Advance Decision Making and its Validity

In the recent case of Re PW (Jehovah’s Witness: Validity of Advance Decisions) [2021] EWCOP 52, the court considered whether PW had capacity to make a decision regarding a blood transfusion and whether an advance decision, made by PW in 2001, was valid under the Mental Capacity Act 2005 (“MCA 2005”). Further, if the court were to find that the advance decision was invalid, it would be for the court to determine whether it would be in PW’s best interest to receive the treatment.

PW is 80 years of age and suffers from Alzheimer’s Disease. PW has been a Jehovah’s Witness for most of her adult life. As a result of an ulcerated gastric tumour, PW suffered from internal bleeding which caused severe anaemia. PW was in a life-threatening position. A blood transfusion would reduce the immediate risk to PW and allow for further investigation of the best possible treatment for the tumour. Given PW’s general condition, it was likely that she would survive any treatment and live for another five to ten years.

An adult with capacity can refuse a blood transfusion, despite any fatal consequences, and this decision would need to be respected. Section 1(4) MCA 2005 states that people have capacity, even though they may make an ‘unwise’ decision, such as one contrary to medical advice.

In PW’s case, the court deemed that she did not have capacity to refuse or consent to a blood transfusion. It was therefore necessary for the court to consider section 26 MCA 2005 which deals with the effect of advance decision on those carrying out or continuing treatment. If an individual has previously made an advance decision which meets the requirements of the Act, and that advance decision is applicable to the treatment and remains valid; then the advance decision remains effective. In PW’s situation, the court deemed that her advance decision made in 2001, to refuse blood or blood products even if her life is in danger, met the necessary requirements of a valid advance decision.

However, under section 25(2) MCA 2005, an advance decision is not valid if the person who originally made it, has withdrawn it at a time when they had capacity to do.  This includes the creation of a Lasting Power of Attorney (“LPA”) which gives authority to the donnee to give or refuse consent to the treatment which the advance decision relates to; or has done anything else clearly inconsistent to the advance decision remaining in place.

The court focused its attention on section 25(2)(c) MCA 2005 as it believed that there was evidence to demonstrate that PW had done something ‘inconsistent with the advance decision remaining her fixed decision.’  The court noted that PW hadn’t mentioned the advance decision to her family, or the clinicians treating her. PW had subsequently, since creating her advance decision, put in place a Health and Welfare LPA appointing her children as attorneys. The LPA gave PW’s children the authority to make all health and welfare decisions relating to PW apart from the consent to life sustaining treatment. However, although the authority to make decisions concerning life sustaining treatment was not in place, it was noted that blood transfusions or blood products do not necessarily need to be used as treatments to sustain life and the advance decision related to the use of allogenic blood and blood components for any purpose. Given this, the court deemed the granting of the LPA as inconsistent with the advance decision PW previously had made.

Further, the court noted that at the time PW signed her LPA, she told her children that she did want to be resuscitated, if necessary, with no reference to her advance decision or refusal to receiving a blood transfusion. PW also wanted her ‘Do Not Resuscitate’ notice to be removed from her medical records.

It was noted that more recently, PW mentioned contradictory views (whilst lacking capacity as a result of Alzheimer’s Disease) about receiving a blood transfusion. It was noted that on the 17 September 2021, PW told a doctor that she would have a blood transfusion if it was to save her life, but she stated that the blood should be ‘free from diseases.’

Given the above, the court concluded that PW lacks capacity to refuse or consent to a blood transfusion and that her advance decision is not valid. Subsequently, following the application of section 4 MCA 2005 and the Code of Practice, it is in PW’s best interest to receive the blood transfusion.