Re A (Minors) (Conjoined twins: Medical treatment)
| Jurisdiction | England & Wales |
| Judgment Date | 22 September 2000 |
| Date | 22 September 2000 |
| Court | Court of Appeal (Civil Division) |
COURT OF APPEAL
Before Lord Justice Ward, Lord Justice Brooke and Lord Justice Robert Walker
Medical treatment - conjoined twins - resolving conflict of babies' interests
It was lawful for doctors to carry out an operation to separate conjoined twins, joined at the lower abdomen and having four lower limbs, where evidence showed (i) that the weaker twin only lived because a common artery enabled the stronger twin to circulate life-sustaining oxygenated blood for both, (ii) that an operation to separate could be performed successfully and (iii) that both would die unless separation occurred within six months, even though the almost immediate death of the weaker twin would result.
The Court of Appeal so held in a reserved judgment dismissing the appeal of the parents of the twins from the judgment of Mr Justice Johnson in the Family Division on August 25 when he granted the hospital a declaration that it was lawful to carry out the operation.
If the weaker twin (M) had been born a singleton she would not have been viable since her heart and lungs were too deficient to pump blood through her body; resuscitation would have been abandoned and she would have died shortly after birth. Unless separation was performed the heart of the stronger twin (J) would eventually fail.
As devout Roman Catholics the parents could not consent to kill one even to save the other.
Mr Simon Taylor for the parents; Miss Judith Parker, QC, Mr Tim Owen, QC and Miss Deborah Eaton for J; Mr Adrian Whitfield, QC and Mr Huw Lloyd for the hospital; Mr David Harris, QC and Mr Andrew Hockton for M; Miss Nicola Davies, QC, Mr David Perry and Mr Gareth Patterson as amicus curiae.
Written submissions by (i) Mr David Anderson, QC for the Pro-Life Alliance, intervening; (ii) Archbishop Cormac Murphy O'Connor, Archbishop of Westminster, intervening.
LORD JUSTICE WARD said that the fundamental principle, now long established, was that every person's body was inviolate: see, for example, In re F (Mental patient: Sterilisation)ELR ([1990] 2 AC 1, 71-72) and Airedale NHS Trust v BlandELR ([1993] AC 789, 864, 891).
In the current law the right and duty to give consent to medical treatment was an incident of parental responsibility vested in the parent (section 3(1) of the Children Act 1989).
However, there was the important safeguard to ensure that a child received proper treatment. The proposition that overriding control was vested in the court was well established and was not challenged.
In family law, the test for overriding parents' refusal to consent was trite law. The peremptory terms of section 1(1)(a) of the 1989 Act placed the court under a duty to do what was dictated by the child's welfare.
The stark fact had to be faced that to operate to separate the twins might be to murder M. However, it seemed to his Lordship that the question of what was in the best interests of the child was a discrete question from whether what was proposed was unlawful.
Although the nature of what was proposed to be done had a bearing on how one ascertained where the patient's best interests lay, the ascertainment of those interests was the first but a separate stage of the court's task.
The crucial questions were:
1 Was it in J's best interests that she be separated from M?
2 Was it in M's best interests that she be separated from J?
3 If those interests were in conflict, was the court to balance the interests of one against the other and allow one to prevail against the other and how was that to be done?
4 If the prevailing interest favoured the operation, could it be lawfully performed?
The medical evidence showed that M was born in the sense that she had an existence quite independent from her mother. The fact that M was dependent on J, or the fact that twins might be interdependent if they shared heart and lungs, should not lead the law to fly in the face of the clinical judgment that each child was alive, and that each child was separate both for civil and criminal law purposes.
The judge below was plainly right to conclude that the operation would be in J's best interests. It was overwhelmingly likely J's life would be extended from the period of three to six months or a little more to one where she might enjoy a normal expectancy of life.
The more difficult question was M's welfare and where her best interests lay. That her welfare was paramount was a trite observation.
Apart from giving her the bodily integrity and dignity which was the natural order for all of us, the operation was not capable of ensuring any other improvement to her condition or preventing any deterioration in her present state of health. Death for M was the certain consequence of the operation.
Guidance was to...
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