Authored By: Gabriella Van Der Maas
Middlesex University
Abstract
This legal article will examine the legal and ethical implications of Jehovah’s Witnesses’ involvement in medical decision-making. Jehovah’s Witnesses are those who believe they are living the final life before Armageddon. [1] Their faith strongly disapproves of blood transfusions and organ transplantation, emphasising their extreme belief that has a significant influence on their medical choices.
Introduction
Legislations are designed to protect the rights of all individuals concerning their access to medical treatment, including those who may lack capacity and/or are minors. The noticeable religious group which presents challenges to certain medical treatments is Jehovah’s Witnesses. However, it is essential to clarify that they do not generally reject all medical treatment for themselves and their children[2]. Consequently, there are cases of minors who have Jehovah’s Witness parents refusing treatment that requires blood transfusions or organ transplants, even if it will cost their life. This analysis will explore the patterns of medical intervention of patients who are Jehovah’s Witnesses and the legal intervention in their medical decision-making processes.
Law and Medicine
The intersection between law and medicine raises important considerations regarding the patient making medical decisions. The European Convention on Human Rights (ECHR) protects the patient’s right to respect for private life[3] and the right to freedom of thought, conscience and religion.[4] However, it is crucial to establish that these Articles are a qualifying right, hence can be overridden in court.
Additionally, the Mental Capacity Act (MCA) 2005 and the General Medical Counsel (GMC) guidelines emphasise the necessary precautions for healthcare professionals to engage patients in decisions and comply with the laws preventing violations such as battery or trespass. The primary goal of healthcare institutions is ‘promoting health; preventing disease; relieving symptoms, pain and suffering; curing disease; preventing ultimately death; improving functional status; counselling patients and families and avoiding harm to the patient.’ [5]
The Family Law Reform Act 1969 has recognised individuals aged 16 or 17 as presumed competent to consent to treatment but not to refuse. For refusal of treatment to be valid, the Gillick Test from the case Gillick v West Norfolk and Wisbech AHA[6] must be applied. This requires the child to understand the medical issues, the proposed treatment and its effect, understand the moral and family issues, the child must be stable, the child’s decision must be from them and not influenced by a third party, and they can change their decision. Consequently, if the child lacks capacity, the courts will investigate the child’s best interests, often taking a paternalistic approach. The complexity regarding Jehovah’s Witnesses patients has been challenging as it involves potentially violating their respect towards their autonomy, religion and their private life under the ECHR. However, it is noticeable that the UK courts have frequently prioritised life preservation despite it conflicting with their religious beliefs. Moreover, failure to call for medical attention or refusal to give consent to a blood transfusion may not have any defence to manslaughter if it results in the death of a child. [7]
The Three Cs
Consent
Consent can be classified as either expressed or implied. Expressed consent could be either oral or in writing, from the patient affirming their agreement to the treatment or examination. The GMC stipulates that patients must be informed about their treatment to ensure their consent is valid. For implied, treatment is recognised legally even though the patient did not voice their consent. Adult patients possess the legal right to withdraw treatment, acting as a veto. What makes a consent valid needs to obtain three criteria: the patient must have capacity, the patient has been informed of the diagnosis and prognosis and the information that was given to them, and their consent was given voluntarily without any influence from a third party. A significant case illustrating implied withdrawal of consent is Malette v Schulman[8], whereby a Jehovah’s Witness patient who came unconscious and lacked capacity was brought to the hospital and needed a blood transfusion. The doctor had noticed a card from the patient that they were a Jehovah’s Witness, resulting in an immediate validation of advance refusal of consent. However, the doctor proceeded to continue treatment and, ending with the doctor being held liable for trespass when performing the transfusion. Furthermore, this was an example of the doctor following the paternalistic approach, illustrating that they prioritised the need to prolong patient life rather than respecting their religious belief. It is to be acknowledged that the case mentioned is from Canada; however, it has a great impact on the UK legislation on how to promote autonomy. An obiter dicta from Justice Robins in the Court of Appeal declared that a competent adult could refuse treatment even if it results in their death, which is rooted in common law. It is ultimately the patient, not the physician, who decides if any treatment is administered.[9]
Competence
It is presumed under common law that an adult is deemed competent to make their own medical decisions; however, this presumption can be rebutted due to factors that may alter their ability to make informed medical decisions. In case Ms B v An NHS Hospital Trust[10], it was considered unlawful battery when the patient expressed her wishes to turn her ventilator off, but the medical team refused to carry out her wish. It was concluded that she had the competence and capacity to withdraw treatment. In contrast, minors are presumed to be incompetent to refuse treatment, but can be rebutted using the Gillick Test. When dealing with a minor who is of Jehovah’s Witness, it becomes rather complex as to what approach should be taken. In Re L (Medical Treatment: Gillick Competence)[11], the Courts have authorised a blood transfusion of a patient who was a minor, having the understanding that she was raised in a religious home, ultimately, making her views very narrow and incapable of fully understanding the dangers of refusing treatment. Despite her religious belief, it has been portrayed that minors who follow this particular belief do not have the competence to make informed medical decisions.
Capacity
The capacity of a patient will be assessed by using the MCA, ensuring the patient receives the correct treatment even through the effects of possible mental disturbance. Like presuming competence of an adult, they have the presumption of capacity unless proven otherwise.[12] Consequently, a person who refuses treatment because of an unwise decision does not mean they lack capacity.[13] A patient who lacks capacity will be unable to decide because of an impairment or a disturbance in the function of the mind or brain.[14] However, the lack of capacity cannot be measured from the age or the behaviour of the patient. When establishing the capacity of the patient, the courts will investigate what would be in their best interest. In case Re S (a minor) Thalassaemia[15], the courts investigated what would be in her best interest and declared that continuing blood transfusion would be the right decision, ensuring prolonging life. Even though the patient was aware of her medical decision, the treatment was the only option for her to avoid death. Conversely, case Re E (A minor) (Wardship: Medical Treatment) [16] declared that though the patient was aware of his illness, he was unable to secure a refusal of treatment following his belief as a Jehovah’s Witness. Ward J believed he did not ‘have any sufficient comprehension of the pain he has yet to suffer… and importantly – the distress he will inevitably suffer.’[17] Court examined his best interest and had a deontology approach, as well as utilitarianism. The judge emphasised that with time, he may have a different outlook and choose to continue the treatment. Unfortunately, this did not occur, and once the patient reached the age to legally refuse treatment, he withdrew consent as a veto that was legally binding and passed away. Ultimately, this has created controversy over minors consenting even when their belief plays a factor in their decision-making that could result in their life being affected.
Conclusion
The recurrent cases presented to the court illustrate a distinct pattern in which treatment is permitted to advance, despite infringing upon the patient’s autonomy and their right to exercise freedom of religion. Thus, revealing a significant lack of acceptance towards the belief of Jehovah’s Witnesses, specifically in the legal area.
Bibliography
Cases
- Gillick v West Norfolk and Wisbech AHA [1968] AC 112
- Malette v Shulman [1990] 72 OR (2d) 417 (CA), [1988] 47 DLR (4th) 18
- Ms B v An NHS Hospital Trust [2002] EWHC 429
- Re E (A minor) (Wardship: Medical Treatment) [1993] 1 FLR 386
- Re L (Medical Treatment: Gillick Competence) 2 FLR 810
- Re S (A minor) Thalassaemia [1994] FLR 1065
Legislation
- European Convention on Human Rights 1998
- Family Law Reform Act 1969
- General Medical Counsel
- Mental Capacity Act 2005
Journal articles
- Diaz K, “Refusal of Medical Treatment Based on Religious Beliefs: Jehovah’s Witness Parents” 16 Refusal of Medical Treatment 85
- Catlin A, “The Dilemma of Jehovah’s Witness Children Who Need Blood to Survive” (1996) 8 Hec Forum 195
- Samuels A, “Legal Recognition and Protection of Minority Customs in a Plural Society in England” (1981) 10 Anglo-American Law Review, 10, Issue 4 241
Website
- Harvey S, “Factsheet: Jehovah’s Witnesses” (Religion Media Centre, December 15, 2020) https://religionmediacentre.org.uk/factsheets/jehovahs-witnesses/ accessed June 28, 2025
[1] Sarah Harvey, “Factsheet: Jehovah’s Witnesses” (Religion Media Centre, December 15, 2020) https://religionmediacentre.org.uk/factsheets/jehovahs-witnesses/ accessed June 28, 2025.
[2] Karen L. Diaz, “Refusal of Medical Treatment Based on Religious Beliefs: Jehovah’s Witness Parents” 16 Refusal of Medical Treatment 85-86.
[3] ECHR Article 8.
[4] ECHR, Article 9.
[5] Anita Catlin, “The Dilemma of Jehovah’s Witness Children Who Need Blood to Survive” (1996) 8 Hec Forum 195, pp 196.
[6] [1968] AC 112.
[7] Alec Samuels, “Legal Recognition and Protection of Minority Customs in a Plural Society in England” (1981) 10 Anglo-American Law Review 241 pp, 241-242.
[8] [1988] 47 DLR (4th) 18.
[9] Malette v Shulman [1990] 72 OR (2d) 417 (CA), [1988] 47 DLR (4th) 18, 36–37 (Robins JA).
[10] [2002] EWHC 429.
[11] 2 FLR 810.
[12] Mental Capacity Act 2005 s, 1(2).
[13] Ibid s, 1(4).
[14] Ibid s, 2(1).
[15] 1994 FLR 1065.
[16] [1993] 1 FLR 386.
[17] Ibid, pp 392.
