The Coombe Vs. Jehovah September 22, 2006Posted by smiffy in Bioethics.
Yesterday’s case in the High Court, involving the forced blood transfusion of an unwilling Jehovah’s Witness raises some very disturbing questions both about the medical profession as well as the way the High Court reached its decision.
I’ll admit that I don’t know much about the details of the case (and given the circumstances, it’s probably best that too much information isn’t in the public arena, to protect the woman in question as well as her child). And I don’t think a written judgement is available, or I can’t find it, so the legal basis of the decision isn’t very clear. But from what is available (and I’m going by the Irish Times report – sub req’d. If there’s a more informative link, drop it into the comments box), it seems as though some fundamental rights have been trampled on in this case.
Firstly, and most importantly, the basic right to refuse treatment has been ignored. Recognition of this right is pretty much universal in medical ethics and is virtually uncontested. There are, obviously, situations of the capacity to exercise this right is blurred, such as cases where the patient may not be of sound mind or cases involving children. In such circumstances, it may well be appropriate for the courts to intervene. However, in the current situation there appears to be no question of either the woman’s views on the matter or her competence in reaching her decision.
Even if her reasoning is ludicrous (and given that it’s a religious belief, it by definition is) what right does the state have, or should the state have, to take the decision-making out of her hands? Gerard Hogan, acting for the hospital is reported as making a very interesting argument:
A blood transfusion, while intrusive, was a standard routine medical procedure and it was not as if the court was being asked to sanction surgery or some experimental treatment the patient would have to undergo.
If this was accepted by the court in reaching its decision it shows a stunning ignorance of how seriously some people take Biblical injunctions. Some Jehovah’s Witnesses have described the action taken by the doctors as tantamount to rape, and a spokesperson on Newstalk earlier today suggested that it was a fundamental violation of her integrity. While the learneds down at the Law Library might consider it routine, the subjective nature of such a judgement has obviously been close, and there are some who would consider it anything but.
Justice Abbott has claimed that he based the judgment on choosing life over death. That being the case, it’s hard to see the relevance of how routine or otherwise the procedure is. Is the suggestion that if the operation was more invasive, the patient should be allowed to reject it, even if this resulted in certain death? If so, then where is it proposed the line should be drawn? To my mind, the obvious place should be at the discretion of the patient themselves, but this has been rejected.
Perhaps they’re adopting a ‘common sense’ approach to the situation, one which states ‘hey, it’s just a blood transfusion, it’s no big deal’. Of course it isn’t, until someone else makes the same argument in relation to abortion or stem cell research. Hey, it’s just an embryo, it’s the size of a pinhead, surely you can’t seriously think it matters one way or the other. One man’s trivial detail may be another’s strict religious principle, and stupid as such principles might seem, it’s important that people be given the opportunity to make their case.
Which brings us on to the next point. Again, it’s hard to comment without all the facts, but the Irish Times article reports only the arguments of the counsel for the hospital. Coupled with the fact that Justice Abbott stated that he ‘would deal with the application on the basis of Ms K being before the court on a stretcher and objecting to the application and telling him not to make the order’, this suggests that the woman herself wasn’t represented in court. To be fair, the hearing does seem to have been held as an emergency session, and there were clearly some tight time constraints involved. But if the court ordered such a serious violation of bodily integrity and ran roughshod over fairly basic rights, and the woman in question wasn’t even represented, it would seem that a rather grave injustice may have been done to her. I wouldn’t, however, want to make this claim unless I was in full possession of the facts, so I’ll just leave it at that.
The basis of the decision seems to have been the need to act in the best interests of the woman’s child. This is an issue we saw discussed earlier in the week, with Brian Lenihan’s appearance before the UN Committee on the Rights of the Child in Geneva and the debate around enshrining those rights in the Constitution. While in cases which directly involve a child, it seems reasonable enough to ensure that that child’s welfare is of primary concern. That was the basis on which the prospective adoptive parents of a particular child were granted custody instead of the natural parents, in last week’s case cited by Gerard Hogan in yesterday’s proceedings.
In this case, however, the question of how ‘directly’ involved the child has to be is crucial. This isn’t a custody case, or even about the medical treatment of a child. It would be different, for example, if it involved the mother directing doctors not to give the baby a blood transfusion. No, this is about how certain implied rights the child might have can override the fundamental rights of an individual parent. Is the court suggesting that every decision every parent ever makes must always ensure that its in line with the best interests of their child or children (and should they be legally sanctioned if they don’t)? To take a trivial example, should a parent be forced to spend several thousand a year to send their child to a private school rather than buying a new car? Clearly the first option is preferable as far as the child is concerned, and the right to new, flashy consumer goods would seem far less important than the right to bodily integrity which was superceded yesterday. More importantly, though, does this judgment suggest that final decision-making powers be removed from those patients who have children, and handed over to doctors or the courts? Would a parent with serious cancer be forced to undergo invasive and debilitating treatments against their wishes if it presented a chance of prolonging their life? I would imagine that there a few Jehovah’s Witnesses in Ireland who might imagine that the chance of finding themselves in the same situation as this woman is now a very real possibility.
Except, of course, that for them it probably isn’t. One aspect of this case that shouldn’t be overlooked is the racial one. It’s not a very pleasant vista, but I can’t help thinking that this might have been very different if a middle-class Irish woman was involved, rather than a French-speaking Congolese one. I don’t want to be unfair to the medics involved, but is it really outrageous to suggest that the overbearing paternalism seen in this situation, reminiscent of the arrogance of the medical profession (particularly in the Obs-Gyn field) in years past is, at least in part, down to her background? And would the court have been so willing to dismiss deeply-held (albeit stupid) beliefs if they were expressed by an Irish woman rather than an African one.
One clear test of how seriously the courts take the best interests of the child will be to look at what happens in deportation cases. Surely if the welfare of a particular child is so important that someone should be forced to undergo an invasive medical procedure to serve it, then deportations should only occur in cases where it too serves the best interests of any child involved.
Somehow, I’m not convinced.