The Right of Self-Determination - Why Not Valid for Jehovah's Witnesses?

The discussion about the patient's right of self-determination and the binding nature thereof has a long history. Remarkably, in 1936 the Supreme Court of the German Reich (Reichsgericht) established the non-existence of a right to enforce medical therapy [[1]]. In 1957, the Federal Supreme Court (Bundesgerichtshof) even more explicitly obligated doctors, under all circumstances, to respect the patient's rejection of a certain medical treatment [[2]]. Nevertheless, from the paternalist image of the surgeon to a relationship of trust between doctor and patient there was still a long way to go. What seems to be basically responsible for this is the fact that due to his expertise, the physician has a better assessment of a specific clinical picture as well as of any treatment-related risks and chances, whereas the patient may react irrationally because of his physical constitution and his own ethical evaluation.

This aspect is often revealed particularly in the medical treatment of Jehovah's Witnesses [[3]]. Some physicians find the refusal of blood transfusion difficult to understand. Focusing merely on this issue leads to a deterioration in the relationship between physician and patient. What is barely mentioned is the fact that Jehovah's Witnesses are otherwise trusting and open to other medical treatment - especially to new scientific methods. Additionally, what is also rarely mentioned is that surgery has greatly profited from the experience gained from treatment of this group of patients [[4]]. More than 40 years ago, Cooley already achieved exceptional results in cardiovascular surgery of Jehovah's Witnesses [[5]]. Last but not least, bloodless surgery apparently results in considerably accelerated convalescence [[6]]. How should the physician act when faced with a difficult surgical intervention on this type of patient?

As a general rule, jurisprudence differentiates between a patient who rejects any treatment outright in order to avoid prolonging terminal advanced suffering as he wishes to hasten his death (here we commonly speak of various types of euthanasia), and a patient who basically agrees to medical treatment whereas he only refuses certain types of treatment. In the sensational case Pretty ./. U.K., the European Court of Human Rights (ECHR) rejected the right to deliberately end a patient's life, but at the same time clearly emphasised the patient's right to refuse treatment even under life-threatening circumstances [[7]]. This ruling is to be respected by all national European courts.

Subsequently, it will be necessary to establish a balance between the doctor's conscience and the patient's personal right to control his own body. To date, this evaluation often seems to turn out to the disadvantage of Jehovah's Witnesses and runs contrary to a due consideration of the patient's will. A brief comparison of the respecting rights soon makes it clear that Jehovah's Witnesses like any other patient enjoy more extensive rights than the doctor. The decision of a patient as to which medical treatment he chooses for himself or refuses - on ethical or religious grounds - constitutes the very essence of the constitutional law in Germany which guarantees the patient's physical self-determination and right of control over his own body and, more generally, his own human dignity [[8]]. Additionally, the constitutional laws of freedom of religion and freedom of conscience also apply with regard to religiously motivated decisions. It is the patient who is the immediate subject of these rights which must be respected by all [[9]]. The doctor himself has no legal standing which would allow him to decide on the application of such fundamental laws to the patient. The Hippocratic oath, medical ethics, and the regulations of the profession only determine the modalities of medical performance. By no means do they have any legal, in particular any constitutionally binding, effect. The legitimization of any intervention can only be made by the patient. Whenever a doctor intervenes without the patient's consent he oversteps his legal rights as a doctor and violates the patient's constitutional rights [[10]]. A surgeon may consider it an unreasonable curtailment of his own freedom of conscience if he is not able to perform adequate surgery. In order to justify the prohibited surgery nevertheless, he may believe that he can plead an inner crisis of conscience [[11]]. Yet, the surgeon's freedom of conscience must take second place to the human dignity of the patient. Freedom of conscience by no means legitimizes the right to interfere with the constitutional rights of others [[12]]. The doctor's conscience may allow him to abstain from treating a patient or to break off treatment altogether, but that does not permit him to intervene in someone's personal integrity. If the surgeon has been informed about a patient's decision, the validity of the decision remains unchanged even when the patient is unconscious. The personal freedom of choice of a patient cannot be limited by what a doctor may consider to be necessary or reasonable or more “justified” from the doctor's ethical point of view [[13]]. Furthermore doctors cannot be charged with homicide if they do not treat an unwilling patient. If the patient does not give his or her permission for a treatment doctors are not allowed to act or interfere.

These elaborations clearly show the utmost importance of an accurate preliminary clarification of the will of the patient during the initial conversation on risks and benefits. With respect to the physician the German Society of Anesthesiology and Intensive Care recommends that doctors inform patients about the diagnoses and course of ailment, as well as about the alternatives and risks involved in treatment [[14]]. In this context the physician is of course allowed to critically question the sincerity of a patient's will. However, even in this situation the physician is not allowed to impose his own will upon the often desperate patient. This is understandable, for nothing is more difficult than a patient who shuts himself off from his physician and thereby considerably diminishes the chances of convalescence due to his negative emotions.

Nor is the physician allowed to manipulate a patient by providing him with dubious information, the truthfulness of which the patient cannot verify in this particular situation, as was suggested in the article regarding Jehovah's Witnesses by Schmid et al. [[3]]. The refusal of blood transfusions in the case of Jehovah's Witnesses is based on an imperative biblical commandment, the binding nature of which the individual has accepted based on his study of the Bible. According to this belief, God views blood as holy; blood stands for life itself, and Jehovah's Witnesses are constrained by the Biblical admonition “to abstain from blood” (Acts 15, 29). If an individual member were to disregard this understanding of the sanctity of blood, this would violate his belief. Since the abstention from blood is a scriptural commandment, it can therefore not be expected that the Religious Association of Jehovah's Witnesses will move to reform this [[15]]. However, the Hospital Information Services (HIS) of the Religious Association, established approximately 15 years ago, offers practical support to surgeons to assist them in their endeavour to perform bloodless surgery on Jehovah's Witnesses. Experts value this institution, not only because of the excellent personal care it provides for this special group of patients, but also because in this way they can access the latest information concerning methods in bloodless surgery [[16]]. Jehovah's Witnesses greatly appreciate that physicians meet the challenge and successfully treat them under those conditions. Those physicians show their respect for human dignity and their patient's right of self-determination.

References

• 1 RGZ (civil cases) 151, 349 - 357. 
• 2 BGHSt (criminal cases) 11, 111. Neue Juristische Wochenschrift (NJW) 1958, 267 - 268. 
• 3 Schmid C, Krempel S, Scheld H H. Jehovah's Witnesses - how to encounter the transfusion issue.  Thorac Cardiovasc Surg. 2002;  50 380-383
• 4 Shander A. Permissive Anämie.  Zentralbl Chir. 2003;  128 468-471
• 5 Ott A, Cooley D A. Cardiovascular surgery on Jehovah's Witnesses: Report of 542 operations without blood transfusions.  JAMA. 1977;  238 1256-1258
• 6 Newman J H, Bowers M, Murphy J. The clinical advantages of autologous transfusion: a randomised, controlled study after knee replacement.  J Bone Joint Surg [Br]. 1997;  79-B 630-632
• 7 ECHR. NJW 2002, 2851. 
• 8 Jarass H, Pieroth B. Grundgesetz-Kommentar, Art. 1 GG, note 9. 6th ed., 2002
• 9 BGHZ (civil cases) 26, 349 - 359. NJW 1958, 827 - 830. 
• 10 Herzog R. Maunz T, Dürig G. Grundgesetz-Kommentar, Art. 4 GG, note 113, 146. State: Feb. 2003. 
• 11 BVerwG (Federal Administrative Court), NJW 1968, 218 - 220. BVerwG, NJW 1973, 576 - 579. 
• 12 Hufen F, ZRP 2003, 248 - 252; Muckel S, NJW 2000, 689 - 692; Dirksen HH, GesR 2004, 124 - 129. 
• 13 BGH, NJW 2003, 1588 - 1594. 
• 14 Biermann E. Einwilligung und Aufklärung in der Anästhesie.  AINS. 1997;  32 427-452
• 15 Rudtke W. Zu dem Beitrag: Zeugen Jehovas: Kritik am Transfusionsverbot nimmt zu.  Deutsches Ärzteblatt. 1999;  15 A 999
• 16 Weißauer W. Spezielle Probleme der Eingriffseinwilligung und der Aufklärungspflicht. Häring R Chirurgie und Recht. Berlin; Blackwell Wissenschaft 1993: 134-143