Re A (Children) (Conjoined Twins: Surgical Separation)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE BROOKE,LORD JUSTICE ROBERT WALKER |
| Judgment Date | 22 September 2000 |
| Neutral Citation | [2000] EWCA Civ J0922-1 |
| Judgment citation (vLex) | [2000] EWCA Civ J0922-2 |
| Docket Number | Case No: B1/2000/2969 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 September 2000 |
[2000] EWCA Civ J0922-1
Lord Justice Ward
Lord Justice Brooke and
Lord Justice Robert Walker
Case No: B1/2000/2969
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Dr. Simon Taylor (instructed by Pannone) for the Appellant
David Harris Q.C. and Andrew Hockton (instructed by the Official Solicitor) for the 1st Respondent (Mary)
Adrian Whitfield Q.C. and Huw Lloyd (instructed by Hempsons) for the 2nd Respondent (Central Manchester Health Area N.H.S. Trust)
Judith Parker Q.C., Tim Owen Q.C. and Deborah Eaton (instructed by Bindmans) for the 3rd Resondent (Jodie)
Nicola Davies Q.C., David Perry and Gareth Patterson (instructed by the Treasury Solicitor) for the Amicus Curiae
An Index to this Judgment.
Introduction to the Case of the Siamese Twins.
II
The Facts
A cautionary word �the injunction.
The parents.
The birth.
The conjoined twins.
The twins' present condition.
Jodie's present condition.
Mary's present condition.
The available options and the doctors' views.
The nature of the proposed operation to separate the twins.
The prognosis for Jodie.
The prognosis for Mary.
The medical literature.
The parents' views.
The nature of these proceedings.
The judgment of Johnson J.
The grounds of appeal.
III
Medical Law.
The fundamental principle.
The principle of autonomy and the consequence of an
adult patient's refusal to consent to treatment.
Treatment of the incompetent adult.
The power to give proxy consent for a young child to
undergo treatment.
The effect of the parents' refusal.
IV
Family Law.
The test for overriding the parents' refusal.
The meaning of welfare.
The interface with criminal law.
The main issues in the appeal.
But first, a preliminary issue: is this a fused body of
two separate persons each having life in being?
Jodie's welfare: where do her best interests lie?
A more difficult question �Mary's welfare: where do
her best interests lie?
The difficulties in the judge's approach.
The welfare assessment.
Introducing Bland.
Would Mary's life if not separated from her twin "be
worth nothing to her"?
Conclusions on the worth of Mary's life.
Johnson J.'s fifth proposition: "To prolong Mary's
life � would be very seriously to her disadvantage".
Act or omission in this case?
Is the course of action one which can be characterised
as not continuing to provide the patient with treatment
which will prolong the patient's life?
Conclusion as to Mary's best interests.
On the horns of a dilemma: what does the court do now.
Giving due weight to the parents' wishes.
The parents and the courts.
The role of the court: reviewer or decision-maker?
The weight to be given to these parents' wishes.
How is the balance to be struck?
Conclusion on the family law aspects of this case.
IV
The criminal law.
Introduction.
Is there some immunity for doctors?
Murder.
Intention.
The proper test.
The doctrine of double effect.
Causation.
Killing.
Unlawfully.
The search for settled principle.
Necessity.
Duress.
The policy of the law.
A legal duty?
Effect of a conflict of duty.
Offending the sanctity of life principle.
Conclusion.
V
Enter the Human Rights Act 1998Human Rights Act 1998
VI
Conclusion.
IIntroduction to the Case of the Siamese Twins.
In the past decade an increasing number of cases have come before the courts where the decision whether or not to permit or to refuse medical treatment can be a matter of life and death for the patient. I have been involved in a number of them. They are always anxious decisions to make but they are invariably eventually made with the conviction that there is only one right answer and that the court has given it.
In this case the right answer is not at all as easy to find. I freely confess to having found it exceptionally difficult to decide �difficult because of the scale of the tragedy for the parents and the twins, difficult for the seemingly irreconcilable conflicts of moral and ethical values and difficult because the search for settled legal principle has been especially arduous and conducted under real pressure of time.
The problems we have faced have gripped the public interest and the case has received intense coverage in the media. Everyone seems to have a view of the proper outcome. I am very well aware of the inevitability that our answer will be applauded by some but that as many will be offended by it. Many will vociferously assert their own moral, ethical or religious values. Some will agree with Justice Scalia who said in the Supreme Court of the United States of America in Cruzan v Director, Missouri Department of Health (1990) 110 S. Ct. 2841, 2859:-
"The point at which life becomes "worthless", and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate", are neither set forth in the constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory."
It is, however, important to stress the obvious. This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply the relevant principles of law to the situation before us �a situation which is quite unique.
It truly is a unique case. In a nutshell the problem is this. Jodie and Mary are conjoined twins. They each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. Had she been born a singleton, she would not have been viable and resuscitation would have been abandoned. She would have died shortly after her birth. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie's heart will eventually fail. The parents cannot bring themselves to consent to the operation. The twins are equal in their eyes and they cannot agree to kill one even to save the other. As devout Roman Catholics they sincerely believe that it is God's will that their children are afflicted as they are and they must be left in God's hands. The doctors are convinced they can carry out the operation so as to give Jodie a life which will be worthwhile. So the hospital sought a declaration that the operation may be lawfully carried out. Johnson J. granted it on 25th August 2000. The parents applied to us for permission to appeal against his order. We have given that permission and this is my judgment on their appeal.
Exceptionally we allowed the Archbishop of Westminster and the Pro-Life Alliance to make written submissions to us. We are grateful for them. We are also very grateful for the very considerable research undertaken by the Bar and by the solicitors and for the powerful submissions counsel have advanced which have swayed me one way and another and left me at the conclusion of the argument in need of time, unfortunately not enough time, to read, to reflect, to decide and then to write.
II
The facts in more detail.
A cautionary word � the injunction.
Enough is known about this case for everyone to understand what a hideous nightmare it must be for these parents. If anyone is entitled to peace and privacy it is this mother and father and their babies. To protect them, Johnson J. made an order preventing the publication of anything calculated to lead to the identification of the parties or even their addresses �and that includes for the avoidance of doubt the country in which they live. The identities of the medical witnesses are likewise protected to keep them free from intrusion as they go about their private and professional lives. In order, however, to put into the legitimate public domain all that the public needs to know, I shall set out the facts are fully as possible (indeed more fully than I would ordinarily do for law-reporting purposes).
The parents.
The father is forty-four years old; his wife is ten years younger. They have been married for two years and have no other children. Life is hard for them. There is simply no work for the husband. He has been unwillingly unemployed for eight years. The mother was more fortunate but her work terminated during her pregnancy. They have, somehow, managed to accumulate very modest savings and were in process of building a home for their expected family.
When about four months pregnant, an ultrasound scan revealed that the mother was carrying twins and that they were conjoined. A doctor at the hospital had trained at St. Mary's Hospital, Manchester, and knew of its expertise and excellence. He advised that they should seek treatment there.
Through long established links between their government and ours their country is allowed to send a number of patients to be treated here on our National Health Service. We explain this because we read of what may be a concern to some that the parents are Kosovan refugees unjustifiably draining our...
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