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Introduction
At the heart of the legal debate in this case was the question of whether
decisions about the relative worth of the life of individuals could be legally
made, when those decisions result in the loss of the life considered to be
less worthy. This essay will examine the legal basis for these types of
decisions, and consider whether the decision in Re: A (Children) will have any
impact in other areas of medical practice where ‘value of life’ decisions are
made.
Jodie and Mary were ischiopagus conjoined twins (that is, joined at the
pelvis) born to parents of devout Roman Catholic faith. Mary was the weaker
of the two twins – indeed, had she been born alone, she would not have
survived. Joined to her sister, she was being kept alive by virtue of Jodie’s
own circulatory system. Although Jodie was considered to be capable of
surviving a separation procedure, Mary was not. If no separation took place,
both would die within a matter of months, due to the added strain on Jodie’s
circulatory system. (Ward LJ in Re: A (Children) part 2 sections 1-5). 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 twin’s
parents however would not sanction the operation. In their eyes, both twins
were God’s creatures, each having a right to life. They could not sanction the
shortening of Mary’s life in order to extend that of Jodie. If it was God’s will
that they die, then so be it. (Ward LJ in Re: A (Children) part 2 sections 6-13).
Johnson J ruled that such an operation would not be unlawful, 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
Bland (1993). (Ward LJ in Re: A (Children) part 2 sections 14-16). 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 came to the same conclusion –
that Johnson J was correct – the separation would not be unlawful. However,
they came to this decision via differing routes.
The scope of this essay does not allow a full discussion of their learned
justices decisions, which takes in the principles of medical law, family law,
criminal law and human rights principles and legislation.
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 therefore have to be carried
out under the auspices of an exception or defence to murder, or be
‘excused’ in some way.
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’ (or ‘guilty mind) element of the offence. (In Re: A
(Children) Part 4 sections 2-4). If the mental element of murder was
satisfied, could the medical team rely upon any defence to a charge of
murder?
Brook LJ agreed that ‘mens rea’ was satisfied in this case (in Re: A (Children)
part 4 section 14), and raised the question – if the surgeons would be guilty
of ‘murderous intent’, could they rely on any exception to the prohibition on
killing?
The doctrine of double effect was considered (Ward LJ in Re: A (Children) part
4 section 4.2 and Brooke LJ part 4 section 15), 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 the
benefit of Jodie, whilst the ‘bad effect’ was borne by Mary, and because the
effect was in any case ‘foreseen’. Sheldon et al (1997 158-165), however,
support the application of this doctrine to cases of the separation of
conjoined twins, and suggest 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’. (For a
discussion of the relevance of this doctrine to the law of murder, see Saini
(1999)).
The principle of ‘acts and omissions’ was examined, where Brook LJ (in Re: A
(Children) part 4 section 13) considered whether the proposed operation
should be considered a positive act, or an omission. 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
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 LJ (in Re: A (Children) part 4 sections 16-24) to provide a detailed
examination of the application of this obscure aspect of the common law.
Sir James Stephens stated in the Digest of the Criminal Law (1887) that the
doctrine of necessity could be described in the following manner,
‘An act which would otherwise be a crime may in some cases be excused if
the person accused can show that it was done only in order to avoid
consequences which could not otherwise be avoided, and which, if they had
followed, would have inflicted upon him or others whom he was bound to
protect inevitable and irreparable evil, that no more was done than was
reasonably necessary for that purpose, and that the evil inflicted by it was
not disproportionate to the evil avoided’. (Brooke LJ in Re: A (Children) part 4
section 19).
The defence of duress itself has been disapproved where the charge is
murder (Abbott v R (1976)), and historically, the case of R v Dudley &
Stephens (1884) suggested that necessity was not a defence that would be
successful either. It was reaffirmed in the more recent cases of R v Howe
For example, in Dudley & Stephens, a cabin boy had been cannibalised by his
shipmates. They had taken the decision to kill this boy so that they could
live, and thus implicitly made a value judgement that their lives were worth
more than that of the boy’s. As a matter of public policy, the Judges faced
with this situation could not countenance a person acting as judge, jury and
executioner over the worth of somebody else’s life, and decided that the
defence of necessity should not be available to the person charged with
murder. This in their view would mark an unacceptable divorcing of the law
from morality (Brooke LJ in Re: A (Children) part 4 section 19).
For the purposes of this essay, the author will concentrate on the three main
areas in which the doctrine of necessity is likely to be relevant, and where
medical practitioners are likely to be required to make value decisions
relating to the relative worth of the lives of patients.
A - ‘Bed-
‘Bed-Blocking’ In Intensive Care Units
The first of these is the area of ‘medical futility’ in the intensive care setting,
where decisions will often have to be made about the likelihood of a
particular patient benefiting (in a clinical sense) from further medical
treatment. Given that the withdrawal of feeding etc in Bland was lawful,
could the intensive care team be justified in deciding to withdraw treatment
from the ‘bed-blocking’ patient so that they could transfer their efforts onto
another patient considered to be more ‘salvageable’ and more worthy?
In this situation, the doctors could well argue that the second patient was
more ‘worthy’ of treatment, due to their increased chances of full recovery,
and that the first person was ‘designated for death’ by virtue of the fact that
they were not responding to aggressive treatment. They may also claim that
the 3 requirements for necessity outlined by Brook LJ (see above) were
satisfied, and that the interests of the second patient outweighed those of
the first.
B - Triage
C - Scarce Resources
The NHS operates within a financial framework that is not unlimited. The
Secretary of State is ultimately responsible (by virtue of the National Health
Service Act 1977 s.3) for the fair allocation of those finite resources,
although individual members of the health care team necessarily make
decisions on a day-to-day basis as to how those resources are to be
allocated ‘on-the-ground’. Health economists have considered the allocation
Should the decision not to include one individual on the relevant waiting list
be questioned by an individual (or their family) and brought before the
courts, will doctors be more likely to rely on the defence of necessity
following Re: A (Children)?
Although the author could find no reported cases of doctors being found
liable by the courts for a death arising out of decisions made during
‘triaging’ or where there was considered to be ‘bed blocking’ in intensive
care settings, it is not outside the realms of possibility that in this
increasingly litigious society, an action for negligence against an individual
doctor (or their employer) may be brought by aggrieved family members.
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.
‘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’.
A detailed analysis of this area of law is beyond the scope of this essay, but
faced with an action for negligence, or a charge of criminal negligence, it is
possible that the doctor could seek to rely on the defence of necessity to
excuse his actions.
Conclusions
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 Re: A (Children), 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
Although R v Bourne (1938) 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. This
essay has attempted to examine whether there are areas of medical practice
where decisions are made by individual doctors, or health care teams,
whereby the worth of one life is valued more than that of another, and
whether reliance could be had on the defence of necessity should those
decisions be questioned, ultimately by the courts.
It could be argued that the decision in Re: A (Children) has indeed widened
the scope for medical professionals to justify difficult clinical decisions on
the grounds of necessity, and it remains to be seen whether doctor’s
professional bodies, and defence organisations initiate public debate on the
desirability of such a move.
8. MASON J.K., McCALL SMITH R.A. (1999), ‘Law and Medical Ethics’, 5th
Ed, Butterworths
9. 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
10. SAINI P. (1999), ‘The doctrine of double effect and the law of murder’,
Medico-Legal Journal Vol 67 Part 3 pp. 106-120
11. SHELDON S., WILKINSON S. (1997), ‘Conjoined Twins: The Legality and
Ethics of Sacrifice’, Medical Law Review 1997 (2) pp.149-171
12. SIMESTER A.P., SULLIVAN G.R. (2000), ‘Criminal Law – Theory and
Doctrine’, Hart Publishing, Oxford
13. St. Georges Healthcare NHS Trust v S; R V Collins and Others ex parte S
(1996) 3 ALL ER 673
14. Tameside and Glossop Acute Services Trust v CH (1996) 1 FLR 762