A Social Approach to Refusal of Medical Consent

Isabelle Carr-Healy

Blood transfusion is a medical procedure in which whole blood or parts of blood are put into another person’s bloodstream through a vein.[1] They are routine medical procedures that are often used to stabilize patients in critical conditions when they have lost a large amount of blood or are undergoing an organ transplant. However, Jehovah’s Witnesses, a minority religious group, are opposed to them on both cultural and religious bases.[2] There are some recent examples in Irish law of emergency court injunctions being granted to allow children to receive emergency treatment, and this practice is widespread internationally. However Irish courts have been known to take a ‘social approach’ when deciding to force an adult to avail of what is often life-saving care.

In the case of JM v The Board of Management of St Vincent’s Hospital,[3] the court took what is described by Deirdre Madden as a ‘social approach’.[4] The woman in question - a Jehovah’s Witness - was unconscious when her husband made an application for a blood transfusion on her behalf. The woman had indicated her refusal, but the hospital administered the transfusion anyway. They did this because the woman had only become a Jehovah’s Witness and refused the transplant ‘because of her cultural background and her desire to please her husband and not offend his sensibilities’. The woman had only become a Witness because of her husband.

The decision of the court to support the hospital’s actions is called a social approach because it made an effort to consider the situation that the woman was in and the culture she came from.[5] On one hand, Jehovah’s Witnesses are very consistent in their attitude towards blood transfusions, and as a Witness, the woman’s attitude was obvious. She also had capacity when she made her decision. Therefore the question is raised as to why her husband was allowed to interfere with her autonomous decision. Using the ‘social’ approach, he was a relevant party as she was married to him.

On the other hand, the court decided that since the woman had become a Witness because of her husband, she would agree with his decision to have the transfusion. They wished to protect her from any coercion, and though there was no evidence of it. Whenever there is any doubt about the patient’s wishes, the hospital will err on the side of medical caution and perform life-preserving procedures.

However, in this judgement, the only way the woman would have had her decision respected is if she had an Advance Directive. Under the Assisted Decision-Making (Capacity) Act 2015, they are defined in Section 82 as ‘an advance expression made by the person...of his or her will and preferences concerning treatment decisions that may arise in respect of him or her if he or she subsequently lacks capacity’. It is also possible to appoint a ‘designated healthcare representative’ who may have the power to interpret the directive and decide medical treatments.

Advance Directives ostensibly have the same function as asking patients with capacity what treatment they would like, or consulting relations about a patient’s religious beliefs; namely vindicating patients’ right to autonomy, to decide what medical treatment they wish to have. However, the question is raised as to why the disparity exists between the social approach taken in previous cases and advance directives which are a very unsocial approach to patient care. The court wishes to guard against coercion by taking a social approach and assessing patients on a case-by-case basis but leaves the option of advanced directives, which give statements about a patient’s wishes much more unambiguously. This lack of ambiguity here means that whatever is written down has more legal standing than anything that is said by a patient’s relative and is likely to be carried out. The Assisted Decision-Making Act 2015 states explicitly that advance directives must be completely voluntary, however, it is impossible to provide oversight in every case. This may provide an opportunity for minority religious groups such as Jehovah’s Witnesses to encourage their members to fill in these forms, an act which may lead to their death. Because of the small numbers in the religion, members of Jehovah’s Witnesses are encouraged to inform members of the hierarchy about others’ actions,meaning that it would be easy to persuade individual members to sign advance directives.[6] It is also difficult to accept that all members of a religion subscribe entirely to what is an extreme belief.

Why does this contradiction in approaches exist? It suggests that the court would rather not have to engage with the fact that coercion occurs on an organisational level, within certain groups in society. It may be easier to justify patient deaths when there is a form stating their wishes, even though their stated wishes may have been handed down to them from the upper echelons of a religious group.

A possible reason for the adoption of a social approach is the general public’s disdain for beliefs that seem to be inherently harmful, either to the believer or to others. It may be that ordinary healthcare, and legal professionals find the idea of refusing routine and life-saving treatment so abhorrent that they would rather take a social approach. This may only be a thinly-veiled excuse in order to administer a blood transfusion.

In the case of Chris Fitzpatrick and John Ryan v F.K. and the Attorney General,[7] a woman gave birth and refused a blood transfusion on religious grounds. The High Court granted an ex parte order allowing the transfusion and one was administered. It was later decided that while the patient had capacity but did not understand the full gravity of her situation. Therefore there was no need for the court to decide whether her right to autonomy conflicted with her child’s right to be nurtured and cared for. In this case and in JM, the court’s analysis delves into the substance of what is expressed rather than simply relying on whether that expression had been properly made. It would be interesting to see how courts would react to a conflict between an advance directive and rights of a baby, but no such case has come before Irish courts yet.

Emergency Injunctions for Children

The approach to the granting of emergency injunctions is much less nebulous in cases concerning children. In the matter of Baby AB,[8] the judge stated that parents’ constitutional right to raise their children by reference to their own views, referred to in Articles 42.1 and 44.2 was not an absolute one and that the State had the authority to intervene to ensure that the child was protected.

In the case of North Western Health Board v HQ,[9] the Supreme Court refused to authorise the health authority to carry out the PKU test on a child. In this case the judges decided that the threshold for court intervention would be too low and that allowing the health board to administer the procedure would allow the state to micromanage parents. They stated that intervention should only occur in exceptional circumstances, where the parents had clearly failed in their duty to the child. If the child was in immediate danger then there was a heavy weight to be put on the child’s personal rights that would supersede parental rights.

In Director of Public Prosecutions v M.B,[10] the limited circumstances where it would be acceptable for the court to limit parental rights were discussed. It was stated that the court would only intervene ‘in a paternalistic way’ where the safety of the child or others was put at risk by the parents, or where there was a mental health issue that prevented the individual from having the capacity to make an informed decision. According to s.38 of the Health Act 1947, this is usually confined to infectious and contagious diseases where it is clearly in the public interest to prevent sick patients from leaving the hospital and infecting others. In these cases, the public interest considerations outweigh the  patient’s right to autonomy  because infectious diseases pose such a grave threat to the general public.

The population of Jehovah’s Witnesses in Ireland is currently only around 6,000.[11] However, this population is expected to increase as Ireland becomes more religiously diverse. Therefore it is reasonable to expect that there will be an increase in cases similar to this in the future. The Irish courts may have to expand on their analysis of competing rights in order to decide where the line is between the protection of bodily autonomy and the protection of citizens, especially of newborn babies. If a patient without an advance directive is deemed to have had capacity and been administered a transfusion, then an analysis of competing rights will be necessary. This issue is likely to become a contentious one within the next several years.




[1]  National Cancer Institute, ‘NCI Dictionary of Cancer terms’ (US Department of Health and Human Services) <


accessed 9 October2019.

[2] Ally Mclnroy,’Blood transfusion and Jehovah's Witnesses: the Legal and Ethical Issues’ (2005) 15(5) British Journal of Nursing 270.

[3] [2003] 1 IR 321.

[4] Deidre Madden, Medicine, Ethics and the Law (6th edn, Bloomsbury Professional 2016).

[5] ibid.

[6] McInroy, (n 2), p270

[7] Fitzpatrick v FK and another [2008] IEHC 104, [2009] 2 IR 7.

[8] In Re Baby AB [2011] IEHC 1, [2011] 1 IR 665.

[9] North Western Health Board v HW [2001] IESC 90.

[10] [2016] IECA 311.

[11]Paul Hosford, ‘What is it like to be a Jehovah’s Witness in Ireland?’ The Journal (Dublin, 27 July  2014)


accessed 10th October 2019.

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