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Sanctity of life — are some lives more sacred than others?

Published online by Cambridge University Press:  02 January 2018

Sabine Michalowski
Sabine Michalowski*
Affiliation:
Department of Law, University of Essex
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Abstract

Court decisions concerning the life and death of patients become more and more frequent in the context of medical practice. One of the most controversial decisions in this area in recent years has been the decision of the Court of Appeal in Re A (Conjoined Twins: Medical Treatment), authorising the separation of conjoined twins. This paper will argue that the decision was flawed both on legal and moral grounds and that its potential implications for future cases are more far-reaching than the judgment itself suggests.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 3 , September 2002 , pp. 377 - 397
Copyright
Copyright © Society of Legal Scholars 2002

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References

1. [2001] 1 FLR 1.

2. See eg R v Howe [1987] AC 417 at 439 per Lord Griffith.

3. Airedale NHS Trust v Bland [1993] 1 All ER 821 at 865–866, HL per Lord Goff; Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 at 46 per Lord Donaldson MR, and at 51–52 per Balcombe LJ.

4. See eg Keown, J ‘Restoring moral and intellectual shape to the law after Bland’ (1997) 113 LQR 482 at 484.Google ScholarPubMed

5. R (Pretty) v DPP [2001] 3 WLR 1598 at 1624, HL per Lord Steyn; Airedale NHS Trust v Bland [1993] 1 All ER 821 at 867, HL per Lord GoC R v Cox (1992) 12 BMLR 38 at 41 (Winchester CC) per Ognall J.

6. Re T (Adult: Refusal of Treatment) [1992] Fam 95, CA; Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541; St George's Healthcare NHS Trust vS [1998] 3 All ER 673, CA; B v NHS Hospital Trust [2002] 2 All ER 443.

7. It has been argued that there is no conflict in such cases, as the principle of the sanctity of life does not require the preservation of the competent person's life against his or her wishes; see Keown, n 4 above, at 495.

8. See eg Airedale NHS Trust v Bland [1993] 1 All ER 821, HL.

9. See eg Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33; Re C (Medical Treatment) [1998] 1 FLR 384; NHS Trust v D [2000] 2 FCR 577.

10. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1.

11. See eg Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242, CA.

12. Brooke LJ expressly admitted this at 98.

13. R Gillon ‘Imposed separation of conjoined twins - moral hubris by the English courts?’ (2001) 27 JME 3.

14. Note, however, that an Australian court deciding on the lawfulness of a separation of conjoined twins which would cause the death of one of them, relied heavily on the Court of Appeal's decision in Re A: see Queensland v Nolan [2001] QSC 174.

15. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 62.

16. On this point see also J Rogers ‘Necessity, private defence and the killing of Mary’ (2001) CrimLR 515 at 517.

17. In his commentary on Re A (2001) CrimLR 401, JCS equally argues that regardless of the proclaimed unique nature of the case, it will constitute an important precedent for the criminal law.

18. Re T(A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242, CA.

19. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 111 and 118–119.

20. See also A Grubb' Conjoined twins: Re A down under' (2002) 10 MLR 100 at 101.

21. McKay and anor v Essex Area Health Authority and anor [1982] 2 All ER 771 at 781 per Stephenson LJ.

22. Airedale NHS Trust v Bland [1993] 1 All ER 821.

23. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 119.

24. See eg Re J (A Minor) (Wardship: Medical Treatment) [1991] 1 Fam 33; Re C (Medical Treatment) [1998] 1 FLR 384; NHS Trust v D [2000] 2 FCR 577.

25. See eg Airedale NHS Trust v Bland [1993] 1 All ER 821.

26. This approach has recently been confirmed in R (Pretty) v DPP [2001] 3 WLR 1598 at 1606, HL per Lord Bingham, and at 1624 per Lord Steyn.

27. Airedale NHS Trust v Bland [1993] 1 All ER 821 at 869.

28. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 46.

29. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 37–38.

30. See S Michalowski’ Is it in the best interests of a child to have a life-saving liver transplantation?: Re T (Wardship: Medical Treatment)‘ (1997) 9 CFLQ 179 at 189.

31. See eg Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 at 46 per Lord Donaldson MR; Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 at 1424 per Templeman LJ.

32. [1994] 2 AC 212, HL; [1993] 1 FLR 883, CA.

33. The House of Lords, on the other hand, decided that the interests of the baby were paramount in that case, as the application had been made on her behalf.

34. This approach was welcomed by A Bainham ‘Resolving the unresolvable: the case of the conjoined twins’ (2001) 60 CLJ 49 at 52.

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38. Airedale NHS Trust v Bland [1993] 1 All ER 821 at 890 per Lord Mustill; R (Pretty) v DPP [2001] 3 WLR 1598 at 1603–1604, HL per Lord Bingham.

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41. For a discussion of the doctrine of double effect in the context of the separation of conjoined twins see Sheldon, S and Wilkinson, S ‘Conjoined twins: the legality and ethics of sacrifice’ (1997) 5 MLR 149 at 158–165.CrossRefGoogle ScholarPubMed

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45. Rogers, n 16 above, at 519.

46. See eg Airedale NHS Trust v Bland [1993] 1 All ER 821 at 868 per Lord Goff; Re J [1991] Fam 33 at 46 per Lord Donaldson MR; R v Cox (1992) 12 BMLR 38 at 41 (Winchester CC) per Ognall J.

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54. (1884) 14 QBD 273.

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62. [1987] AC 417 at 433 per Lord Hailsham.

63. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 84.

64. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 98.

65. [1987] AC 417 at 456.

66. [1987] 533 A2d 611 at 616, DC CA.

67. [1990] 573 A 2d 1253 at 1247, DC CA per Terry JA.

68. (1992) 12 BMLR 38 at 41 (Winchester CC).

69. But see Brooke LJ, who seems to have relied on that argument, as can be inferred from his observations at 87–89; see also JCS, n 17 above, who argues at 403 that ‘the choice was not whether Jodie or Mary should die, but whether Jodie and Mary, or Mary alone, should die’.

70. An overview and critical evaluation of the arguments that neonates do not possess personhood and that infanticide could therefore be morally justified is provided by R Weir Selective Treatment of Handicapped Newborns: Moral Dilemmas in Neonatal Medicine (New York, Oxford: Oxford University Press, 1984) pp 152–159.

71. Airedale NHS Trust v Bland [1993] 1 All ER 821 at 867, HL per Lord Goff.

72. In favour of such an approach, see eg Elliott, C ‘Murder and necessity following the Siamese twins litigation’ (2001) 65 J Cr L 66 at 75Google Scholar.

73. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 38 per Ward LJ.

74. Airedale NHS Trust v Bland [1993] 1 All ER 821, HL; for a discussion of the impact of this decision on the sanctity of life principle, see eg Finnis, J ‘Bland: crossing the rubicon?’ (1993) 109 LQR 329 Google ScholarPubMed; Keown, n 4 above.

75. Re T(A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242, CA.

76. ReJ (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, CA.

77. Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 at 52 per Balcombe LJ.

78. Airedale NHS Trust v Bland [1993] 1 All ER 821 at 870, HL per Lord Goff.

79. See also Burnett, D ‘Conjoined twins, sanctity and quality of life, and invention the mother of necessity’ (2001) 13 CFLQ 91 at 99Google Scholar.

80. Williams, G Textbook of Criminal Law (London: Stevens & Son, 2nd edn, 1983) p 607.Google Scholar

81. See also Sheldon and Wilkinson, n 41 above, at 169.

82. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 53.

83. Guardian, 1 May 2002, p 5.

84. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 99.

85. Smith and Hogan, n 57 above, p 49.

86. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 60.

87. R Card Card Cross and Jones Criminal Law (London: Butterworths, 14th edn, 1998) p 40.

88. See also H' Watt ‘Conjoined twins: separation as mutilation’ (2001) 9 MLR 237 at 241–242.

89. [1987] AC 417 at 433.

90. See also Card, n 87 above, p 639.

91. For a discussion of the problem from a philosophical perspective, see eg Tooley, M Abortion and Infanticide (Oxford: Clarendon Press, 1983) pp 205–241 Google Scholar, who argues that there can be no mod distinction between a duty to act and a duty not to act (moral symmetry principle); see, on the other hand, Trammell, R ‘Saving life and taking life’ (1975) J Philosophy 131 CrossRefGoogle ScholarPubMed, who argues that a duty to refrain from killing overrides the duty to refrain from saving Lives.

92. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 98.

93. For a thorough discussion of a conflict between moral and legal duties see Perka v The Queen [1984] 13 DLR (4th) 1 at 34–35 (Can Sup Ct) per Wilson J.

94. A-G for Northern Ireland's Reference (No 1 of 1975) [1977] AC 105 at 136, HL per Lord Diplock, and at 148 per Viscount Dilhorne.

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100. Guardian, 1 May 2002, p 5.

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102. See the decisions in Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33; Re C (Medical Treatment) [1998] 1 FLR 384.

103. Re A (Conjoined Twins: Medical Treatment) [2001] I FLR 1 at 62.

104. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 53.

105. Airedale NHS Trust v Bland [1993] 1 All ER 821 at 891.