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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

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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

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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 decision-
making 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

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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

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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. CARTER P., HARRISON R. (1997), ‘Carter and Harrison on Offences of


Violence’, 2nd Ed Sweet and Maxwell

3. CROWN PROSECUTION SERVICE (2000), ‘The Code for Crown


Prosecutors’, Crown Prosecution Service

4. GLOVER J. (1990), ‘Causing Death and Saving Lives’, Chapter 3 ‘The


Sanctity of Life’, Penguin Books

5. HODGETS T., MILES S. (2000), ‘Major Incidents’, Chapter 28 ‘ABC of


Major Trauma’ 3rd Ed, BMJ Publishing Group

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


University Press

7. KEOWN J. (1997), ‘Restoring Moral and Intellectual Shape to the Law


After Bland’, Law Quarterly Review Vol 113 July 1997 pp.481-503

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

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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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