Pindo Mulla v. Spain – Blood Transfusions to Jehovah’s Witnesses: is Protecting Personal Autonomy Through Procedural Justice Enough?

By Thibaut Lesseliers

The recent Pindo Mulla v. Spain grand chamber judgement of the European Court of Human Rights (‘ECtHR’, ‘the Court’) concerns the judicial authorization of the administration of a blood transfusion to a Jehovah’s Witness in an emergency situation in spite of her formally and repeatedly expressed desire to, for religious reasons, under no circumstances receive blood transfusions. The applicant (Ms. Pindo Mulla) brought complaints under article 8 (right to private life) and 9 (freedom of religion) ECHR. The Court found the article 9 complaint to be subsumed by the article 8 complaint. It found a violation of article 8 on procedural grounds. Two concurring opinions and one partly concurring, partly dissenting opinion are adjoined to the judgement.

In this blogpost, I will start with a brief summary of the facts and the judgement of the Court. I will then sketch four criticisms of the judgement, centered on the Court’s heavy reliance on procedural review in this case. First: the recasting of the applicant’s article 8 complaint into effectively an article 2 complaint was paternalistic. Second: the judgement is an unfortunate showcase of the downsides of procedural review. Third: the judgement did not give effective relief to the applicant. Fourth: the judgement represented an overly defensive withdrawal from what had been a laudable line of case law on the protection of the bodily and religious autonomy of Jehovah’s Witnesses.

Summary of the facts – the struggles of avoiding blood transfusions as a Jehovah’s Witness

The applicant is a Jehovah’s Witness and as such is strongly committed to the religious conviction that it is inappropriate for her to receive blood transfusions under any circumstances.

In the months leading up to the events at the heart of the applicant’s complaint, she was receiving outpatient treatment at Soria hospital for medical issues caused by a uterine fibroid, which included persistent vaginal bleeding. Aware that surgery might ultimately become necessary to remove the fibroid, the applicant proactively registered an ‘advance medical directive’ in the relevant national register in case she became unable to express her will. In this directive, she specified that she did not wish to receive blood transfusions in any situation, regardless of potential risks to her health or life.

The blood loss caused by the fibroid eventually became so significant that the applicant reported to the Soria hospital emergency room. She was diagnosed with severe anemia and advised to have a blood transfusion, which she refused, signing an informed consent form to that effect. Following this, it was decided to transfer her to La Paz hospital, in a different autonomous community, known for offering treatments that do not involve blood transfusions.

In the ambulance on the way there, the doctor accompanying the applicant called the La Paz doctors to inform them of the gravity of her condition, which required urgent treatment to avoid loss of life due to severe blood loss. During the call, the applicant was able to verbally communicate her position on blood transfusions to the La Paz doctors.

Immediately after the call, the La Paz doctors faxed the duty judge of a Madrid Investigating Court, citing the applicant’s unstable condition and her ‘verbal rejection of all types of treatment,’ to ask how to proceed when the applicant arrived. After consulting the local prosecutor and a forensic doctor, the judge authorized the La Paz doctors to use ‘the necessary medical or surgical measures to safeguard her life and physical integrity.’ The judge justified his decision based on the state’s duty to protect life, specifying that the right to life does not include a right to one’s own death and that this limits the right to freedom of religion.

Upon arrival at La Paz, the doctors, considering there was an imminent risk to the applicant’s life from the blood loss, determined she needed immediate surgery. Although the applicant was reportedly lucid at the time, due to the urgency, the doctors did not follow the usual informed consent procedure. Nor did the applicant raise her transfusion objections again, unaware that the La Paz doctors were about to perform a surgery in which transfusion would be inevitable, rather than using the alternative treatments she had been sent to La Paz for. Her advance medical directive in the national register was also not consulted. Only after the surgery was she informed of the nature of the procedure, the blood transfusion, and the judge’s authorization.

Upon learning what had happened, the applicant initiated domestic court proceedings to challenge the legality of the duty judge’s authorization. Her aim was not to hold either the health care professionals or the state liable for damages but to have the judge’s decision annulled, reformed, and notified to La Paz hospital. She mainly sought a declaration that her personal and religious autonomy had been violated, as authorization had been given despite her taking every reasonable precaution to express her refusal of blood transfusions under all circumstances. She hoped this would protect future patients in a similar position.

These proceedings were eventually dismissed on the grounds that it was not sufficiently established, based on the information available to the duty judge, that she had given an informed and reliable refusal. Under Spanish law, a refusal of life-saving treatment must namely be in writing. The informed consent form refusing transfusion was however—incorrectly, per the ECtHR’s judgment—found to lack the patient’s signature, and the advance directive was deemed inapplicable, as the patient at the time of the events was reportedly lucid enough to express her will. She then brought Article 8 and 9 complaints before the ECtHR. The Court deemed the Article 9 complaint subsumed by the Article 8 complaint ‘read in light of Article 9.’

Summary of the Judgement – reverse preferential framing; or how to transform article 8 ECHR into article 2 ECHR and end up with procedural review

The Court started its reasoning on the merits by clarifying that the focus of the applicant’s complaint was the decision of the duty judge authorizing the blood transfusion. As such it was this decision, and not the blood transfusion itself, that was construed as the infringement on the applicant’s article 8 rights.

Further specifying that the legitimate aim pursued by the infringement was to protect the applicant’s health, the Court set standards to assess the necessity of this infringement in a democratic society. It indicated that this assessment had to reconcile three sets of rights and obligations: the Article 8 right to patient autonomy in health care, the Article 2 duty of the state to protect patients’ life and health, and the procedural right under Article 8 to a fair decision-making process in which one is sufficiently involved.

In a peculiar way, the Court tried to reconcile these diverging considerations by relying on what could be called ‘reverse preferential framing’ (‘preferential framing’ ordinarily refers to a process in which the Court favors the right invoked over conflicting rights in its analysis, see Smet). The core of the applicant’s complaint lay clearly in the denial of her article 8 right to autonomy to make decisions concerning her own medical treatment and ancillary, her article 9 right to live in accordance with her religious beliefs. This is especially salient as the applicant explicitly excluded article 2 from her complaint, saying that she was not concerned with the way her life or health had or had not been endangered.

Despite this, the Court chose to frame the issue as a conflict between a patient’s article 8 right to autonomous decision making on health care issues and the same patient’s article 2 right to life and health. It then resolved this ‘conflict’ by clarifying that ‘where in an emergency there are reasonable grounds to doubt [the free and informed character of a treatment-refusing decision], it cannot be considered a failure to respect [the patient’s] personal autonomy to proceed with urgent, life-saving treatment.’ Although claiming to conduct an article 8 analysis, in following this line of reasoning the Court effectively reduced article 8 considerations of patient autonomy and informed consent to a modality of article 2 rights to the protection of life and health. The impact of advance medical directives did not figure in this reasoning, as the Court, citing a diversity of approaches between European States, relegated the legal and practical role to be accorded to them to the margin of appreciation of states.

This line of reasoning of the Court effectively eliminated any substantive obligations for the state to respect patient autonomy under article 8 in the emergency health care context:  the only standard that emerges is a procedural safeguard against oversubscribing to the wishes expressed by patients – essentially to protect them from themselves – and an open margin of appreciation to decide what role to accord to advance medical directives. It then comes as little surprise that the actual review of the Court entirely focused on the procedural aspect of article 8.

This procedural review was applied to the decision making process ‘as a whole’, encompassing everything from the initial decision of the duty judge, to its implementation by the la Paz doctors, to the domestic proceedings brought by the applicant. Focusing particularly on what amounted to a miscommunication between the doctors involved and the duty judge when communicating the content (all treatment instead of only blood transfusion) and modality (verbal rather than also in written form) of the patients refusal, the majority concluded that this decision-making process as a whole did not afford sufficient respect for the applicant’s autonomy as protected by Article 8 and found a violation.

Appreciation – procedural justice is not enough

Although the judgement is not necessarily a bad one – it does manage to find a procedural violation of article 8 and the crux of the case indeed lies in a decision-making process marked by flaws – it deserves criticism on at least four scores. In one way or another, all of them relate to the Grand Chamber’s choice to focus exclusively on procedural review in this case.

The reliance on article 2 ECHR and reverse preferential framing is paradoxical and paternalistic

I agree with Judge Ktistakis’ separate opinion that the Grand Chamber’s ruling in this case is paradoxical and paternalistic in framing it as a ‘conflict of rights’ between Articles 8 and 2. Such framing is only appropriate when the rights at issue belong to different legal persons; while here, only the applicant’s rights were at issue. Moreover, the applicant relied solely on Article 8 and explicitly excluded Article 2 from her complaint. For the Court to then invoke a ‘conflict of rights’ and to preferentially frame the ‘conflict’ around the standards of the right the applicant sought to exclude (i.e. as a duty to protect life with a narrowly construed exception for reliable refusal) is plainly paternalistic. As I discussed above, this framing also led the Court to effectively reason away any substantive autonomy rights under Article 8 in contexts of emergency medical care. It becomes paradoxical, then, to frame this case as a ruling on patient autonomy and self-determination.

The judgement illustrates the downsides of procedural review

The Court’s procedural review that follows does not fully resolve the paradox of holding on to autonomy language in spite of the above. Although in it, the Court pays lip service to autonomy and patient agency, this rings hollow when it centers on ‘the decision-making process as a whole’ and mostly highlights factual irregularities (e.g., miscommunications, unexplained lack of investigation of  (lack of) consent form signatures) while remaining vague on areas where patient autonomy was arguably not respected (e.g. ‘the Court note[s] with concern that the applicant’s capacity was not considered.’)

Because of these choices, I am not convinced that the Court vindicated personal autonomy in its review of the procedure to any greater extent than is inherent in assessing the ‘procedural justice’ of any type of decision-making process. As such I believe the procedural review would have led to the exact same outcome had it been framed under the state’s procedural obligations under the right to life and health (or any other right for that matter). In that sense, this decision is a good illustration of the costs of the Court’s increasing turn to procedural review: if no substantive obligations are identified under Convention articles, the Court’s review quickly feels shallow as the protection of Human Rights with a distinct content seemingly transforms into the protection of an undifferentiated sense of Fairness and Equity.

The judgement fails to give effective relief to the applicant

The costs of procedural review only become more apparent when we look at its effects on the individual justice done to the applicant. The applicant plainly was interested, at both the domestic and the ECtHR level, in a statement of principle under article 8, read in light of article 9. She wanted recognition of the right of Jehovah’s Witnesses to refuse blood transfusions, even in emergency situations, and of state obligations to render that right effective.

As is apparent from the judgement, Spain recognizes the right of Jehovah’s Witnesses to refuse transfusions in ordinary health care situations. What was at issue here was that the applicant took every legally available and practically sensible precaution to express that refusal and yet was still administered a transfusion. Of course this was the result of a decision making procedure that was in some sense flawed. The Court’s broad procedural review recognizes that by ultimately finding a violation under the procedural aspect of article 8.

This however does not do full justice to the relief the applicant actually wanted: an indication of where specifically the Spanish health care system and law failed to make her expressed refusal effective. This would imply identifying systemic (rather than case-specific) flaws in the flow of information (e.g. according to Judge Elósegui’s separate opinion, it was apparently a systemic flaw in the Spanish health care system that advance medical directives are not easily accessible throughout the national territory) and clarifying that superior weight should be accorded to such refusal if it conflicts with the state’s legitimate interest in protecting people’s life and health (not: the patients right to life and health).

The irony of the Court’s failure to fully address the applicant’s demands is underscored by its award of €12,000 in non-pecuniary damages as ‘just satisfaction’ for the distress caused. As Judge Seibert-Fohr (joined by seven other judges) aptly notes in a partly concurring, partly dissenting opinion, awarding damages for hardship misses the point, as this case was fundamentally about a matter of principle for the applicant.

The judgement represents an unnecessary overextension of defensive judicial strategy

This case is particularly hard to understand given there actually was, as noted by judge Ktistakis, a pretty straightforward precent to build on: Jehovah’s Witnesses of Moscow and Others v. Russia. In that case, the Court essentially recognized Jehovah’s Witnesses’ right under Article 8, interpreted in light of Article 9, to refuse blood transfusions based on self-determination and autonomy. The Court also stated that these considerations override the State’s interest in protecting health and even emphasized the importance of advance medical directives refusing transfusions. Full justice could have been done to the applicant by simply applying these principles to the Spanish context.

Although the Majority does not convincingly explain its departure from precedent, only (over)emphasizing the different context in Jehovah’s Witnesses of Moscow, their likely motivation was to protect its case law on ‘the right to die’ from conflicting precedent. This is evident from the judgment’s heavy reliance on Pretty v. U.K. and Lambert and others v. France. In this line of case law, the Court has consistently refrained from recognizing a substantive right to euthanasia, assisted suicide, or therapeutic abstention under Articles 8 or 2 of the Convention. Instead, any acknowledged obligations in this area have been strictly procedural, and with good reason, as strong considerations of European consensus and moral sensitivity justify giving a wide margin of appreciation to states.

To some extent the parallel between the present case and that of therapeutic abstention particularly (i.e. the withdrawal of life supporting treatment, at issue in the Lambert case) is undisputable. It was probably this similarity that prompted the Court to basically map its procedure-based article 2 reasoning of Lambert onto this case instead of following the substantive article 8 precedent of Jehovah’s Witnesses of Moscow. It likely aimed to avoid creating precedent provoking analogy with a substantive right to end life supporting treatment and, a fortiori, with a substantive right to assisted suicide or euthanasia.

This seems however to have been overly defensive of the Court. As Judge Ktistakis points out in his separate opinion, an emerging European and International Consensus on the importance of patient autonomy would have justified stronger substantive autonomy guarantees for the particular subject matter of refusing emergency medical care. At the very least the remarks of Judge Ktistakis rebut the Court’s reasoning on alleged lack of European Consensus on the need to give priority to and ensure the effectiveness of advance medical directives as unconvincing. Moreover, from Jehovah’s Witnesses of Moscow it is apparent that the practice of refusing blood transfusion through advance directive by Jehovah’s witnesses is not a controversial matter in member states, which also speaks to a different European Consensus on this specific issue. If any more distinguishing from the right to die case law would be necessary, I would point to the surprisingly neglected religious dimension of this case. If ‘reading article 8 in light of article 9’ is to mean anything here, then it seems to me it should be the need to provide extra strong safeguards for the respect of therapeutic preferences when they hold a religious dimension to them.

As such it would have been fully justified to impose substantive obligations for states to create effective procedures for the consultation of advance medical directives in emergency situations and to give precedence to the wishes of the patients expressed in them over the state’s interest in protecting their life and health.