In re A (children)

[2000] EWCA Civ 254
Download Judgment: English

Jodie and Mary were conjoined twins connected at the lower abdomen. Each had their own vital organs, but one of Jodie’s arteries supplied oxygenated blood to Mary. The twins were surgically capable of being separated, but doing so would leave Mary’s deficient heart and lungs without support and lead to her death. However, if the twins were left conjoined, Jodie’s heart would eventually fail from the strain and they would both die. This was expected to occur after only a few months, although the surprisingly healthy status of the twins during the legal debate led to some estimation that it could be longer. Jodie displayed signs of normal mental development and physical reactions to stimuli. Mary did not demonstrate normal cognitive development, was unable to breathe on her own, and the physicians found it unclear whether she was in pain or distress, or could even experience those sensations. Additionally, she was growing at Jodie’s expense. It was estimated that Jodie had approximately a 94 percent chance of survival with a planned operation; the survival estimate dropped to 40 percent if the operation was postponed for an imminent failure to occur. The prognosis for reconstructive surgeries for Jodie was thought to be good; she could expect a normal or near-normal life if separated. The parents could not consent to the operation for religious reasons; the hospital sought a declaration that the operation could legally be performed regardless.

The Children Act 1989 (the Act) governed consent for children in medical issues. Section 3(1) of the Act stated “In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property,” including the right to make medical decisions.

The lower court found in favour of the hospital. The parents appealed to the Court of Appeal.

 

The Court held that it could override the parent’s wishes. While sympathetic to the tragic situation that the parents were in, the Court was skeptical that Mary’s right to life would trump Jodie’s. Although the Act gave power over medical decisions to parents, and both courts acknowledged the weight these decisions carried in influencing both treatment decisions and legal recourse, the “common law ha[d] never treated such rights as sovereign or beyond review and control.”

Furthermore, the Act also provided that "the child's welfare shall be the court’s paramount consideration” in determining any question in relation to the upbringing of a child. These welfare considerations were “not limited to best medical interests,” but rather encompassed “medical, emotional and all other welfare issues". Therefore, despite the deference given to the parents’ decision, the Court determined that if their decision was not in line with the child’s best interests they did not have to abide by the parents’ determination.

The Court then determined that it would be in the best interests of the twins for the surgical separation to be performed. The Court first considered the individual welfare of Jodie and Mary. The surgery was determined without doubt to be in Jodie’s interest. However, the Court rejected the lower court’s argument that it was in Mary’s interest as well, having concluded that even in her state the extension of life has some meaning. While the Court felt that Mary’s right to life and Jodie’s right to life were to be considered equal both morally and under the law, the consideration was not to be the balance of the quality of lives, but rather the worthwhileness of the treatment. In this case, the treatment meant more to Jodie, who needed it to live, than any great harm to Mary, who would die regardless—and perhaps more painfully. Because of this and the manner in which each child was able to exercise its right to life, with the complete “parasitic” reliance of Mary on Jodie and the fact Mary was beyond help and would die regardless, the Court decided the best interest of the twins was to allow the surgery. It did not however negate the duty of the doctors to care for Mary as much as possible or express permission for the surgical determinations (where to cut, whether to favour the allocation of organic matter) to prejudice her in favour of Jodie.

The Court finally held that the surgery would not be murder and would not be subject to criminal penalty. The Court did express concern that the appeal could not be properly dismissed if doing so sanctioned a crime; the violation of Mary’s bodily integrity and the knowledge that the violation would lead to death had the potential to cause the surgery to be considered as such. However, all three judges agreed that the surgery would not attract criminal sanctions, because of the availability of the defence of necessity, the lack of offence to the sanctity of life, the duty owed to Jodie, and the lack of criminal intent.

“The universality of the right to life demands that the right to life be treated as equal. The intrinsic value of their human life is equal.” Ward LJ, section IV, para. 10.

“The question which the court has to answer is whether or not the proposed treatment, the operation to separate, is in the best interests of the twins. That enables me to consider and place in the scales of each twin the worthwhileness of the treatment. That is a quite different exercise from the proscribed (because it offends the sanctity of life principle) consideration of the worth of one life compared with the other. When considering the worthwhileness of the treatment, it is legitimate to have regard to the actual condition of each twin and hence the actual balance sheet of advantage and disadvantage which flows from the performance or the non-performance of the proposed treatment.” Ward LJ, section IV, para. 10.

“The best interests of the twins is to give the chance of life to the child whose actual bodily condition is capable of accepting the chance to her advantage even if that has to be at the cost of the sacrifice of the life which is so unnaturally supported. I am wholly satisfied that the least detrimental choice, balancing the interests of Mary against Jodie and Jodie against Mary, is to permit the operation to be performed.” Ward LJ, section IV, para. 11.

 

“Lest it be thought that this decision could become authority for wider propositions, such as that a doctor, once he has determined that a patient cannot survive, can kill the patient, it is important to restate the unique circumstances for which this case is authority. They are that it must be impossible to preserve the life of X. without bringing about the death of Y., that Y. by his or her very continued existence will inevitably bring about the death of X. within a short period of time, and that X. is capable of living an independent life but Y. is incapable under any circumstances (including all forms of medical intervention) of viable independent existence. As I said at the beginning of this judgment, this is a very unique case.” Ward LJ, section VI.

 

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