BLOOD TRANSFUSION CONFUSION
May 1998 |
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What happened?
Recently in Melbourne a decision was made by the Guardianship and Administration Board
to allow a husband to consent to a blood transfusion for his comatose wife.
The couple, both Jehovah's Witnesses, had just seen the birth of their child when
disaster struck. The new mother suffered massive internal bleeding, for which she would
normally have required a blood transfusion.
This is where it all gets very complicated - we can't comment on the specific details
of the case because they are not permitted to be published, but some time later she lapsed
into unconsciousness, apparently without doctors having obtained valid consent for a blood
transfusion. At this point the question of a blood transfusion became a matter of life and
death.
What were the options? Who could consent to the blood transfusion?
Why is consent needed?
In general, doctors and other health professionals can't provide medical treatment
without proper consent from their patients. Doctors who carry out medical treatment
without their patient's consent run the risk of being sued for assault.
Those of you who have been admitted to a hospital for an operation will be familiar
with the written consent required before a surgeon will operate.
Those who cannot consent
Wherever possible the patients themselves must consent to treatment. But a patient may
not be able to give consent for a number of reasons: the patient may have a temporary or
long term intellectual disability that means they cannot understand the nature of the
proposed treatment; they might be unable to communicate their consent; they may be
unconscious.
In some States it is now possible for a relative or carer to give consent for less
serious medical treatments, without the interference of a court or tribunal. This is an
informal type of consent on behalf of the person needing the treatment, but it generally
only extends to less serious types of treatment, and certainly not when the treatment is
controversial.
Who can consent?
If the patient is unable to consent to a significant medical treatment, much depends on
the State in which they live. In some States there will be provision for a "living
will". This is a written directive to health care professionals that is not legally
binding, but provides a guide to courts or Boards about the appointment of person to act
as a substitute decision-maker (for instance, the living will might name someone the
patient would trust to make an appropriate decision).
In most States there are Guardianship Boards that can appoint people to make medical
decisions on behalf of people with disabilities - sometimes it is a private guardian,
sometimes it is a guardian employed by the State (eg the Public Guardian in NSW). In
Victoria, the State in which the case we referred to occurred, a medical enduring power of
attorney can be used to appoint a person to make medical treatment decisions for them.
There is special form that must be filled in and witnessed by two independent people, to
ensure the person giving the power understands what they are doing. For more information
about this type of power of attorney, try our power of attorney topic.
Jehovah's Witnesses
Jehovah's Witnesses have specific attitudes to blood and blood products, avoiding them
wherever possible. This is in accord with their interpretation of the Bible - specifically
Acts chapter 15 verse 29: "That ye abstain from meats offered to idols, and from
blood…".
Many carry cards with them that state which types of medical treatment they will refuse
- does this constitute a legal refusal of medical treatment? Probably not, because its
veracity cannot be tested.
The reason a Victorian medical enduring power of attorney must be witnessed in a
certain way (including an acknowledgement that the donor understands what they are doing)
is so there will be no question as to its validity, particularly that the power of
attorney is given freely. In Victoria and the A.C.T., if a Jehovah's Witness signed an
enduring medical power of attorney, it is possible that their wishes would have to be
taken into account.
Refusal of treatment
Many people are surprised to learn that they are entitled to refuse their own medical
treatment. We are used to following our doctor's advice, and many doctors are used to
having it followed!
The High Court has made it clear that doctors must tell their patients about the
nature, and particularly the risks, of proposed medical treatment. If a doctor believes a
patient doesn't understand the consequences of their refusal, they can make an application
to a Guardianship Board or Tribunal to have a guardian appointed to give consent for them.
But those Tribunals can only exercise those powers if the person has a disability that
means they really don't understand what they are doing. Remember, in Australia a
competent person can refuse medical treatment, and that autonomy cannot be taken away just
because most people would disagree with it, even if it means the decision may threaten
their life
Read this: The legal information contained above is
intended to be general information about the law. It is not a substitute for legal and
other professional advice. Lawscape Communications P/L does not accept responsibility for
loss to any person, who either acts or does not act because of this information.
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