'I was her guardian'

Man sees subtle victory in fight against Jehovah's Witnesses

National Post, Canada/May 26, 2009

Legal judgments can sometimes wear disguises. What appears to be a loss -- as did, at first blush, the ruling yesterday dismissing Lawrence Hughes' appeal of a lawsuit against the Canadian branch of Jehovah's Witnesses --may, in fact, offer subtle victory.

That, at least, is Mr. Hughes' impression, as he continues doggedly, nearly seven years after the death of his daughter, Bethany, to hold the sect's governing Watchtower Society and its lawyers responsible for her death. "I see it as a win," he said yesterday.

For a man who has lost his daughter, been shunned by his surviving children, divorced by his wife and gone bankrupt from legal costs, reduced to defending himself in court, the instinct to imagine the smallest of triumphs must be powerful.

But Mr. Hughes is not just thinking wishfully. Legal scholars following the case sense, too, that in their ruling dismissing Mr. Hughes' appeals of a lower court ruling, three higher court justices appear to have secreted within what could be worrying setbacks for this legally aggressive sect accustomed to mobilizing the courts to block members from receiving life-saving transfusions against their family's or doctor's advice.

"To me, what is significant in this judgment is what it does not say, more than what it says," says Alice Woolley, a legal ethicist at the University of Calgary.

What it most clearly does not say is that Mr. Hughes is necessarily wrong in claiming that his daughter received problematic advice from lawyers working not just for her, but also for a religious body intent on seeing her denied the blood she needed. "If I was advising [the Watchtower Society and its lawyers] I would now say, 'At some point, this is no longer going to work out for you,' " Ms. Woolley says.

When Bethany Hughes died in the summer of 2002, her story was national news; the girl, just turned 17, had been diagnosed earlier that year with acute myeloid leukemia, but had fought, legally and physically, blood transfusions prescribed by doctors on religious grounds, her resistance abetted by lawyers from a firm that, by all available evidence, is a branch of the Watchtower Society itself, retaining the church as its primary client -- a "captive law firm" as one judge described Glen How and Associates, employer of Bethany's lawyers David Gnam and Shane Brady. The firm is even located within the Watchtower Society's Georgetown, Ont., compound.

This appeared to present potential conflict between the Church's interests --promoting its belief that the Book of Acts prohibits transfusions -- and the unique interests of a sick girl.

The sect's lawyers, her devout mother, the "hospital liaisons" sent by the society to stay constantly at Bethany's bedside, all, one judge ruled as Bethany lay ill, had persuaded her with "incorrect information," put "undue influence" on the girl, clouding her ability to independently make decisions.

The court awarded guardianship over the minor to the province and the transfusions proceeded, 80 of them, despite Bethany's attempts, and her mother's, to tear intravenous tubes from her body. When Bethany's prognosis deteriorated, the province surrendered its guardianship. The girl was spirited by her mother, lawyers and liaisons from Calgary's children's hospital to a secret location concealed from her father. She died several weeks later at Edmonton's Cross Cancer Institute where doctors administered experimental treatments of arsenic and vitamin C.

Mr. Hughes had abandoned his Jehovah's Witness faith to fight for transfusions, refusing to allow his teenage daughter to martyr herself for religion. This made him, under Church rules, an outcast: his wife, his other two daughters, his friends, all shunned him. He has come to refer to the Church as a "cult"; his daughter, he says, was the victim of implicit threats of social and familial ostracism -- "disfellowship" they call it. "If you accept the blood transfusion, you lose your family, your friends," Mr. Hughes says. "It's like someone standing there with a gun to your head."

For a child, told, as the court found, by the believers around her that the transfusions were both sinful and harmful, the choice to resist would seem overwhelming.

He believes Bethany's resistance made her sicker, and prevented her the comfort of palliative care in her last days. It was the Church, and its lawyers, Mr. Hughes believes, that caused his daughter to die unnecessarily and in avoidable suffering.

The courts have been wary of this: religious liberties are not something judges eagerly wade into. And the fact that Bethany did eventually get court-ordered transfusions was enough, in the appeal court's eyes, to show, whatever advice she got from believers about blood had caused "no harm," upholding last year's lower court ruling to that effect by Justice Alan Macleod.

But Justice Macleod had been firm, also, in his belief that Bethany's lawyers were not conflicted. The appeal judges noticeably stopped short of endorsing this. "It is not necessary for us to decide whether the claims of conflict or misrepresentation were arguable," they wrote, putting the question aside. "This is conspicuous," Ms. Woolley says. "I think if they thought Macleod was right, they would have pronounced on it."

Mr. Gnam and Mr. Brady, she believes, are far from absolved of perceptions of improper representation. For a church used to aggressive legal manoeuvring -- the two lawyers have travelled Canada over the years fighting to stop Jehovah's Witnesses from getting blood, suing all the way to the Supreme Court -- this cannot be a welcome development.

This may seem minor, but not to Mr. Hughes. Nor was it the only news that had him smiling brightly yesterday as he leafed through an appeals judgment littered with the phrase "dismissed." In addition to now-thrown-out claims over the resistance to blood transfusions, he seeks $1-million in damages caused by the peculiar arsenic treatment that was administered to Bethany after she left Calgary -- a treatment he claims was demanded by Bethany and her lawyers.

The courts, having already questioned the reliability of this coterie's advice to this minor, the hospital, he says, should not have complied. "I was her guardian [too]," Mr. Hughes, says. "They should have called me."

Pat Peacock, the Calgary lawyer representing Mr. Gnam and Mr. Brady, had asked the appeals court to dismiss this case against his clients, too. The judges refused.

That, Mr. Hughes believes, leaves him opportunity to do what he has sought all along: to demonstrate in court that hospitals must be more circumspect in accepting instruction from religious leaders and believers when treating Jehovah's Witnesses. "The Watchtower Society are still in the lawsuit, so that means I can still bring forth expert testimony and evidence [that] when it comes to the issue of consent, I can show through evidence that the involvement of the religious defendants removed [Bethany's] consent."

That could well put the behaviour and direction of Bethany's lawyers in the spotlight, says Juliet Guichon, who teaches law and medical ethics at the University of Calgary.

When the lawyers and Watchtower guardians delivered Bethany to Edmonton, to a new group of doctors potentially unfamiliar with the complex and troubling legal issues surrounding her case, "if the doctors have engaged in any wrongdoing, it's possible that these Watchtower Society people will be found party to it," she says.

That remains to be seen. Mr. Hughes envisions his case making a big enough impact in the medical and legal communities that it will end what he believes are ongoing and widspread legal injustices against patients like Bethany: Jehovah's Witnesses lacking a secular, independent advocate, pressured to accept a potentially deadly anti-blood doctrine.

Till now, Mr. Hughes has had to accept only minor victories, and no shortage of losses. After so many years and sacrifices, perhaps he has little choice but to convince himself that his biggest legal triumph is yet to come.

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