Judges choose 'lesser of two evils'

The law Past cases little help as court decides on unique case

• Clare Dyer, legal correspondent
• The Guardian, Friday 22 September 2000 19.29 EDT
The appeal court’s judgment, paving the way for the separation of the conjoined twins Mary and Jodie, makes
new law in ruling that doctors may kill one child to save the other without falling foul of the criminal law.
But it should allay the fears of the anti-euthanasia lobby that a ruling in favour of separating the twins
would give doctors free rein to end life.
The judges have expressly limited it to cases where X cannot be saved without killing Y, where Y, by
continuing to exist, would inevitably kill X, and where X is capable of an independent life but Y is not,
whatever the medical intervention.
In short, the ruling covers twins such as Mary and Jodie but no other type of case.
The three judges were faced with what may be the most difficult conundrum of their careers. Both twins would
die without an operation; with an operation Jodie could be saved, though Mary would die.
The law forbids the sacrifice of an innocent life to save another. So how could the operation take place?
It was never an option, as some medical ethicists argued, to leave it to the parents. Yesterday a court in
Northern Ireland intervened to order a blood transfusion for a 15-year-old girl undergoing a transplant after
she and her father refused it. Doctors cannot operate without parental consent, but parental refusal is not
always the last word in law – as an adult’s refusal would be.
If parents refuse and doctors believe an operation is in a child’s best interests, they ask the court to
decide and the court cannot shirk its task.
The Children Act, under which the case was brought, makes the interests of the child paramount. But what if
there are two children whose interests conflict? In such cases, the court has to strike a balance.
Mary would die anyway, but Jodie could survive with normal intelligence and a reasonable quality of life. She
will need some reconstructive surgery and further operations in her early years but doctors believe she may
eventually be able to walk unaided. The balancing exercise required the operation on Mary to go ahead.
But would the criminal law allow it? Could there be a justification which would sanction what is essentially
murder: taking one life to save another?
The only pronouncement lawyers could find came in the dissenting judgment of Justice Bertha Wilson, in a
Canadian supreme court drug importation case in 1984. She said: “Where necessity is invoked as a
justification for violation of the law, the justification must, in my view, be restricted to situations where
the accused’s act constitutes the discharge of a duty recognised by law.
“The rule of proportionality is central to the evaluation of a justification premised on two conflicting
duties, since the defence rests on the rightfulness of the accused’s choice of one over the other.”
In this case the doctors had conflicting duties to both twins but Mary was “designated to die” no matter
what. In the Canadian case, however, Justice Wilson went on to say that necessity could not justify an act of
homicide.
“It seems to me the law must allow an escape through choosing the lesser of the two evils,” said Lord Justice
Ward. The law did not allow an innocent person’s death to be caused by act or omission. But Mary, while
legally innocent, was harming Jodie by “draining her lifeblood”. If she could speak, Jodie might have told
her twin: “Stop it, Mary, you’re killing me.”
It was as if a six-year-old boy, also legally innocent because he would be below the age of criminal
responsibility, started indiscriminately shooting in the playground, he said.
Lord Justice Ward had no doubt that it would be lawful to kill him in defence of the others. He could see no
difference between that scenario and the one in which doctors in effect exercised self-defence on behalf of
Jodie in separating her from Mary.
“The availability of a plea of quasi self-defence, modified to meet the quite exceptional circumstances
nature has inflicted on the twins, makes intervention by doctors lawful.”
Lord Justice Brooke, in an exhaustive review of the criminal law, looked at the case of the two marooned
sailors who were convicted of murder for killing and eating their cabin boy. Doing so had kept them alive
long enough to be rescued; otherwise they would have died too. But the court ruled this was not enough to
exonerate them.
The twins’ case was not so clear-cut, said Lord Justice Brooke. The defence of necessity would protect
doctors if the act was needed to avoid inevitable to and irreparable evil, no more was done than was
reasonably necessary for the purpose, and the evil inflicted was not disproportionate to the evil avoided.
All these requirements were satisfied in this case.
Lord Justice Robert Walker acknowledged that whatever light earlier cases could shine on their dilemma, “in
truth there is no helpful analogy or parallel to the situation which the court has to consider in this case”.
It is “unprecedented and paradoxical” in that each twin had the right to life, but Mary’s dependence on Jodie
would lead to both twins’ death. The operation would not be unlawful because while Mary’s death was not the
purpose or intention of the surgery. “She would die because tragically her body, on its own, is not and never
has been viable.”
Doctors have operated on conjoined twins in the past, including pairs where one twin was doomed to die, but
the thought that they might be accused of murder presumably never occurred to them.
The appeal court has extended the common law slightly to cover circumstances never before been canvassed in
court. But making new law to deal with unforeseen circumstances is part of the job of the higher courts.
Leading figures in appeal hearing
Jodie
A “bright, alert baby” whom doctors believe will be able to lead a “relatively normal” life if separated.
There is concern that she has not grown as quickly as she should because Mary is taking nourishment from her.
If no operation took place, she would eventually die as her heart is beating for both children and cannot
support such pressure indefinitely.
Mary
Lives only because of her physical attachment to Jodie. Has severe brain damage. Without an operation, she
would die when Jodie’s heart gave out. Counsel for her argue that she has as much right to life as her sister
and there is no proof that she is suffering.
Parents
Cite their Catholic views as reason for not giving permission for the operation. “We cannot begin to accept
or contemplate that one of our children should die to enable the other one to survive. That is not God’s
will.”
The doctors
Have reached the conclusion that it is better to save one life rather than lose two children. If the twins
deteriorate they will not be able to operate because of legal proceedings.
Catholic church
Believes permission for an operation will enshrine in law the “dangerous” principle that it is permissible to
carry out a wrong act in order to accomplish ultimate good. Archbishop of Westminster made a submission to
the court – though not asked to do so by the parents.
ProLife Alliance
Granted leave to make its submissions to the court.Agreed with the parents that the operation should not go
ahead.Supports an offer from an Italian archbishop of a “safe haven” for the twins and their parents.
Attorney general
QC appeared for the attorney general to argue the criminal law aspects of the case. Concluded that the
doctors do not stand to be convicted of murder or manslaughter for carrying out the operation.
The judges
Two admitted they were losing sleep over the case. Arriving at court yesterday, Lord Justice Ward described
the case as “excruciatingly difficult”.

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