Report No. 196
(18) Siamese Twins case: Re A (Children), 2000 EWCA 254 (Ward, Brooke, Robert Walker L JJ) (22.9.2000)
This is very lengthy judgment (about 88 pages). It raises very important medico-legal issues.
The problem there was, in the case two conjointed twins, whether invasive surgery and their separation was necessary if one of them (Jodic) could be made to live longer while it was absolutely certain that the same surgery would leave the other one, Mary, dead. Jodic was stronger and in fact she was supplying oxygen to Mary. The parents were not in favour of separating them. But, if operation was not done in six months, both will die.
The twins could not obviously decide. Johnson J granted a declaration to the hospital to separate the twins. The twins were born on 8.8.2000. Johnson J granted declaration on 25.8.2000. Johnson J took video-evidence of doctors to save time. Mary was provided nutrition by tube. If separated in six months, Mary would die but Jodic could live with a good quality of life, with defects which could be corrected. There were several medical reports on these issues placed before the Court. (pp 1 to 18).
The parents appealed. Separate judgments were delivered by the learned Judges (22.9.2000).
Ward LJ: The learned Judge referred to the fundamental principle that a persons body is inviolate. (In Re F. Mental Patient: Sterilisation: 1990(2) AC 1 (per Lord Goff) & Lord Reid in S vs. McC, W vs. W (1972) (AC 24(43). Then there was the principle of a right of self-determination (Re F, Lord Goff referring to Cardozo J and there was also the patient's right to veto). This was recognized in Airedale: 1993 AC 789.
Treatment of the competent adult requires his consent but when he lacks competency, common law permits the principle of necessity to be applied (Lord Goff in Re F). In the case of children' parents, if they are married, they have the power to consent. (Lord Scarman in Gillick vs. West Norfolk A.H.A: 1986(1) AC 112(184). If they are not, it is the mother's prerogative to give consent. Where parents refuse, their decision must be respected.
To ignore it and operate, would be an assault (In Re R (A Minor) (Wardship consent to treat): (1992) Fam 11, per Lord Donaldson MR. But the parental right is not sovereign or beyond review and court control. (Lord Scarman in Gillick at p 184) Overriding control is vested in the Court as to the best interests of the child. The sovereign's right to protect children, in course of time, passed on to the Lord Chancellor and then to the Judges and formed part of the inherent jurisdiction of the High Court.
See Re B (A Minor) Wardship: Medical Treatment): 1981(1) WLR 1424. (per Templeman and Dunn L JJ). Under the family law, the test for overriding the parents' refusal is the child's paramount welfare or interest (Re B (A Minor Wardship: Sterilisation: 1988 AC 199 (per Lord Hailshan of St. Marylebone LC). The meaning of welfare here is described as 'not limited to best medical interests' (Butler-Sloss LJ in Re MB (Medical Treatment 1171997(2) FLR 426 (439). In Re A (Male Sterilisation) 2000 (1) FLR 55, she stated
"In my judgment, best interests encompasses medical, emotional and all other welfare issues".
Mary's best welfare & best interests.-As Mary would instantly die, this question was crucial to the case. The first question was 'what are the gains and losses to her from the intervention. In Re F, Lord Brandson of Oakbrook did say that "the operation or other treatment will be in her best interests, if, but only if, it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health". This test does not help as Mary will die immediately after the operation.
The Judge then sought aid from the principles laid down in Airedale. That was a case in which termination was granted in respect of a PVS patient. Airedale has been subjected to academic scrutiny. See:-
(i) Kennedy & Grubb: Withdrawal of Artificial Hydration and Nutrition: Incompetent Adult: (1993) 2. Med L Rev 359;
(ii) Kennedy & Grubb, Medical Law (2 nd Ed) Ch. 16
(iii) J. Finni.- 'Blood, Crossing the Rubicon: (1993) 109 LQR 329
(iv) J Keown: Restoring Moral and Intellectual Shape to the Law after Bland: (1997)113 LQR 481.
Airedale's principles on culpability were summarized into six parts as follows:
"(i) There was some recognition that the intention was to cause death.
(ii) Actively to bring a patient's life to an end is: to cross the Rubicon which runs between, on the one hand, the care of the living patient and, on the other hand, euthanasi.- actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law.- per Lord Goff at p. 865 F.
(iii) Withdrawal of treatment was, however, properly to be characterized as an omission.
(iv) An omission to act would nonetheless be culpable if there was a duty to act,
(v) There was no duty to treat if treatment was not in the best interests of the patient.
(vi) Since there was no prospect of the treatment improving his condition the treatment was futile and there was no interest for Tony Bland (in Airedale) in continuing the process of artificially feeding him upon which the prolongation of his life depends."
