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2021, vol. 78, br. 7, str. 782-788
Pravo Jehovinih svedoka da prihvate ili odbiju transfuziju
aUniverzitet u Beogradu, Pravni fakultet
bUniverzitet u Beogradu, Medicinski fakultet + Klinički centar Srbije, Klinika za vaskularnu hirurgiju, Beograd
cUniverzitet u Beogradu, Medicinski fakultet

e-adresadavidovic.lazar@gmail.com
Ključne reči: Jehovini svedoci; bolesnik, prava; transfuzija krvi; bolesnik, odbijanje lečenja
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Introduction

In 1829, James Blundell, an English physician (obstetrician), performed the first successful human-to-human blood transfusion [1]. Contemporary era of transfusion medicine begins with a groundbreaking discovery of an Austrian physician, Karl Landsteiner, who introduced blood types A, B and 0 in 1901. For this, he received the Nobel Prize in medicine and physiology [2].

Transfusion is undoubtedly one of the greatest leaps in medicine, enabling treatments of, by then, incurable diseases. It also enabled performing extensive surgical treatments that often involve recoupment of the entire circulatory volume - the so-called exsanguine transfusion (thoracoabdominal aortic aneurysm - TAAA). Still, a question arises of whether the "complex" surgical interventions can be performed without transfusion of someone else's - allogeneic blood. This issue can be resolved in two ways. The first is preoperative blood donation from an individual who is to undergo surgery, which, of course, is possible only in case of planned, elective surgeries, or in case patient's condition is suitable for preoperative blood donation. The second way is intraoperative blood salvaging and autotransfusion. A study from the Clinic for Vascular and Endovascular Surgery, Clinical Center of Serbia (CCS), showed that intraoperative blood salvaging and autotransfusion reduce the 30-day mortality in patients treated for TAAA rupture [3]. Even though this method significantly reduced the need for allogeneic blood transfusion (donor blood), it cannot be completely eliminated. Is it possible to perform even slightly more complex surgeries in patients who refuse to accept someone else's (allogeneic) blood? This mainly concerns Jehovah's Witnesses. At the CCS, only one TAAA surgery has been performed in a Jehovah's Witness patient, without allogeneic blood transfusion. Due to a high risk, only a small number of medical institutions in the world would accept to perform a surgery on a Jehovah's Witness patient without transfusion of allogeneic blood. One of the largest studies regarding this topic included 144 Jehovah's Witnesses who had undergone complex cardiovascular procedures (aortic surgery, aorto-coronary bypass, valvular surgery, heart transplant) in the period between 1999 and 2014 without allogeneic blood [4].

However, while it is possible to perform elective surgeries without transfusion of allogeneic blood, that is not possible in cases of emergency where patients have already suffered due to excessive blood loss (injuries, TAAA rupture, etc.). The same applies to patients who are planned to undergo elective surgery but have certain hematological diseases.

The aim of this paper is to answer the following questions: whether a Jehovah's Witness patient has the right to refuse transfusion; whether a Jehovah's Witness patient has the right to accept transfusion; is it allowed to administer blood transfusion to a Jehovah's Witnesses if they are in a state of unconsciousness; whether intraoperative blood salvaging can resolve the conflict between patients′ rights to refuse a medical treatment based on their religious beliefs and their need to receive an adequate medical treatment. The authors will also attempt to answer the questions on whether a physician may cancel surgical treatment if a patient refuses transfusion due to religious reasons.

Jehovah's Witnesses Organization

Jehovah's Witnesses are a neo-protestant Christian denomination [5]. The Organization of Jehovah's Witnesses was formed at the end of the 19th century in Pennsylvania, USA [6]. In 1884, a non-profit corporation, called The Watch Tower Bible and Tract Society of Pennsylvania (WTS), was established. This is the central organization of Jehovah's Witnesses on a global level, whereas, there is a number of branches worldwide [7]. This organization has more than eight million active followers [8]. The highest authority in its hierarchy is the Governing Body of Jehovah's Witnesses. The Jehovah's Witnesses consider that "the Governing Body is a small group of mature Christians" invited to direct Jehovah's Witnesses and supervise their actions worldwide [9]. The highest organ in Jehovah's Witnesses hierarchy, based on its interpretation of the Bible, has introduced various bans that followers are obliged to adhere to. Some of the bans are medical bans. In the period from 1921 to 1952, vaccination was banned. The WTS claimed that "Vaccination is a direct violation of the everlasting covenant that God made with Noah after the flood" [10]. The governing body of the Jehovah's Witnesses also put a ban on organ transplant for a certain period of time [10]. Due to medical reasons, leaders of the Jehovah's Witnesses religion even banned the usage of aluminum cookware [11]. Global community of Jehovah's Witnesses calls its followers to accept in obedience any change in doctrine prescribed by the leadership. The majority of Jehovah's Witnesses obediently accepted the change in regard to vaccination and transplantation, without questioning whether the abandoned doctrine lead to health decline and loss of life [12]. The WTS calls its followers to sustain from free thinking [13]. Should an individual, after demonstrating negative options on their organization, fail to express a satisfactory level of repentance, one will be excommunicated. The excommunication entails even a ban on greeting in case one meets the other follower in the street. Even cessation of communication with other family members who remained members of Jehovah's Witnesses organization is expected [14].

Ban on transfusion

Jehovah's Witnesses ruling body introduced a religious ban on transfusion on July 1st, 1945 [15]. The Holy Bible does not allow eating the blood [16]. Rigid interpretation of the Bible promoted by the WTS equalizes accepting blood transfusion and eating the blood [17]. The refusal of transfusion and blood products by Jehovah's Witnesses makes this group a unique medical population [18]. In 1961, the WTS corporation started to meticulously implement their doctrine on blood transfusion among their followers and they introduced the so-called "no-blood card", which is a specific form. Carrying the signed "no-blood card" became a religious duty of every Jehovah's Witness. With time, the form got modified and modernized [19]. The current form that Jehovah's Witnesses have on their person was signed in January 2016 and its official title is Durable Power of Attorney for Health Care [20]. Jehovah's Witnesses organization threatens by sanctioning the followers who accept transfusion. The WTS considers that if a member of the faith wilfully accepts the blood transfusion, it indicates that the member no longer wish to be one of Jehovah's Witnesses. According to the rules of Jehovah's Witnesses, an expelled member or one who left the organization on their own is considered outcast. Other followers ought to avoid such an individual. Shunning by family and friends works as a strong deterrent against leaving the religion and acting against the organization's teachings on blood transfusion [21]. Jehovah's Witnesses organization wants to know whether their followers are receiving medical care in accordance with the principles of their religion. Jehovah's Witnesses established a network of boards that liaise with hospitals (hospital liaison committee). There are more than 1700 of such committees that are active in 110 countries worldwide [22]. Jehovah's Witnesses groups that visit their fellow followers at hospitals are instructed to check whether the medical staff was informed that the patient does not accept transfusion [23]. Jehovah's Witnesses have set up a very well constituted network of scrutinizers, lawyers and even physicians that pay visits to hospitals. Therefore, it is not unusual that even medical staff perform illegal acts in the interest of Jehovah's Witnesses [24]. Obedience to the religious organization signifies more importance to Jehovah's Witnesses than keeping the physician-patient privilege. The WTS tends to suggest to their followers who are health professionals that they should secretly inform the organization about every medical intervention that is not allowed, but accepted by a follower [25]. There are informants among Jehovah's Witnesses who will inform on all the banned activities done by their family members [14]. Excommunication, being a proposed sanction, and denunciation, as a means through which the organization receives information on potential transfusion, add to the effectiveness of the imposed blood transfusion ban. It is hard to believe that an individual, when threatened with such a grave and contingent punishment, has the actual freedom of choice. Free will, being an essential element of the choice on whether to accept or refuse the blood transfusion, is rarely present among Jehovah's Witnesses.

Jehovah's Witnesses right to refuse the blood transfusion

A medical procedure is not allowed without a patient's consent, as freedom of will and personal integrity are above reasons that exist due to medical nature [26]. Every individual that is capable of giving consent in regard to accepting a medical intervention can also refuse it, no matter how dangerous or mindless that might seem. This principle lies on one's right to make their own decisions and choices. Unlike the paternalistic traditional medicine and its main principle that "saving a patient is the ultimate law", modern ethics and the concept of patients' rights along with the modern medicine insist that "patient's will is the ultimate law" [27]. The concept of informed consent was adopted in the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine concluded under the auspices of Council of Europe [28] and in the domestic Law on Patients' Rights ("Official Gazette of the Republic of Serbia" No. 45/13) [29]. An informed patient has the right to accept medical intervention proposed by a physician, or refuse it. Therefore, there is a possibility that a patient opts for the wrong option, makes a choice that is not in their best health interest, and even makes a choice that will put their life in jeopardy [30]. The European Court of Human Rights reiterates that according to its case-law, the physical integrity of a person is covered by the concept of "private life" protected by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). Standing point on Jehovah's Witnesses rights regarding the refusal of blood transfusion has been shown in the European Court of Human Rights case-law. The European Court considers that freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, is vital to the principles of selfdetermination and personal autonomy. However, for this freedom to be meaningful, patients must have the right to make choices that accord with their own beliefs and values, regardless of how irrational, unwise or imprudent such choice may appear to others. In the absence of any indication of the need to protect third persons, the State must abstain from interfering with the individual freedom of choice in the sphere of health care. In accordance with the law, a patient has the right to freely decide on everything concerning their life and health, except in a case where such decision would directly jeopardize life and health of others. Medical procedure that is against patient's will can only be performed in exceptional cases which are explicitly prescribed by law and in accordance with medical ethics [31]. The right of a patient capable of rational thinking to refuse a medical treatment even exists in the case where the treatment would save or preserve one's life [32]. Respecting patient's rights on consent is also a physician's ethical duty [33]. Accepting blood is a particularly sensitive medical topic. This is the reason why the law prescribes special rules for the form in which consent to accept blood is given, withdrawal of the consent, duty to inform patients prior to their consent, as well as the form for the notification of the withdrawal in medical records [34]. The right on informed consent guaranteed by the Convention on Human Rights and Biomedicine and Law on Patients' Rights is not an absolute right. This right may be restricted by the law. The restriction is legitimate only if it is explicitly prescribed by the law and necessary in a democratic society in the interest of public safety, for the prevention of crime, for the protection of public health or the protection of the rights and freedoms of others [35]. For instance, for the purpose of fighting crime, the Criminal Procedure Code ("Official Gazette of the Republic of Serbia", No. 72/11, 101/11, 121/12, 32/13, 45/13 and 55/14) prescribes that certain medical procedures can be performed without one's consent [36]. Obligatory immunization (vaccination) against contagious diseases is an example of compulsory medical treatment lawfully prescribed in public health interest [37]. If every competent patient has the right to refuse medical intervention, why would a Jehovah's Witness not be given the right to refuse a specific medical treatment - blood transfusion? Disregard of such subjective right of a Jehovah's Witness would take a patient's position back to time when the decision on the therapy was solely given to discretion and values of the attending physician [38]. If a patient, capable of rational thinking and of free will, who has been previously informed about considerable risks by a qualified physician, persistently refuses transfusion, then one should not receive it.

The right of Jehovah's Witnesses to accept blood transfusion

Absolute obedience regarding religious bans does not exist in cases of bans that are related to health. It is possible and permitted by the positive law that a follower accepts a medical procedure that is prohibited by religious norms. Certain research has documented that Jehovah's Witnesses could be willing to accept the transfusion [18]. Jehovah's Witnesses dissidents indicate that Jehovah's Witness population has always been divided between those who believe it is wrong to accept the blood transfusion and those who find it right [39]. It is a universal physician's duty to attempt to influence a patient, in order for the latter to act reasonably, being medically inconversant [40]. This duty exists regardless of the patient's religion. Accepting blood transfusion is generally considered reasonable in cases where a surgical procedure is necessary and when it cannot be performed without the transfusion. A physician should attempt, through conversation, medical information and recommendations, to influence a Jehovah's Witness patient to make a choice that is reasonable under general opinion, i.e., to opt for the necessary transfusion. Regardless of the standings of the religious organization, a patient is the one to make a decision. Hospital liaison committees established by the WTS and local elders of the Jehovah's Witnesses community must not be involved in their followers' treatment process. Health professional should not inform them about a patient's decision on potential transfusion, especially not to confirm whether a patient accepted it or not. Treatment is required for a patient as an individual. A physician is to perceive a patient as an individual, not as a "sect". Medical doctor must never consider an individual patient to be the same as religious group to which that patient belongs. Wrong actions might be undertaken whether a patient should be treated merely as a religious follower. A physician with such perception will not provide appropriate treatment to a patient, due to their unfavorable standing on a "religious sect". Reverse scenario might be that a physician who considers that a Jehovah's Witness patient is the same as their religious organization, might involve the WTS in the entire treatment and decision process, due to the appreciation towards the minority religion group and his personal dislike towards traditional church. In that case, a physician will consult the leaders of the Jehovah's Witnesses and their hospital liaison committee members, thus allowing them to make a decision on transfusion.

Patient in a state of unconsciousness

Unconscious patients cannot make a decision for themselves. Medically indicated intervention is in the patient's interest, therefore, it is considered that the patient would agree with the procedure [40][41]. The Convention on Human Rights and Biomedicine stipulates that a medical intervention may only be carried out on a person who does not have a capacity to consent, for his direct benefit [42]. According to the Convention, a risky medical intervention, such as giving someone else's blood to an unconscious patient, may be undertaken if there is no alternative of comparable effectiveness. Risks which are incurred in that situation should not disproportionate to the potential benefits of the transfusion [43]. Laws on patient's rights also stipulate that an urgent medical procedure can be performed on a patient in a state of unconsciousness without their consent. Such medical procedure is provided based on consilium medicum. Immediate family members must be informed about the medical procedure performed without patient's consent, whenever possible [42]. Medical ethics states that a physician is to administer urgent medical procedure to a patient in a state of unconsciousness even without patient's consent [44]. Being given someone else's blood, in case there is no alternative equally efficient, is a medical intervention that can produce real and direct benefit for the recipient's health. Lex specialis regulating transfusion permits administering blood transfusion to a patient in a state of unconsciousness, or in other cases when patient is unable to provide consent. Under these circumstances physician who is administering immediate medical care is allowed to opt for the transfusion without patient's consent [45]. Transfusion is regulated by the law and in modern medicine it is accepted medical procedure that directly benefits a patient whose life is in jeopardy. It can be undoubtedly concluded that the transfusion is allowed even in case a patient is in a state of unconsciousness without one's prior consent, if administering the blood is required in order to save patient's life. No-blood card that an unconscious patient carries with themselves can cause dilemma. An answer to a question on whether an unconscious patient with a no-blood card can be administered transfusion can be found in comparative court practice. A Jehovah's Witness patient arrived at hospital in a state of unconsciousness in a town of Pordenone in Italian region of Friuli-Venezia Giulia. He was carrying a filled-out form regarding blood refusal - the no-blood card, but nonetheless received a blood transfusion. After a certain period of time, once he had recovered from the medical intervention, he submitted a lawsuit due to the transfusion without consent. The proceedings were finally concluded by the Supreme Court of Cassation of the Republic of Italy, under the number 23676, dated on 15th September 2008. The Supreme Court has recognized that physicians acted correctly. Italian highest court has assessed that physicians could not presume the real "resistance" against transfusion in sudden life-threatening event, merely on no-blood card [46]. The Convention on Human Rights and Biomedicine stipulates that previously expressed wishes relating to a medical intervention by patients who are not, at the time of intervention, in a state to express their wishes should be taken in account [47]. Filled out forms regarding refusing the transfusion that are carried by a Jehovah's Witness could be treated as a form through which such wishes are expressed. Therefore, the medical staff, when found the no-blood card should not ignore it, neither hide it nor destroy it. The Convention on Human Rights and Biomedicine makes clear difference between previously expressed wishes on the one hand and patient's informed consent or refusal on the other. Previously expressed wishes should be taken into account by physicians, but physicians must obey a patient free and informed consent or refusal. Due to this, physicians must not blindly obey the instructions stated in the form. No-blood card, imposed by the WTS should only be taken into account. Legally, the act of "taking into account" is fulfilled if physicians acknowledge the form, if they assess whether patient's condition has changed since the form was signed, if they potentially consult each other and make a proper notification in a medical record. After all these formalities, physicians should maintain their approach, as they would towards any patient in a state of unconsciousness.

Autologous transfusion

Autologous transfusion in which own blood is being accepted, i.e., in which donor and receiver are the same person, has a number of advantages over allogeneic transfusion, in which a receiver is given someone else's blood. Risk of transmitting contagious diseases is eliminated. Also, shortage of blood supply is one of the reasons for the autologous transfusion. Medical advantages of autologous transfusion are ratio legis, due to which this method has the legal priority over allogeneic transfusion. An acting physician has a legal obligation to inform a patient about the possibility of autologous transfusion. The WTS has a different standing on autologous transfusion in comparison to allogeneic transfusion. Accepting someone else's blood, as well as giving own blood for someone else is prohibited. However, transfusion in which the donor and receiver are the same individual may be acceptable for this religious group [12]. The Law does not differentiate between intraoperative blood salvaging and autologous preoperative blood giving that would be used in the perioperative period. The WTS differentiates between autologous transfusion in which the blood is taken (and put back in the body) during the procedure itself and autotransfusion of predeposited blood (blood that was taken before and saved for the operation). Intraoperative blood salvaging is acceptable as per the WTS, if the extracorporeal circulation, circulation of blood outside patient's body, is uninterrupted [48][49]. Therefore, this method can, in an optimal way, resolve the conflict between the patient's right to refuse a medical treatment that is not in accordance with their religious beliefs and the need for him/her to receive an adequate medical treatment.

The right of a physician to cancel surgical intervention

Patients are obliged to actively participate in the protection, preservation and improvement of their health, having received medical care [50]. The duty of a patient to cooperate with health professionals is in direct relation with one's own health. If patients do not cooperate with a physician, they may bear consequences that would affect their own health [51]. Refusal to accept someone else's blood, in case when it is not possible to perform required medical procedure lege artis without allogeneic transfusion, could be considered as a patient's refusal to cooperate. The Law does not prescribe neither legal nor financial penalty for a patient who does not cooperate with health professionals in the process of their own medical treatment. However, a physician is not required to act in the same manner concerning a patient who actively cooperates with a view to his own healing, in contrast to a patient who refuses to cooperate. A physician is permitted by the law to cancel further treatment, should patients fail to fulfil their obligations, including the obligation to cooperate. Cancelling the treatment is to be followed by certain formalities, such as initial warning of the patient by a physician and, afterwards, a written notice by the physician to the director of the medical institution [52]. Article 14 of the European Convention on Human Rights prohibits discrimination, while recognizing rights and freedoms prescribed by the Convention. Along with the European Convention, Protocol No. 12 provides for a general prohibition of discrimination [53]. A physician, upon deciding whether to perform a procedure or not, cannot be influenced by potential discriminatory motives. Difficulties with which bloodless surgery faces should not be an excuse for religious discrimination. Depriving of the right to heal, due to patient's religious affiliation, is a type of discrimination. Denying or restricting the right to heal on the grounds of religion could be considered as violation of equality crime [54]. In particular situations physicians should exercise their discretion to cancel the treatment due to the fact that a patient refuses blood transfusion, not only without any discrimination, but also restrictively. Technical conditions and lack thereof, as well as insufficient expertise of medical staff, could be a fair reason due to which a Jehovah's Witness patient who refuses transfusion would be recalled. Safe and successful performance of a surgical treatment without the application of allogeneic transfusion cannot be performed lege artis in every medical institution. A medical institution and its health professionals that manage to perform a complex surgical intervention without allogeneic transfusion deserve the highest praise.

Conclusion

Jehovah's Witnesses' teachings on refusing transfusion, based on a ban to eat blood, seems bizarre in a modern world. Still, patients have the right to make a choice based on their beliefs and values, regardless of whether that choice may seem irrational, unwise and illconsidered. Undoubtedly, a patient has the right to choose whether one will accept the transfusion or not. It is an innate patient's right, not the right of a religious organization to which the individual belongs. Jehovah's Witnesses organization, their hospital liaison committees, as well as their local elders, ought to be excluded from the decision making process regarding the treatment. Jehovah's Witnesses, as per the rules of their organization, have an obligation to carry a signed form on refusing the transfusion, which may cause dilemma if a patient is in a state of unconsciousness. Health professionals must not demonstrate full obedience towards instructions given in the document. It would be enough for physicians to take the wishes expressed in no-blood card into account, to consider the no-blood card, observe it and assess whether patient's health state changed from the moment of the document signing. All these activities should be noted in a patient's medical records. After these formalities, physicians should act as they would with any other unconscious patient. Intraoperative blood salvaging, as one of the methods of autologous transfusion, enable an adequate medical treatment to a Jehovah's Witness patient, still being in accordance with their religious beliefs. Refusal to accept someone else's blood, in case when it is impossible to perform necessary medical intervention lege artis without allogeneic transfusion can be qualified as patient's refusal to cooperate. In such cases, the law empowers physicians to cancel the treatment. This possibility should not be applied extensively. A surgeon's decision to recall a surgical procedure on a patient who is a Jehovah's Witness has to be, primarily, based on a justified reason. It should most certainly not be based on religious discrimination.

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O članku

jezik rada: engleski
vrsta rada: neklasifikovan
DOI: 10.2298/VSP190223137R
primljen: 23.02.2019.
revidiran: 23.11.2019.
prihvaćen: 01.12.2019.
objavljen onlajn: 02.12.2019.
objavljen u SCIndeksu: 07.08.2021.
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