Children of Jehovah's Witnesses and adolescent Jehovah's Witnesses: What are their rights?

Archives of Disease in Childhood

Volumn 90, Issue 7, 2005, Pages 715-719

  Woolley, S ^a  

^a BRISTOL ROYAL INFIRMARY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

BLOOD TRANSFUSION; DEATH; HEALTH PRACTITIONER; HUMAN; HUMAN RIGHTS; JEHOVAH'S WITNESS; MEDICAL ETHICS; PARENT; PARENTAL CONSENT; PRIORITY JOURNAL; RELIGION; REVIEW; TREATMENT REFUSAL;

ADOLESCENT; BLOOD TRANSFUSION; CHILD; CHILD WELFARE; HUMANS; JEHOVAH'S WITNESSES; LEGISLATION, MEDICAL; PERSONAL AUTONOMY; RELIGION AND MEDICINE; TREATMENT REFUSAL;

EID: 21544453617     PISSN: 00039888     EISSN: 14682044     Source Type: Journal    
DOI: 10.1136/adc.2004.067843     Document Type: Review

References (106)

1. Harrison BG. Visions of glory: a history and memory of Jehovah's Witnesses. New York: Simon and Schuster, 1978.
2. Stark R, Iannaconne LR. Why the Jehovah's Witnesses grow so rapidly, a theoretical application. Journal of Contemporary Religion 1997;12:133-57.
3. Ridley DT. Honoring Jehovah's Witnesses' advance directives in emergencies: a response to Drs. Migden and Braen. Acad Emerg Med 1998;5:824-35.
4. Khadra M, et al. A criterion audit of women's awareness of blood transfusions in pregnancy. BMC Pregnancy and Childbirth 2002;2:7 (www.biomedcentral.com/1471-2393/2/7).
5. Anon. The Watchtower, 1 July 1951, page 415: "A patient in hospital may be fed through the mouth, through the nose or through the veins. When sugar solutions are given intravenously, it is called intravenous feeding. So the hospital's own terminology recognizes as feeding the process of putting nutrition into one's system via the veins. Hence the attendant administering the transfusion is feeding the patient blood through the veins, and the patient receiving it is eating through his veins."
6. Meyer v Nebraska 262 US 390 (19231, Wisconsin v Yoder 406 US 205 (19721, Stanley v Illinois 405 US 645 (19721, Santosky v Kramer 455 US 745 (19821, Planned Parenthood v Casey 505 US 833 (19921, Burge v City and County of San Francisco 262 P.2d 6 (Cal. 1953).
7. In re Seithfert 127 NE.2d 820 (NY 1955), In re Green 292 A.2d 387 (Pa. 1972), State v Lockhart 664 P.2d 1059 (Okl. Cr. 1983), In re Hudson 126 P.2d 765 (Wash. 19421, Bradley v State 79 So. 651 (Fla. 1920).
8. Parental rights not absolute: Newmark v Williams 588 A.2d 1108 (Del. 1991), Jacobson v Massachusetts 197 US 11 (1905), Hawaii v Standard Oil Co. 405 US 251 (1972); Rejection of the Free Exercise Clause: Prince v Massachusetts (1944) 321 US 158, Walker v Superior Court 763 P.2d 852 (1988), Commonwealth v Barnhardt 497 A.2d 616 (Pa. Super. 1985), Craig v State 220 Md. 590 (1959), People v Pierson 176 NY 201 (1903), State v Norman 808 P.2d 1159 (Wash. Ct. App. 1991), Funkhauser v State 763 P.2d 695 (1988), Commonwealth v Nickson 718 A.2d 311 (Pa. Super. Ct. 1998), In Re Custody of a Minor 379 NE.2d 1053 (Mass. 1978), Commonwealth v Twitchell 617 NE.2d 609 (Mass. 1993).
9. CYPA 1933, s(1) and (2)(a) but liability here is not as a parent but as a person over 16 having the "custody, charge, or care" or a child under 16.
10. Dwyer JG. The Children we Abandon: Religious Exemption to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors. North Carolina L. Rev 1996;74:1321.
11. Queensland Law Reform Commission, Consent to medical treatment of young people: discussion paper 34-35 (1995) (internal citations omitted).
12. Prince v Massachusetts (1944) 321 US 158.
13. Ibid at 170.
14. In re Eric B. 235 Cal. Rptr. 22, 24-27 (Cal. Ct. App. 1987) ruling that despite absence of actual harm, threat of harm if child was not periodically monitored for cancer was sufficient to permit juvenile court's jurisdiction to order monitoring.
15. In re McCauley, 565, N.E.2d 411 (Mass. 1991 ) (ruling that best interests of child, coupled with state's strong interest in securing a life-saving blood transfusion, outweighed parents' constitutional objections); State v. Perricone, 181 A.2d 751 (N.J. 1962), cert. denied, 371 U.S. 890 (1962) (holding court-ordered blood transfusion did not violate parents' constitutional rights of religion or parental autonomy when the child's life was in danger); Wallace v. Labrenze, 104 N.E.2d 769 (Ill. 1952), cert. denied, 344 U.S. 824 (1952) finding that when parents refuse medical treatment for their child, the lack of which will almost certainly cause death or, at best, lifelong mental impairment, the child is neglected and the court may order the necessary treatment without violating the parents' constitutional rights); Morrison v. State, 252 S.W.2d 97 (Mo. 1952) (holding that state has power to preserve a child's life and health when medical treatment is as necessary for the child's survival as is food); Commonwealth v. Cattam, 616 A. 2d 988, 1000 (Pa. Super. Ct. 1992) (ruling that in criminal case against defendant parents over death of children due to neglect, validity and sincerity of religious beliefs of defendants and children are not relevant to issues presented at trial for failing in legal duty to provide for children, resulting in starvation death of son and severe malnutrition of daughter).
16. US Constitution amendment 1: "Congress shall make no law respecting an establishment af religion, or prohibiting the free exercise thereof...".
17. Lingle EA. Treating children by faith: colliding constitutional issues. J Legal Med 1996;17:301-6.
18. Reynolds v United States 98 US 145, 166 (1878), Employment Div. Dept of Human Resources v Smith, 494 US 872 (1990).
19. People ex rel. Wallace et al. v Labrenz et al., 104 N.E.2d 769 (IL 1952).
20. Ibid at 772: "We feel that we would be breaking God's commandment, also destroying the baby's life for future, not only this life, in case the baby should die and breaks the commandment, not only destroys our chances but also the baby's chances for future life. We feel it is more important than this life,"
21. Ibid at 773.
22. Morrison v State 252 S.W.2d 97 (MO C. of A. 1952): Janet Morrison, a 12 day old child with erythroblastic leukaemia, required blood to live. Her JW parents refused based on interpretation of Leviticus 17:10-14 and Genesis 9:4-5.
23. Ibid at 101-2.
24. State v Perricone 181 A.2d 751 (NJ 1962).
25. Hoener v Bertinato 171 A.2d 140 (NJ Juv. & Dom. Rel. C. 1961).
26. Santos v Goldstein 227 N.Y.S.2d 450 (NY 1962): "The parents, because of religious convictions, refused to give consent to a blood transfusion, which may have been required given the nature of the surgery."
27. "Neglected" within the meaning of section 2 (subd. [17], par. [g] of the New York City Domestic Relations Court Act). The court stressed that the parents were not negligent in any other way.
28. In re Clark 185 N.E.2d 128 (OH C. of Corn. Pl., Div. Of Dom. Rel. 1962): Kenneth Clark, a 3 year old boy with 40% burns, may have required a blood transfusion during his treatment. The hospital sought a court order declaring that blood may be administered if necessary because the child's JW parents would not consent to transfusion.
29. Ibid at 131.
30. Jehovah's Witnesses v King County Hospital 278 F. Supp. 488 (W.D. Wash. 1967) aff'd 390 U.S. 598 (1968).
31. Wash. Rev. Code § 13.04.010(12), § 13.04.095 (1961).
32. Jehovah's Witnesses v King County Hospital 278 F. Supp. At 504 (quoting Prince v Massachusetts, 321 U.S. 158, 166-67 (1944) (quoting People v Pierson 176 N.Y. 201, 68 N.E. 243)).
33. In re Green 448 Pa. 338, 292 A.2d 387 (PA Supreme Court, 1972).
34. In re Sampson 317 N.Y.S.2d 641 (NY Fain. C. 1970).
35. Muhlenberg Hospital v Patterson 320 A.2d 518 (NJ Sup. C., Low D. 1974).
36. In Interest of Ivey 318 So.2d 53 (FL D.C. of A., 1 Dist 1975).
37. In the Matter of Tara Cabrera, a Minor 552 A.2d 1114 (Pa. Super. 1989) 6 year old girl, parental objection to transfusion for sickle cell anaemia. Court confirmed that state interests overrode parents' religious objections. Limited therapy to one year.
38. In the Interest of JV, a Child 516 So.2d 1133.
39. In the Matter of Baby Girl Newton, 1990 WL 54916 (Del.Ch.) (Unpublished opinion)-court appointed guardian because of risk of imminent serious physical harm.
40. In the Matter of Elisha McCauley 565 N.E.2d 411 (Mass. 1991).
41. Cooper v Wiley 513 N.Y.S.2d 151 (A. D. 1 Dept. 1987).
42. Custody of a Minor 375 Mass. 733, 379 N.E.2d 1053 (1978).
43. Jacobson V Massachusetts 197 U.S. 11 (1905).
44. Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 72E as per Lord Goff.
45. In Re B (A Minor)(Wardship: Medical Treatment) 1 WLR 1421 (1981).
46. Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1, 32 as per Johnson J: "I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside."
47. Gillick v West Norfolk AHA [1986] 1 AC 12 at 184G as per Lord Scarman.
48. Re R (A Minor)(Wardship: Consent to Treatment) [1992] Fam. 11 at 22 as per Lord Donaldson of Lymington MR.
49. "...the common low has never treated such rights as sovereign or beyond review and control". Gillick v West Norfolk AHA [1980] 1 AC 112 at 184A as per Lord Scarman.
50. J v C [1970] AC 608.
51. The Queen v Robert Downes (1875-1876) LR 1 QBD 25 Crown Cases Reserved. This case reversed a previous decision made in The Queen v Wagstaffe 10 Cox. Crim. Cas. 530 (1868) where the jury returned a not guilty verdict on parents who had allowed their child to die from a treatable illness because they were members of the "Peculiar People" who did not believe in conventional medical therapy. This case was responsible for the "Poor Law Amendment" which mandated the administration of conventional medical therapy for children whose health was imperilled, irrespective of religious beliefs,
52. Re O (A Minor) (Medical Treatment) [1993] 1 FCR 925, [1993] 2 FLR 149.
53. Re S (A Minor) (Medical Treatment) [1993] 1 FLR 376.
54. Re R (A Minor) (Blood Transfusion) [1993] 2 FCR 544.
55. Skene L. You, your doctor and the law, Melbourne: Oxford University Press, 1990:172.
56. Western Australia: Human Tissue and Transplant Act 1982 section 21; Queensland: Transplantation and Anatomy Act 1979 section 20; Tasmania: Human Tissue Act 1985 section 21; Victoria: Human Tissue Act 1982 section 24; Australian Capital Territory: Transplantation and Anatomy Act 1978 section 23; Northern Territory: Emergency Medical Operations Act 1973 sections 2 and 3; South Australia: Consent to Medical and Dental Procedures Act 1985 sections 6(2), (3), (5), (6); New South Wales: Children (Care and Protection) Act 1987 section 20A.
57. Western Australia, Queensland, Tasmania, Victoria, ACT: "...if child is in danger of death without treatment.."; Northern Territory: "...if it is not reasonably practical to delay until consent is obtained and the patient is in danger or dying or of suffering a serious permanent disability"; South Australia: "...if the emergency procedure is required to meet an imminent risk to the life or health or the child"; New South Wales:"if the treatment is necessary to save the life of the child or prevent serious damage to his/her health".
58. Birkett v Director General of Family and Community Services (Unreported decision of Supreme Court of New South Wales, 3 Feb. 1994, No. 3161 of 1991).
59. Dalton v Skuthorpe (unreported decision of Supreme Court of New South Wales, 17 Nov. 1992, No. 5094 of 1992.
60. Marchant v Finney (unreported decision of Supreme Court of New South Wales, 31 July 1992, No. 3599 of 1992).
61. Director General, Department of Community Services Plaintiff and BB Defendants [1999] NSWSC 1169 (19 November 1999).
62. Family Law Reform Act 1969 Section 1 (1).
63. Gillick v West Norfolk and Wisbech AHA [1985] 3 All ER 402.
64. Ibid at 420.
65. Re R (A Minor) (Wardship: Consent to Medical Treatment) [1992] Fam. 11.
66. Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam. 64.
67. Re R (A minor) (Wardship: Medical Treatment) [1991] 4 All ER 177.
68. Ibid at 187E by demonstrating "a full understanding and appreciation of the consequences, both of the treatment in terms of intended and possible side effects, and equally important, the anticipated consequences of a failure to treat".
69. Ibid at 246F: "There can be concurrent powers to consent. If more than one body or person has a power of consent, only a failure to, or refusal of, consent by all having that power will create a veto".
70. Family Law, All ER Annual Review, 176, 178-179 (1991).
71. Fennell P, et al. Medical Law, All ER Annual Review 230 at 235 (1991).
72. Supra note 66 at 94.
73. Re S [A Minor) (Wardship: Medical Treatment) [1994] 2 FLR 1065.
74. Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386.
75. Re L (Medical Treatment: Gillick Competence) [1999] 2 FCR 524, [1998] 2 FLR 810.
76. Under the Family Law Reform Act 1969.
77. Supra note 74 "He is a boy of sufficient intelligence to be able to take decisions about his own well-being, but...there is a range of decisions of which some are outside his ability fully to grasp their implications. Impressed as I am by his obvious intelligence, by his calm discussion of the implications, by his assertion that he would refuse well knowing that he may die as a result, in my judgement [he] does not have a full understanding or the whole implication of what the refusal of that treatment involves".
78. Supra note 74 at 394E: "I have to take account of the fact that teenagers often express views with vehemence and conviction-all the vehemence and conviction of youth...remember the convictions we have loudly proclaimed which we now find somewhat embarrassing".
79. Supra note 74 at 394F: "...I find it essential for his well-being to protect him from himself and his parents...".
80. Ibid: "There were a lot of things that concerned me, the patness of her replies, some of her phrases. She and her mother were using exactly similar phraseology. [S] was not able to explain her thoughts except that, 'it was said in the Bible'. She had no understanding of the manner in which she might die."
81. Ibid at 615: "She does not understand the full implications of what will happen. It does not seem to me that her capacity is commensurate with the gravity of the decision which she has made. It seems to me that an understanding that she will die is not enough. For her decision to carry weight she should have a greater understanding af the manner of the death and pain and the distress."
82. Harper RS. Medical treatment and the law. The protection of adults and minors in the family division. Bristol: Family Law, Jordan Publishing Limited, 1999:88.
83. 83 BRB v JB [1968] 2 All ER 1023 at 1025D Lord Denning MR: "...the views of the child should be taken into consideration; but the child's views are never decisive".
84. Re LDK; Children's Aid Society of Metropolitan Toronto v K and K (1985) 48 RFL (2d) 164, 23 CRR 337.
85. Defined by the Child Welfare Act RSO 1980 c. 66, s. 19 sub-clause (ix): "a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or well-being, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately".
86. Re Y.(A.) (1993) 111 Nfld. & PEIR 91, 348 APR 91.
87. Ibid as per Wells J: "I am not satisfied that in this particular case that the use of blood products as a follow up to the chemotherapy is considered essential by the qualified medical practitioner from whom I have heard, and in whom I have every confidence."
88. Ibid as per Wells J: "I am satisfied that he believes, with all his heart, that to take blood would be wrong, and that to be forced to take blood in the circumstances about which we are speaking, would be an invasion of his body, an invasion of his privacy, and an invasion of his whole being, to the extent that it would impact severely on his strength and ability to cope with the dreadful ordeal that he has to undergo, whatever the outcome."
89. Walker (Litigation Guardian of) v Region 2 Hospital Corp. (1994) 4 RFL [4th) 321, 116 DLR (4th) 477, 150 NBR (2d) 366, 385 APR 366.
90. The Medical Consent of Minors Act was enacted in 1976. New Brunswick is the only province that has enacted the act.
91. H (T) v Children's Aid Society of Metropolitan Toronto (1996) 138 DLR (4th) 144 (sub nom. Children's Aid Society of Metropolitan Toronto v TH) 9 OTC 274, 37 CRR (2d) 270.
92. U (C.)(Next Friend of) v Alberta (Director of Child Welfare), 2000 ABQB 626, [2001] 3 WWR 575, 273 AR 106, 87 Alta LR (3d) 144, 3 WWR 575, [2000] AJ No. 1067.
93. Alberta (Director of Child Welfare) v H (B), 2002 ABPC 39, [2002] 11 WWR 752, 6 Alta LR (4th) 34, 31 RFL (5th) 16.
94. Hawkins SD. Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes. Fordham Law Review 1996;64:2075-6.
95. Planned Parenthood v Danforth 428 US 52 (1976).
96. Felsman JP. Eliminating parental consent and notification for adolescent HIV testing: a legitimate statutory response to the AIDS epidemic. JL & Pol'y 1996;5:339.
97. Batterman N. Under age: a minors right to consent to health care. Touro L Rev 1994;10:637.
98. Ark. Stat. Ann. § 20-9-602(7)(Michie 1991); Nev. Rev. Stat. § 129.030(2) (1991).
99. In re EG 549 N.E.2d 322 at 328 (Ill. 1989).
100. Namely: preserving life, protecting third parties, preventing suicide and protecting the medical profession.
101. In re Long Island Jewish Med. Ctr., 557 N.Y.S.2d 239, 243 [Sup. Ct. 1990).
102. Novak v Cob-County-Kennestone Hospital 849F Supp 1559 (NDGA 1994).
103. Ibid Child was unaware of the relevant Biblical passages, stated several times that a court-ordered transfusion absolved him of responsibility, and classed himself as a child.
104. In re Rena 705 N.E. 2d 1155 (Mass. 1999).
105. Ibid at 1157 (stating "(1) the patient's expressed preferences, if any; (2) the patient's religious convictions, if any; (3) the impact on the patient's family; (4) the probability of adverse side effects from the treatment; (5) the prognosis without treatment; and (6) the present and future incompetency of the patient in making that decision").
106. In re EG 549 N.E.2d 322 at 328 (Ill. 1989), Belcher v Charleston Area Med. Ctr., 422 S.E.2d 827 (W. Va. 1992) and W. VA. CODE § 16-30C-6 (1998); Cardwell v Bechtol 724 S.W.2d 739 (Tenn. 1987).