Murder and the defecnce of necessity

Murder, The Defence of ‘Necessity’ and Medical Practice after the Case of the Conjoined Twins Jodie and Mary.

Introduction In September 2000 the Court of Appeal delivered their judgement to what they described as a ‘truly unique’ case – that of the conjoined twins Jodie and Mary (Re: A (Children)). They were being asked to consider whether a High Court judge had been correct to rule that the proposed separation of the twins, which would result in the death of one of them, was lawful, or whether it amounted to murder. In the opinion of the Court of Appeal, the proposed operation was ‘not unlawful’, an opinion justified on varied legal grounds including that of ‘necessity’.

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.

Re: A (Children) 2000 - the Conjoined Twins 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).

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The medical team at St. Mary’s Hospital, Manchester therefore sought a ruling from the High Court that an operation to separate the twins, knowing that such a procedure would result in the death of Mary, would not be unlawful, i.e. murder.

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.

They considered the defence of ‘necessity’ to be applicable to this situation, Brook LJ giving the most detailed assessment of the relevant law. (Brook LJ in Re: A (Children) part 4 sections 16-24). Their learned justices, however, were mindful of the need to restrict the applicability of this defence, for the purposes of public policy, to the very ‘unique circumstances’ of this case. In order to examine whether the principles of ‘necessity’ will be applied in other aspects of medical practice, where decisions are made as to the relative worth of an individual’s life, in comparison with that of another, the law relating to homicide and the defence of necessity must first be considered in outline.

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The law relating to homicide The prohibition of intentional killing was recognised by Ward LJ as being ‘the cornerstone of law and social relationships’, (in Re: A (Children) part 4 section 7.4) and is 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.

(Boyd et al 1997 p.228, Glover 1990 pp. 39-59 and Kennedy et al 1998 p.843). However, Ward LJ (in Re: A (Children) part 4 section 7.7 and Summary) 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 others.

Coke defined the common law offence of murder as follows;

‘Murder is when a man of sound memory, and the age of discretion, unlawfully killeth within any country of the realm, any reasonable creature in being, with malice aforethought ..’ (Carter & Harrison 1997 p.155 and Brooke LJ in Re: A (Children) part 4 section 11. For an analysis of the elements of this offence see Simester et al (2000) Chapter 10 pp.320-330) 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?

The question of ‘intentionality’ was considered in R v Woolin (1999), 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.

Sheldon et al (1997 pp.158-160) discuss ‘intentionality’ in terms of narrow and wide intentions, and explain that in the case of conjoined twins, the ‘narrow intention’ in carrying out a separation operation is to provide medical treatment.

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However, if the death of 1 of the twins is a foreseeable consequence, the ‘wider intention’ of the surgeon is to kill that twin. R v Nedrick (1986) 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.

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)).

‘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 case. (In Re: A (Children) Part 4 sections 7.7 and 31).

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 I:\training file\ethics ssm\conjoined twins essay.doc-RM

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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 persistent vegetative state, on the basis that this withdrawal is an ‘omission’ – a decision that has attracted much criticism (for example, Keown (1997) pp.481-503). Active participation in a patient’s death on the other hand attracts legal intervention. (Sheldon et al 1997 pp.168-9).

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.

In essence, the defence of the doctrine of necessity is of a similar species to that of duress, and has been termed ‘duress of circumstances’ (Brooke LJ in Re: A (Children) part 4 section 23). It embodies the concept of utilitarianism (Brooke LJ quoting Professor Glanville Williams – part 4 section 20).

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 I:\training file\ethics ssm\conjoined twins essay.doc-RM

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(1987) and R v Pommell (1995), but Brook LJ considered the facts of these cases to be very different to the instant case (in Re: A (Children) part 4 section 26).

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).

Following on from Sir Stephen’s ‘definition’ of necessity, Brook LJ found that the component parts of ‘necessity’ had been fulfilled in Re: A (Children) (part 4 section 26). 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, even they were irreconcilable. In his view, the law could not then turn around to them and say ‘heads I win, tails you lose’ (part 4 section 7.6).

Brooke LJ (part 4 section 26) also explained that he considered Mary to be ‘designated for death’ by the circumstances, not the surgeons, further distinguishing the facts of this case from Dudley & Stephens. This is a view shared by Sheldon et al (1997 pp.167-169) who are also of the view that ‘necessity’ would equally be a valid defence to other cases of ‘sacrifice’. The defence of ‘medical necessity’ has been accepted by the courts in the past (R v Bourne 1938), although it’s boundaries have not been clearly delineated according to Sheldon et al (1997 p.155).

Having accepted necessity as a potential defence to the charge of murder in the sphere of conjoined twin separation, are there implications for other areas of medical practice where doctors make decisions that effectively place the worth of one patient over that of another, and result in the death of that less worthy person? That is, in the view of Sheldon et al (1997 pp.167-169), is necessity an appropriate defence to other examples of ‘sacrifice’?

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Implications of the acceptance of necessity in Re: A (Children) to other areas of medical practice 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.

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. In the absence of next-of-kin who are able to consent to such a move, it would certainly seem necessary for the intensive care team to seek judicial approval for such a decision. Ward LJ stated in Re: A (Children) that the courts decide issues on a legal and not a moral basis, the policy of law, particularly in relation to ‘necessity’ tends to point to the courts actively ensuring that there is no complete ‘divorcing of morality from the law’ (part 4 section 7.4).

B - Triage

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Another area of medical practice in which decisions are actively made by medical personnel about the relative worth of the lives of individuals is that of ‘triage’ in emergency situations.

Triage is a concept originally derived from the battlefield, where injured individuals were assessed with the aim of identifying those most likely to benefit from immediate intervention, thus maximising the number of lives saved (or minimising those lost). (For a description of the triage process see Hodgets et al 2000 pp.168-170).

In modern acute medicine, the concept of triage is routinely applied in accident and emergency departments for all in-coming patients, as well as in the management of major incidents. If one considers the scenario of a motor-way ‘pile-up’, involving many seriously injured people, the person carrying out the triage assessment must make rapid decisions as to who should be treated immediately, and who can either wait, or are considered unlikely to benefit from treatment.

In a major incident, this may result in patients receiving sub-optimal care, potentially resulting in their death. Had they received aggressive emergency treatment they may well have survived. A justification for this decisionmaking process is therefore one of necessity, where there is a limited time period within which the doctor attempts to maximise the clinical outcome of the emergency situation. He has to chose that decision which ‘on average

has the best consequences, and to that end … must consider both the probability and utility of all possible events’. (Wulff et al 1990 p.188).

Interestingly, reporting of the conjoined twins case in the media also recognised similarities between the issue being decided in court, and the type of dilemma facing doctors at the scene of an accident where there were multiple serious casualties. (Morris 2000 p.12).

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 I:\training file\ethics ssm\conjoined twins essay.doc-RM

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of health care resources on a macro scale, and use concepts such as Quality Adjusted Life Years (QUALYs) to justify their recommendations. (Mason et al 1999 pp. 289-309).

However, these objective measures have been described as ‘de-humanising’ (Mason et al 1999 p.304), and it is more likely that practitioners make decisions about the allocation of their resources on a more subjective ‘value judgement’ basis, which have a danger of being inherently ‘ageist’. The provision of kidney dialysis machines and organ transplant waiting lists provide stark examples of where resource allocation decisions are made by medical practitioners, where the likely benefit from inclusion on the list, or the relative position on a waiting list can determine whether one is going to receive optimal care, or whether one is at risk of chronic ill-health or an increased risk of dying prematurely.

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)?

Negligence/ ‘criminal negligence’ and Decisions regarding the relative ‘worth of life’ 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.

The test in Bolam v Friern Hospital Management Committee (1957) was whether a doctor acted ‘in accordance with the practice accepted by a responsible body of medical men skilled in that particular art’.

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Mason et al (1999 pp. 224-7) provide an excellent critique of the way in which the test has been interpreted, and note that the court may take the view on occasions that the body of professional medical knowledge is ‘not capable of withstanding logical analysis’.

The concept of ‘criminal negligence’ may also be of relevance to the actions of doctors in these circumstances. A definition (of sorts) has been provided

by Lord Hewart LCJ in R v Bateman (1925),

‘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 Adomako (1994), 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. (Mason et al 1999 p.240-243).

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.

The Likelihood of Prosecution Where a death has occurred, the decision to prosecute the individual(s) thought to be responsible is taken by the Crown Prosecution Service in England and Wales, and that decision is based upon guidance contained in a Code of Practice (2001). Criteria that would tend to support the decision to prosecute include the likelihood of success, and the question of whether it would be in the public interest to prosecute.

A prosecution is not automatically instituted once a ‘crime’ has been thought to be committed. It has been suggested that the dearth of prosecutions of doctors for ‘unlawful killing’ in the past has been due to the exercise of the prosecuting authority’s discretion, and even where prosecutions have been initiated, there are very few successful convictions of doctors for murder or manslaughter. (Sheldon et al 1997 p.170).

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Indeed, the exercise of bona fide medical treatment has been held to abrogate the ‘mens rea’ element of an offence such as murder. (Lord Scarman in Gillick v West Norfolk and Wisbeach Area Health Authority (1984)). However, in the examples given above, it could be argued that the decisions taken on the basis of relative worth of life are not within the realms of ‘bona fide’ medical treatment, and should therefore be subject to criminal proceedings (assuming that the death of the ‘less worthy’ patient has already occurred).

There appears to be no united position amongst the medical profession about the acceptability of such decisions, and the scope for argument about their ‘wrongfulness’ therefore exists. In these circumstances, an individual doctor may therefore find that the condoning of necessity in Re: A (Children) provides a useful ‘defence’ to his/her common-sense clinical decision. The fact that the doctor acted in ‘good faith’ when making their decision is not enough to abrogate criminal liability – it is for the courts to decide (R v Arthur (1981)).

Although this essay has concentrated on the potential application of necessity in medical practice to those circumstances where the decision to treat one individual results in the death of another, the doctrine of necessity may also be applicable to other areas of medicine, such as the forced treatment of individuals under the guise of mental health legislation. The cases of St. Georges Healthcare NHS Trust v S; R v Collins and others, ex parte S (1998) and Tameside and Glossop Acute Services Trust v C.H. (1996) would seem to support the notion that necessity is applicable in such situations.

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 I:\training file\ethics ssm\conjoined twins essay.doc-RM

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would provide her with a ‘near normal’ life. Mary’s death was held to be intentional, and would thus be considered unlawful (i.e. murder), unless there was some legal exception to the rule that one must not kill another person in being or some other valid excuse. It was held that the doctrine of necessity offered the most acceptable legal justification for Mary’s demise.

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.

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References 1.

BOYD K.M., HIGGS R., PINCHING A.J. (Ed)(1997), ‘New Dictionary of Medical Ethics’, BMJ Publishing Group

2.

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HODGETS T., MILES S. (2000), ‘Major Incidents’, Chapter 28 ‘ABC of Major Trauma’ 3rd Ed, BMJ Publishing Group

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KENNEDY I., GRUBB A. (1998), ‘Principles of Medical Law’, Oxford University Press

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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

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SHELDON S., WILKINSON S. (1997), ‘Conjoined Twins: The Legality and Ethics of Sacrifice’, Medical Law Review 1997 (2) pp.149-171

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SIMESTER A.P., SULLIVAN G.R. (2000), ‘Criminal Law – Theory and Doctrine’, Hart Publishing, Oxford

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13.

WULFF H.R., ANDUR PEDERSON A., ROSENBURG R. (1990), ‘Philosophy of Medicine – An Introduction’, 2nd Ed, Blackwell Scientific Publications

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Cases 1.

A (Children), Re (2000) Draft Transcript www.courtservice.gov.uk

2.

Abbott v R (1976) 3 ALL ER 140

3.

Airedale National Health Service Trust v Bland (1993) 1 ALL ER 821, AC

789 4.

Bolam v Friern Hospital Management Committee (1957) 2 ALL ER 118, 1 WLR 582

5.

Gillick v West Norfolk and Wisbeach Area Health Authority (1984) QB 581, 1 ALL ER 365

6.

R V Adomako (1995) 1 AC 171

7.

R V Bateman (1925) ALL ER Rep 45, 19 Cr App Rep 8

8.

R V Bourne (1938) 3 ALL ER 615

9.

R V Howe (1987) AC 417

10.

R V Nedrick (1986) 1 ALL ER 1

11.

R V Noolin (1999) 1 AC 82

12.

R V Pommell (1995) The Times 22nd May 1995

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

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