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Mónika MERCZ: Thank you, next! On refusing blood transfusions as a fundamental rights claim



Introduction


The treatment of patients who refuse blood transfusions is always a challenge for doctors all around the world. One group in particular has become well-known for this reason: Jehovah’s Witnesses refuse transfusions of whole blood, of red and white corpuscles, platelets and plasma since 1945, when the legal organisation of leaders of the Congregation of Jehovah’s Witnesses, the Watch Tower Bible and Tract Society concluded that it was against divine law.[1] Their reasoning for refusing blood transfusions is based on their religious beliefs. “Patients, including children, who do not receive transfusions usually fare as well as or better than those who do accept transfusions. In any case, no one can say for certain that a patient will die because of refusing blood or will live because of accepting it.”[2] - goes the statement on their official website - in response to concerns arising out of their refusal of possibly life-saving treatments. In an article arguing for their viewpoint from a non-religious perspective they also hold that “the world over, more and more doctors are seeing the advantages of bloodless medicine and bloodless surgery.”[3] Whichever is the case from a medical point of view, today I would like to take a look at how religious freedom relates to the right to life and the right to health. This article is a strictly objective study about the issue, my aim is not to offend any parties to this conversation, mainly to start a discourse about the importance of all fundamental rights, the right to refuse treatment as a patients’ rights issue, and how these rights relate to each other.


Religious freedom against the right to health


Religious freedom is guaranteed on the international level through documents such as the Universal Declaration of Human Rights, Article 18[4] and Article 19.[5] In Hungary, Article VII. of our constitution, called Fundamental Law (Alaptörvény) enshrines freedom of religion as a fundamental right. This is one of the first-generation rights, just like the right to life. Therefore, it is incredibly difficult to say if one takes precedence over the other. As any refusal of blood transmission can result in the death of the patient, debates in this realm are very much also relevant to the right to life, but it is also worth mentioning how the right to health and its regulation informs these debates. The European Charter of Patients' Rights contains provisions that have bearing on this issue, as it is clearly stated that the patient has the right to refuse a treatment or a medical intervention.[6] Therefore “the negative of accepting transfusion by Jehovah Witnesses when this is correctly indicated, in accordance to medicine precepts, attempts against their security as a patient”.[7] It is best to discuss the specifics of blood transfusion refusal with patients,[8] as a mentally competent individual has an absolute moral and legal right to refuse the consent for medical treatment or transfusion.[9]


The right to decide on individual treatment - in practice


I would like to explore what medical professionals follow in their practice, to get a look at how prevalent this issue is and how the system of healthcare rises to the challenges presented. Many internationally accepted documents including Article 5 of Council of Europe’s Convention on Human Rights and Biomedicine contains the principle of self-determination.


Article 9 of the Convention on Human Rights and Biomedicine states that “expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account”. This is especially important in this case, as Jehovah’s Witnesses carry a card with them which clearly states their wish to refuse even potentially life-saving operations if they require techniques that go against their beliefs. The medical community agrees that emergency physicians should look for evidence of an informed refusal when evaluating these documents.[10] In an emergency, a medical practitioner shall not refuse to treat a patient who refuses a blood transfusion. In cases like this the patient should accordingly be treated without administering blood, and the consequences of not receiving a blood transfusion should be explained to them, if possible.[11]


There have been such cases before the European Court of Human Rights as well. The religious community of Jehovah's Witnesses of Moscow were dissolved for various reasons, one of which was the ‘No Blood’ card’s existence, as Russian courts decided that participation in the activities of the community had been damaging for the health of its followers because they had refused blood transfusions. The Russian courts also alleged that they band the community because they “encouraged its members to commit suicide and/or to refuse medical assistance in life-threatening situations.”[12] In this case, the complaint of Jehovah’s Witnesses about being banned was found admissible by the European Court of Human Rights.


Informed consent, of course, can be fully given by adults who have chosen not to accept such treatments. I would like to briefly touch upon the subject of children in situations where they refuse blood transmission because of religious reasons. In South Africa, a child who is over the age of 12 and has reached a level of sufficient maturity and mental capacity may consent to their own medical treatment without assistance from a parent. Children under the age of 12 need the consent of the parent to refuse such a treatment. In the UK, children under 16 years of age can legally give consent, but only if they understand the issues related to their decision.[13] Although their right to express religious belief is protected under Article 9 ECHR, there are limitations to this article. Under English law the Family Law Reform Act 1969 is applied in the case of 16 and 17 year olds.[14] The issue of consent for minors is incredibly layered. In the Netherlands for example, euthanasia of a minor of 16 years for psychiatric suffering is legal. Noa Pothoven’s case is one of the most well-known examples of a minor consenting to ending her own life. She was a 17-year old girl who had a variety of mental issues after being sexually assaulted. Her request for euthanasia had been denied, but she still committed suicide by refusing to eat and drink, a decision which was known both to her family and to professionals.[15]


However, it is clearly the everyday practice that the right to life must prevail above all else in situations where there is a serious threat to the life or health of the minor. In these cases medical treatments can be imposed by the judge declaring a temporary removal of the right to custody from the parents.[16] In these cases, children’s decisions can be overruled by the court. There have been instances where such a decision was made[17] and resulted in negating the child’s or family’s decision. The American Academy of Paediatrics recommends healthcare providers to “avoid unnecessary polarisation when conflict over religious practices arises”.[18] This issue is especially difficult as failure to give life-saving treatment to a child could render the doctor vulnerable to criminal prosecution.[19]

Conclusion


From the collegial work of the National Commission of Medical Arbitration, Undersecretary of Innovation and Quality, General Direction of Legal Issues of the Health Secretary, General Direction of Religious Associations of the Secretary of Governorship, National Centre of Sanguine Transfusion, National Human Rights Commission, Mexican Academy of Surgery, National Commission of Bioethics and the National Academy of Bioethics six recommendations were emitted specifically for the attention of Jehovah Witnesses’ patients.


The first one is that it is necessary to obtain an informed letter of consent. Moreover, if transfusion is considered indispensable, doctors must allow the participation of medics from the Link Committees of the Jehovah Witnesses to value other alternatives available. It is also of utmost importance not to deny the patients’ hospitalization. When doctors are unable to attend to Jehovah Witnesses’ patients without blood, medical attention must not be suspended. In case of a real emergency, the medic must preserve the life of the patient before other issues are taken into account. Finally, health institutions must promote the creation of hospital committees of transfusion medicine.


In my opinion these practices aim to respect the wishes of the patient involved, emphasizing the importance of religious freedoms while preserving the right to life. Hopefully newer and newer techniques will emerge in the medical community, making the maintaining of all related fundamental rights easier.


[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3934270/ [2] https://www.jw.org/en/jehovahs-witnesses/faq/jehovahs-witnesses-why-no-blood-transfusions/ [3] https://www.jw.org/en/library/magazines/g201209/medical-alternatives-to-blood-transfusions/ [4] Every person has the right of freedom of thought, conscience and religion; this right includes the liberty to change religion or belief, as well as the freedom to manifest its religion or belief, individually or collectively, whether in public or in private, by teaching, practice, cult and observance. [5] Every individual has right of freedom of opinion and expression; this right includes not to be bothered because of his opinions, to investigate and receive information and opinions, and to spread them without limitations of frontiers, by any means of expression. [6] https://ec.europa.eu/health/ph_overview/co_operation/mobility/docs/health_services_co108_en.pdf [7]https://www.elsevier.es/en-revista-revista-medica-del-hospital-general-325-articulo-blood-transfusion-in-jehovah39s-witnesses-S0185106314000250 [8] McBrien ME, McCarroll C, Heyburn G. Who or what defines a patient's best interests? Anaesthesia. 2007;62:413–4. [9] Rogers DM, Crookston KP. The approach to the patient who refuses blood transfusion. Transfusion. 2006;46:1471–7. [10] https://pubmed.ncbi.nlm.nih.gov/9715245/ [11]https://www.medicalprotection.org/southafrica/casebook/casebook-may-2014/the-challenges-of-treating-jehovah's-witnesses [12] https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-99221%22]} [13] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4260316/#ref14 [14] https://pureadmin.qub.ac.uk/ws/portalfiles/portal/182746725/Clayton_N_ill_EJHL.pdf [15]https://www.theguardian.com/world/2019/jun/05/noa-pothoven-netherlands-girl-not-legally-euthanised-died-at-home [16]https://eprints.ucm.es/id/eprint/55546/1/A%20Critical%20Analysis%20ECtHR%20Blood%20transfusions%202010.pdf [17] https://www.lexology.com/library/detail.aspx?g=1e0ea388-6c66-4248-8dda-f9fdacfb2ebd [18] Religious objections to medical cares. American Academy of Pediatrics Committee on Bioethics. Pediatrics. 1997;99:279–81. [19] Milligan LJ, Bellamy MC. Anaesthesia and critical care of Jehovah's Witnesses. Contin Educ Anaesth Crit Care Pain. 2004;4:35–9.

Mónika MERCZ is a Hungarian fourth year law student at the University of Miskolc, currently in her last semester of an English Legal Translation Course. Mónika is the Secretary General of European Law Students’ Association (ELSA) Miskolc, a recipient of the National Higher Education Scholarship 2020, and is currently taking part in Aurum Foundation’s Mentoring Program. Having done several publications, her work mainly focuses on environmental law, constitutional law and data protection. She is a member of the Constitutional Discourse’s Editorial Board.


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