision is more complex.  A paramedic can administer treatment that is necessary and in the patient’s best interests but that treatment cannot be justified if it is contrary to the patient’s known wishes (In Re F [1990] 2 AC 1).  If you don’t know that the patient is a Jehovah’s Witness, you cannot honour their beliefs. But if you do, you must.

In Malette v Shulman (1990) 67 DLR (4th) 321, a Canadian case, Ms Malette carried a card saying she did not want a blood transfusion in any circumstances. This was confirmed by her daughter. Robins JA said

I do not agree… that the Jehovah’s Witness card can be no more than a meaningless piece of paper. I share the trial judge’s view that, in the circumstances of this case, the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions.

Robins JA found that she had:

… chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…

The doctor was liable for assault even though the treatment saved her life. In the circumstances described the presence of the Minister is akin to the presence of the daughter in Malette’s case though in the situation described by my correspondent, the patient could simply be asked what they wanted.

If the circumstances change, then the issue is whether that earlier decision still applies. In In Re T [1992] EWCA Civ 18 the patient was given the option between blood, and non-blood products and elected to proceed with surgery on the basis that she would receive only non-blood products. Things did not go as anticipated and her choice become one of receive blood and live, or die.  When making her choices she had not been told, and no-one anticipated, it would be a life or death choice. The question the court had to ask what would she have decided in those circumstances. They did not know but because her wishes were not ‘known’ they authorised the administration of blood to save her life. 

South Australian legislation

The Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13 says:

(1) Subject to this section, a medical practitioner may lawfully administer medical treatment to a person (the “patient”) if—

(a) the patient is incapable of consenting (whether or not the person has impaired decision-making capacity in respect of a particular decision); and

(b) the medical practitioner who administers the treatment is of the opinion that the treatment is necessary to meet an imminent risk to life or health and that opinion is supported by the written opinion of another medical practitioner who has personally examined the patient; and

(c) the patient (if of or over 16 years of age) has not, to the best of the medical practitioner’s knowledge, refused to consent to the treatment; and

(d) the medical practitioner proposing to administer the treatment has made, or has caused to be made, reasonable inquiries to ascertain whether the patient (if the patient is 18 or more years of age) has given an advance care directive.

Section 13 is in effect the same as In Re F.  A medical practitioner (not a paramedic) can administer the treatment but not if he or she knows that the person has refused the treatment and that refusal is intended to apply in the particular circumstances (see s 13(1a)).  One could play games and says a card, such as Ms Malette carried, is not effective as it is not an ‘advance care directive’ as provided for in the Advance Care Directives Act 2013 (SA), but as Robins JA said it cannot be the case that the card that someone deliberately carries means nothing.  The Advance Care Directives Act 2013 (SA), s 8A(1) says ‘This Act is in addition to, and does not derogate from, any other Act or law’ so the common law right to have one’s wishes respected, however they are communicated, continues (although one would advise a Jehovah’s Witness to complete an Advance Care Directive under the Act as doctors will be more confident when complying with that). 

As for children, the general rule is that the parents can give or refuse consent to treatment of their children. 

The Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13(5) says:

If the patient is a child, and a parent or guardian of the child is available to decide whether the medical treatment should be administered, the parent’s or guardian’s consent to the treatment must be sought but the child’s health and well-being are paramount and if the parent or guardian refuses consent, the treatment may be administered despite the refusal if it is in the best interests of the child’s health and well-being.

In Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (By His Next Friend) [2010] SASC 175 the Supreme Court intervened to authorise the treatment of a child with blood products overriding the wishes of the parents and the child himself.  That court said that s 13(5) was limited to emergency care and was not applicable in the situation before the court (see [38]). The court relied on the parens patriae jurisdiction that is an ancient jurisdiction of the court to supervise the affairs of people in particular children who cannot make their own decisions and who are vulnerable to the decision making of others.  At [30] White J quoted Lord Esher MR from the case of The Queen v Gyngall who said the parens patriae jurisdiction:

… was not a jurisdiction to determine rights as between a parent and a stranger, or as between a parent and a child. It was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in the place of a parent, and as if it were the parent of the child, thus superseding the natural guardianship of the parent.

The court authorised the use of blood products as part of TL’s ongoing treatment. 

Relevance to paramedics

I’m not sure how this is relevant to paramedics.  A quick look at SAAS Clinical Practice Guidelines (https://clinical.saambulance.sa.gov.au/tabs/home) does not suggest paramedics carry and administer blood products on site. There is a guideline on the ‘Transfer of Patients with Blood or Blood Product Infusion in Progress’ but at that point all the issues of consent should have been worked out. 

As noted above, the Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13 empowers medical practitioners, not paramedics to administer emergency care.  Paramedics rely on the common law which allows treatment that the patient has consented to, or where the patient is unable to consent, treatment that is necessary in the patient’s best interests and not contrary to their known wishes.  

Conclusion

If paramedics aren’t carrying and administering blood products then the question of consent to the administration of blood is not an issue. If they are aware that the patient is a Jehovah’s Witness and it may be an issue eg because of the patient’s blood loss, that information should be included as part of the handover to hospital staff so they can do what they need to do to both comply with the law and respect the patient’s autonomy. 

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.