Report No. 196

(29) HE v. Hospital NHS Trust & Anor, (2003) EWHC 1017 (Justice Munby) (7th May 2003)

This case is important and deals with the validity of "Advance Directives". While Munby J was sitting in urgent applications, the father of the patient made an application in the afternoon on a Friday (2nd May 2003) for relief to save the life of his daughter. It was obvious that speed was of the essence. The Official Solicitor acted fast and came to Court at short notice. The Court made the order permitting blood transfusion in spite of the Advance Directive and Munby J gave reasons five days later.

In this case, the claimant, the father (HE) and his family were Muslims, and the 2 nd defendant (AE) was his daughter, aged 24 years, was born and brought up as a Muslim. But when her parents separated, she and her brother went to live with their mother. The mother became a Jehovah's Witness and her children followed suit. AE was then brought up as a Jehovah's Witness. AE suffered from congenital heart problem, which required surgery when she was a child and she knew that further surgery would be necessary when she became an adult.

On th February 2001, she signed a printed Advance Medical Directive/Release and her signatures being witnessed by two Ministers of her Church, excluding, among others, blood transfusion. In November 2002, the doctors felt that as she was a Jehovah's witness, she could be given surgery using erythroprotein to stimulate blood production but on 20th November 2003, AE became ill suddenly, and the doctors felt that surgery was necessary and some partial amputation was also necessary on her hands, which was not possible without blood transfusion. Her mother and brother objected in spite of being told that there was risk of death to AE.

AE was sedated from 20 th April 2003 till 2 nd May, when the father moved the present application, as her position became extremely critical. The father stated in writing giving seven reasons why the Advance Directive of AE should not be acted upon.

Justice Munby heard the case at 2.20 PM on 2 nd May 2003 and he read the statement of the father and the doctor's faxed statement. The Official Solicitor agreed to act as her litigation-friend as AE was not conscious. The Judge consulted Kennedy and Grubb; Principles of Medical Law (Ed 1998) (paras 3009 and 4.10.- 4.114) and referred to Re T (Adult: Refusal of Treatment) 1993 Fam 95 and Re AK (Medical Treatment: Consent) 2001 (1) FLR 129 and soon thereafter granted a declaration that it would be lawful to give blood transfusion in spite of the Advance Directive.

On 7th May 2003, the Judge gave reasons. These are quite important.

Munby J started saying that three propositions are now well-settled and it is not necessary to cite authority:

(1) A competent adult patient has an absolute right to refuse consent to any medical treatment or invasive procedure, whether the reasons are rational, irrational, unknown or non-existent, and even if the result of refusal is the certainty of death. He agreed with Prof. Andrew Grubb's observation (see 2002 Med L Rev 201 at 203) that: 'English law could not be clearer. A competent adult patient once properly informed, has the unassailable right to refuse any or all medical treatment or care'.

(2) Consistently with this, a competent adult patient's anticipatory refusal of consent (a so-called advance-directive or a living-will) remains binding and effective notwithstanding that the patient has subsequently become and remained incompetent.

(3) An adult is presumed to have capacity, so the burden of proof is on those who seek to rebut the presumption and who assert a lack of capacity."

The learned Judge further referred to burden of proof as follows: