Law and ethics

In the Society’s own words

Competent adults

These cases recognise an adult’s right to refuse treatment. They also examine capacity, undue influence and whether a refusal applies to the circumstances.

• In re Estate of Brooks

  Illinois, United States

  Supreme Court of Illinois · 18 March 1965

  Held

  Bertha Brooks had told her doctors and her hospital, in writing, that she would not accept blood, and had released them from liability. A conservator was appointed anyway and she was transfused. The Supreme Court of Illinois vacated the order. It stressed that no minor children were involved and that no overt act of hers endangered anyone else.

  In the judgment

  “Even though we may consider appellant's beliefs unwise, foolish or ridiculous, in the absence of an overriding danger to society we may not permit interference therewith in the form of a conservatorship established in the waning hours of her life for the sole purpose of compelling her to accept medical treatment forbidden by her religious principles, and previously refused by her with full knowledge of the probable consequences.”In re Estate of Brooks, 32 Ill. 2d 361, 373; 205 N.E.2d 435 (Ill. 1965)

  Check

  • In re Estate of Brooks, 32 Ill. 2d 361 (1965)

• Malette v. Shulman

  Ontario, Canada

  Court of Appeal for Ontario · 30 March 1990

  Held

  Georgette Malette was brought in unconscious after a head-on collision. A nurse found a card in her purse refusing blood in all circumstances. Dr Shulman transfused her anyway and she survived. The Court of Appeal upheld a $20,000 award against him for battery: the card bound him, and the fact that he could not check it against a conscious patient did not release him from it.

  In the judgment

  “The state's interest in preserving the life or health of a competent patient must generally give way to the patient's stronger interest in directing the course of her own life. … Individual free choice and self-determination are themselves fundamental constituents of life. To deny individuals freedom of choice with respect to their health care can only lessen, and not enhance, the value of life.”Malette v. Shulman (1990), 72 O.R. (2d) 417 (Ont. C.A.), per Robins J.A. — read in a full-text reproduction of the law report, not at a court or law-report host; treat as unverified

  Check

  • Malette v. Shulman (1990), 72 O.R. (2d) 417 (Ont. C.A.)
  • Malette v. Shulman et al., 72 O.R. (2d) 417 — full text

• Fosmire v. Nicoleau

  New York, United States

  New York Court of Appeals · 18 January 1990

  Held

  Denise Nicoleau haemorrhaged after a caesarean section and refused blood. The hospital obtained an order authorising transfusion, arguing that the State's interest in her life and in her newborn son overrode her choice. New York's highest court disagreed and held the order should never have been made. Two judges concurred on narrower, religion-based grounds.

  In the judgment

  “Although this right is not absolute, and may have to yield to superior State interests under certain circumstances, the hospital has not identified any State interest which would override the patient's rights under these circumstances.”Fosmire v. Nicoleau, 75 N.Y.2d 218; 551 N.E.2d 77 (N.Y. 1990)

  Check

  • Fosmire v. Nicoleau, 75 N.Y.2d 218 (1990)

• Re T (Adult: Refusal of Treatment)

  England and Wales

  Court of Appeal (Civil Division), England and Wales · 30 July 1992

  Held

  T was not herself a Witness; her mother was. After two periods alone with her mother she refused blood, and then deteriorated after a caesarean section. The Court of Appeal stated the adult's right to refuse in the widest terms and then held that this refusal did not bind her doctors, because her mother's influence had vitiated it. Staughton L.J. put the test as "such a degree of external influence as to persuade the patient to depart from her own wishes, to an extent that the law regards it as undue". Butler-Sloss L.J. noted that "of all influences religious influence is the most dangerous and the most powerful", quoting Allcard v. Skinner.

  In the judgment

  “An adult patient who, like Miss T., suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered. … This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.”Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; [1993] Fam 95, per Lord Donaldson M.R.

  Check

  • Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18

Children and young people

Rules for minors differ by jurisdiction. These cases consider parental authority, maturity, best interests and the court’s power to authorise treatment.

• Prince v. Massachusetts

  United States

  Supreme Court of the United States · 31 January 1944

  Held

  Not a transfusion case: Sarah Prince, a Witness, was convicted under Massachusetts child-labour law for letting her nine-year-old niece distribute religious magazines in the street. The Court upheld the conviction 5–4. Its discussion of parental religious freedom was later cited in King County’s transfusion litigation.

  In the judgment

  “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”Prince v. Massachusetts, 321 U.S. 158, 170 (1944)

  Check

  • Prince v. Massachusetts, 321 U.S. 158 (1944)

• Jehovah's Witnesses in the State of Washington v. King County Hospital Unit No. 1

  Washington State / United States

  United States District Court, W.D. Washington (three judges), affirmed by the Supreme Court · 20 November 1967

  Held

  The Witnesses, the Watch Tower Society and named members sued to stop courts using Washington's juvenile-court statutes to make children wards of court so that they could be transfused. The three-judge court dismissed the adults' claims for want of jurisdiction and upheld the statutes as applied to the children, on the authority of Prince. The Supreme Court affirmed in a single sentence: "The judgment is affirmed, Prince v. Massachusetts, 321 U.S. 158."

  In the judgment

  “We therefore hold, on the compelling authority of Prince that RCW 13.04.010(12) and RCW 13.04.095 are not invalid under the Constitution of the United States, as applied in this case.”Jehovah's Witnesses in the State of Washington v. King County Hospital Unit No. 1, 278 F. Supp. 488, 504–505 (W.D. Wash. 1967), aff'd per curiam 390 U.S. 598 (1968)

  Check

  • Jehovah's Witnesses v. King County Hospital Unit No. 1, 278 F. Supp. 488 (W.D. Wash. 1967)
  • Jehovah's Witnesses in the State of Washington v. King County Hospital Unit No. 1, 390 U.S. 598 (1968)
  • Jehovah's Witnesses in State of Washington v. King County Hospital, 278 F. Supp. 488 (W.D. Wash. 1967)

• In re E.G.

  Illinois, United States

  Supreme Court of Illinois · 18 November 1989

  Held

  E.G. was seventeen, had leukaemia, and refused transfusions with her mother's support; a psychiatrist put her maturity at that of an eighteen- to twenty-one-year-old. She was transfused under a guardianship and appealed. The Supreme Court of Illinois held that a mature minor may refuse, but as a matter of state common law rather than the First Amendment, on proof of maturity by clear and convincing evidence, and subject to four State interests — of which the opposition of a parent would weigh heavily against the minor.

  In the judgment

  “If the evidence is clear and convincing that the minor is mature enough to appreciate the consequences of her actions, and that the minor is mature enough to exercise the judgment of an adult, then the mature minor doctrine affords her the common law right to consent to or refuse medical treatment.”In re E.G., 133 Ill. 2d 98, 111; 549 N.E.2d 322 (Ill. 1989). Date note: the linked report transcription gives 18 November; Justia gives 13 November. The day remains unverified.

  Check

  • In re E.G., 133 Ill. 2d 98 (1989) — full text
  • In re E.G., 549 N.E.2d 322 (Ill. 1989)

• A.C. v. Manitoba (Director of Child and Family Services)

  Canada

  Supreme Court of Canada · 26 June 2009

  Held

  A.C. was fourteen, bleeding from Crohn's disease, and refused blood. Manitoba law let a court order treatment in the best interests of a child under sixteen. She was transfused and challenged the statute. The Court dismissed the appeal, Binnie J. dissenting, and upheld the provisions — but only by reading "best interests" as a sliding scale in which a young person's demonstrated maturity can become decisive. The transfusion she had been given stood.

  In the judgment

  “The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views when a court is exercising its discretion under s. 25(8). … If, after a careful and sophisticated analysis of the young person's ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent's views ought to be respected.”A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181 at para. 87 (Abella J.)

  Check

  • A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30
  • Supreme Court of Canada: forced transfusion of a 14-year-old did not violate her rights

• E & F (Minors: Blood Transfusion)

  England and Wales

  Court of Appeal (Civil Division), England and Wales · 14 December 2021

  Held

  E was sixteen years eight months, F seventeen years five months. Both were baptised Witnesses, both were found by their doctors to be Gillick competent, both refused blood with their parents' support, and in each case the High Court declared that transfusion would nonetheless be lawful if a crisis arose. No crisis arose. The Court of Appeal dismissed both appeals and said that the real task in such a case is to weigh "two transcendent factors: the preservation of life and personal autonomy".

  In the judgment

  “Once a young person becomes an adult, decisions about whether to accept or reject medical treatment become theirs absolutely, but before that age the court must act upon its objective assessment of the young person's best interests, even where this conflicts with sincere and considered views.”E & F (Minors: Blood Transfusion) [2021] EWCA Civ 1888 at [73] and [53]

  Check

  • E & F (Minors: Blood Transfusion) [2021] EWCA Civ 1888
  • Jehovah's Witnesses and blood transfusions for 16- and 17-year-olds: E & F

The European Court of Human Rights

The judgments selected here address religious freedom, patient autonomy and the safeguards required when a refusal is in doubt.

• Jehovah's Witnesses of Moscow and Others v. Russia

  Council of Europe (Russia)

  European Court of Human Rights (First Section) · 10 June 2010

  Held

  Russian courts had dissolved the Moscow congregation, partly on the ground that it encouraged members to refuse medical assistance and distributed blank "No Blood" cards. The Court found violations of Articles 9 and 11. It accepted, at § 138, that "the authenticity of the patient's refusal of medical treatment is a legitimate concern", but held that the domestic courts had shown no pressing social need. At § 140 it described the card as an advance medical directive that "merely certified the choice that the patient had already made for himself or herself". The Court later noted, in Pindo Mulla at § 140, that in this case "the right of the patient to refuse medical treatment was not directly addressed as such".

  In the judgment

  “The freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, is vital to the principles of self-determination and personal autonomy. A competent adult patient is free to decide, for instance, whether or not to undergo surgery or treatment or, by the same token, to have a blood transfusion. However, for this freedom to be meaningful, patients must have the right to make choices that accord with their own views and values, regardless of how irrational, unwise or imprudent such choices may appear to others.”Jehovah's Witnesses of Moscow and Others v. Russia, no. 302/02, § 136, ECtHR, 10 June 2010

  Check

  • Jehovah's Witnesses of Moscow and Others v. Russia, no. 302/02

• Pindo Mulla v. Spain

  Council of Europe (Spain)

  European Court of Human Rights (Grand Chamber) · 17 September 2024

  Held

  Rosa Pindo Mulla had an advance directive, a power of attorney and a signed hospital form refusing blood. Transferred to another hospital as an emergency, she was transfused on the authority of a duty judge who was not told who she was or what she had said, and who acted on an incomplete account of her condition. The Grand Chamber held unanimously that Article 8, read with Article 9, had been violated — not because the refusal was absolute, but because the decision-making process had not established what she actually wanted. At § 146 it affirmed that "the competent, adult patient has the right to refuse, freely and consciously, medical treatment" and that consent is "a cardinal principle in the sphere of health care", while adding that the right "is not to be construed in absolute terms".

  In the judgment

  “It must also be ensured that the decision – the existence of which must be known to the medical personnel – is applicable in the circumstances, in the sense that it is clear, specific and unambiguous in refusing treatment, and represents the current position of the patient on the matter. … It follows that where in an emergency there are reasonable grounds to doubt the individual's decision in any of these essential respects, it cannot be considered a failure to respect his or her personal autonomy to proceed with urgent, life-saving treatment.”Pindo Mulla v. Spain [GC], no. 15541/20, §§ 148–149, ECtHR, 17 September 2024

  Check

  • Pindo Mulla v. Spain [GC], no. 15541/20

Clinicians in an emergency

The hardest cases are the ones where the patient cannot speak and the decision cannot wait. Re T, Malette v. Shulman and Pindo Mulla v. Spain, above, all bear on this too.

• Werth v. Taylor

  Michigan, United States

  Michigan Court of Appeals · 8 July 1991

  Held

  Cindy Werth had signed a refusal of blood before a routine delivery. She haemorrhaged afterwards, and during an emergency dilatation and curettage, while she was unconscious, the anaesthetist transfused her. Summary disposition for the doctor was affirmed. The court did not doubt that a competent adult may refuse; it held that her earlier refusal had been given in contemplation of routine surgery and so was neither contemporaneous nor informed as to the emergency that arose.

  In the judgment

  “We agree with the principle in Dorone that it is the patient's fully informed, contemporaneous decision which alone is sufficient to override evidence of medical necessity. … Her prior refusals had not been made when her life was hanging in the balance or when it appeared that death might be a possibility if a transfusion were not given. Clearly, her refusals were, therefore, not contemporaneous or informed.”Werth v. Taylor, 190 Mich. App. 141; 475 N.W.2d 426 (Mich. Ct. App. 1991)

  Check

  • Werth v. Taylor, 190 Mich. App. 141 (1991)

The ethics argument, and who makes it

The law asks whether a refusal binds a doctor. The bioethics literature asks a different question: whether a refusal made inside this particular community is autonomous in the sense the law assumes. Each position below is attributed to the person who published it.

Osamu Muramoto, neurologist, in the Journal of Medical Ethics (1998 and 2000)

A clinician cannot simply assume that a Witness patient's refusal is autonomous, because dissent inside the community carries a sanction and the organisation's own literature and reporting practices bear on what the patient feels able to say. On this view the ethical failure is the medical profession's willingness to accept the refusal at face value.

• Bioethics of the refusal of blood by Jehovah's Witnesses, Part 1: should bioethical deliberation consider dissidents' views?
• Medical confidentiality and the protection of Jehovah's Witnesses' autonomous refusal of blood

D. T. Ridley, writing from the Watch Tower Bible and Tract Society, in the Journal of Medical Ethics (1999)

The refusal is an act of scriptural obedience by people who have studied the question, and recasting it as a problem of coerced consent both misstates the facts about congregation practice and writes individual conscience out of the account.

• Jehovah's Witnesses' refusal of blood: obedience to scripture and religious conscience

Graham Howarth, head of bioethics, University of Pretoria, in the BMJ (2001)

“Refuse” and “decline” are not synonyms, and the medical literature's habit of calling every rejection of treatment a refusal imports a firmness — at times a rudeness — that the encounter usually did not have. The word chosen colours how the decision is afterwards judged.

• Changes in policy of refusal of blood by Jehovah's Witnesses: refuse and decline have distinct meanings

The European Court of Human Rights, and the Canadian, American and English courts set out above

Courts have heard the authenticity objection and have not been persuaded by it as a general rule. Strasbourg treated the concern as legitimate and then found that the Russian courts had not made it out; Ontario, New York and Illinois had already held that a competent adult's refusal binds the doctor whatever others make of the reasons. The concern bites on the individual case, not on the class of patient.

• Jehovah's Witnesses of Moscow and Others v. Russia, no. 302/02
• Pindo Mulla v. Spain [GC], no. 15541/20
• Malette v. Shulman (1990), 72 O.R. (2d) 417 (Ont. C.A.)
• In re Estate of Brooks, 32 Ill. 2d 361 (1965)