When disagreements over the medical treatment of children come before the courts, one of the key considerations is the best interests of the child. Other considerations include the child’s wishes and feelings (depending on their age) and the psychological and social impact on them of any decision. Also borne in mind is the right to respect for private life and freedom of religion. But what happens when these considerations are at odds with each other? How does a court balance the views of parties who differ in opinion as to whether medical treatment would be in the best interests of the child?
This is a common problem. The recent case of E & F (Minors: Blood Transfusion)  EWCA Civ 1888 (14 December 2021) involved two teenagers who (due to their religious beliefs) did not wish to have blood transfusions whilst receiving treatment in hospital. Both E and F were in situations where a need for them to have an emergency blood transfusion may arise during their treatment. There was no guarantee that the need would arise but, if it did, without the blood transfusion it was likely they would die. E and F made their wishes clear – they did not want a blood transfusion. Their parents agreed.
The respective hospital trusts applied for the court to decide whether they could treat the teenagers with a blood transfusion. In both instances the court ordered that they could. It considered the teenagers’ decisions, that they were both intelligent, articulate people who were nearly 18, when they would have autonomy to make decisions for themselves. The court also considered the psychological and social impact having a blood transfusion would have on two young people who had strongly held beliefs that this was wrong. These considerations had to be balanced against what the court deemed was in the best interests of E and F. The court decided it could not be in the children’s best interests not to have the transfusions, should the need arise. In both cases, an order was made for the transfusions to go ahead. Ultimately and thankfully, the need for the transfusion did not arise, but both E and F sought to appeal the decision.
On appeal, E and F argued that at the ages of 16 and 17 respectively, their decision should be respected and the court should not intervene. Their right to a private life and to freedom of religion were being infringed. The hospital Trusts responded that there was no presumption that anyone under the age of 18 has complete autonomy to make their own decisions. The young person’s welfare, and consequently the preservation of their life, must be the primary considerations.
The judge commented that it was still the court’s responsibility to make the decision on behalf of the young person, even if that young person was nearly 18 years old. The judge repeated that assessing the child’s welfare was crucial when it came to making any such decision, but this assessment did not happen in a vacuum. The law attaches the highest value to human life but will also consider the quality of life as experienced by the individual. The court will pay increasing regard to the views of children and young people as they grow older but there is a presumption held by the court that it is in any person’s best interests to stay alive. This presumption must be balanced against a person’s free will. Subsequent decisions by the court have confirmed this approach.
The judge in E and F’s case considered this was still the approach to take. They deemed that in the initial court hearings, the judges had both followed this approach, so their decisions to order that the blood transfusions should be made if the need arose were not wrong. Ultimately, both E and F’s appeals were dismissed, confirming once again that the court still has the power to intervene in matters of disagreements over medical treatment, and where a competent minor has made a decision that could ultimately lead to their death, the court has the power to override this decision if they deem it to be in the best interests of the child.