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Patient Rights Challenged!

By Awake! correspondent in South Africa

“If a blood transfusion is not given within the next 6 hours, the patient could die.” These words formed part of an urgent application presented to the Supreme Court of South Africa, in Pretoria, on April 26, 1982.

WHOSE life was in danger? Why was the Supreme Court asked to decide whether this form of medical treatment should be administered or not? More importantly, what was the outcome?

Ten days earlier, Malcolm John Phillips, an electrical engineer of Johannesburg, had been involved in a serious motor accident some 186 miles (300 km) from his home. Soon the police were on the scene, and after more than two hours he was freed from the wreck and brought by ambulance to the nearest hospital, in Pietersburg. Although in serious condition, with both legs badly broken, Malcolm was still conscious on arrival. He informed the personnel that under no circumstances was he to be given a blood transfusion. Moreover, he offered to furnish a written statement absolving the doctor of legal responsibility for any possible unfavorable consequences resulting from such refusal. As one of Jehovah’s Witnesses, Malcolm was concerned about obeying the Biblical command: “Keep abstaining from . . . blood.”​—Acts 15:19, 20, 28, 29.

At first, as he underwent emergency treatment in the hospital, his wishes were respected. However, after a few days he developed a lung infection and was urged to change his mind about blood. At his continued refusal, the orthopaedic surgeon involved took the matter to the Supreme Court. This was done without the knowledge of either Malcolm or his wife, Veronica, who was constantly at her husband’s side. Even Dr. Pierre du Toit Burger who was treating the lung infection knew nothing about it.

“On the 26th of April,” states Veronica, “I arrived at the hospital to visit my husband as usual. His condition was as it had been for the last few days. There was no indication of any deterioration from the 26th and no one gave me to understand that this was the case.”

Later that day Veronica received a shocking telephone call from a newspaper reporter with the Rand Daily Mail. He wanted to know how she felt about the order issued by the Supreme Court permitting any doctor at the hospital to force a blood transfusion on her husband. The orthopaedic surgeon who succeeded in obtaining this court order was away from the hospital that day. He telephoned Dr. Burger, instructing him to carry out the court decision. However, Dr. Burger refused, already having assured Malcolm that he would abide by his wishes.

Malcolm never did receive a blood transfusion. That same day, with the help of his wife, legal proceedings were initiated to protect his rights. The next day Malcolm’s firm kindly arranged to have him flown to another hospital nearer home.

Straightening Out a Legal Tangle

Do you find it hard to believe that an adult patient’s rights could so easily be overridden? Well, recent trends of thought may explain matters. In March 1982 the medical journal Geneeskunde carried an article entitled “Blood transfusion on Jehovah’s Witnesses.” It stated that a doctor should ignore a patient’s refusal to receive a blood transfusion. The writers, Professor T. Verschoor and N. J. Grobler, also claimed that if death should result from such refusal, the attendant doctor could be held responsible. This article was published one month before Malcolm’s accident.

By way of reply, about a year later an advocate of the Supreme Court, Professor Smit, wrote:

“This principle postulated by Grobler and Verschoor as supposedly inherent in South African law finally amounts to the following: A doctor has a professional duty to heal! . . . In the first place, such a legal obligation would be a serious infringement of personal rights, that is, rights with respect to physical integrity, privacy, etc. . . . Secondly, such a hypothetical (for it cannot be viewed as anything but a mere hypothesis) professional duty upon a doctor would have completely untenable and unrealistic consequences and implications for members of this profession. . . . Grobler and Verschoor restrict themselves to Jehovah’s Witnesses and vital blood transfusions. . . . But legal principles do not apply only to groups of persons and under certain circumstances, but are universal. . . . Jurists should seriously consider the matter before they impose almost Draconian and totally unrealistic duties on a certain group of persons in society.”​—South African Medical Journal, February 19, 1983.

In agreement with this, many people, including doctors and lawyers, were of the opinion that a serious legal error had taken place in the case of Malcolm Phillips. And so it is not surprising that after he had recovered sufficiently, Malcolm commenced legal proceedings in the Supreme Court to have the court order set aside. When the case was tried on March 9, 1983, the surgeon who made the original “urgent” application did not contest. Malcolm’s defense was led by Professor Strauss, author of the book Doctor, Patient and the Law. The legal brief he handed to the court contained such fine principles as the following:

“The Applicant [Malcolm Phillips] was fully capable of expressing his will and of refusing to be administered blood notwithstanding the fact that he was seriously injured in an accident. There is no principle in our law whereby a Court can overrule a patient’s will in these circumstances. . . . To perform a medical operation or to administer treatment to a person against his will or even without his consent amounts to an assault, for which the doctor may be criminally prosecuted . . . It is submitted that once the doctor has reasonable grounds for believing that the patient is a Jehovah’s Witness and has at an earlier stage expressed a firm refusal to be given a blood transfusion should this be contemplated at a future stage, the doctor has no right to override the will of the patient, nor, with respect, would a court of law be entitled to do so.”​—Italics ours.

The judge said he was satisfied that Malcolm Phillips was of sound mind at the relevant time and was entitled to refuse blood. The order previously made was erroneous, the judge said, and accordingly he ruled that it be set aside.

The Happy Outcome

Lovers of justice in South Africa are happy with this outcome. The right of a patient to accept or refuse certain treatment has been upheld. Malcolm Phillips did not die within the asserted six hours. As Dr. Burger, who treated him at the time, said: “Although the patient’s condition was serious and alarming, he was not dying.” Jehovah’s Witnesses deeply appreciate the services of such doctors, who are willing to treat the whole patient, respecting conscientious, Bible-based views.a

Although Malcolm’s recovery was slow, eventually he got back the use of his legs. Now, over a year after his accident, he is glad to be back at work. As a family head and an elder in the local congregation of Jehovah’s Witnesses, he is quite busy. And he is especially delighted to participate once again in witnessing from house to house, sharing with others the good news of God’s Kingdom.

[Footnotes]

[Blurb on page 25]

Many people were of the opinion that a serious legal error had taken place

[Picture on page 26]

Malcolm Phillips studying the Bible with his family one year after his accident