The challenges of treating Jehovah's witnesses
The sensitivities surrounding medical treatment for Jehovah’s Witnesses can place doctors in difficult medicolegal dilemmas. Nicola Caine and Karin Zybrands, of MacRobert Attorneys, explain the legal position behind a range of scenarios
The Jehovah’s Witness religion is a Christian denomination with millions of members in more than 200 countries worldwide. Jehovah’s Witnesses are well-known for their refusal to receive blood transfusions, which may lead to various challenges for medical practitioners involved in the treatment and management of Jehovah’s Witness patients.
Jehovah’s Witnesses believe that it is against God’s will to receive blood and, therefore, they refuse blood transfusions, often even if it is their own blood. The willing acceptance of blood transfusions by Jehovah’s Witnesses has in some cases led to expulsion from and ostracisation by their religious community.
However, a minority of Jehovah’s Witnesses do not agree that the Bible prohibits blood transfusions, and will therefore accept transfusions. Some Jehovah’s Witnesses may also believe that it is acceptable to receive blood plasma fractions or the reinfusion of their own blood. Given the divergent beliefs about receiving blood amongst followers of the religion, it is imperative that the view of each individual Jehovah’s Witness patient on this aspect be carefully canvassed by the treating practitioner.
A number of possible scenarios are discussed below:
An adult patient who is competent to consent to or refuse treatment
The South African Constitution protects a patient’s right to bodily integrity and autonomy. Accordingly, an adult Jehovah’s Witness is entitled, in terms of our Constitution, to refuse a lifesaving blood transfusion.
In the case of elective treatment or surgery, a medical practitioner who believes that a blood transfusion may be necessary may refuse to treat or perform surgery on a Jehovah’s Witness patient who has refused to consent to a blood transfusion being administered, provided that the practitioner is not already involved in the ongoing treatment of such patient, in which case a unilateral refusal to continue with the treatment could be viewed as breach of contract.
A medical practitioner who has decided that he does not wish to risk treating or operating on a Jehovah’s Witness patient in circumstances where he has not been authorised to administer blood, should explain to the patient why treatment/surgery is being refused, the likely risks and consequences for the patient if no treatment is administered or surgery is performed, as well as other treatment options and their risks and likely consequences. In doing so, it would be prudent to consult a senior colleague regarding other possible treatment options.
Naturally, the practitioner would have to refer such a patient to another medical practitioner, if the patient still wished to undergo such treatment/surgery despite being aware that his/her refusal to receive a blood transfusion might compromise the outcome of the treatment/surgery.
If a practitioner agrees to refrain from administering a blood transfusion whilst treating and/or performing surgery on a Jehovah’s Witness patient, the patient should be counselled regarding the risks and likely consequences of not receiving a blood transfusion, as well as regarding other treatment options and their risks and likely consequences. The patient should be requested to sign a release form, absolving the medical practitioner from all liability flowing from a failure to administer blood products.
In an emergency, a medical practitioner may not refuse to treat a patient who refuses a blood transfusion and the patient should accordingly be treated without administering blood. If possible, the consequences of not receiving a blood transfusion should still be explained to the patient.
All discussions with the patient and colleagues should be carefully documented by the practitioner in his/her notes.
All discussions with the patient and colleagues should be carefully documented by the practitioner in his/her notes
An adult Jehovah’s Witness who is unable to consent to or refuse treatment
In terms of the National Health Act, if an adult Jehovah’s Witness is unable to consent to or refuse the administration of a blood transfusion (ie, due to unconsciousness), a person who had been mandated by the patient, in writing, may consent to or refuse the blood transfusion on behalf of the patient.
If no-one had been mandated by the patient, proxy consent or refusal should be obtained from the patient’s spouse or partner, a parent, a grandparent, an adult child or a brother or sister (in this specific order). If such a person refuses a blood transfusion on behalf of the patient, the medical practitioner will have to obtain a court order if he/she is of the view that a blood transfusion should nevertheless be administered.
In terms of the Guidelines on Informed Consent, published by the HPCSA, if a Jehovah’s Witness patient has given an “advance directive” (at a time when he/she had been competent) that he/she does not wish to receive a blood transfusion, such refusal should be respected, provided that the decision in the directive is clearly applicable to the present circumstances and there is no reason to believe that the patient has changed his/her mind.
If no-one had been mandated by the patient, proxy consent or refusal should be obtained from the patient’s spouse or partner, a parent, a grandparent, an adult child or a brother or sister (in this specific order)
Even if an “advance directive” has been given by the patient, it is still advisable to obtain proxy consent/refusal from the patient’s spouse or partner, a parent, a grandparent, an adult child or a brother or sister (in this specific order). If this person consents to a blood transfusion (in contravention of the patient’s directive), it is advisable to obtain a court order before administering the blood transfusion.
In an emergency, when there is no time to obtain a court order, the patient’s wishes should be respected and a blood transfusion should not be administered. However, before doing so, it would be prudent to obtain collateral, where possible, from more than one family member, confirming exactly what the patient believes and would want.
When faced with a situation where an adult Jehovah’s Witness patient is unable to consent and there is any uncertainty about whether or not a blood transfusion may be administered, it is advisable to obtain legal advice, as the circumstances of each individual case will have to be considered before a decision is made.
Jehovah’s Witness children under 12
According to the Children’s Act, Act 38 of 2005, the best interests of a child are paramount in all decisions regarding children. (A child is defined as a person under the age of 18 years.)
In cases where the child is younger than 12 (or older than 12 but of insufficient maturity or unable to understand the benefits, risks and social implications of the treatment), medical treatment or surgery cannot be performed without the consent of the parent or guardian of the child.
In the case of Hay v B 2003 (3) SA 492 (W), a practitioner treating a Jehovah’s Witness infant who required a lifesaving blood transfusion was required to obtain a court order authorising the blood transfusion, as the patient’s parents had refused a blood transfusion. This case was, however, heard before the Children’s Act came into force.
Today, if such a child’s parent refuses to consent to the administration of a blood transfusion by reason only of religious or other beliefs, the medical practitioner may, in terms of the Children’s Act, ignore such refusal and administer the blood transfusion, unless the parent can show that there is a medically accepted alternative choice available.
If the treating doctor disagrees with the parents’ alternatives then, in the absence of an emergency, the decision should be made by the court. In the presence of an emergency the child’s best interests prevail.
Jehovah’s Witness children over 12
A child who is over the age of 12 years (and who is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of treatment) may consent to his/her own medical treatment without assistance from a parent. In the case of a surgical operation (as opposed to treatment), such a child may only give consent if he/she is duly assisted by a parent or guardian.
It is uncertain whether a blood transfusion falls under the definition of “treatment” or “surgical operation”. If it is deemed to be a surgical operation, a child over the age of 12 years (who is sufficiently mature) will need the assistance of a parent or guardian in order to consent to a blood transfusion. As in the case of a patient who is younger than 12, a parent may not refuse to consent to a blood transfusion by reason only of religious or other beliefs, unless the parent can show that there is a medically accepted alternative choice.
In the event of a child (who is over the age of 12 years) refusing a blood transfusion although his/her parent(s) are consenting thereto, the practitioner should contact the Department of Social Development, as the minister of Social Development may consent if the child’s refusal is deemed to be unreasonable.
Should a blood transfusion be regarded as medical treatment (as opposed to a surgical operation), the child’s refusal should be accepted, unless this is deemed to be unreasonable. In such a case the minister of Social Development may consent to the administration of the blood transfusion.
Unlike adults the refusal of a minor (an individual who has not yet turned 18) is not absolute and may be overruled either by ministerial consent or an order by the High Court.
Unlike adults the refusal of a minor is not absolute and may be overruled either by ministerial consent or an order by the High Court
A medical practitioner should inform the parent(s) of Jehovah’s Witness children that whilst he/she will try to respect their religious views, if a blood transfusion is required to save the child’s life, or prevent severe harm, it will be administered without their consent, unless they obtain a court order prohibiting this.
Where possible, such discussions should be conducted as soon as possible so that the parents of such children are offered a reasonable time to obtain legal advice or a second medical opinion, should they so wish. Given that there may be some disagreement over whether or not an alternative medical treatment to a blood transfusion is medically acceptable, it would be advisable for the practitioner to debate the acceptability of the proposed alternative treatment with a senior colleague, and record in his notes the views of the colleague consulted.
In fact, all discussions by a practitioner with a patient, a patient’s representative, proxy or the patient’s parent (whichever is appropriate) should take place well in advance of treatment/surgery (if possible). This is to afford not only the parent(s) or patient or proxy time to obtain legal advice or a second opinion, but also the practitioner an opportunity to consult a senior colleague, seek legal advice or approach the Department of Social Development, in the case of a patient who is a child.
In our experience, some Jehovah’s Witness patients may actually wish to consent to receiving blood transfusions but are reluctant to agree thereto for fear of being ostracised by their religious community. In order to ensure that patients are not acting under duress, medical practitioners would be well advised to assure the patient that the nature of any treatment administered (including blood transfusions) is confidential and will not be disclosed by the practitioner to any third parties, and that third parties cannot gain access to hospital records without the consent of the patient.
It is furthermore advisable to have all discussions about possible blood transfusions with the patient privately, to ensure patient confidentiality and to allow them to disclose their wishes without pressure from family or the community.
It is advisable to have all discussions about possible blood transfusions with the patient privately to ensure patient confidentiality
When treating a child of Jehovah’s Witness parents, practitioners should be alive to possible complex family/community dynamics. It may be that although the parents cannot openly be seen to encourage their child to consent to a blood transfusion, or to consent on their child’s behalf, they would actually welcome the Minister of Social Development consenting on behalf of their child and/or the practitioner being authorised, in terms of the Children’s Act, to ignore their refusal to consent to a blood transfusion on behalf of their child. If this is suspected, it will facilitate decision-making on the part of the practitioner.
- Nicola Caine is Director and Karin Zybrands is Senior Associate at MacRobert Attorneys. Both are based in Cape Town.