Care of Children Act 2004

37 Immunity of health practitioners administering certain blood transfusions without consent

• (1) In this section and section 36,—

  blood transfusion, or transfusion, means the injection of whole human blood, or any constituent part or parts of it, into the bloodstream of a person

  health practitioner has the meaning given to it by section 5(1) of the Health Practitioners Competence Assurance Act 2003.

  (2) Except by leave of a Judge of the High Court, no civil, criminal, or disciplinary proceedings may be brought against a person in respect of the administration by a health practitioner of any blood transfusion to a person under the age of 18 years (in this section called the patient) by reason of the lack of consent of a person whose consent is required by law.

  (3) The Judge must not grant leave if the Judge is satisfied—

  • (a) that the transfusion was, in the opinion of the health practitioner who administered it, necessary to save the life of the patient or to prevent permanent injury to the patient’s physical or mental health, or to save the patient from prolonged and avoidable pain and suffering, and that the opinion of the health practitioner was reasonable; and

  • (b) that—

    • (i) reasonable attempts were made to obtain the consent of the person appearing to be legally entitled to consent to the transfusion; or

    • (ii) the circumstances were such that it was necessary to administer the transfusion promptly and it was impracticable, in the time available, to attempt to obtain the consent of the person appearing to be legally entitled to consent; and

  • (c) that in all the circumstances it was reasonable to administer the transfusion.

  (4) In considering the reasonableness of the opinion of the health practitioner referred to in subsection (3)(a), the Judge must take into account the following:

  • (a) the condition of the patient before the transfusion:

  • (b) the circumstances in which it was administered:

  • (c) whether, in the circumstances, it was reasonably practicable for the health practitioner to consult any other health practitioner before administering the transfusion:

  • (d) any opinion given by any health practitioner who was so consulted:

  • (e) all other circumstances the Judge considers relevant.

  (5) Nothing in this section affects any enactment or rule of law relating, in respect of the performance of any operation,—

  • (a) to the protection of any person from any civil, criminal, or disciplinary liability; or

  • (b) to any matter of justification or excuse.

  Compare: 1956 No 65 s 126B