What they said ... `We feel that everybody, the whole population, has the right to say what will not be done to their body. So, if this is overridden, that is assault if it's done against their will' Mr Peter Price, a spokesperson for Jehovah's Witnesses
`The Bible does not condemn blood transfusions any more than flying in a plane or driving a car' Geoffrey Lacey, in a letter to the Herald Sun
On February 24, 1998, a Melbourne man authorised a transfusion for his wife who had continued to haemorrhage after an emergency hysterectomy following the birth of their child. Both the man and his wife are Jehovah's Witnesses and their religion forbids them having blood transfusions.
The man had applied to the Guardianship and Administration Board to be appointed his wife's guardian after she lost consciousness. Prior to the operation she had indicated that she did not wish to be given a transfusion.
The case attracted significant attention, and some discussion as to whether or not the husband should have been able to over-ride his wife's apparent wishes in this matter and more generally as to whether Jehovah's Witnesses should be able to refuse transfusions.
Background
There are some 83,000 Jehovah's Witnesses in Australia. Members of this religious denomination are required by their church to observe a number of restrictions.
Included in these are that they do not celebrate Christmas or birthdays, they do not salute the flag or stand for the national anthem and they do not receive blood transfusions.
On the question of blood transfusions, most Jehovah's Witnesses carry medical directive cards, witnessed and renewed annually, stipulating what types of treatment they would refuse.
A spokesperson for the Jehovah's Witnesses in Victoria acknowledged that the legality of these cards had not been tested in court, but claimed that they were respected by hospitals and medical practitioners.
It is also the case that under the Victorian Medical Treatment Act, a person can refuse certain forms of treatment. Under the related Medical Treatment Enduring Power of Attorney Act any person has the option of nominating someone to exercise a medical power of attorney on their behalf if they become incapacitated. This gives someone else the legal right to make decisions about their health if they are unable to. Many Jehovah's Witnesses choose a pastor or church elder to act for them in this way.
In cases where children of Jehovah's witnesses require blood, doctors routinely seek a court order to allow the treatment to be given.
Mr Paul Henderson, a partner in the law firm Gordon and Slater, has stated that Victorian law now allows doctor's treating children to overrule a parent's decision.
The Guardianship and Administration Board has the power to grant another person, usually the next of kin, authority to act as guardian for an incapacitated person and to make treatment decisions on his or her behalf.
There are a number of Internet sources which have a bearing on this issue.
One is a document titled Killing the Willing ... And Others! Legal Aspects of Euthanasia and Related Topics by Greg Smith.
It is one of a number of papers originally published under the auspices of the Australian Federation of Right to Life Associations and so may have a particular bias. Apart from the title, however, such a bias is not strongly evident. You should also note that though it was published in 1992, most of the laws it discusses have not changed in the intervening period.
It is an interesting discussion on the rights of patients within Australia and in other countries to refuse medical treatment and includes a consideration of some of the provisions of the Victorian Medical Treatment Act.
It also discusses a Canadian case, Malette v Shulman (1988), in which a doctor gave a transfusion to a woman carrying a card stating she was a Jehovah's Witness. The Ontario High Court subsequently found that though the doctor had acted promptly and competently he had committed battery and ordered him to pay $20,000 for mental distress caused the patient.
Also of interest is a site which looks at this question entirely from an American perspective. It is titled, Treatment Refusal by Parents: State vs. Individual Rights and is based on a detailed examination of a 1964 case in which the court found that a transfusion could be given a Jehovah's Witness despite her objection and that of her husband. The article is on the Reform Watch web site produced by the George Washington University Medical Center.
Another useful site is Watchtower, the official web site of Jehovah's Witnesses. If you click through to the section titled Medical Care and Blood and then click through to all related articles you will find extensive justifications for the Jehovah's Witness position. You need to be aware, however, that this information is presented entirely from a Jehovah's Witness point of view.
Finally there is an interesting critique of the Jehovah's Witness position on blood transfusion from a Christian perspective titled Blood transfusions: sustaining the purpose of God and written by David Henke.
This is reproduced from the Watchman Expositor, a publication produced by the Watchman Fellowship.
Arguments in favour of Jehovah's Witnesses being able to reject blood transfusions
For Jehovah's Witnesses, avoiding blood transfusions is a matter of religious belief. Jehovah's Witnesses claim to direct their lives according to God's laws, as stated in the Bible. They further maintain that consuming blood or blood products is prohibited in the Bible. Therefore, they argue, members of their faith must avoid blood transfusions.
It is also argued that modern western democracies respect freedom of religion and that as a result of this Jehovah's Witnesses' belief that blood transfusions are wrong should be respected.
Daniel Batt, Editor of Zadok Perspectives, the journal of the Zadok Institute for Christianity and Society, has stated, `Pluralism requires us to accept the rights of religious groups to maintain their distinctiveness, including the belief that they alone possess the truth.'
(A plural society is one which has a variety of cultures, beliefs or value systems within it and which aims to have all exist in harmony together.)
Jehovah's Witnesses also claim that by refusing blood transfusions they are not seeking to endanger their lives. They maintain there are alternative treatments that may preserve life while avoiding the need for a transfusion.
Mr Peter Linke, an elder with the Hampton Park congregation, has stated, `There's no guarantee people will die if they don't have blood. It's not as if there aren't alternatives.'
Jehovah's Witnesses further argue that, in addition to being, as they claim, prohibited in the Bible, blood transfusions can themselves harm a person's health.
Mr Peter Price, the Jehovah's Witness hospital information manager in Victoria, has noted that there are medical committees who will advise doctors on how to treat Witnesses who require surgery.
Jehovah's Witnesses also claim that it is the right of every individual to choose the sort of medical treatment he or she desires.
According to this line of argument, the law and the medical profession should respect the wishes of the individual regarding the medical treatment they will receive.
Jehovah's Witnesses have reprinted in their publication, The Watchtower, an article which cites, with approval, the philosopher, John Stuart Mill's view on the individual and his or her health.
John Stuart Mill claimed, `Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.'
As a spokesperson for the Jehovah's Witnesses in Victoria, Mr Peter Price has stated, `We feel that everybody, the whole population, has the right to say what will not be done to their body. So, if this is overridden, that is assault if it's done against their will.'
Supporters of the Jehovah's Witnesses' position on the individual's right to determine his or her medical treatment claim that legislation such as the Victorian Medical Treatment Act gives all people, including Jehovah's Witnesses, the right to refuse medical treatment.
Some commentators have noted that the Medical Treatment Act regards any treatment without the patient's consent as assault.
Those who hold this view argue that the right to determine what medical treatment you will receive involves the whole community, not just Jehovah's Witnesses.
Mr Peter Linke, an elder with the Hampton Park congregation, has stated, `This calls into question whether adults in Victoria, Jehovah's Witnesses or not, can have their wishes known and respected in regard to medical treatment.
`There opens a wider issue because each of us as adults has believed we have that discretion. We believed that right does belong to individuals but the state has taken it away.'
Arguments against Jehovah's Witnesses being able to reject blood transfusions
Those who argue that Jehovah's Witnesses should not automatically be able to reject blood transfusions claim that religious freedom is not an absolute right.
According to this line of argument, where a religious belief damages either believers or non-believers then perhaps that belief should not be tolerated by the wider society.
This position has been put by Daniel Batt, editor of Zadok Perspectives, the journal of the Zadok Institute for Christianity and Society.
Mr Batt has maintained that there are times when concern to respect the beliefs of a particular group needs to be `weighed against that group degrading or endangering the lives of its members.'
It has also been argued that the Jehovah's Witness position on blood transfusion is shared by no other Christian denomination. It has been suggested that this is a misapplication of the Old Testament prohibition against consuming blood. It has been argued that the Bible makes no specific reference to blood transfusions, a practice unknown at the time the Old Testament was produced.
Geoffrey Lacey, in a letter to the Herald Sun published on March 2, 1998, claimed, `The Bible does not condemn blood transfusions any more than flying in a plane or driving a car. The Old Testament says devouring blood, particularly fresh blood, was forbidden to the Hebrew nation by God, a commonsense health rule that all people today follow as a matter of course.'
It has also been claimed that the Jehovah's Witness position on blood transfusions is relatively recent and has itself shifted even in that time. Thus, it is claimed, it may not warrant the absolute adherence of members.
It has been claimed that a ban on blood transfusions for Jehovah's Witnesses has only been in place since World War II, though transfusions had been common for the previous 45 years.
It has also been claimed that in 1940 the then Jehovah's Witness president praised a surgeon who donated blood to a patient, while in the early 1970s, haemophiliac Witnesses were allowed one blood fraction and in the late 1970s they were allowed as many as necessary.
With regard to the supposed freedom of the individual to determine what medical treatment he or she will receive, it has been claimed that such freedom needs to be based on informed consent and that this is not possible for Jehovah's Witnesses if their religion's position on the question is not well informed and if they are denied balanced information.
Daniel Batt of the Zadok Institute for Christianity and Society has claimed, `The official [Jehovah's Witness] publications are anonymous and the quotes they use have elicited tirades and lawsuits from scholars who find their writings misquoted, misrepresented and co-opted into the Jehovah's Witness' ideology. A member can be expelled for reading anything opposed to official teaching.'
It has also been suggested that acceptance of the Jehovah's Witness prohibition on blood transfusions may not always be freely given as members face being expelled from their church if they do not adhere to the ruling. It has also been suggested that in this situation someone with a life-threatening condition, who may benefit from a transfusion, is faced with the task of deciding between possible cure and personal salvation. It has been claimed that free choice is extremely difficult to exercise in such circumstances.
It has also been suggested that a pastor or church elder is not an appropriate person for Jehovah's Witnesses to give medical treatment enduring power of attorney in the event of their incapacitation. It has been claimed that such a person is likely to be incapable of making an impartial judgement as to whether a transfusion should be given and may also exercise excessive influence on other family members.
Further implications
It is difficult to comment with any precision on the full implications of the case currently at the centre of this issue. This is because it is not clear from media reports exactly how the woman in question indicated that she did not wish to have a blood transfusion.
The simplest scenario would be that she had relied on a card that Jehovah's Witnesses usually carry indicating that they do not wish to receive a transfusion. She may also have signed an authority also sometimes carried by Jehovah's Witnesses indicating the same wish.
If this were what she did the case primarily has implications for Jehovah's Witnesses and would appear to indicate that the sect's cards and statements of patient wishes carry limited legal weight. It would appear that they can be overturned by anyone who acquires guardianship of that person through an application to the Guardianship and Administration Board.
There has been no comment from an official Jehovah's Witness spokesperson to indicate that the sect plans to challenge the Guardianship and Administration Board ruling which allowed the husband in this case to negate his wife's expressed direction that she not be given a transfusion.
If the sect does not challenge this development through the legal system then it may respond by bringing harsher penalties against Witnesses who grant permission for other Witnesses to have transfusions. (At the moment, if the man who authorised his wife's transfusion admits his error and indicates he is sorry for what he did he is likely to be taken back into his church.)
The next possible scenario is that the woman had signed a refusal of medical treatment certificate (as allowed for under the Medical Treatment Act) indicating she did not want a transfusion. The strength of this refusal would, in part, depend on whether the haemorrhage she suffered after her operation were regarded as being part of the same condition for which she signed the original refusal.
If it were regarded as a different condition then the document she previously signed would probably be considered to have no bearing on treatment options and her husband, as her guardian, would have been able to make a different treatment decision without formally over-riding his wife's wishes.
If, however, she signed a refusal of treatment certificate which indicated that even in the event of later complications she did not wish to receive a transfusion, then it would appear that someone acting as her guardian was able to over-ride her directions.
This would have implications for all Victorians as it would suggest that the treatment wishes of any person can be over-ridden once they are no longer able to speak on their own behalf.
In these circumstances the law would seem to offer a person no guarantee that their wishes will be respected. Indeed the only guarantee would be whether the person appointed guardian felt ethically bound to abide by the patient's wishes.
(In this case the woman's husband may have judged that had his wife known that without a transfusion she was likely to die then her position would have altered. However, after she began to recover her husband delayed telling his wife she had received a transfusion, apparently in the belief that she would be distressed by this information and would not have wanted one.)
The final scenario involves the power of a guardian relative to the strength of the provisions of the Medical Treatment Enduring Power of Attorney Act. Under this Act a person can give another person the power to act for them in all medical matters.
If the woman in this case gave this power to an elder of her church, then subsequent developments suggest that a guardian appointed by the Guardianship and Administration Board can authorise medical treatment that is not approved by the person given medical power of attorney.
Sources The Age
25/2/98 page 1 news item by Claire Miller, `Jehovah's Witness quits to save wife'
26/2/98 page 1 news item by Garry Linnell and Claire Miller, `Faith or love: Witness faces hardest choice'
5/3/98 page 15 comment by Daniel Batt, `On the fringe, the faithful suffer in a modern age'
The Herald Sun
25/2/98 page 1 news item by Carolyn Alexander, `Life Blood'
26/2/98 page 2 news item by Carolyn Alexander, `Woman wakes after birth drama'
26/2/98 page 11 news item by Carolyn Alexander, `Law change after death of girl, 12'
26/2/98 page 18 editorial, `Mother and child'
27/2/98 page 8 news item by Carolyn Alexander, `Elder says man must confess'
27/2/98 page 20 letter from Stephen Green, `Twisting the right to die'
28/2/98 page 20 analysis by Carolyn Alexander, `Foot in Heaven's door'
2/3/98 page 20 letter from Geoffrey Lacey, `Blood ban an old rule'
4/3/98 page 20 letter from Mrs. Sandy Ronchi, `Blood a lifesaver'
Internet
* It appears that the English Board of Studies may be refining its guidelines on the use of Internet sources for CAT I.
* Currently it is probably preferable for students to restrict their use of Internet sources to Part 2 of CAT I.
Please consult your teacher for direction on this matter
There are a number of Internet sources which have a bearing on this issue.
One is a document titled Killing the Willing ... And Others! Legal Aspects of Euthanasia and Related Topics by Greg Smith. This can be found at http://www.kyrie.com/actrtla/euth/bookeu/smith.htm
It is one of a number of papers originally published under the auspices of the Australian Federation of Right to Life Associations and so may have a particular bias. Apart from the title, however, such a bias is not strongly evident. You should also note that though it was published in 1992, most of the laws it discusses have not changed in the intervening period.
It is an interesting discussion on the rights of patients within Australia and in other countries to refuse medical treatment and includes a consideration of some of the provisions of the Victorian Medical Treatment Act.
It also discusses a Canadian case, Malette v Shulman (1988), in which a doctor gave a transfusion to a woman carrying a card stating she was a Jehovah's Witness. The Ontario High Court subsequently found that though the doctor had acted promptly and competently he had committed battery and ordered him to pay $20,000 for mental distress caused the patient.
Also of interest is a site which looks at this question entirely from an American perspective. It is titled, Treatment Refusal by Parents: State vs. Individual Rights and is based on a detailed examination of a 1964 case in which the court found that a transfusion could be given a Jehovah's Witness despite her objection and that of her husband. It can be found at http://www.gwumc.edu/pub/reform/story5.htm The article is on the Reform Watch web site produced by the George Washington University Medical Center.
Another useful site is Watchtower, the official web site of Jehovah's Witnesses. This can be found at http://www.watchtower.org/index.html If you click through to the section titled Medical Care and Blood and then click through to all related articles you will find extensive justifications for the Jehovah's Witness position. You need to be aware, however, that this information is presented entirely from a Jehovah's Witness point of view.
Finally there is an interesting critique of the Jehovah's Witness position on blood transfusion from a Christian perspective titled Blood transfusions: sustaining the purpose of God and written by David Henke. This can be found at http://www.iclnet.org/pub/resources/text/apl/jw/jw-087.txt
This is reproduced from the Watchman Expositor, a publication produced by the Watchman Fellowship.
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