The curt's rle in life and death decisins by Laurence Gates The Official Slicitr cnsiders the invlvement f the curts and, where apprpriate, the part played by him in cases requiring end f life r life-saving decisins. This is a subject nt nly f sme legal interest but als giving rise t sme questins with a mral, ethical r religius dimensin. Emtins can als be arused. During the height f the cnjined twins case in 2000 (Re: A (Children) (Cnjined Twins: Surgical Separatin [2001] 2 WLR 480) ne cmmentatr likened the psitin f Mary, the weaker f the tw whm I was representing, t being n death rw. The central dilemma f that case was that withut the interventin f the curts bth f the cnjined twins wuld have died within a reasnably shrt time frame. We are all destined t die, the questins being hw and when. This article cnsiders the circumstances in which the High Curt in England and Wales has a part t play in that event; and als in making life-giving r life-saving decisins. Each year there are abut 20 cases in the Family Divisin f the High Curt in England and Wales cncerning whether medical prcedures shuld r shuld nt be carried ut n peple wh are unable, r refuse, t cnsent t the treatment in questin. There are bradly three types f case: medical pinin is that a particular curse f treatment will save life - this includes whether a bld transfusin shuld be given, a caesarean sectin shuld be 7 perfrmed, r even whether a heart transplant shuld be rdered against the knwn views f the child patient; medical pinin, supprted by thse caring fr the patient, is that a particular peratin shuld be carried ut t enhance the quality f life f the patient r t ensure imprvement r prevent deteriratin in his r her physical r mental health - the questin f whether sterilisatin f a patient wh is unable t cnsent shuld be carried ut falls int this categry; and medical pinin is that cnsistently with the duty wed t the patient an aspect f treatment shuld be terminated s as t allw that patient t die peaceably this cncerns the questin f whether artificial feeding and hydratin fr a patient in a permanent vegetative state shuld be withheld r withdrawn. In accrdance with the President's Directin f 14 December 2001 (Declaratry Prceedings cncerning Incapacitated Adults: Medical and Welfare Decisins) a number f these cases, and certainly thse in the third categry, will be determined by the President. I am brught in t represent thse patients wh need a guardian ad litem (if 'family prceedings' under the Family Prceedings Rules 1991) r litigatin friend (if 'civil prceedings' under the Civil Prcedure Rules 1998) - primarily either children r mentally incapacitated adults - r I may be asked by the curt t assist as an amicus (nw re-styled by the Erd Chief Justice as 'Advcate t the Curt'). This seminar als encmpasses the issues raised by the recently cncluded Diane Pretty case (R (Pretty) v Directr f Public Prsecutins [2001] 3 WER 1598). Neither the President nr I were invlved in that case and it falls utside the categries I have referred t abve. Its special features fr ur present purpses are that it was nt a case abut medical prcedures - the persn wh wished t assist the mtr-neurne disease sufferer Mrs. Pretty in her suicide was nt a medical practitiner but was her husband and the methd by which it was prpsed that he shuld act was nt specified - and it cncerned smene wh was fully mentally cmpetent t decide what t d within the law fr herself (albeit that she was nt physically capable f bringing her wn life t an end). One pint t draw ut having referred t that case is that the circumstances in which in judicial review prceedings the curts may be called upn t review decisins by thers which may have life r death cnsequences fr the persn affected are many and varied. The cases with which I am primarily cncerned are cases in which the curts have the riginal fact-finding and decisin-making jurisdictin. Where a party whse decisins r acts are in questin and wh may r may nt be acting in the best interests f an incapacitated persn is a public audirity, an interesting interface may arise between the judicial review and riginal jurisdictins. Munby J, wh happens t be a Family Divisin judge and
a judge assigned t the Administrative Curt, has in A v A Health Authrity and Ors (etc) [2002] EWHC 18 (Fam/Admin) thrwn sme light upn this interface and when public law remedies shuld be sught. I O JURISDICTION As a precursr t cnsidering sme f the issues, we shuld first establish the jurisdictinal basis upn which life and death issues becme the respnsibility f the curts. It is funded in the lng-recgnised duty f the Crwn as parens patriae t prtect the persn and prperty f its subjects and particularly thse unable t lk after them. The judges have inherendy exercised this pwer and duty, s far as children are cncerned (since 1660 either in Chancery r in the Family Divisin). In practice it has nw been supplemented, and t a large extent superseded, by the Children Act 1989, which is a near-cmprehensive cdificatin f the law relatin t children. Any prceedings cncerning the welfare f a child can be brught under that Act and the welfare f the child will be the paramunt cnsideratin fr the curt. The ther prime beneficiaries f the Crwn's parens patriae pwer were lunatics (as then described). The histrical evlutin f that pwer as it relates t them is smewhat different. Fllwing the Restratin f the Mnarchy in 1660, the Crwn's parens patriae pwer in relatin t lunatics and ther incmpetent adults was assigned by Letters Patent under the Great Seal (and latterly by Warrant under the Sign Manual) t specific individuals - namely the Lrd Chancellr and designated Judges. At the time that the Mental Health Act 1959 came int frce the latest Warrant was revked. The 1959 Act was largely a cdificatin f the law in this area and it prvided a statutry framewrk t have effect with respect t the receptin, care and treatment f mentally disrdered patients, the management f their prperty and ther related matters. The questin with which the curts had subsequently t grapple was whether the inherent jurisdictin had survived in any shape r frm r whether it had been replaced in the statutry cde. This was decisively answered by the Huse f Lrds in Re: F (Adult Patient: Sterilisatin) [1990] 2 AC 1. The Family Divisin has inherent jurisdictin t make declaratins as t the lawfulness f treatment, which is in the best interests f incmpetent adults unable t decide fr them. This principle has since been extended t ther welfare decisins. The tw separate jurisdictins is an imprtant pint t draw ut nw. Cases cncerning the cmpulsry detentin and treatment fr mental disrder (as widely defined) are t be determined under, and in accrdance with, the Mental Health Act. That prvides its wn prcedures, including circumstances in which there can be a review by a Mental Health Review Tribunal. They will generally nly reach the High Curt upn an applicatin fr judicial review. Cases cncerning all ther aspects f medical treatment f a mentally incmpetent adult, irrespective f whether he/she is a patient under the Mental Health Act, are determined under the inherent jurisdictin. One example where different utcmes have been reached in different jurisdictins cncerns the frcefeeding f prisners. As will be seen, cnsistent with principle established in the inherent jurisdictin, a detained adult prisner f sund mind can, and must, be allwed t starve himself/herself t death - see Hme Secretary fr the Hme Department v Rbb [1995] Fam 127. Hwever, in R v Cllins and Ashwrth Hspital Authrity, ex pane Brady [2000] Llyd's Law Rep Med 355, a judicial review case cncerning the Mrs' Murderer lan Brady's attempt t starve himself t death, the issues arising there were 7 whether the frce feeding was 'medical treatment' and was 'fr the mental disrder frm which [the applicant] is suffering'. In uphlding Ashwrth Hspital's frce-feeding, and rejecting Mr Brady's submissins that his intentin t starve himself t death was unrelated t his mental disrder and was the ratinal decisin f a cmpetent persn, Maurice Kay J decided that in the judicial review prceedings he did nt have t reslve these submissins as a matter f fact but that in any event n the facts as befre the curt he was against Brady n bth pints. This case pre-dates the implementatin f the Human Rights Act 1998. It has since been dubted in the Curt f Appeal whedier the same decisin wuld be reached tday (R (Wilkinsn) v Respnsible Medical Officer, Bradmr Hspital and thers (CA 22 Octber 2001)). That appeal raised an interesting pint as t hw the judicial review f the decisin reached under the Mental Health Act prcedures shuld be cnducted in a way cmpatible with the patient's human rights. The appellant was a 69-year-ld mental patient wh had been detained at Bradmr fr 34 years. He vigrusly ppsed, and physically resisted, treatment by way f anti-psychtic medicatin. His respnsible medical fficer cnsidered that nnetheless the treatment shuld be given t alleviate r prevent a deteriratin f his cnditin, and that the risk t his health in s ding was negligible. A 'secnd O O O pinin appinted' dctr agreed and the cnditins under the Act fr the cmpulsry administratin f the treatment were met. In the judicial review prceedings the appellant submitted a reprt frm an independent cnsultant psychiatrist t diametrically ppsite effect - namely, that the anti-psychtic medicatin wuld nt help and in the light f this resistance culd lead t sudden cardiac death. The pint determined in the appeal was that, ntwithstanding the new wider apprach t judicial review develped in such cases as R (Alcnbury) v Secretary f State Jr the Envirnment, Transprt and the Regins [2001] 2 All ER 929 and R v Secretary f State Jr the Hme Department, ex p Daly [2001] 2 WLR 1622, in rder t ensure that his human rights were upheld the curt must hear direct ral evidence frm the dctrs cncerned t reach a view as a matter f fact n wh was right.
INCAPABLE ADULTS Whenever the High Curt is called upn t exercise its inherent jurisdictin in relatin t an adult patient, it will have befre it tw issues. The first is whether the adult patient is capable r nt f reaching his/her wn decisin n the treatment in questin and therefre f giving a valid cnsent r refusal; die secnd is, if nt, what is in his/her best interests? The issue f capacity t cnsent depends upn whether the patient fully understands die nature f the medical interventins prpsed, their reasns, and the cnsequences f submitting r nt submitting t them (see Re: MB (Medical Treatment) [1997] 2 FLR 426). I shuld pause t pint ut that the tests fr capacity fr different purpses are different. My invlvement in representing a party in such prceedings can nly arise when that party is incapable, by reasn f mental disrder f managing and administering his prperty and affairs (see the slightly differently wrded tests set ut in Family Prceedings Rules 1991, rule 9.1; Civil Prcedure Rules 1998, Part 21). I invariably require evidence frm a psychiatrist r psychlgist wh has assessed the patient and can give an pinin whether that test is met; and, if it is, whether in applying the Re MB test t the particular decisin in questin the patient lacked the capacity t cnsent. The fact that a patient has been sectined under the Mental Health Act and is subject t cmpulsry detentin and treatment is neither determinative f his/her capacity t manage prperty and affairs nr t cnsent t treatment. The best example f this is Re C (Adult: Refusal f Medical Treatment) [1994] 1 WLR 290 cncerning a patient at Bradmr with chrnic paranid schizphrenia and with gangrene in his right ft. The medical evidence was that he wuld die imminently if the leg was nt amputated belw the knee, and he was given n higher than a 15 per ' F cent chance f survival if nt. He refused t cnsent t amputatin but agreed t mre cnservative treatment. Thrpe J held that he had understd and arrived at a clear chice and his refusal was upheld. In the result, as we understand it, he survived and gangrene did nt return. 'Best interests' has been judicially defined t encmpass medical, emtinal, and all ther welfare issues. A curt shuld draw up a check-list f the actual benefits and disadvantages and the ptential gains and lsses, including physical and psychlgical risks and cnsequences, and shuld reach a balanced cnclusin as t what is right frm a pint f view f the individual wh is the subject f the prceedings (see Re: A (Male Sterilisatin) [2000] 1 FLR 549). CAPABLE ADULTS One imprtant principle I wuld emphasise is that a cmpetent adult cannt be cmpelled t underg lifesaving, r any ther, treatment. The clearest example f diis principle is St. Gerge's Health Care Trust v S [1999] Fam 26. This case cncerned a pregnant lady wh wuld nt cnsent t a caesarean sectin and the mistaken view held by die hspital authrity that her refusal shuld be verridden, as she must thereby be suffering frm a mental disrder because her view was cntrary t the medical pinin f what was in her best interests. The case is als authrity fr die prpsitin that a cmpetent adult can refuse treatment, which wuld save an unbrn fetus. The fetus, up until die mment f birth, des nt, in law, have any separate interest capable f being taken int accunt. This is all part f the right f an adult t autnmy, and a reflectin that subject t the statutry prhibitins cntained in die Abrtin Act 1967 and/r die Infant (Life Preservatin) Act 1929 the law's prtectin extends nly t a life in being. This principle has, since diis lecture was first given, been graphically re-affirmed by die President in Ms B v An NHS Hspital Trust [2002] EWHC 429 (Fam). A cmpetent patient's refusal t cnsent t life sustaining treatment (in this case artificial ventilatin) must be respected. Dctrs shuld nt cnfuse the questin f capacity widi the nature f die decisin made by the patient, hwever grave the cnsequences. ADVANCE DIRECTIVES Cnsent r refusal by an adult may have been furnished in advance thrugh an advance directive. In such a case, the O ' questin will be whether the adult was capable at the time f giving that directive and whether it is applicable t the circumstances, which have nw arisen. If there is reasn t dubt the validity r applicability f the advance directive - fr example, it may sensibly be thught nt t apply t the particular life threatening circumstances that have arisen - the curt will cnsider the advance directive as a part f the evidence f what is in the patient's best interests. One example f an advance directive is in the case f Re AK (2000) 58 B.M.L.R. 151. This cncerned a nineteen and a half year ld mtr-neurne disease sufferer. Its unusual feature, s far as this disease is cncerned, and which pints t a cntrast with the Pretty case, was that befre a cnclusive diagnsis f mtrneurne disease had been made this patient had suffered a respiratry arrest, and was nw being kept alive by artificial ventilatin. He had reached the stage in the prgressin f the disease that he culd nly cmmunicate thrugh mvement f an eyelid. He tld his carers by this means that he wished his ventilatin t be stpped nce he culd n lnger cmmunicate at all. Hughes J granted a declaratin that it was lawful t d s, it being n the cntrary unlawful t cntinue the invasive treatment in the insertin f a trachetmy tube withut his cnsent. CHILDREN A secnd principle, in cntrast t the first, is that a child can be rdered t have life-saving, r any ther, treatment if it is in his r her welfare interests ntwithstanding the child's r parents' views. This enables parental ppsitin t treatment t be vercme. Thus an adult Jehvah's Witness can refuse a bld
10 transfusin fr him/herself but the curts will take the decisin if it is needed t safeguard the welfare f his/her child. In the case f Re: C (A child) (HIV Testing) [1999] 2 FLR 1004 Wilsn T. held that ntwithstanding the J ppsitin f bth parents wh believed in alternative medical remedies and nt in the generally accepted current medical pinin as t the causes and diagnsis f aids, it was verwhelmingly in the interests f the child that thse parents and dctrs caring fr her shuld knw whether she had cntracted the virus. He rdered that a bld sample shuld be taken frm the child. Thse f yu wh were at the time fllwing the news J reprts in relatin t that case will be aware that the parents fled the cuntry with the child befre any bld sample culd be taken and have nt been seen since. I shall lk further int the weight t be given t a parental r^ refusal when I cme t discuss the cnjined twins case. The views f the child can seemingly be verridden hwever mature r therwise cmpetent that child may be. The curts have develped the dctrine f 'Gillick cmpetence', s-called because it arse in the case f Gillick v West Nrflk and Wisbech Area Health Authrity [1986] AC 112. That case cncerned the right and ability f a 14 year ld t seek cntraceptive advice regardless f parental ppsitin. By virtue f s.8 f the Family Law Refrm Act 1969 children f 16 and ver are able t give cnsent t medical treatment as if they were adult. This enables a cmpetent child ver 16 years f age t verride a refusal by his/her parents withut the curts' interventin. But it des nt fllw that the refusal t give cnsent f a cmpetent child will be determinative in the same way as it wuld be if adult. The case f Re: M (A child) (Medical Treatment: Cnsent) [1999] 2 FLR 1097 is a stark example f verriding the views f a mature adlescent. That case cncerned a fifteen and a half year ld girl wh was diagnsed with a heart disease, which had afflicted her quite suddenly, and which required, if she was t be saved, a heart transplant. Jhnsn J. in deciding t rder the heart transplant was able t draw sme supprt frm the evidence that she was cnfused as a result f the events, which had s quickly verwhelmed her and the questin f Gillick cmpetence, was nt raised. I wuld suggest that the Family Divisin Judges will cntinue t act in accrdance with a child's welfare interests and find that it is verwhelmingly in the child's welfare interests t be kept alive irrespective f hw cmpetently (in terms f understanding and assessing the issues) that child wishes t embark upn r maintain a curse f cnduct t the ppsite effect. There is, hwever, quite a cntrast between the psitin at any time immediately prir t ne's eighteenth birthday and thereafter. There is als a questin, yet t be litigated, whether the prtectin in Art. 5 f the ECHR against deprivatin f liberty have any applicatin t the detentin, which may be required in rder that cmpulsry treatment can be given. ASSISTING THE TERMINALLY ILL I shuld take tgether my third and furth principles, which cncern treatment, which may hasten death. The first f these is that medical treatment may be administered t a terminally ill persn t alleviate pain althugh it may hasten death, but medical treatment may nt be given intended t bring abut death. The secnd, 7 hwever, is that subject t judicial authrity it is permissible t cease t take active steps t keep a patient in a permanent vegetative state alive. The President (r nminated judge) can, and des, declare lawful the withhlding and withdrawal f artificial nutritin and hydratin frm such patients. Bth these principles derive frm Eland (Airedale NHS Trust v Bland [1993] AC 789) as recently cnfirmed by Pretty (cited abve). The Bland case arse ut f the Hillsbrugh ftball tragedy, at which the victim was y crushed almst t the pint f death. Whilst retaining brain stem activity (the pint at which life ceases) he entered the permanent vegetative state. The Huse f Lrds upheld a declaratin that it wuld be lawful t withhld further life-prlnging treatment and care frm him, namely cntinued artificial nutritin and hydratin, as being in his best interests peaceably t die, whereas the cnverse f keeping him alive wuld have been futile. This principle has been held by the President t be cmpatible with the Human Right Act (NHS Trust A v M; NHS Trust B v H [2001] 1 FCR 406. The Pretty case is authrity fr the prpsitin that there is n psitive bligatin upn a State under the Eurpean Cnventin n Human Rights t allw fr euthanasia r assisted suicide. A number f questins f interest arise. The first f these related prpsitins takes us int the dctrine f duble effect. It is perfectly permissible t, say, administer a dse f diamrphine intending the ne cnsequence (the alleviatin f pain) but reasnably freseeing the ther (that death will be hastened). The Rubicn is crssed if by this intentinal act the hastening f death is intended. It can be appreciated that there may be a fine dividing line between the legal cncepts f intentin and reasnable frseeability. This dividing line is made mre difficult in that in the criminal law intentin is mre widely defined than in medical law, and wuld encmpass the administratin f a dse f diamrphine virtually certain t cause death. Yet it is clearly an imprtant principle that the intentinal hastening r causing f death by a psitive act is nt permissible unless r until Parliament decrees that it is and defines the circumstances in which it is t be permitted and the safeguards which shuld be applicable t it. The secnd f these related prpsitins intrduce the distinctin between psitive acts causing (and intending) death and the negative act f withdrawing r withhlding treatment, which artificially prlngs life (and by ding s will inevitably and intentinally result in death). I have used
my wrds carefully because in such a case an accurate analysis needs t be cnducted as t bth causatin and intentin. The distinctin has, hwever, been criticised; bth by dctrs wh find the distinctin between 'psitive' and 'negative' acts difficult t draw in practice, and by academic legal writers (see e.g. ] Kewn 'Restring mral and intellectual shape t the law after Bland", ( 1997) 113 LQR 481). Their Lrdships themselves in Bland were understandably anxius abut the intellectual rbustness f the distinctin between death brught abut by an missin, n the ne hand, and death caused by a psitive act, n the ther (see in particular remarks by Lrds Mustill, Brwne-Wilkinsn and Lwry). The distinctin was ne f the issues, which caused great difficulty in the cnjined twins case (see belw). In my view, it allws the President, r nminated Judge, t d justice in thse cases in which prlngatin f life is futile. I was, therefre, anxius t establish that this jurisdictin is entirely cmpatible with Art. 2. Right t Life (NHS Trust A v M; NHS Trust B v H). It has nw been reaffirmed by Pretty. The withdrawal f artificial nutritin and hydratin des nt cnstitute 'intentinal deprivatin f life' within the meaning f Art. 2 as the death fllws frm the patient's illness r injury; and the psitive bligatin n the State t prvide life-sustaining treatment is cnfined t thse circumstances where, accrding t respnsible medical pinin, such treatment is in the best interests f the patient. There are a cuple f cmments I wuld wish t make. The first is based upn the requirement that the curt's sanctin is given. Dctrs shuld nt assume the lawfulness, even where thse clse t the patient are f the same view that the artificial nutritin and hydratin shuld be withdrawn. Other circumstances in which dctrs cnsider they are acting in the best interests f their patients in withdrawing r withhlding treatment may nt be subject t curt review. As a matter f general principle, the BMA argues that ther situatins in which lifeprlnging treatment is nt a benefit t the patient shuld nt rutinely be subject t review by the curts (Guidance Jr Decisin Making n Withhlding r Withdrawing Life- Prlnging Medical Treatment, BMJ Publishing 1999). A passive 'J nt resuscitate' decisin, which des nt invlve an assault, des nt give rise t the same ptential legal liability and therefre des nt require the curt's authrity, althugh unless handled sensitively and in accrdance with recmmended practice, it may give rise t public cncern (r frm the basis fr a negligence actin). 1 x O O ' My secnd cmment is that the Family Divisin has nt yet been faced with a case f minimal as ppsed t n awareness - i.e. nt falling within the medically accepted definitin f permanent vegetative state - where it may be pssible t munt similar arguments as t futility and benefit. In ne case the then President Sir Stephen Brwn granted a declaratin albeit that ne paragraph f the Ryal Cllege f Physicians' Guidelines fr determining the existence f PVS was nt met but where he was satisfied that there was n awareness (Re D (Medical Treatment,)[1998] 1 FLR 411). I wuld nt wish t predict the arguments I wuld munt in a case in which the evidence was f sme minimal awareness but nt f a nature t change the essential balance t be struck in terms f futility in maintaining treatment r best interests that the patient's life shuld nt be prlnged (as may ccur in a case in which a patient is diagnsed as being in a 'lcalising respnsive state', which is regarded as a presentatin f the vegetative state but which shuld nw mre accurately be described as the 'minimal cnscius state'). Unfrtunately, these issues frm time t time arise in the cntext f what shuld be the ther end f life, in relatin t babies r yung children. The Ryal Cllege f Paediatric and Child Health has issued guidelines, T Withdrawing r Withhlding Life Saving Treatment in Children, a Framewrk Jr Practice, which refer t a 'n chance' situatin where a child has such a severe disease that life sustaining treatment simply delays death withut a significant alleviatin f suffering, thereby rendering such treatment inapprpriate. In NHS Trust v D (2000) 5 5 BMLR 19 Cazalet J was faced with this situatin in a severely disabled 19 mnth ld child als suffering frm irreversible and wrsening lung disease, heart failure, and ' ' hepatic and renal dysfunctin. The NHS Trust sught an rder t the effect that if the child were t suffer a respiratry r cardiac failure r arrest it wuld be lawful t treat him with palliative care nly with a view t easing his suffering and permitting his life t end peacefully and with dignity1. On behalf f the child I supprted this as being in his best interests. The parents were ppsed. The Judge granted the rder sught. It is nt truly a case f futility as cntinuing mechanical interventin wuld have had an effect in prlnging life (a life expectancy f ne year at mst was frecast). Hwever, in s ding it wuld increase his pain and suffering and wuld nt therefre be in his best interests. The leading authrity in this area is O J the Curt f Appeal's decisin in Re J (A Minr) (Wardship: Medical Treatment) [1991] Fam 33. THE CONJOINED TWINS I have nw reached the pint when I shuld discuss aspects f that special ne-ff case, the cnjined twins (Re: A). I say it was ne-ff because the facts were s unique. The twins were extensively jined at the pelvis, and each had her wn brain, heart and lungs and ther 7 vital rgans, except fr the bladder, which was cmmn, and her wn arms and legs. The medical evidence was that Jdie sustained the life f Mary by circulating xygenated bld thrugh a cmmn artery. Withut this assistance, and therefre, if separated, Mary wuld die. If, hwever, nt separated Jdie's heart wuld eventually fail and bth wuld die within a few mnths f birth. At first instance Jhnsn J decided the case in favur f rdering separatin upn the basis that (a) it was in the
12 welfare interests f bth twins that it shuld take place - i.e. it was in Mary's best interests in the particular circumstances facing her that her death shuld be hastened - and (b) the separatin prcedures wuld be the equivalent f the negative act f withdrawing life- prlnging treatment. Bth these bases were questinable and nt upheld in the Curt f Appeal althugh the decisin itself was affirmed. Tw f the three appeal Judges accepted my argument that the sanctity f life utweighed any arguments based upn quality f life s that hastening death culd nt be in Mary's best interests. All three agreed that the prpsed peratin was a psitive act f invasive surgery. The rati decidendi f the Curt f Appeal is mre difficult briefly t define, and the judges did nt all say the same thing. Fr ur present purpses I shall qute frm the head nte in the Family Law Reprts (which being in the Family Law arena I prefer t the head nte in the Weekly Law Reprts): '... Where the Curt was cnsidering the psitin f tw children, the requirement that the interests f the child be paramunt was qualified by the need t have regard t ptential detriment Jr ne in the light f the ptential benefit jr the ther. The view f the parents cmmanded very great respect, but was subrdinate t the issue f the child's welfare. Bearing in mind that the weaker twin had, n any view, nly a Jew mnths t live, whereas the strnger twin has the prspect f a relatively nrmal life if the peratin tk place, the least detrimental chice, balancing the interests f these tw children, was t permit the peratin t be perfrmed. It wuld be lawfuljr the dctrs t perfrm the peratin, even thugh it wuld result in the death f ne f the patients, because the dctrs wuld be acting in defence f the strnger twin, wh was being killed by the weaker twin. The dctrs wuld nt be murdering the weaker twin, because they wuld be acting in quasi-self-defence, r with the defence f necessity'. There are certain aspects I shuld draw ut. First, there are tw family law pints. The first cncerns the weight t be given t parental ppsitin. A strng feature f the case is that based upn their Rman Cathlic beliefs bth parents maintained their refusal t cnsent t the peratin whilst the case was being heard at first instance and in the Curt f Appeal. Their views were in the leading judgment, rightly, described as a very imprtant part f the case. Ward L.J. pinted ut that nnetheless the English curt had verriding cntrl in the welfare interests f the child; the curt was nt just a reviewer f the parents' decisin in a judicial review sense, but itself had t decide what was right; and where in striking a balance between the welfare interests f the twins it came t ne view, the curt's view must prevail. This is a strng affirmatin f the welfare principle being paramunt, the mre s as the judgment was reached in a cntext in which there was a strng bdy f pinin in favur n ethical and religius grunds f the parents' views. In supprt f this apprach Ward LJ cited Re T (A Minr) (Wardship: Medical Treatment) [1997] 1 FLR 502. This was a decisin f the Curt f Appeal, including the President, in which, whilst the same principles were adpted, a different utcme was reached. It cncerned a ne year ld baby with a life threatening liver defect, and the unanimus medical pinin was that withut a liver transplant he wuld nt live beynd the age f tw and half years. His parents refused t cnsent t that peratin and their wish prevailed. In analysing that authrity in Re: C (HIV Test) (cited abve) Wilsn J pinted ut that the interventin prpsed fr the child was unwrkable withut the parents' cnsent as the burden f ensuring a successful aftermath was n them. There is a judgment t be drawn n behalf f a child whse parents are implacably ppsed t life-saving treatment whether the slutin can nly be fund in a care rder, under which the lcal authrity cncerned culd secure that the necessary treatment tk place. The President will tell yu hw a happy reslutin eventually emerged in the liver transplant case in that divrced frm the pressure f the litigatin parents and dctrs reached agreement and a successful peratin was undertaken. The secnd family law pint in the cnjined twins case is the very balancing f the interests f the twins. This led the curt int eschewing (in my view rightly) any analysis based upn cmparing quality f life, but nnetheless deciding that the balance was t be struck in terms f the wrthwhileness f the treatment as cmpared t n treatment, althugh whether this avids all cmparisn in terms f quality f life is pen t argument. Secndly, there is the criminal law aspect. In rder t reach the cnclusin that the peratin culd, and shuld, lawfully be perfrmed it was necessary t decide that n criminal act in relatin t Mary wuld ccur. It is here that the argument ranged ver the whle field f the cmmn law definitin f murder since Cke's Institutes (1797), the necessary intentin fr murder (R v Wllin [1999] 1 AC 82), when and if the sacrifice f ne human being fr the benefit f anther culd ever be made (see R v Dudley &, Stephens (1884) 14 QBD 273), and when the dctrines f necessity and/r quasi-self-defence culd apply. On this aspect I shall cntent myself with the pint that this argument revlved arund the peculiar facts f this case, stemming frm the starting pint that althugh the ne twin was dependent upn the ther as I have described bth were separate lives in being requiring the prtectin f the law. In the result, an English curt fr the first, and pssibly nly, time sanctined a surgical prcedure t a patient (Mary) which (i) did nt cnfer, nr was intended t cnfer, any benefit upn her and (ii) t the knwledge f the dctrs invlved wuld necessarily cause her death in the curse f the prcedure r immediately thereafter. The alternative, nt t separate r nly t separate when bth were n the pint f death, wuld have led t the death f bth. On tp f all this and faced with this dilemma the Curt f Appeal cnsidered the human rights aspects, and hardly surprisingly fund that the Cnventin
rights did nt prvide any simpler reslutin t this dilemma. Hw the grunds given fr this decisin fit int r are cnsistent with the general principles established in Bland and Pretty remains a subject fr argument. CONCLUSION In bringing tiiese remarks t a clse, I shuld reflect upn the fact that the material I have cvered is largely judge-made law under the inherent jurisdictin r within the parameters laid dwn in the Children Act. This is territry in which legislatrs in Parliament fear t tread. I shuld lk frward at least t what legislative develpments we can expect. I d nt expect within the reasnably freseeable future legislatin n euthanasia and assisted suicide. Equally, I d nt expect legislatin at all in the area cvered by the Bland judgment. On the ther hand, there is clearly in the ffing a refrm f the Mental Health Act. Mrever, there has been flagged up pssible legislatin n decisin-making n behalf f mentally incapacitated adults prmted by the Lrd Chancellr, but the timing f which remains uncertain. This latter legislatin, if it cmes, is likely t tuch upn a number f themes discussed here. In particular, the prpsed new scheme fr Cntinuing Pwers f Attrney (as ppsed t the current Enduring Pwers f Attrney) will allw individuals t delegate decisin-making in respect f healthcare and welfare issues in additin t matters relating t their prperty and financial affairs. It will fr the first time in England and Wales prvide a statutry framewrk fr welfare decisin-making n behalf f an incapacitated adult (including a statutry definitin f capacity and guidance as t best interests), and will give a wider jurisdictin t a reginal Curt f Prtectin ver the persn f a mentally incapacitated patient. That legislatin, hwever, is likely t steer clear f the life and death issues we have discussed. In his Plicy Statement Making Decisins (published in Octber 1999) the Lrd Chancellr has indicated that ne aspect f the Law Cmmissin's recmmendatins in their Reprt ''Mental Incapacity'1 (Law Cm. 23, published in February 1995) he will nt be putting t Parliament is in relatin t advance statements abut healthcare. We can, in any event, expect this t be an area in which the curts will cntinue t develp the law in accrdance with the justice f a case in line with the principles I have described. @ Laurence Gates, Official Slicitr This article is taken Jmm a lecture given by the Official Slicitr fr the Sciety j Advanced Legal Studies n 24 January 2002 c,ocie7> THE SOCIETY FOR ADVANCED LEGAL STUDIES NOTICE OF AGM NOTICE is hereby given that the Annual General Meeting f the Sciety will be held at the Institute fr Advanced Legal Studies, Charles Clre Huse, 17 Russell Square, Lndn, WC1B 5DR n Wednesday 12th June 2002 at 5.00 pm fr the transactin f the fllwing: 1. T receive and apprve the annual reprt f the Executive Cmmittee n the Sciety's activities. 2. T receive and apprve the accunts fr the year ending 3 1 May 2001. 3. T re-appint Knx Crpper as auditrs and authrise the Executive Cmmittee t fix their remuneratin. 4. T cnsider nminatins fr and t make appintments t the Executive Cmmittee. 5. Any ther business. BY ORDER OF THE EXECUTIVE COMMITTEE Ntes: The annual reprt and accunts will be available fr inspectin by members n 12 June. The annual reprt will als be available n the Sciety website: http://ials.sas.ac.uk/sals/sciety.htm A member entitled t attend and vte at the meeting is entitled t appint a prxy t attend and vte instead f him/her; a prxy need nt be a member.