Informed Consent vs. Refusal of Treatment from a Legal Perspective: Spain and the Case of Adult Jehovah’s Witnesses

Abstract

The principal objective of this paper is to analyse the treatment that Spanish law gives to the refusal to receive blood transfusions on religious grounds, with special reference to the case of Jehovah’s Witnesses. The aim is to determine how different fundamental rights are reconciled with other constitutionally protected legal rights. To this end, the position of patient autonomy, informed consent, the right to refuse treatment, and advance directives will be examined. Following this analysis, there are suggestions which aim to achieve an appropriate balance between these conflicting rights. In summary, this study seeks to establish a framework of legal and ethical protection for cases when patient autonomy and the duty to protect life come into conflict.

1. Refusal of Blood Transfusions on Religious Grounds: The Conflict of Jehovah’s Witnesses

The refusal of blood transfusions or blood products on religious grounds is one of the most challenging bioethical and legal conflicts faced by Spanish healthcare professionals1. Jehovah’s Witnesses totally oppose the intravenous administration of whole blood and its primary components (red blood cells, white blood cells, platelets and plasma), an objection based on passages of the Bible2: Genesis 9: 3–5; Genesis 9: 4; Leviticus 17: 10–14; Leviticus 7: 26–27; Deuteronomy 12: 23 and Acts 15: 28–29. In other words, Jehovah’s Witnesses believe that blood should not be introduced into the body in any way, whether orally or intravenously. They consider blood to be a sacred symbol of life, a gift from God. Faithful adherence to divine commandments is more important than the prolongation of physical life. This refusal applies to all medical situations, including those involving imminent danger.

Jehovah’s Witnesses often use various documents (advance directives, powers of attorney, signed refusal forms, etc.) to record their total refusal of transfusions, although they explicitly accept any medical treatment that does not involve blood. The position of members of this denomination is not based on an aversion to modern medicine; in fact, the organisation actively promotes that its members receive the best medical care available, as long as a blood transfusion is not necessary.

The conflict created by this refusal involves a collision of fundamental legal and ethical rights and duties. It pits the patient’s constitutionally protected rights to freedom of religion, conscience and bodily autonomy against the core ethical duties of the healthcare professional, beneficence (acting in the best interests of the patient) and the imperative to preserve life (Cebriá García 2005, p. 24).

As we can see, in situations that are not emergencies and do not pose a threat to life, refusal takes precedence. In cases where a blood transfusion is considered necessary but not urgent, traditional legal guidance once suggested bringing the matter before the competent judicial bodies for resolution. However, critical conflicts can arise in highly urgent situations where transfusion is necessary to prevent death. Historically, healthcare professionals often chose to intervene, administer the transfusion and save the patient’s life, and then assumed the legal and professional consequences of overriding the patient’s wishes.

This approach, however, has been significantly challenged by both regulations and case law. They consider that medical professionals must respect the documented and competent wishes of the patient. For adults, respect for autonomy is now considered the primary defence against medical liability in such cases. What is more, as we will see later, healthcare professionals themselves currently believe that beneficence is based on respect for patient autonomy. Only by respecting their moral, religious and philosophical convictions, etc., can good be done for patients.

Based on this premise, the objective of this study is to unravel the complex issue of refusal to receive blood transfusions on religious grounds, providing a structured and rigorous analysis in the case of competent adults3 Given that we are faced with a problem that has no easy solution, here we will focus on the most relevant Spanish and international legal jurisprudence, regulations and case law, examining how the courts have balanced the rights in question and discussing the principles they have established for future situations (Torres Gutiérrez 2013, p. 449).

Ethical Aspects

The most traditional healthcare ethics was a single code, based on the consideration of the existence of values regarding health, illness and healing that were objective and equally applicable to all people. The prevailing idea was that the sick person manifested a biological but also a moral alteration and was therefore considered physically and morally incapacitated. As the patient’s physical condition changed, his mind could not discern clearly. The role of the healthcare professional was to care for the patient, even against their will, in accordance with the principles of that single code and always for the his or her benefit. The clinical relationship followed a model that was called benevolent paternalism (Treatment protocol for Jehovah’s Witness patients)4.

In the Modern Age, a pluralistic conception of multiple codes emerged, based on the belief that every person has their own conscience. It is this fundamental human right, freedom of conscience, that underpins this new vision of things. The paternalistic concept of medical beneficence inherited from the Hippocratic tradition entered into crisis5. A doctor can no longer impose his or her will on the patient (even benevolently), but must inform the patient so that he can exercise his or her inalienable rights of autonomy and give consent to treatment6.

The four classic principles on which bioethics is based are also applicable to the healthcare field and will play a very important role in the topic we are analysing (Beauchamp and Childress 2019)7:

(a)

Principle of non-maleficence: According to this principle, no harm may be done to the patient. In the case we are discussing, this means as follows: Avoiding harm that would result from coercion to receive a blood transfusion.

(b)

Principle of beneficence: This introduces the obligation to do ‘good’. However, this principle is not as strong as the negative principle of avoiding harm. Until relatively recently, doctors could impose their own way of doing good without the patient’s consent, but today the principle of beneficence is tempered by that of autonomy and respect for the patient’s values, worldviews and wishes (including even the right to make mistakes when making one’s own choices; hence the free and informed consent of current medical ethics). It is not lawful to impose our own idea of good on others.

(c)

Principle of justice: This requires treating everyone fairly, since we are all basically equal and deserve equal consideration and respect.

(d)

Principle of autonomy: Based on the will of the adult patient when they are duly informed of the risks involved in their decision. This principle is limited by that of justice, since the autonomy of each individual cannot infringe on the life, liberty, and other basic rights of other people.

Beneficence seeks the patient’s well-being, while autonomy refers to their right to make their own medical decisions. The relationship between these two principles is complex and often generates tension, but a balance must be sought whereby the doctor acts to benefit the patient while respecting their preferences and autonomy. Informed consent is a key mediator in this relationship, as it ensures that the patient understands the information necessary to make a free and informed decision about their health. Thus, the principle of autonomy is inseparable from the principle of beneficence, although according to some authors this union can raise ethical dilemmas (Pérez Triviño 2010). Both refer to the specific and particular circumstances of each person, as opposed to the general and universal principles of non-maleficence and justice. Therefore, it is necessary to communicate with the patient to understand their concept of “good” and respect it8. The meaning of ‘good’ here, of course, goes beyond its strictly religious sense. We must take into account the psychological impact that performing a medical procedure on a patient without their consent can have. Any patient, regardless of their religious beliefs, may suffer psychological consequences when their wishes are not respected. But the consequences can be even more severe in the case we are discussing, since receiving a transfusion is an act that makes them ‘impure’ in the eyes of God, affecting their eternal salvation. Therefore, the consequences to their psyche can be truly significant9.

For Jehovah’s Witnesses, the decision to choose a blood transfusion is an ethical absolute, something that is always and under any circumstances unlawful and must therefore be respected, since their idea of ‘good’ lies in the rejection of this type of treatment.

2. From Paternalism to Patient Autonomy in Spanish Law

Respect for patient autonomy is recognised as one of the fundamental principles underpinning biomedical ethics, affirming the patient’s freedom and responsibility to decide what constitutes their own well-being, even if that decision contradicts the professional judgement of the doctor10. The principle of beneficence was taken to such extremes that in practice it encouraged “benevolent deception”, the deliberate withholding of any information that the doctor thought might be detrimental to the patient’s prognosis (Will 2011).

As noted, the current structure of patient rights is the result of a significant evolution that marks a transition from a historically paternalistic medical culture (where the physician’s authority largely dictated treatment decisions) which meant the “unconditional surrender on the part of patients” (Alberca de Castro 2013, p. 777).

This move towards taking the patient’s decision into account is occurring throughout Europe, as this fundamental right is expressly included in the Charter of Fundamental Rights of the European Union, as we will see later. It should be borne in mind, however, that there may be significant variations in implementation, legal scope and permitted exceptions in different countries.

The first relevant legislative milestone in the Spanish legal system came with the Ley General de Sanidad [General Health Law] 14/198611, which introduced the concepts of patient choice and the right to informed consent (arts. 10. 5 and 6)12.

This foundation was substantially reinforced and formalised with the enactment of Law 41/2002, of 14 November, Básica Reguladora de la Autonomía del Paciente y de Derechos y Obligaciones en materia de Información y Documentación Clínica [Basic Law Regulating Patient Autonomy and Rights and Obligations in matters of Clinical Information and Documentation (LPA)]13. This law constitutes the national standard, regulating crucial areas such as the right to health information, informed consent, medical records and advance directives (also known as advance healthcare directives or living wills)14. This law corrected the regulatory deficiencies of the 1986 Act and incorporated the guiding principles established by international conventions, in particular the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo Convention)15.

Although the LPA is the main national law, its implementation is extended and regulated by the various Autonomous Communities (CCAA) throughout Spain16, which legislate specific regional regulations pertaining to clinical documentation and the practical implementation of these rights, due to the transfer of competence in health matters from the State, which concluded in 200217.

The Spanish legal framework reinforces this right through constitutional mandates. The Spanish Constitution of 1978 (CE) recognises the right to the protection of life and health and guarantees fundamental rights such as honour, personal and family privacy, and religious freedom. The LPA makes these higher-order rights effective by confirming the individual’s right to privacy of health-related information, the use of advance medical directives, the patient’s right to participate in decision-making, and, crucially, the unconditional right to refuse treatment18. The European Court of Human Rights (ECHR) has long held that, in the ordinary context of medical care, the right to respect for private life (Art. 8 European Convention on Human Rights) guarantees that an adult and competent patient may refuse treatment, regardless of the potentially fatal consequences.

The rigorous codification of these rights within the LPA demonstrates that the Spanish legal system highly values not only their protection but also the meticulous procedure for their exercise. This emphasis on procedural safeguards is paramount. Healthcare professionals have been subject to more convictions for defective compliance with informed consent procedures than for technical clinical negligence. This phenomenon illustrates that the legal framework fundamentally holds that a violation of the patient’s right to autonomy (which requires impeccable documentation and process) is often considered a more serious legal transgression than an adverse clinical outcome resulting from accepted or validly rejected treatment.

3. The Instrument of Informed Consent

Informed consent19 is legally defined as a fundamental human right, reflecting the high value placed on individual freedom within the legal system (Bertolín Guillén 2020). The LPA establishes it as the basic paradigm of patient autonomy (Ortega Moreno 2004). It is also a prerequisite and integral part of lex artis (Galán Cortés 2011, p. 363). In essence, it is the manifestation of one’s autonomy through the giving or denying of personal authorisation for an activity that directly affects them (Guerra Vaquero 2016, p. 157).

It is crucial to understand that informed consent is not merely the signing of a document; rather, it is a complex care process that involves thorough communication between doctor and patient, adequate information from the former, joint deliberation and, finally, the patient’s free authorisation.

The validity of consent is based on it being free, voluntary, and conscious. It requires the patient to be properly informed and in full possession of their faculties. Information, therefore, plays a crucial role in the provision of consent20: it is the duty of the doctor and the right of the patient. Information about the patient’s state of health and therapeutic alternatives available to him or her is more than an indispensable requirement for the viability of free consent; it is also essential to the respect of his or her individual personality (Ara Pinilla 2023, p. 465).

It should be borne in mind that, in general, the official Spanish documents through which informed consent is given are difficult for the general population to read. This potential lack of readability suggests that even if legal formalities are met, true patient understanding (a central requirement) is often not guaranteed, increasing the latent risk of legal disputes regarding the validity of consent or refusal, particularly during life-and- death decision-making (Martí Lorente 2024, p. 61).

Legislatively, this type of consent is regulated at the international, regional and national levels.

At the international level, we should again mention the Oviedo Convention, whose Article 5 establishes autonomy of will through informed consent, preceded by adequate information, as one of the main rights of the patient:

“An intervention in the field of healthcare may only be carried out after the person concerned has given their free and informed consent.

That person shall be given adequate information beforehand about the purpose and nature of the intervention, as well as its risks and consequences.

The person concerned may freely withdraw consent at any time.”

Within the European Union, Article 3.2.a) of the Charter of Fundamental Rights of the European Union expressly states that: “In the field of medicine and biology, the following shall be respected in particular: a) the free and informed consent of the person concerned, in accordance with the procedures laid down by law (…)”.

Within the framework of our national legal system, the LPA defines informed consent (Art. 3) as the free, voluntary and conscious agreement of a patient, expressed in the full use of their faculties after receiving adequate information, to undergo a procedure that affects their health. It also establishes this as a basic principle in the field of healthcare.

The content requirements for the informed consent document are rigorously defined by the LPA (Art. 10), which specifies the minimum elements to be disclosed: the relevant or significant consequences, the risks related to the patient’s personal or professional circumstances, the risks that are likely to occur under normal conditions (according to medical experience and practice), and all contraindications.

Although consent is often given orally, the LPA requires that certain invasive and high-risk procedures be documented in writing. Situations that exclude oral consent are as follows:

(a)

Surgical intervention.

(b)

Diagnostic techniques and invasive treatments.

(c)

Procedures that pose a significant and foreseeable risk to the patient, or when the results are uncertain.

The fact that written consent is mandatory for surgical and invasive treatments involving significant risk establishes a critical legal requirement in scenarios of conflict with Jehovah’s Witnesses, whose refusals of blood transfusions often arise precisely in the context of these high-risk procedures.

The LPA (Art. 9) allows for clinical interventions without prior informed consent in the following situations:

(a)

Medical emergencies in which consent cannot be obtained: This occurs when there is a serious and immediate risk to the patient’s physical or mental integrity and it is impossible to obtain their authorisation. In the context of emergencies, the need to save life or physical integrity legally prevails over the immediate requirement of informed consent (provided that there is no advance directive document, as will be seen below). Medical action without prior consent is justified by the preponderance given in these cases to the patient’s right to life and physical integrity, in conflict with their right to autonomy (García Amez 2013, p. 43). However, recent European case law clarifies that merely invoking an emergency is not sufficient. The ECHR has held, in the case of Pinda Mulla v. Spain, that the omission of a single step in the process, such as failure to give adequate consideration to advance directives or the omission of essential information, can nullify that justification, giving rise to a violation of the right to autonomy. The legal system must guarantee the protection of the patient, even in an emergency.

(b)

When there is a risk to public health: In this case, the patient’s autonomy yields to the right to health of others, but only for the health reasons established by law, as indicated by the LPA.

(c)

Cases in which the patient explicitly waives the right to be informed and situations of documented incapacity of the patient (including minors).

The information necessary to obtain consent may also lead to refusal of treatment, an issue that we will discuss below.

4. The Right to Refuse Treatment

Historically, both Spanish national courts and medical authorities tended to prioritise the State’s constitutional obligation to protect life over the religious and personal autonomy of the individual, especially when refusal of treatment implied an imminent risk of death. However, even before the LPA was passed, the Constitutional Court (TC), as the highest interpreter of the Constitution, had already recognised the relevance of this right. Thus, its ruling 120/1990 of 27 June21 states that “(…) the decision of someone who assumes the risk of dying in an act of will that only affects him or herself (…) could support the illegality of compulsory medical assistance or any other impediment to the fulfilment of that will”, an assessment also maintained in the resolution of the same body, 137/1990, of 19 July22.

The recognition of this right, although not recent, faces the challenge of the lack of a precise definition of its conditions of exercise in legislation. However, the right to refusal is explicitly recognised at both the national and regional levels (Seuba Torreblanca 2011, p. 460).

Refusal to receive treatment is one of the strongest expressions of patient autonomy, based on the right to self-determination and physical integrity. Respect for personal autonomy is a primary objective of modern healthcare systems. This means that patients are not only entitled to refuse treatment, but also to choose the treatment that best suits their beliefs, including those of a religious nature (Ojeda Rivero 2012, p. 658).

The right to refuse vital medical treatment is protected as a fundamental freedom of choice based on the principles of autonomy, self-determination, human dignity and, where applicable, the religious conscience of the individual23. However, some legal scholars believe that, at present, it is sufficient to refer to the concept of autonomy, and that the concept of dignity can be abandoned, given that the latter is a useless concept (Macklin 2003). However, others argue that the two are not synonymous, since autonomy can be lost at any given moment, while dignity is an inherent value of the person and cannot be lost; as long as a human being lives (exists), they possess dignity (Ferdynus 2024). In the case of a legally competent adult, the regulations respect that the responsibility for deciding on one’s own well-being and life path lies with the individual, and not with the state or the doctor.

The ECHR has unequivocally established that every competent adult patient has the right to freely and consciously refuse medical treatment, even when such a decision may have serious or fatal consequences. This principle is considered fundamental in the field of medical care24.

In Spanish legislation, the right to refuse treatment was already enshrined in the repealed Article 10 of the General Health Law. Currently, the LPA includes it as one of its basic principles, specifically in Article 2.4, which states that: “Every patient or user has the right to refuse treatment, except in cases determined by law.” Refusal of the proposed healthcare practice must be made in writing.

The right of a competent adult to exercise this refusal is exceptionally strong in the Spanish legal system, given the fundamental nature of autonomy. However, there are limited scenarios in which this right may be restricted. Although not all limits are exhaustively covered in the law, its systematic interpretation and assimilation into informed consent in certain cases allow us to summarise the limitations on refusal of treatment in the following cases:

(a)

Risk to public health: Refusal of treatment is not usually respected if it involves a direct danger to the life and health of third parties, such as in situations involving serious risks to public health or contagious diseases.

(b)

Incapacity: If the patient is considered medically or legally incapable of making a free and informed decision, the right to refuse is suspended, and consent by proxy is required (Art. 9 LPA).

Both informed consent and the right to refuse treatment, as discussed above, may be modified by the wishes previously expressed by the patient in cases where they are unable to consent or refuse at the precise moment.

5. Advance Directives

Advance directives, also known as living wills or advance healthcare directives, are an essential tool for preserving patient autonomy (García Ortega et al. 2004). Through this document, the person expresses in advance their express consent or refusal to a particular medical treatment. It is addressed to the responsible physician and is formulated by a competent adult, establishing guidelines for future care in anticipation of a condition that would prevent them from personally expressing their wishes at the appropriate time (Cadenas Osuna 2019).

Consequently, the advance directive is configured as a right of every person of legal age, capable and free, to express in advance their wishes regarding their healthcare and treatment, so that these wishes are carried out in situations where they are unable to express them (García Amez 2013, p. 35).

According to Article 6 of Law 5/2003 of 9 October on advance healthcare directives, capacity is verified by public officials authorised for this purpose by the competent regional health authority. These officials verify the identity and capacity of the person making the declaration and ensure that the formal requirements for its validity are met, as provided for in Articles 4 and 5.

The main objective of this document is the legal and ethical validation of personal decisions, seeking to preserve the autonomy of the individual in health matters and, at the same time, increase the legal certainty of the professionals who must comply with those wishes. Legally, advance directives are particularly binding when they concern the refusal of treatment.

This instrument is regulated both in the Oviedo Convention and in Article 11 of the LPA:

• Through the advance directive document, a person of legal age, capable and free, expresses their wishes in advance, so that these may be carried out when they reach a situation in which they are unable to express them personally, regarding the care and treatment of their health or, upon death, regarding the destination of their body or organs. The grantor of the document may also designate a representative to act as their spokesperson with the doctor or healthcare team to ensure that the advance directives are followed.
• Each health service shall regulate the appropriate procedure to ensure that, where necessary, each person’s advance directives, which must always be in writing, are complied with.
• Advance directives that are contrary to the legal system, to the lex artis, or that do not correspond to the factual situation that the interested party had envisaged at the time of expressing them shall not be applied. A reasoned record of the entries related to these provisions shall be kept in the patient’s medical record.
• Advance directives may be freely revoked at any time by leaving a written record.
• In order to ensure25 of the Interterritorial Council of the National Health System.

Advance directives are particularly relevant for Jehovah’s Witnesses, as they allow them to formalise their refusal of blood transfusions, ensuring that their wishes are respected even in the event of loss of consciousness or inability to make a decision in an emergency situation. Advance directives operate as binding instructions for healthcare professionals and the judicial system, thus strengthening the patient’s position at critical moments.

Despite its crucial importance of this document, one of the main problems in Spain is that its regulation and management are decentralised, having been transferred to the Autonomous Communities (CCAA) based on the mandates established in the LPA itself. Most of them have implemented their own regulations in this area.

To mitigate the fragmentation resulting from regional regulation and ensure compliance with the directives throughout the national territory, Royal Decree 124/2007 established the National Register of Advance Directives26. This instrument facilitates access for professionals who need to consult an advance healthcare directive when the patient is unable to give their consent, allowing it to be viewed nationwide through the synchronisation of the regional registers.

Depending on the region, the formalisation of these instructions generally requires either a notary public, three witnesses, or an administrative official or healthcare professional (usually appointed by the Autonomous Community itself).

Regardless of the formal method of registration, this document must be included in the patient’s medical record.

Despite the legal binding force of advance directives, there are circumstances under which they may be disregarded. Their application is limited to cases where the patient is incapacitated and unable to express their wishes. Conversely, if the patient is lucid and competent enough to understand the scope of the intervention at the time of the proposed treatment, their current and expressed will (whether acceptance or refusal) prevails over their previously expressed wishes (Lesseliers 2024).

It should be noted that, in accordance with the regulations under analysis, advance directives will not be applied if they are contrary to the legal system, to lex artis, or if they do not correspond to the factual situation that the interested party had envisaged at the time of their expression. This last expression may give rise, as we shall see when analysing the case law of the ECHR, to a certain degree of legal uncertainty and the possibility that previously expressed wishes may not be respected.

6. Case Law Analysis

As we have pointed out on several occasions, despite the fact that until the entry into force of Law 14/1986 and, subsequently, the LPA, patient autonomy, informed consent or refusal of treatment were not guaranteed by law, case law had already committed to defending these rights.

Focusing on the case of Jehovah’s Witnesses and the rights set forth, we can highlight several rulings, some prior to the reference standard and others based on it.

Among the former, we can mention the Order of 7 September 1999, of the Provincial Court of Las Palmas, Section 227. In this case, the Investigating Judge of Court No. 4 of Las Palmas decided not to grant authorisation for the blood transfusion because it was not vitally necessary, adding that, nevertheless, if it did take place, the doctors could act in the way they deemed most appropriate to preserve life. This decision shows the lack of importance given to the patient’s wishes, since his right to refuse treatment is only taken into consideration if there is no risk to his life, thus following the paternalistic system. In view of this position, an appeal has been lodged for violation of Articles 15 and 16 of the Spanish Constitution. The Court’s ruling is very interesting in that it takes into account the religious freedom and freedom of conscience of both the patient and that of the doctors28. The Court considers that the issue is complex and delicate, but affirms that it is a conflict that arises purely in the internal and most intimate sphere of the human being (their conscience), in which positive law does not enter nor should any other person enter. Consequently, it establishes the following:

the judicial response to requests such as the one brought before this Chamber is to suggest that the measure to be adopted be that dictated by the consciences of the patient and the doctor, if they manage to reach agreement in a strictly private, intimate dialogue, free from outside interference; and if such an agreement of a strictly and exclusively moral nature, of conscience, emotional, is not reached, to decide, as in the present case, that the patient’s position shall prevail, but first requiring the patient, or his or her closest relative if the patient is unconscious, to sign a written statement prohibiting the doctor from performing a blood transfusion regardless of the patient’s condition, even if his or her life depends on it.

As can be seen, this court’s decision already reflects the provisions of the General Health Law and the trend that will be reflected in legislation from 2002 onwards.

The content of Order 291/2001, of the Provincial Court of Vizcaya, Section 6, of 6 July 200129 is similar, as are the facts being judged. In this case, the duty judge authorises the requested blood transfusion in the event of danger to life. The Court expressly refers to the need for informed consent from the patient for any intervention on their own body, stating that: “(…) in order to perform any medical or surgical intervention, it is necessary to obtain the free and voluntary consent of the adult patient, if they are in a position to give it, after receiving the appropriate information from the medical staff who will be assisting them (…)”, thus opting to respect the freedom of the individual.

There is no doubt that there has been an evolution in case law regarding the recognition of patients’ rights, such that the primacy of the right to life over autonomy has been relaxed and a clear respect has been opted for the capable, free, voluntary and conscious decision of adults regarding any medical intervention involving the body, such as a blood transfusion. This is demonstrated by Supreme Court rulings 3/2001 of 12 January30 and 447/2001 of 11 May31, which maintain the following:

informed consent constitutes a fundamental human right, precisely one of the latest contributions to human rights theory, a necessary consequence or explanation of the classic rights to life, physical integrity and freedom of conscience. The right to personal freedom, to decide for oneself in matters concerning one’s own person and one’s own life, and the consequence of self-determination over one’s own body.

(First Legal Grounds of Judgment 3/2001)

Similarly, the Constitutional Court began to establish this trend in Judgment 120/1990, already mentioned, in relation to a hunger strike by prisoners, in which it stated, in relation to Article 15 of the Spanish Constitution, which guarantees the right to life, that: “(…) it guarantees the right to physical and moral integrity, whereby the inviolability of the person is protected, not only against attacks aimed at harming their body or spirit, but also against any kind of intervention in those assets without the consent of the owner” (Legal Ground 8)32.Thus, case law has established that when medical assistance is imposed on a person against their will (which may be motivated by a wide variety of factors, and not always a desire to die), the patient’s rights are being infringed upon. Lacking a legal justification, such coercive treatment constitutes a clear violation of the patient’s autonomy.

With regard to the application of the LPA and all the rights arising from it, the majority of their rulings are on cases where transfusions are performed against the patient’s will (through judicial authorisation) and, generally, when there is an advance-directive document indicating the rejection of this type of treatment. Thus, we can highlight, among others, several rulings such as the Order of the Provincial Court of Guipúzcoa, Section 2, 2133/2004, of 22 September33; that of the Provincial Court of Lleida, Section 1, 28/2011, of 25 January34, and that of the Provincial Court of Vizcaya, Section 2, 90147/2018, of 26 March35. These rulings combine the right to religious freedom with the right to refuse treatment once the relevant information has been received. Here, priority is given to the will expressed, generally through the advance directive, over judicial authorisations. It is determined that, once the advance directive has been established, there is no vital urgency to make a decision contrary to the patient’s decision. Furthermore, the last of the aforementioned rulings clarifies that the legal system “cannot order one thing and its opposite; that is, it cannot regulate patient autonomy, on the one hand, giving it maximum priority and protecting the right to refuse treatment, while at the same time considering the judicial imposition of treatment contrary to the patient’s will to be legally correct and appropriate. The logic of the system is to support patient autonomy in all cases, establishing the corresponding duty of all to refrain from infringing upon it; otherwise, it would not be a true right and would be void of content.”

In this way, the autonomy of adult patients is protected, even if their decision puts their lives at serious risk, and all judicial authorisations allowing blood transfusions have been revoked36.

Analisys of ECHR Case Law on Blood Transfusions

The ECHR has addressed complaints relating to the issue we are analysing in relation to several articles of the European Convention on Human Rights, mainly Article 8 (Right to respect for private and family life37 and Article 9 (Freedom of thought, conscience and religion)38.

Although in the case of Jehovah’s Witnesses of Moscow and Others v. Russia below39, this Court does not rule directly on the issue of refusal to receive blood transfusions, but rather on the impossibility of recognising this religion, it does incidentally refer to this issue. It established in this regard that the freedom to accept or refuse medical treatment is part of self-determination and personal autonomy, and that this freedom may be protected by the Convention, specifically on the basis of Articles 8 and 9. It held that the refusal of blood freely decided by adult members is a protected manifestation of their religion and autonomy.

Similarly, in the case of Avilkina and Others v. Russia40, the ECHR ruled that Russia had violated Article 8 of the Convention, concerning the right to private and family life, due to the unauthorised disclosure of medical data of Jehovah’s Witnesses. This relates to the publication of medical information about individuals of that religious faith who refused to receive blood transfusions.

Although the case of Taganrog LRO and Others v. Russia41 does not expressly deal with the refusal of blood transfusions, but rather with the prohibition of the Jehovah’s Witnesses religion in that State, the ECHR, in analysing the issue at hand, determined that “The refusal of blood transfusion was an expression of free will of a community member exercising her right to personal autonomy in the sphere of health care protected both under the Convention and in Russian law”.

However, a ruling by the Grand Chamber that does directly address blood transfusions performed on Jehovah’s Witnesses against their will and that directly affects our legal system is the case of Pindo Mulla v. Spain, cited above (Comparada and Amorós 2024; García Salinas 2025; Introvigne 2024; Ochoa Ruiz 2025; Parrilla Vergara 2024; Ponce Tamallo 2024; Suñer Pernalete 2025; Vidal Gallardo 2025). This ruling has fundamentally restructured the protocol for handling refusals of life-saving treatment by competent adults in Spain.

Ms Rosa Edelmira Pindo Mulla, an Ecuadorian citizen and Jehovah’s Witness, had previously taken meticulous steps to document her refusal of blood products. In 2017, after being advised to undergo a hysterectomy, she issued three separate legal documents that clearly recorded her absolute refusal: 1. an advance directive, 2. a lasting power of attorney, and 3. an informed consent document. These explicitly stated her opposition to all blood transfusions (whole blood, red blood cells, white blood cells, platelets, and plasma), even if her life was in danger, while accepting all other medical treatments that did not involve blood transfusion.

In June 2018, she was admitted to her local hospital in Soria (Autonomous Community of Castile and León) with severe internal bleeding. When she was transferred to La Paz Hospital in Madrid (Autonomous Community of Madrid), known for offering bloodless treatments, the doctors, recognising the extreme urgency, contacted the duty judge by fax requesting authorisation for the treatment, which was granted.

The core of the violation lay in the procedural steps taken by the medical staff in Madrid. In the urgent request sent to the judge, the doctors did as follows:

(a)

Indicated that the patient was a Jehovah’s Witness and had “verbally” expressed her refusal to undergo any type of treatment. This statement was not true, as the refusal had been made in writing and, furthermore, she accepted any treatment that did not involve a blood transfusion. Furthermore, they omitted essential information about her formal, written and registered documents and the clinical team did not provide accurate information to the judge about the extensive and formalised autonomous decision of Ms Pindo Mulla.

(b)

They did not consult the National Register of Advance Medical Directives, nor did they inform and request the consent of the patient, who was conscious at the time the procedure was to be performed.

The duty judge, acting without knowing the patient’s identity or her precise written wishes, authorised all the medical and surgical procedures necessary to safeguard her life and physical integrity. The applicant was not informed of this judicial decision or of the planned intervention before the surgery was performed, in which red blood cell transfusions were administered due to a risk to her life.

Ms Pindo Mulla lodged an appeal with the national courts to overturn the decision on religious grounds. However, this was upheld on appeal, and her subsequent appeal for protection was declared inadmissible by the Constitutional Court. In view of this, the patient appealed to the ECHR alleging a violation of Articles 8 and 9 of the Convention.

In its ruling, the Grand Chamber of the ECHR took into account international legislation (Articles 8 and 9 mentioned above), national legislation (the LPA in relation to informed consent, advance directives and the National Register of Advance Medical Directives) and regional legislation (Law 8/2003 on the rights and duties of individuals in relation to health in Castile and León), as well as Spanish case law. It issued a unanimous ruling declaring a violation of the aforementioned provisions.

The Court reiterated the cardinal principle that an adult and competent patient retains the right to refuse medical care, even if that refusal leads to a fatal outcome. There are concurring opinions by Judge Elósegui and by Judge Ktistakis, joined by Judge Mourou-Vikström, lamenting the missed opportunity of the Grand Chamber to clearly affirm the principles of self-determination and personal autonomy, based primarily on respect for private life. There is also a partially concurring and partially dissenting opinion from several judges in relation to non-pecuniary damage in which they maintain that the finding of a violation would in itself have been sufficient, and that no financial compensation should be awarded for non-pecuniary damage. They express their disagreement not only with the assessment of this damage but also with the analysis of the medical risk. Their argument focuses on the context of the extreme medical emergency, pointing out that the patient arrived in Madrid at imminent risk of death. These judges argued that the medical emergency at La Paz Hospital was so serious that, despite the procedural error in the transfer, the medical staff faced an ethical dilemma and potential criminal liability if they did not intervene to save her life. Therefore, the dissent suggests the possibility that, in cases of imminent danger, overriding a patient’s autonomy through forced action might not be the only viable option.

The ECHR accepted that the State’s action (forced transfusion) was intended to protect health, but it failed the test of being necessary in a democratic society due to procedural flaws. Specifically, it determined that the authorisation to proceed with treatment was the result of a flawed decision-making process due to the omission of essential information about Ms Pindo Mulla’s documented wishes.

The Court specifically highlighted two flaws:

(a)

Integrity of documentation: The omission of her advance directive, power of attorney, and signed refusal forms led the judge to authorise the intervention based on incomplete facts, violating the applicant’s known wishes. The inability of the medical team to remotely and immediately access the National Advance Directive Registry to verify the patient’s wishes is demonstrated. The ineffectiveness of the registry system to operate under the extreme pressure of an emergency rendered the patient’s legally constituted wishes inoperative.

(b)

Transparency and notification: The lack of communication meant that neither the patient nor her representative were informed of the court’s decision, thus eliminating any possibility of appeal or rectification of procedural omissions before the treatment was administered. This was particularly significant given that Ms Pindo Mulla was shown to be conscious and responsive, and therefore competent to understand the scope of the intervention, when she arrived at the hospital in Madrid.

The Court emphasised that the actions of the authorities must be aimed at ensuring that the decision to refuse treatment can be consulted at the time of crisis, i.e., that it is explicit, unequivocal, free and informed, and can be reliably ascertained. The violation occurred precisely because the Spanish system failed to ensure the traceability of this wish: the failure to transfer the complete file, which contained the advance directives, was a direct violation of the obligation of procedural diligence. The State, through its health and judicial structures, must make every effort to confirm the wish, even when time is of the essence.

The ECHR’s criticism is not directed at Spanish legislation (which it considers to be “well structured”), but rather at the system as a whole, which allowed the judicial intervention to take place on the basis of incomplete information. The duty judge was not blamed for acting under time pressure, but rather for the systemic deficiencies that forced him to make a decision without the minimum necessary documentary verification.

The ruling determines that, in emergency situations, the judge must carry out as much verification as possible in the time available. The failure to inquire about the wishes of the patient (who was conscious during the transfer) and about the existence of an Official Advance Directive Registry constituted a serious flaw in the process of verifying autonomy. This has direct implications for the protocols of the Public Prosecutor’s Office

and the coroners, who were consulted by the judge. Their opinion, like the resulting court order, must be based on exhaustive documentary diligence to avoid the annulment of a fundamental right.

The ruling confirms that, for competent adults, the legal approach must shift from the preservation of life to the protection of procedural autonomy. The ECHR clarified that an adult’s refusal of a blood transfusion does not pose a direct risk to the health of third parties, underscoring the supremacy of individual autonomy in this context.

This ruling serves to prevent future undue interference with the autonomy, freedom and self-determination of individuals when a legal conflict arises between life choices, religious convictions and state protection of the right to life (Comparada and Amorós 2024, p. 329). Furthermore, it constitutes a definitive mandate for Spanish medical and judicial authorities to prioritise strict procedural compliance when dealing with refusals of life- saving treatment by competent and informed adults.

Following this ruling, the ECHR has again expressly ruled on blood transfusions for Jehovah’s Witnesses and their right to refuse them in the case of Lindholm and Others v. Denmark42.

The main applicant is Lilian Elisabeth Lindholm, married to Leif Ingolf Lindholm. Both were Jehovah’s Christian Witnesses. On 19 September 2014, Mr Lindholm suffered a fall and was hospitalised in the emergency unit of a hospital in Denmark. Upon admission, he carried a card (“blood-refusal card”) stating his refusal to receive blood transfusions for religious reasons, in accordance with his faith. During his treatment, his condition deteriorated dramatically and he lost consciousness. The doctors initially tried to avoid transfusing him, respecting his Declaration of Will. However, they later decided to administer blood, considering that his life was in imminent risk. The patient died without regaining consciousness.

In view of these events, Mrs Lindholm claimed that her husband’s wishes had been violated and sought to hold the doctors and the Danish State liable. The national authorities (Patient Safety Authority, District Court, High Court, etc.) issued different rulings. Finally, the Supreme Court rejected the applicants’ claim and ruled that the transfusion was legal under Danish law.

The applicants appealed to the ECHR, which analysed Danish law, specifically the Health Act (Sundhedsloven), highlighting section 15 (treatment without the patient’s consent), section 19 (treatment without consent in the case of an incapacitated or critically ill patient) and section 24 (blood transfusion in patients who have declared their refusal). Specifically, paragraph 2 of the latter stipulated that a refusal to transfuse blood was only binding on healthcare personnel if the refusal had been made in “the context of the current course of the illness” and based on relevant information from the doctor about the consequences. In relation to the Convention, Articles 8, 9 and 14 (prohibition of discrimination) are analysed.

The administration of blood despite the existence of a “blood-refusal card” and other previous expressions of refusal was examined. In Lindholm, the Chamber assessed whether the refusal was “current and sufficiently informed” and whether the national authorities had complied with the required procedural requirements. The ruling emphasises the need for reliable and current evidence of the patient’s wishes and examines the state’s margin of appreciation in health matters.

In this case, the ECHR reaffirms that the autonomy of a competently informed patient is a fundamental right, but not an absolute one, especially in medical emergencies and when the patient is unable to express their wishes at the time. States have discretion to authorise treatment, even against prior statements of refusal, if national law allows it and the situation requires it. The Court confirms that the Convention does not require advance directives to be binding in all cases. States may establish requirements (such as that the will be expressed in the context of the “current course of the illness”) and these may override a patient’s advance directive in situations of incapacity. What was relevant was the existence of a neutral legal regime in Denmark and the proportionality of the measure.

The judgement highlights that the doctors had contacted the family, were aware of the refusal card, had tried alternatives, and that the decision was taken when life was already in danger. This reinforces the fact that, in cases of authorisation of treatment against the prior wishes of the patient, medical action must be well reasoned, documented and based on urgent need.

However, the wide margin of appreciation of States in health policy matters, especially in emergency situations, is confirmed, provided that the law is clear, applied in a non- arbitrary manner, and the measure is proportionate to the legitimate aim. The fact that the patient was unconscious at the time of the transfusion and therefore unable to confirm his wishes was a key factor for the Court. In other cases involving conscious patients, the decision could differ.

We consider that the requirement in Danish law that the refusal be “in the context of the current course of the illness” may weaken the binding nature of advance directives, creating a certain risk to patient autonomy and a great deal of uncertainty.

Denmark’s position on respect for patient autonomy is highly questionable. If the advance directive is required to be given in the context of the current illness and taking into account that if consciousness is lost, the will cannot be expressed, in all those unexpected cases (falls, accidents, etc.) the patient’s prior wishes will never be respected.

From a human rights perspective, we consider it necessary that, in cases of repeatedly and clearly expressed wishes, transfusion should be refused except in exceptional circumstances. The ECHR does not establish a universal rule, but rather evaluates each case individually.

From the set of judgments analysed, several criteria applied by the Court can be extracted and should be taken into account:

(a)

The nature of the protected right: refusal of treatment on religious grounds falls at the intersection of Articles 8 and 9, the former being interpreted as guaranteeing physical autonomy and privacy, supported by the patient’s right to religious freedom.

(b)

Proportionality and margin of appreciation: the State has a margin to protect public health and life, but any interference with bodily autonomy must, in a democratic society, be necessary and proportionate.

(c)

The ECHR strictly examines proportionality when it comes to interventions that violate religious beliefs.

(d)

Proof of the patient’s will, which must be “current and informed”: The Court insists that, in order to respect the refusal, it must be proven that the expression of refusal is current (valid) and sufficiently informed. Old documents or generic statements may not be sufficient if there is no evidence that the will was still valid at the time of the intervention. Naturally, when a Jehovah’s Witness expresses their refusal of treatment, they do so without knowing the specific context of the illness that could later occur. What the Court fails to bear in mind is that, for religious reasons, they do know that they do not wish to receive blood or direct blood products, no matter what, even if their life is in serious and imminent danger.

(e)

Procedures and safeguards: The ECHR assesses whether there are clinical and judicial protocols (e.g., prior assessment, possibility of a judge examining the issue, therapeutic alternatives, clear documentation) to ensure that the decision to intervene respects fundamental rights. The lack of such procedures may lead to conviction.

(f)

Emergency situations: Urgency does not automatically override protection. The Court accepts that in contexts of immediate risk to life, doctors may act, but it will continue to examine whether the action was necessary and proportionate and whether reasonable safeguards were sought (recording of the refusal, consultation with the court if feasible, etc.). In Pindo Mulla, the Chamber found that the action did not respect the appropriate safeguards.

Therefore, according to its latest ruling of the ECHR, autonomy of will enjoys a privileged status and its manifestation through informed consent or refusal of treatment, by way of advance directives, must be taken into account. However, contradictorily, unless the autonomy of will has been expressed for the specific case in question, it cannot be taken into account and the right to life should prevail.

7. Conclusions

The analysis of the refusal of blood transfusions by Jehovah’s Witnesses reveals a complex interaction between law, ethics and medicine. The Spanish legal system, through the LPA, has consolidated a clear legal framework for patient autonomy, giving individuals the power to refuse treatments they do not wish to receive. Advance directives or living wills are established as the ideal mechanism for ensuring that this wish is upheld over time and can be applied in emergency situations or in cases of incapacity, contexts in which, as a general rule, the protection of life or physical integrity would tend to be considered priority rights.

Essentially, the Spanish legal system endorses the right of competent adults to fatal self-determination, guaranteeing that their wishes are respected even when their lives are at serious risk. However, the refusal must be preceded by proper information and be neatly documented. Healthcare professionals must operate in this scenario, ensuring impeccable procedural justice in the documentation and consultation of the patient’s wishes.

Furthermore, it must be borne in mind that the refusal of a blood transfusion by a Jehovah’s Witness is not only an exercise of patient autonomy, but also a manifestation of their religious freedom and freedom of conscience, a fundamental right that justifies respect for religiously motivated wishes provided they are the result of a free, informed and conscious decision.

Recent ECHR case law, with the conviction of Spain in the Pinda Mulla case, has brought about a definitive shift in the debate. This ruling emphasises the importance not only of autonomy of will, but also of the procedure followed to respect previously expressed wishes. In this ruling, the central focus was on the deficient actions of the authorities, who did not respect due process or validate the existing documented will. The ruling establishes the primacy of the self-determination of the adult and capable patient over the State’s duty to preserve life against their will, with procedural deficiencies being a determining factor in the conviction.

However, this doctrine, clearly expressed in the aforementioned ruling, suffers from a certain vulnerability as a result of a later ruling (Lindholm and Others v. Denmark). In this case, the Court interpreted that, although informed consent is essential and the State must respect the medical decisions of competent adults (provided that there are no defects in their will), there is a wide margin of appreciation for States in matters of health policy, especially in emergency situations. This allows for the requirement, as in the Danish case, that the previously expressed will must have been formulated in the context of the current illness. This argument could render patients’ advance directives ineffective in many cases where they expressed their refusal of treatment in advance.

When drafting advance directives, Jehovah’s Witnesses cannot predict what type of illness or accident they will suffer. However, they can foresee and express their desire not to receive a transfusion even at the risk of their life, regardless of the specific context in which the emergency occurs.

While the legal and jurisprudential establishment and protection of autonomy of will through informed consent and the right of refusal are undeniable, we believe that the latest relevant ruling by the ECHR regarding Jehovah’s Witnesses’ refusal of blood transfusions could lead to significant legal uncertainty and greatly increase the possibility that their wishes will not be respected.