In The Supreme Court Of Judicature Court Of Appeal (Civil Division) On Appeal From Family Division

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

Date: 22nd September 2000

 

B e f o r e :

LORD JUSTICE WARD

LORD JUSTICE BROOKE

and

LORD JUSTICE ROBERT WALKER

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A (Children)

 

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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

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DRAFT JUDGMENT

 

 

 

 

Lord Justice Ward:

An Index to this Judgment.

Para.

I

Introduction to the Case of the Siamese Twins.

II

The Facts

1. A cautionary word - the injunction.

2. The parents.

3. The birth.

4. The conjoined twins.

5. The twins' present condition.

6. Jodie's present condition.

7. Mary's present condition.

8. The available options and the doctor's views.

9. The nature of the proposed operation to separate the twins.

10. The prognosis for Jodie.

11. The prognosis for Mary.

12. The medical literature.

13. The parents' views.

14. The nature of these proceedings.

15. The judgment of Johnson J.

16. The grounds of appeal.

III

Medical Law.

1. The fundamental principle.

2. The principle of autonomy and the consequence of an

adult patient's refusal to consent to treatment.

3. Treatment of the incompetent adult.

4. The power to give proxy consent for a young child to

undergo treatment.

5. The effect of the parties' refusal.

IV

Family Law.

1. The test for overriding the parents' refusal.

2. The meaning of welfare.

3. The interface with criminal law.

4. The main issues in the appeal.

5. But first, a preliminary issue: is this a fused body of

two separate persons each having life in being?

6. Jodie's welfare: where do her best interests lie?

7. A more difficult question - Mary's welfare: where do

her best interests lie?

7.1 The difficulties in the judge's approach.

7.2 The welfare assessment.

7.3 Introducing Bland.

7.4 Would Mary's life if not separated from her twin "be

worth nothing to her"?

7.5 Conclusions on the worth of Mary's life.

7.6 Johnson J.'s fifth proposition: "To prolong Mary's

life ... would be very seriously to her disadvantage".

7.7 Act or omission in this case?

7.8 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?

7.9 Conclusion as to Mary's best interests.

8. On the horns of a dilemma: what does the court do now.

9. Giving due weight to the parents' wishes.

9.1 The parents and the courts.

9.2 The role of the court: reviewer or decision-maker?

9.3 The weight to be given to these parents' wishes.

10. How is the balance to be struck?

11. Conclusion on the family law aspects of this case.

IV

The criminal law.

1. Introduction.

2. Is there some immunity for doctors?

3. Murder.

4. Intention.

4.1 The proper test.

4.2 The doctrine of double effect.

5. Causation.

6. Kill

7. Unlawfully.

7.1 The search for settled principle.

7.2 Necessity.

7.3 Duress.

7.4 The policy of the law.

7.5 A legal duty?

7.6 Effect of a conflict of duty.

7.7 Offending the sanctity of life principle.

8. Conclusion.

Index to the judgment of Lord Justice Brooke

9.Introduction

10.The medical literature

11.The law of murder and the sanctity of human life

12.Is Mary a reasonable creature?

13.The meaning of the word "kills"

14.The intention to kill

15.The doctrine of double effect

16.The doctrine of necessity

17.Public and private necessity in the criminal law

18.Nineteenth century attempts at codifying the doctrine of necessity

19.The Queen against Dudley and Stephens

20.Necessity: the recent studies by the Law Commission

21.Necessity: modern academic writers

22.Necessity: the work of parliament

23.Necessity: the courts and the defence of duress of circumstances

24.Necessity: a Canadian perspective

25.The European Convention on Human Rights

26.Conclusion

 

Index to the judgment of Lord Justice Robert Walker

27.Conjoined twins

28.The welfare principle

29.Airedale NHS Trust v Bland

30.The judge's decision and the issues in the appeal

31.Criminal law issues

32.The European Convention on Human Rights

33.The Archbishop's submissions

34.Conclusions

 

V

Enter the Human Rights Act 1998

VI

Conclusion.

Lord Justice Ward:

I

Introduction 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 truly 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.

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