Huxtable, Richard

English

Explore Bristol Research

Re A (Conjoined Twins: Surgical Separation)Huxtable LJ (Richard Huxtable) The Facts[1] The medical evidence in this tragic case suggests that Mary relies on her sister Jodie’s support, since her own heart and lungs do not function. Without surgical separation, both are expected to die within months; if separated, however, Jodie might live a normal life (976), but Mary will inevitably die. Guided by their faith, the twins’ parents do not consent to the proposed surgery. [2] I concur with my noble and learned friend Ward LJ that, despite their conjoinity, we are determining the fates of two children (994-996). Yet, this legal finding conceals immense philosophical complexity, which invites reconsideration of the purported medical findings. Can we say that only Jodie owns the stronger organs, merely by reference to their anatomical distribution?​[1]​ With respect to my learned friend, I do not share his view that the doctors alone can determine this question (1003E-F). [3] Neither should we forget that pitiful predictions can be wrong. Alice Dreger, a scholar of medical humanities and bioethics, has trawled the evidence and found ‘that dire predictions have not always been borne out in non-sacrifice cases’ i.e. when conjoined twins have not been separated (A. D. Dreger, ‘The Limits of Individuality: Ritual and Sacrifice in the Lives and Medical Treatment of Conjoined Twins’ (1998) 29(1) Studies in History and Philosophy of Science Part C: Studies in History and Philosophy of Biological and Biomedical Sciences 1-29, 20).​[2]​ Whilst I cannot question the facts found, there are important lessons here, which, when viewed through the relevant authorities from the family law and criminal law, lead me to dissent from the opinions of my noble and learned friends and so conclude that Jodie and Mary should not be separated against their parents’ wishes. Family Law [4] I begin with the principles of family law. Save for those situations in which the children themselves have the capacity to consent, it is for the person with parental responsibility to furnish the health care professional with what Lord Donaldson of Lymington MR once termed the ‘flak jacket’ that protects the professional from liability or culpability (Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] 1 FLR 1). I leave aside the question of whether, with respect, my esteemed colleague advanced the most appropriate metaphor for this professional encounter. In any event, Jodie and Mary cannot provide the flak jacket and their parents will not do so. As the matter now falls to us, should we so equip the surgeons and thereby authorise the proposed separation? [5] According to the Children Act 1989, the paramount consideration for this court is the children’s welfare (s.1(1)). Guided by that Act, we nowadays seek to answer such questions by drawing up a balance sheet of factors for and against a particular answer. The question before us is stark – to separate or not to separate? – and I will refer to the factors pertaining to each of these options. [6] In favour of separation, first and foremost, is the likelihood that this will serve Jodie’s interests. Jodie will live, and thus the sanctity of her life will apparently be given due recognition. Following reconstructive surgery, she will apparently enjoy a life of good quality. The relevant procedures also appear to involve only negligible risks to Jodie. Mary, meanwhile, seems already to have a poor quality life, and the doctors maintain that her dependence will threaten Jodie too. There are, therefore, powerful arguments in favour of separation. [7] Weighed against these observations are various reasons why these siblings should not be separated. First and foremost, there is the likelihood (indeed, certainty) that this will severely set back (indeed, eradicate) Mary’s interests. Mary will inevitably die sooner than she otherwise might, and thus the sanctity of her life will have been denied its due recognition. Certainly, her current quality of life is not good, but, no matter how disabled, diseased or damaged, every child’s life requires protection. Of course, a child’s interests are not exhausted by their medical interests; there are wider cultural, spiritual and emotional interests to which we must attend. Both in this regard, and as a free-standing ground for objection, we should additionally note that these parents will not consent to surgery that would mean the inevitable death of one of their children. [8] The arguments on both sides are evidently finely balanced: either we prioritise Jodie, thereby condemning Mary, or we prioritise Mary, thereby condemning Jodie. Here, again, there are considerable philosophical complexities. Despite its paramount importance and our daily dealings therewith, welfare remains a contested concept. David DeGrazia, a noted philosopher, has outlined three schools of thought (D. DeGrazia, ‘Value theory and the best interests standard’, (1995) 9 Bioethics  50-61). He says that we can understand welfare as aligning with our preferences, our pleasures, or our objective needs, where the latter encompass our objective interests in, for example, the intrinsic value of our lives and our deep personal relationships. [9] All of these ideas find support in the law, which invites further reflection on whether these insights bring us any closer to an answer to the present dilemma. As I previously observed, we cannot know the preferences of Jodie and Mary, so we lack an answer from this perspective. Each, however, is entitled to the law’s protection of their intrinsic worth and thus the sanctity of their lives (Re J (a minor)(wardship: medical treatment) [1990] 3 All ER 930, 938G-H). Unfortunately, still no answer emerges, as we see that to protect one will mean to deprive the other. I will return to this matter. If, alternatively, we prioritise the intimate relationship that these children enjoy, then an answer might begin to emerge, as it could disincline us to authorise their separation. Yet, the complexity and conflict returns when we refer to the respective quality of these siblings’ lives, and thus to the pleasures and pains that they experience. Given these difficulties, I conclude that the welfare of these twins furnishes us with no clear answer. [10] So finely balanced are the opposing arguments in this case that I see no reason why we should be entitled to interfere with the undoubtedly agonising judgment that was reached, in good conscience, by the twins’ parents. This proposition finds support in the decision of this court in Re T (a minor) (wardship: medical treatment) [1997] 1 All ER 906. In that case, the parents’ decision not to consent to a potentially life-saving liver transplant for their one-year-old son was upheld. Mindful of the paramount interests of the child, Waite LJ nevertheless acknowledged that there exists a scale, ‘at one end of which lies the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind which is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind’ (917–918). There is, in such cases, a long line of authority which establishes that parents are free to martyr themselves but they cannot ‘make martyrs of their children’ (Prince v Massachusetts, (1944) 321 US 158). [11] While the twins’ parents are influenced by their ‘scruples’ – specifically their Roman Catholic faith – I doubt that the present case occupies this end of Waite LJ’s scale. We have already seen how we cannot say, with the requisite certainty, that the decision reached by these parents ‘is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind’. Moreover, although the phrasing is questionable, we confront the prospect that a decision in either direction – to separate or not to separate – will make martyrs – either of Mary, or of both her and her twin. [12] Instead, I believe that the case before us occupies the opposite end of my learned friend’s scale. At this end are ‘highly problematic cases where there is genuine scope for a difference of view between parent and judge’; in such cases, Waite LJ continued, ‘the greater the scope for genuine debate between one view and another the stronger will be the inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature’ (917–918). [13] As I have already reasoned, there is a great deal of scope for genuine debate about what the welfare of these united sisters requires. While some of my colleagues favour separation, the sisters’ parents – who must live with the consequences, whatever these might be – do not. We therefore confront one of the ‘highly problematic cases’ to which Waite LJ referred, and I see no reason to depart from his proposal that, in such cases, it is the parents who should prevail. In this respect, I endorse the opinion of Hastings LJ, who also finds herself in the minority in the present appeal.​[3]​ [14] Although its provisions do not yet bind this court, I find further support for this conclusion in the provisions of the Human Rights Act 1998. Throughout that Act, and the European Convention on Human Rights, there is substantial support for the notion of personal autonomy. This ideal underpins the well-established rule that competent patients have the right to consent to, or refuse, medical treatment, for whatever reasons they might have or, indeed, not have (Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290). Certain provisions in the Act also bolster the autonomy that parents can be expected to enjoy, not least Article 8, the right to respect for private and family life, and Article 9, freedom of thought, conscience and religion. Each of these articles would seem to support the present parents’ right to decide the outcome of this agonising case. [15] Of course, the aforementioned rights can be limited, where, for example, this is necessary to protect the rights and freedoms of others. However, in keeping with my reasoning throughout this judgment, I find it impossible to say, conclusively, that the rights enjoyed by one sister (Jodie) should trump the rights enjoyed by her sibling (Mary), and thereby prevent the parents from deciding to preserve their children’s union, whatever the outcome. Indeed, failure to respect these parents’ decisions could be interpreted as not only a violation of their rights, but also a discriminatory violation, contrary to article 14 of the Act. As such, I suspect these parents could complain that they are being unjustly discriminated against, if they are not granted the same right to decide as was enjoyed by the parents in the aforementioned Re T. They could complain that, unlike the parents in Re T, their decision is underpinned by their religious faith, as opposed to their being ‘health care professionals … experienced in the care of young sick children’ (908E-F). [16] In short, as a matter of family law, the decision should be left to Jodie and Mary’s parents. They should, however, be reassured that they are free to reverse their decision. Indeed, I understand that the parents in Re T ultimately changed their minds and agreed to their son’s transplant (C Bridge, ‘Religion, Culture and Conviction: The Medical Treatment of Young Children’, (1999) 11 Cambridge Family Law Quarterly1-16, 11). If the same happens here, then, given the delicate balance of the arguments, I confirm that the procedure could go ahead, provided, of course, that the surgeons are in a position to proceed at the relevant time. Criminal Law [17] The criminal law, however, presents fresh problems. If the surgery is to go ahead, as the majority of my learned colleagues believe it should, I find it difficult to say that this would not amount to the murder of Mary. [18] As to the mens rea of murder, the intention to cause death or serious bodily harm, there is no suggestion that the surgeons’ efforts would be directly aimed at the death of Mary. However, the House of Lords has recently confirmed that foresight of a virtually certain consequence – such as Mary’s death, which the surgeons readily envisage – can provide evidence of an intention to kill (R v Woollin [1999] 1 AC 82). Barring any attempt to claim that this is a context akin to palliating the terminally ill patient’s symptoms in which we should differentiate between what is intended and what is foreseen, I fail to see how the prohibited intention is absent. My learned friend Ost LJ disagrees with me on this point,​[4]​ but I believe the most that can be said, following the steer provided by their Lordships, is that the question as to the surgeons’ intention must be left to the jury to determine. [19] If a jury were to conclude that the mens rea were present, then perhaps it could find that the actus reus, the causation of death, is not made out. But there are no grounds for avoiding that conclusion. Johnson J, at first instance, recognised how the authorities governing homicide differentiate between fatal actions and omissions. Culpability for the latter may be avoided, if the defendant was under no duty to intervene. With respect, Johnson J accordingly contrived an argument by which separation amounted to the withdrawal of life-support from Jodie to Mary. For reasons already explored, I do not think we need see Jodie as necessarily supporting Mary. In any event, this contrivance fails to capture the reality of the situation, which is that surgical separation amounts to a positive action, which will have the effect of causing Mary’s death. [20] The elements of murder are therefore made out and, unfortunately, I know of no defence that can cover this situation. First, the defence of necessity has long been unavailable to a charge of murder (R v Dudley and Stephens [1881–5] All ER Rep 61). My colleagues believe an exception can be made today, formulating a narrow principle for application to these twins (1018B-C, 1052). We cannot say, as my learned friend Ward LJ wishes (1018B-C), that this will set no precedent: we are bound by the doctrine of stare decisis, so we must envisage even the most carefully contained principle being applied in future cases. Whilst statistically unlikely, future cases might concern the fates of conjoined siblings, in which any principle formulated here today would surely apply.​[5]​ Less directly comparable cases will also arise, to which the principle might be made to apply.​[6]​ I would therefore urge caution and the preservation of well-established principles. [21] Secondly, I resist the conclusion reached by my colleague Ward LJ that a defence of (quasi) self-defence could or should be advanced. My learned friend was of the opinion that Jodie ‘would surely protest, “Stop it, Mary, you're killing me”’ (1010J). Professor Dreger, the expert on conjoinity, would dispute such an imputation. She certainly ponders the emotional trauma that a surviving sibling might have to endure. Of course, we cannot know Jodie and Mary’s own thoughts. We can, however, hear not only from their parents, but also from those who are themselves conjoined and able to voice their views. According to Professor Dreger’s research, ‘Never has a conjoined twin in fact consented to being killed or even risked for the sake of his or her conjoined sibling’;​[7]​ she has not found even ‘a single case in which, following the death of one conjoined twin, the surviving conjoined twin asked to be separated from the dead twin’ (Dreger, 22). Conjoined twins, it seems, generally prefer to remain together, even if separation meant that one might live. [22] These observations return us to notions of objective value. Enduring conjoinity appears be valued and valuable. But so too is the intrinsic value of our lives, which finds further support in article 2 of the impending Human Rights Act 1998, the right to life. Mary’s life has an irreducible value, which the law of homicide seeks to support. But what, finally, of Jodie’s intrinsic worth? [23] Given my conclusion on the twins’ welfare and the law of murder as it pertains to separation, I must conclude that Jodie – or the surgeons on her behalf – can mount no strong case as to why she should thrive at the expense of her sister. Learned authorities such as Professor John Keown might seek to say that intervening on her behalf would be extraordinary and, as such, recognition of the sanctity of life does not oblige us to do so (J Keown ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 LQR 481, 485). I leave this to others to contemplate. However, in keeping with my earlier conclusions, I should emphasise that the lack of obligation does not foreclose the option of doing so, at least so far as the family law is concerned. If, as such, the parents do decide to consent to the procedure, I believe this could be undertaken. I recognise, however, that the surgeons might still face the prospect of a murder charge, and that their culpability will turn on the jury’s determination of their intention. This is an uncomfortable conclusion but I see no basis for finding otherwise. [24] Taking all of these considerations into account, I conclude that the appeal should be allowed. 1^1	  S. Hölm and C.A. Erin, ‘The Manchester Conjoined Twins: An Ethical Analysis’ (2001) 6 Jahrbuch für Wissenschaft und Ethik 67-87. ^2	  Cf. A. Dreger, One of Us: Conjoined Twins and the Future of Normal (Cambridge, Mass, Harvard University Press, 2005). ^3	  G. Hastings, ‘Judgment: Re A (Conjoined Twins: Surgical Separation)’, in R. Hunter, C. McGlynn and E. Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart, 2010) 139-146, 145. ^4	  Ost reference. ^5	  See State of Qld v. Alyssa Nolan & Anor [2001] QSC 17°4.^6	  See J McEwan, ‘Murder by Design: The ‘Feel-Good Factor’ and the Criminal Law’ (2001) 9 Medical Law Review 246-258, 248. ^7	  Contrast A Lustig, ‘Separated After Birth’ (2003) 130(16) Commonweal 8-9. 

Judgment 2:Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147

https://research-information.bris.ac.uk/ws/files/92911713/Ethical_Judgment_Re_A_Huxtable_240715.doc

Judgment 2:Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147

Abstract

Similar works

Full text

Available Versions

Explore Bristol Research