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Højesteret

01 feb 2022

Højesteret

Blood transfusion to member of Jehovah's Witnesses was legal

It was legal to administer a blood transfusion to an unconscious patient who was a Jehovah’s Witness in a life-threatening situation

Case no. BS-49811/2020-HJR
Judgment delivered on 1 February 2022

The Danish Agency for Patient Complaints
vs.
The estate left by A
and
B

A, who was a member of the religious community Jehovah’s Witnesses, was admitted to hospital as an emergency patient after a fall. After having been in hospital for 2-3 days, he was given a blood transfusion while unconscious. The hospital staff knew that A had previously stated that, as a member of Jehovah’s Witnesses, he did not wish to receive blood under any circumstances, regardless of whether it was to save his life. This was indicated on, among other things, a card carried by A when he was admitted. One month later, A passed away without ever gaining consciousness. The cause of death was not related to the blood transfusion.

The main issue before the Supreme Court was whether the blood transfusion had been performed in contravention of the Danish Health Act or the European Convention on Human Rights.

The Supreme Court established that there was legal basis in the Health Act to administer a blood transfusion to A while he was unconscious. The Supreme Court gave importance to the fact that, after the accident, A had not been able to express his wishes for treatment of the current medical situation. The fact that A was carrying a card showing that he did not wish to receive blood when he fell and was admitted to hospital did not fulfil the requirement in Section 24(2) of the Health Act that refusal to receive blood must be made on an informed basis considering the current medical situation. The Supreme Court also gave importance to the fact that A was in a condition where a blood transfusion was necessary for him to survive at the time when it was administered.

The Supreme Court also stated that there was no basis for holding that the treatment was in contravention of the European Convention on Human Rights. The Supreme Court based this on, among other things, the fact that the case law of the European Court of Human Rights did not give grounds to assume that the national legislator as part of a balancing of concerns and interests was barred from laying down further conditions governing when expressions by members of Jehovah’s Witnesses of a wish not to receive blood are to be binding on healthcare personnel. The Supreme Court also considered the fact that haematopoietic medication, among other things, was administered to A during his first days in hospital to accommodate his previous refusals to receive blood.

The High Court had reached a different conclusion.