The older child and medical treatment decisions – mental capacity or competence?

Re J (Blood Transfusion: Older Child: Jehovah’s Witnesses) [2024] EWHC 1034 (Fam) is a characteristically thoughtful judgment from Cobb J, concerning whether authorisation should be given to provide a 17 year old Jehovah’s Witness with blood products in a planned operation. In analysing the legal framework,  Cobb J was taken to the decision of the Court of Appeal in E v Northern Care Alliance NHS Foundation Trust and F v Somerset NHS Foundation Trust [2021] EWCA Civ 1888 (‘E and F’).  He resisted, however, the submission by the Trust that the decision set out the proposition that there can be a point in cases involving the medical treatment of those under that 18 that “the discretionary powers on the court to intervene convert into a duty on the court to intervene to preserve the young person’s life” (paragraph 33).

Cobb J noted at paragraph 35 that:

I do not interpret the remarks in Re E & F set out in the foregoing paragraphs (§33/34) to mean that where proposed medical intervention carries with it any risk of loss of life, the court is obliged to authorise treatment so as to preserve the young person’s life. That would be to negate the lodestar of welfare in the widest sense. Nor do I believe that those remarks are intended to contradict the earlier remarks about the two transcendent factors in play when considering the welfare of a mature young person (see [50] Re E & F, and §31 above). When considering authorising medical treatment which is opposed by a competent young person (using ‘competent’ in the context of Gillick above), it is crucial that the court should consider, among other factors, the chronological age and level of maturity of the individual young person, their intelligence and understanding of the issues and risks, the nature of the specific decision to be made, objectively the full set of risks involved both ways (of having or not having the treatment and its consequences), the reasons given by the young person for their decision, and the prospective quality of the life to be lived should the unwanted treatment be successful in preserving the minor’s life. As the Court of Appeal made clear in Re E & F it is important that the court identifies:

“… the factors that really matter in the case before it, gives each of them proper weight, and balances them out to make the choice that is right for the individual at the heart of the decision” ([52]).

Applying the legal framework set out in E & F to the facts of the case before him, Cobb J found that, although it was very small, the risk of serious haemorrhaging did exist, and that there was a need for intervention, such that the need to consider authorising the giving of blood could not be avoided.

As to J’s welfare, Cobb J made clear he had:

44. […] found this to be an extremely finely balanced decision which directly and poignantly engages the “two transcendent factors” referred to in Re E & F, namely the preservation of life and personal autonomy. It is plain that the subject young people in Re E & F felt “aggrieved” ([5]) that their views were overridden, and I am satisfied that J would feel the same. Even though the body of case law to which I have been referred has generally concluded with a decision in favour of treatment, I am conscious that “that is not the invariable outcome” (per Re E & F at [65]). To be faithful to the rich seam of pronouncements in this area I wish to emphasise that judicial ‘respect’ for the ‘views of the mature child’ is not a tokenistic mantra; it must be given true meaning, and where appropriate, full effect. To some degree this is demonstrated by the decisions of Moor J in A South East Trust v AGK[2019] EWFC 86 and to the decision of Cohen J in A Teaching Hospitals NHS Trust v DV (A Child) [2021] EWHC 1037 (Fam), where the objections of young people to the administration of blood products held sway. However, the distinguishing feature between those cases and this is that in AGK and DV no significant opposition was offered by the medical profession to the minor’s objections.

45. J is only a matter of weeks away from being an adult as a matter of law. He has limited – but nonetheless evolving – experience of mature decision-making; he has first-hand experience of the death of someone of whom he was fond. He already shows many attributes of adulthood. I found him to be an impressive young man with clear thoughts and expression. I am satisfied that he knows his own mind, and is aware of the risks to which he is exposing himself in declining blood products in the unlikely event that they would be needed in this operation. J’s clear and unequivocal decision in this regard, and his reasoning, are rooted in his faith; I respect his well-recognised right under Article 9 of the ECHR to manifest and observe his religion. The Applicants recognise that J’s beliefs about blood products are “long held and considered”. I accept that if I were to accede to this application and blood products were therefore administered intra-operatively or post-operatively, this would be likely to affect J’s sense of self-determination, his fidelity to the tenets of his religion, and the quality of his life going forward. I am satisfied that while blood products may save his life, their administration against his wishes would lead to him experiencing a much reduced quality and enjoyment of that saved life, and he would be ‘tormented’ by having other blood in his veins. 

46. Having weighed all of the matters outlined above, I have concluded that in this case it is in J’s best interests for his own decision to refuse the administration of blood or blood products in surgery to prevail, and I propose therefore to refuse the application for the court’s authorisation to administer blood products in the event of emergency in the upcoming operation. 

47. The order must reflect my conclusions about J’s competence to participate in this litigation without a guardian, and to make decisions about the planned medical treatment. I shall declare that it is lawful, being J’s decision and in accordance with his best interests, for his treating clinicians not to administer whole blood or primary blood products, even if in the opinion of the treating clinicians the transfusion of blood or blood products may preserve J’s life, or prevent severe permanent injury or irreversible physical or mental harm. I shall further provide that if prior to the procedure J consents to having such blood or blood products, such treatment will be provided as long as his clinicians consider this to be clinically indicated.

In a postscript, Cobb J relayed that the surgery did proceed, that it was successful, and the post-operative period has passed without complication.


For those working with Jehovah’s Witnesses, this guidance from the Association of Anaesthetists of Great Britain and Ireland may be of assistance.

Cobb J’s statement that the need for judicial respect for the views of a mature child is clear and important.  It is also clear and important that this case was framed as one where J was recognised as having the ability to make his own decision, the relevant question being whether it should be overridden.  This is very much in line with the decision of Munby J in NHS Trust v X, the most detailed post-Human Rights Act 1998 analysis of the position of children who wish to refuse treatment.  In NHS Trust v X, Sir James Munby also made the important point that (at paragraph 78) consent and refusal are two sides of the same coin of the child’s ability to make a decision. That approach is important, because it helps avoid the temptation to deny that the child has the ability to make a decision which the medical professionals do not like. The more respectful approach, I would suggest, is agree that they have that ability, and then focus clearly in on whether there is some countervailing factor of sufficient strength to override it.

One oddity about J’s case, though, is that Cobb J framed the question of J’s ability to make the decision as a matter of Gillick competence.[1]  At paragraph 24, Cobb J had no hesitation in concluding that:

J is a competent young person with an understanding, maturity, and intelligence which equips him well to make his own decision, and give consent, in relation to the medical treatment issues, in line with the principles discussed in Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] AC 112 at 171 (Lord Fraser), and 186 (Lord Scarman). I consider that he is capable of appreciating fully the nature and consequences of the treatment which is proposed for him; all of these issues are questions of fact (Gillick at p.189/190). I am equally satisfied that the views which he expressed are authentically his own, free from influence of his parents or others.

Cobb J does not appear to have been addressed on this point, so it is not clear the extent to which his observations reflect a considered discussion of the matter.

By contrast, Sir James Munby was addressed in detail on this in NHS Trust v X at paragraph 77, and set out his views as follows:

(1) Until the child reaches the age of 16 the relevant inquiry is as to whether the child is Gillick competent.

(2) Once the child reaches the age of 16:

(i) the issue of Gillick competence falls away, and

(ii) the child is assumed to have legal capacity in accordance with section 8 [Family Law Reform Act 1969], unless

(iii) the child is shown to lack mental capacity as defined in sections 2(1) and 3(1) of the Mental Capacity Act 2005.

Sir James Munby’s approach has recently been followed by Cusworth J in the context of life-sustaining treatment (see here), and also MacDonald J in the context of gender-affirming treatment (see here).  Conversely, it would be possible to read the decision of Judd J in  O v P & Anor [2024] EWHC 1077 (Fam) (also concerning gender-affirming treatment) as if Gillick competence remained the test post-16. However, this was not the central focus of the case,[2] so it is not clear that this can be prayed in aid as a case in the competence camp.

On one view, we are in the unhelpful situation in relation to 16 and 17 year olds where four possibilities present themselves:

  • Mental capacity and competence mean different things and some judges are applying the wrong test.
  • Mental capacity and competence mean the same thing, in which case interesting (as in difficult) questions apply as to why Parliament uses the two different terms in the same legislation (see for instance the Mental Health Act 1983 provisions relating to treatment in the community, which draw a distinction between competence for children under 16 and mental capacity for those aged 16 or over).
  • Mental capacity is the test to apply in some medical treatment situations but not others, in which case the question arises to which test to apply and why.
  • Mental capacity is necessary but insufficient, which may feel intuitively true, but again raises questions as to what else is needed and how to tell whether the person has it.

Our wait for the next iteration of the MCA Code continues; that may give an opportunity for clarification, but cannot make the law.  Given that there is ever greater focus on the ability of children to make their own decisions, not least in the context of gender affirming treatments, I would hope that we can get (likely appellate) level of the position sooner rather than later. In the meantime, and not just because I was in NHS Trust v X, I would suggest that Sir James Munby’s analysis – the most detailed since the MCA 2005 came into force – is the correct one.

[1] To the extent that Cobb J was directing himself by reference to E & F, it is worth noting that the question of competence / capacity was not in issue before the Court of Appeal, which also used the two phrases interchangeably (including in relation to a child below 16 – see paragraph 67); that decision cannot therefore be said to represent a definitive determination of the position.

[2] Which was, in effect, on whether the court could or should ever prevent a child (with the requisite ability) from consenting from treatment being offered by a treating doctor (see paragraph 57).  As Judd J implicitly recognised, and the Cass Review explicitly sets out in chapter 16, any treatment, whether gender-affirming or otherwise, must be clinically appropriate for it to be on the table (and hence for questions of competence / capacity to be relevant).

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