Conjoined Twins: Law and Medical Ethics - Essay Example

Conjoined Twins: Law and Medical Ethics The case of re A Children1, Jodie and Mary were conjoined twins. They each had their own head, arms, legs, brain, heart, lungs, kidneys and liver. The only shared organ was a bladder. There were severe ano-urogenital abnormalities and serious problems arising from the fusion of pelvic bones and the tips of their spines. Jodie seemed to have normal brain development and all her main organs were working well. Mary’s brain function was primitive, her heart barely functioned and her lungs did not function at all. She was surviving only as a result of Jodie's heart pumping blood through her body. This effort was expected to weaken Jodie quite quickly and lead to her death, and thus that of Mary too, in about three to six months. If no separation took place, both would die within a matter of months, due to the added strain on Jodie’s circulatory system2. The medical team looking after the twins wished to separate them, in the knowledge that Mary would die as a direct result of the operation. The parents being Roman Catholics, wanted nature to take its course, that is, to allow the babies to die. They refused their consent to an operation that would give one of their children a good chance of life but would certainly kill their other child. In their eyes, both twins were God’s creatures, each having an equal right to life. They could not sanction the shortening of Mary’s life in order to extend that of Jodie’s. If it was God’s will that they die, then so be it3. The medical team at St. Mary’s Hospital, Manchester therefore sought a ruling from the High Court permitting an operation to separate the twins, knowing that such a procedure would result in the death of Mary. The Central Manchester Health Area NHS Trust applied to the court for permission to operate without the parents' consent. The High Court, and then the Court of Appeal, although on different grounds, declared that such an operation would be lawful. Johnson J ruled that such an operation would be lawful, because in his view the proposed operation represented a withdrawal of blood, a situation analogous to the withdrawal of feeding and hydration in Airedale NHS Trust v Bland4. The parents appealed on the grounds that Johnson J was wrong in finding that the proposed operation was in either Mary’s or Jodie’s best interests, and that the operation should not be held legal. Ward LJ, Brook LJ and Walker LJ of the Court of Appeal therefore considered submissions from all interested parties, and concluded that Johnson J was correct and that therefore the separation would be lawful. Each of their Lord Justices concluded that the operation would result in the death of Mary, an act that was intentional and was therefore murder. In order to be considered lawful, the operation would have to be carried out under the auspices of an exception or defence to murder, or be excused in some way. The Lord Justices had considered the defence of necessity to be applicable in this situation; Brook LJ had given the most detailed assessment of the relevant law5. The prohibition of intentional killing was recognised by Ward LJ as being the cornerstone of law and social relationships6, and being of supreme moral value. It reflects the sanctity of life doctrine, which is essentially a religious concept that considers life to be a gift from God, and should therefore be treated with the utmost respect. However, Ward LJ noted that the principle does not represent an absolute rule, life must be protected from unjust attack, and that the deliberate taking of life is prohibited except in self-defence or in the legitimate defence of others7. In the conjoined twins’ case, all parties agreed that the twins were both creatures in being, and Ward LJ explained that the crucial questions to be answered were whether the team of doctors intended to kill Mary, satisfying the required mens rea element of the offence8. The question of intentionality was considered in R v Woolin9, where the test was expressed in terms of whether death was a reasonably foreseeable consequence of an action. If it was, the intended action was thus to cause death, and could satisfy the mental element of the charge of murder. However, if the death of one of the twins is a foreseeable consequence, the ‘wider intention’ of the surgeon is to kill that twin. R v Nedrick10 supports the view that it is the wider intention that is applicable when determining ‘mens rea’. The intentions of a proposed surgical operation however, can be distinguished from the intentions in Nedrick i.e. setting fire to a house without realising that there is a person trapped inside, the latter being morally wrong and illegal. The doctrine of double effect was considered11, whereby an act that produces an unforeseen bad effect is morally acceptable, where the act itself is good; is intended to be good; is not a by-product of the bad effect and where there is sufficient reason to permit the bad effect. However, this doctrine is difficult to reconcile with the test set out in Woolin. It was effectively dismissed by Ward LJ in view of the fact that the operation was solely to benefit Jodie, whilst the bad effect was borne by Mary, and because the effect was in any case foreseen. However, he supported the application of this doctrine to cases of the separation of conjoined twins, and suggested that the principle could also be used to justify the killing of a non-conjoined twin to save the other twin, i.e. that the doctrine provides a morally acceptable justification for sacrifice. Self Defence was also dismissed as a possible defence open to the surgeons in this situation, although one can infer from comments made obiter dicta by Ward LJ and Walker LJ that a 3rd person self defence had some validity in this case12. The principle of acts and omissions was examined, where Brook LJ considered whether the proposed operation should be considered a positive act, or an omission13. Johnson J had been attracted to the view that the operation was effectively an omission, but the Court of Appeal considered him to be incorrect. Ward LJ considered that the proposed operation was clearly a positive act, and so the doctrine held no validity in this instant case. Although moral philosophers may consider acts and omissions to be the same in their effect, the law treats them very differently. In terms of mens rea, and intentionality, the law imposes liability on those causing death by omission only where there is a close relationship between persons, or where there has been previous conduct which gives rise to a duty to act. Bland provides the precedent for allowing the withdrawal of feeding and hydration from a person in a persistently vegetative state, on the basis that this withdrawal is an omission a decision that has attracted much criticism. Active participation in a patient’s death on the other hand attracts legal intervention. All of their Lord Justices considered the possibility of the proposed operation falling within the realm of the doctrine of necessity, although it was left to Brook LJ14 to provide a detailed examination of the application of this obscure aspect of the common law. The defense of duress itself has been disapproved where the charge is murder15, and historically, the case of R v Dudley & Stephens16 suggested that necessity was not a defence that would be successful either. It was reaffirmed in the more recent cases of R v Howe17 and R v Pommell18, but Brook LJ considered the facts of these cases to be very different to the case19 under consideration. Brook LJ found that the component parts of necessity had been fulfilled20. Ward LJ agreed, and stated that the doctors were in an impossible position to act in the best interests of both of their patients at the same time and that this was irreconcilable. In his view, the law could not then turn around to them and say heads I win, tails you lose21. The withdrawal of feeding in the Bland case was lawful. At this point, the decision to withdraw treatment from the bed ridden patient and transfer the same to another patient is questionable. The doctors are of the opinion that the second patient was worthy since the first patient is designated to death as this patient was not responding to treatment. Thus they claim that the three requirements for necessity laid down by Brook LJ were satisfied. Although in this scenario, the decision to terminate one person’s life in order that the second may have a better chance of survival seems to satisfy the test of necessity at common law, the moral status of such a decision is more complex. The other aspect is that an action taken in the civil courts for negligence would only be successful if the plaintiffs could demonstrate that the doctor’s actions were substantially different from those that would have been taken by other reasonably competent medical practitioners, and that the actions taken were not supported by medical opinion. The test in Bolam v Friern Hospital Management Committee22 was whether a doctor acted in accordance with the practice accepted by a responsible body of medical men skilled in that particular art. The concept of criminal negligence may also be of relevance to the actions of doctors under these circumstances. A definition has been provided by Lord Hewart LCJ in R v Bateman23, ‘In order to establish criminal liability, the facts must be such that … the negligence of the accused… showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment’. In addition, Lord McKay stated in R v Adomako24, that a doctor should only be convicted of this crime if it was thought that he had done something which no other reasonably skilled doctor should have done. Although their Lord Justices were at pains to stress the uniqueness of the case that they were being asked to consider, and the limited applicability of the ratio decidendi in the present case, it is in the nature of the development of the common law that parties to a case attempt to correlate the facts in their instant case with those of binding precedents previously set by the courts. Where the facts are not identical, they attempt to rely on principles set out in those judgements. In the case of Mary and Jodie, the underlying principle is that the life of Mary was sacrificed so that her sister Jodie could benefit from treatment that would provide her with a near normal life. Mary’s death was held to be intentional, and would thus be considered unlawful, unless there was some legal exception to the rule that one must not kill another person or some other valid excuse was in existence. It was held that the doctrine of necessity offered the most acceptable legal justification for Mary’s demise. Although R v Bourne25 laid the grounding for the defence of medical necessity, the common law defence of necessity has consistently been disapproved when the charge is murder, mainly on policy grounds. It could be argued that the decision in the present case has indeed widened the scope for medical professionals to justify difficult clinical decisions on the grounds of necessity. The views of the parents will strike a chord of agreement with many who reflect upon their dilemma. The basic factor that the parents had to make an agonising choice probably in their children's best interest: (i) From Jodie's point of view they have taken the worst possible scenario that she would be wheelchair bound, destined for a life of difficulty. They fail to recognise her capacity sufficiently to enjoy the benefits of life that would be available to her were she free and independent. (ii) She may indeed need special care and attention and that may be very difficult fully to provide in their home country. This is a real and practical problem for the family, the burden of which in ordinary family life should not be underestimated. It may seem unduly harsh on these desperate parents to point out that it is the child's best interests which are paramount, not the parents'. Coping with a disabled child inevitably casts a great burden on parents who have to struggle through those difficulties. There is a lack of consistency in their approach to their daughters' welfare. In Mary's case, they are overwhelmed by the legitimate, need to respect and protect her right to life. They surely cannot minimise Jodie's rights on the basis that the burden of possible disadvantage for her and the burden of caring for such a child can morally be said to outweigh her claim to the human dignity of independence which a cruel fate has denied her. (iii) They are fully entitled to recoil at the idea of killing Mary. That is wholly understandable. This lies at the core of their objection. Yet they came to this country for treatment. They were aware of the possibility that Mary might be stillborn and they seemed reconciled to an operation which would separate Jodie from her. They seemed to have been prepared, and presented their case to Johnson J. on the basis that they would agree to the operation if Mary predeceased Jodie. The physical problems for Jodie would be the same, perhaps even worse in such an event. The parents appear to have been willing to cope in that event and the burdens for parents and child cannot have changed. Mary is lost to them anyway. (iv) In their natural repugnance to the idea of killing Mary they fail to recognise their duty to save Jodie and they seem to exculpate themselves from, or at least be unsuccessful in facing the consequence of the failure to separate the twins, namely the death of Jodie. If a family at the gates of a concentration camp were told they might free one of their children but if no choice were made both would die, compassionate parents with equal love for their twins would elect to save the stronger and see the weak one destined for death pass through the gates. In one sense Mary will die because she is simply incapable of living and she is not a viable child. All the same, she is alive at the time of the operation, which serves to hasten her inevitable death just as the lethal injection accelerates the death of a patient at a terminal stage. In law, the severance of the artery will not be treated as a cause of her death. The Roman Catholic Archbishop of Westminster, the Most Reverend Cormack Murphy-O'Connor has propounded five salient points based on Roman Catholic faith and morality. These are, first, human life is sacred and inviolable. Secondly, a person's bodily integrity should not be invaded when that can confer no benefit. Thirdly, the duty to preserve one person's life cannot without grave injustice be effected by a lethal assault on another. Fourthly, there is no duty on doctors to resort to extraordinary means in order to preserve life. Fifthly, the rights of parents should be overridden only where they are clearly contrary to what is strictly owing to their children. The five salient points made by the Archbishop are entitled to profound respect. In general they underpin some important foundations of English law although the fifth point does not form part of English law and they have no doubt been reflected in the advice which the twins' parents have received from their local priest. But they do not explain or even touch on what Roman Catholic moral theology teaches about the doctrine of double effect, despite its importance in the Thomist tradition26. The term casuistry has come to have bad connotations but the truth is that in law as in ethics it is often necessary to consider the facts of the particular case, including relevant intentions, in order to form a sound judgment. However, ultimately the court has to decide this appeal by reference to legal principle, so far as it can be discerned, and not by reference to religious teaching or individual conscience. In this case highly skilled and conscientious doctors believe that the best course, in the interests of both twins, is to undertake elective surgery in order to separate them and save Jodie. The surgery would not be intended to harm Mary but it would have the effect of ending her life, since her body cannot survive on its own and there is no question of her life being prolonged by artificial means or by a heart-lung transplant. The doctors' opinion cannot be determinative of the legality of proposal that responsibility has fallen on the court but it is entitled to serious respect. In Gillick v West Norfolk and Wisbech AHA27, Lord Scarman said in relation to the supply of contraceptives to a girl under 16: "The bona fide exercise by a doctor of his clinical judgment must be a complete negation of the guilty mind which is an essential ingredient of the criminal offence of aiding and abetting the commission of unlawful sexual intercourse." Here the court is concerned with the possibility of the commission of a much more serious criminal offence, which is murder. However, in the wholly exceptional case of these conjoined twins it can be considered that the same principles apply. In Bland Sir Thomas Bingham MR, whose judgment was approved in the House of Lords by Lord Goff and a majority of their lordships, put the matter very broadly28: "For present purposes I do not think it greatly matters whether one simply says that that is not an unlawful act, or that the doctor lacks criminal intent, or that he breaches no duty or that his act did not cause death." In this case the doctors would perform a positive act of invasive surgery, but they would do so for the well-intentioned purposes mentioned. The surgery would plainly be in Jodie's best interests; it would be in the best interests of Mary also, since for the twins to remain alive and conjoined in the way they are would be to deprive them of the bodily integrity and human dignity which is the right of each of them. As Thomas J said in the Auckland case29, "Human dignity and personal privacy belong to every person, whether living or dying." Much of this judgment had necessarily been technical, and some of it seemed rather remote from the deeply troubling dilemma which Jodie's and Mary's condition presented. Every member of the court had been deeply troubled by this case, but this has to be decided in accordance with the principles of existing law as they perceived them to apply to this unprecedented situation. Finally, some of the intriguing facts of this case are: (i) The feelings of the twins' parents are entitled to great respect, especially so far as they are based on religious convictions. Since, the matter has been referred to the court and the court cannot escape the responsibility of deciding the matter to the best of its judgment as to the twins' best interests. (ii) The judge erred in law in equating the proposed surgical operation with the discontinuance of medical treatment as by disconnecting a heart-lung machine. Therefore the Court of Appeal must form its own view. (iii) Mary has a right to life, under the common law of England which is based on Judeo-Christian foundations and under the European Convention on Human Rights. It would be unlawful to kill Mary intentionally, that is to undertake an operation with the primary purpose of killing her. (iv) Nevertheless, Jodie also has a right to life. (v) Every human being's right to life carries with it, rights of bodily integrity and autonomy and the right to have one's body whole and intact and to take decisions about one's own body. (vi) Due to a rare and tragic mischance, Mary and Jodie have both been deprived of the bodily integrity and autonomy which is their natural right. There is a strong presumption that an operation to separate them would be in the best interests of each of them. (vii) The purpose of the operation in this case would be to separate the twins and thereby give Jodie a plausibly good hope of a long and reasonably normal life. Mary's death would not be the purpose of the operation, although it would be its inevitable consequence. The operation would give her, even in death, bodily integrity as a human being. She would die, not because she was intentionally killed, but because her own body cannot sustain her life. (viii) Continued life, whether long or short, would hold nothing for Mary except possible pain and discomfort, if indeed she can feel anything at all. (ix) The proposed operation would therefore be in the best interests of each of the twins. The decision does not require the court to value one life above another. (x) The proposed operation would not be unlawful. It would involve the positive act of invasive surgery and Mary's death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie's life. But Mary's death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable. Bibliography. 1. BOYD K.M., HIGGS R., PINCHING A.J. (Ed)(1997), ‘New Dictionary of Medical Ethics’, BMJ Publishing Group.  2. CARTER P., HARRISON R. (1997), ‘Carter and Harrison on Offences of Violence’, 2nd Ed Sweet and Maxwell.  3. CROWN PROSECUTION SERVICE (2000), ‘The Code for Crown Prosecutors’, Crown Prosecution Service.  4. GLOVER J. (1990), ‘Causing Death and Saving Lives’, Chapter 3 ‘The Sanctity of Life’, Penguin Books.  5. KENNEDY I., GRUBB A. (1998), ‘Principles of Medical Law’, Oxford University Press.  6. KEOWN J. (1997), ‘Restoring Moral and Intellectual Shape to the Law After Bland’, Law Quarterly Review Vol 113 July 1997 pp.481-503.  7. MASON J.K., McCALL SMITH R.A. (1999), ‘Law and Medical Ethics’, 5th Ed, Butterworths.  8. MORRIS S. (2000), ‘Jodie and Mary: the point where the law, ethics, religion and humanity are baffled’, The Guardian Sat. Sept. 9th 2000 p.12.  9. SHELDON S., WILKINSON S. (1997), ‘Conjoined Twins: The Legality and Ethics of Sacrifice’, Medical Law Review 1997 (2) pp.149-171.  10. SIMESTER A.P., SULLIVAN G.R. (2000), ‘Criminal Law – Theory and Doctrine’, Hart Publishing, Oxford.  Read More