28 Oct 2010

Jehovah's Witnesses - Blood, money and injustice

The Calgary Herald - Canada May 8, 2009

by Juliet Guichon, Dr. Ian Mitchell And Michael Duggan, For the Calgary Herald

If you are looking for high drama that Hollywood might one day package and sell, you need go no further than downtown Calgary's TransCanada Pipelines Tower at 10 o'clock this morning, when the Court of Appeal will convene.

Three justices will hear yet another matter concerning the long saga that began when, in 2002, the father of a dying girl, Bethany Hughes, from a Calgary Jehovah's Witness family, agreed to blood transfusions to prolong her life.

On one side of the court-room will be this bereaved father, Lawrence Hughes. He will stand alone. An architectural draftsman without legal training, he has no lawyer and not even an articling student to help him. On the other side will be a total of five highly experienced litigators and perhaps some of their assistants.

Hughes' two living daughters might be in the courtroom, but they have been instructed for years not to communicate with their father until he sincerely repents of his disagreement with the Watchtower Society, the governing body of Jehovah's Witnesses worldwide.

This situation might look like a David-and-Goliath tale. But the odds of the underdog winning are poor. Hughes is not rich. He says he was bankrupted both by his marriage breakdown (which the divorce court held was related to his acceptance of blood transfusions for Bethany), and by his long legal battle against the Watchtower Society. This is no ordinary legal fight. The Watchtower Society has brought forth many procedural motions that are onerous for Hughes to defend against and expensive not just for Hughes, but also for our publicly funded court system.

Moreover, the Watchtower Society has in the past used the strategy of accusing lawyers who have represented Lawrence Hughes of bringing "frivolous and vexatious" litigation against the religious organization. On this basis, the Watchtower Society made claims against Hughes' lawyers personally seeking costs on a high scale (solicitor-client). Good litigators are busy. It doesn't help a client in complex litigation to have his lawyers tied up and sidetracked by having to defend personal attacks against spurious allegations aimed at his lawyers.

If Lawrence Hughes' allegations have merit, this legal case raises important issues about (a) personal freedom to disagree with religious authority, and (b) access to justice. Indeed, issues of possible coercion abound for both Hughes and his deceased daughter, Bethany.

From the moment when Hughes dared articulate a religious opinion different from that sanctioned by the 16 men who run the Brooklyn-based Watchtower Society, Hughes lost his family and friends. The Watchtower counsels its adherents to "avoid independent thinking" and makes such shunning mandatory.

Hughes' daughter Bethany could hardly have been insensitive to the likely personal costs to herself if she had sided with her father and actually accepted the blood transfusions. She might reasonably have concluded that if she accepted blood, she, too, would lose her family and friends. Certainly, the Court of Queen's Bench in 2002 accepted that Bethany was coerced. Madame Justice Adele Kent ruled that: "Because of incorrect information and the behaviour of some around her, [Bethany] now believes that she will not die if she does not have transfusions. Even if [Bethany] was in law entitled to refuse medical treatment, the undue influence put upon her in the last few weeks has taken away her ability to make an informed choice."

Because freedom to choose without reprisal is the essence of this case, Hughes' actions have epic resonance. He is a brave (some say foolhardy)man, whose lonely and costly battle might well have great public benefit because of the three important issues he is raising:

First: Are lawyers who work in-house for a religious organization in a conflict of interest when they purport to represent a patient (or her mother)who must make an important medical decision concerning life-prolonging medical treatment?

Second, did the Watchtower Society lawyers misrepresent to Bethany the safety and efficacy of blood transfusion?

Third:How can doctors know when a future Jehovah's Witness's refusal of blood is an authentic refusal, given the severity of the social consequences of disagreeing with the Watchtower Society? Should physicians accept that Jehovah's Witnesses face reprisals for making what should be a private medical decision and that, therefore, such patients can't be said to be choosing freely? Should doctors then act in the patient's"best interests" and give them life-saving treatment? Will they then be sued by the skilled and determined Watchtower Society?

Given the importance of these questions and the likelihood that it will be a long time before we see another Lawrence Hughes who is courageous enough to raise them, the court should level the playing field and permit the case to be heard properly. Perhaps it is time to consider the public interest in the outcome of this litigation and adopt some of the support given to public interest litigation in the United States. The court should appoint an experienced lawyer to represent Hughes and insulate that lawyer from any personal threats. All Canadians, but especially physicians in emergency situations, need to know the answer to this question: Does the Watchtower Society coerce patients and those who would hold the society legally to account? If so, what will the judiciary do about it? Today's court hearing ought to enlighten us.

Juliet Guichon holds a doctorate in law and is a faculty member at the University of Calgary's faculty of medicine. Ian Mitchell is professor of paediatrics at the University of Calgary. Michael Duggan is a professor of theology at St. Mary's university college, Calgary.

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