The Killing of Mary: Have We

Crossed the Rubicon?

Gemma McGrath BN LLM
Senior Associate, Blake Dawson Waldron Lawyers
and
Noëlla Kreleger BSc LLB
Lawyer, Blake Dawson Waldron Lawyers

Correspondence to: Gemma McGrath, Blake Dawson Waldron Lawyers, PO Box 7438, Cloisters Square,
Perth, WA 6850, Australia.

In contrast to the paucity of Australian case law dealing with issues such as the withdrawal of
treatment and end-of-life decision-making, English courts deal with such issues with what
would appear to be increasing frequency. The development of this area of law in England has
seen the courts demonstrating a gradual move away from the law’s usual guiding doctrine of
“sanctity of life”. This move is evidenced most clearly in the recent Court of Appeal decision
of Re A (Children) [2000] 4 All ER 961, where the court sanctioned the killing of one twin in
order to save the life of another, relying upon what might be considered an artificial
justification for such an act.

Introduction places the courts in a difficult position and their

“Everyone’s right to life shall be protected by
law. No one shall be deprived of his life
intentionally save in the execution of a sentence
of a court following his conviction of a crime for
which this penalty is provided by law.”1
It has always been a fundamental tenet of our
legal system that the intentional killing of another
human being is wrong. Our laws are derived from
the Judeo-Christian doctrine of the sanctity of life
which states that all life is sacred and entitled to be
protected. The law prohibits as murder the
intentional shortening of life. It might therefore be
said that every human being has a fundamental right
not to be killed.
It is of interest, then, that more and more cases
are coming before the courts seeking declarations
that certain acts or omissions which will result in
the intentional death of a human being are lawful.
This
struggle with the questions that they are asked to
decide are evident in their judgments.
In Airedale NHS Trust v Bland2 Lord Goff of
Chieveley drew a distinction between those cases in
which a doctor decides not to provide, or to
continue to provide, treatment to a patient which
could prolong the patient’s life, and those in which
the doctor decides actively to bring the patient’s life
to an end. Whilst the former may be lawful, the
court went to great lengths to point out that it is not
lawful for a doctor actively to bring about the death
of a patient, even though that course is prompted by
a humanitarian desire to end suffering:
“So to act is to cross the Rubicon which runs
between on the one hand the care of the living
patient and on the other hand euthanasia –
actively causing his death to avoid or end his
suffering.”3

2
[1993] 2 WLR 316.
1
Article 2 of the European Convention on Human Rights. 3
Ibid at 368.
February 1
 McGRATH and
In Bland, the House of Lords was satisfied that
the cessation of life-prolonging treatment could not
be categorised as a positive act for the purpose of
the law of murder as, on the facts of that case, the
doctors owed no duty to the patient to prolong his
life (since such a course was not in the best interests
of the patient). They therefore could not be found
guilty of a culpable omission to act.
In the more recent decision of Re A (Children)4
the English Court of Appeal was asked to approve
the intentional killing of one child in order to save
the life of another. The court was asked to decide
whether separation surgery for conjoined twins
could be lawfully performed in circumstances
where it was known that the surgery would lead to
the death of one of the twins.
In a lengthy and considered judgment, in which
the court invited submissions from the Archbishop
of Westminster and the Pro-Life Alliance, all judges
agreed that, despite the fact that the surgery would
lead to the killing of one twin, the separation
procedure could lawfully proceed.
The difficulty of the judges in arriving at their
decision is readily detected in the tone of the written
judgments. Whilst they were at pains to state that
the judgment reflected the unique circumstances of
the particular case, the question must be asked:
Have we crossed the Rubicon by allowing court-
sanctioned euthanasia?
The circumstances of the case
Mary and Jodie, the twins at the centre of the
matter, were ischiopagus (joined at the ischium),
tetrapus (having all four lower limbs), conjoined
twins. Their bodies were fused from the umbilicus
to the sacrum. The lower ends of their spines were
fused and their spinal cords were joined with a
continuation of the coverings of the cord running
between one twin and the other. Each perineum was
rotated through 90 degrees and pointed laterally.
They shared an aorta and bladder.
Jodie was described by the doctors to have a
normal brain, heart, lungs and liver. Her bowel was
normal and appeared to be separate from Mary.
Neurologically, she displayed normal neonatal
responses (including moro response, plantar grasp
and palmer grasp responses). She was capable of
sucking and swallowing. Touch, pain and
4
[2000] 4 All ER 961.
2 JOURNAL OF LAW AND MEDICINE – Volume 8
temperature were all able to be perceived. One
doctor described her as a very “with it” kind of
baby.
Mary, however, was described as having a very
poorly developed brain. Her heart was enlarged and
functioned poorly and as a result she was wholly
dependent upon Jodie’s oxygenated blood being
pumped through her body. It was also apparent that
she had no functioning lung tissue and could not
shift air in and out of her chest. The doctors were
unable to say whether she could feel pain as she
seemed to demonstrate the same response to both
painful and pleasant stimuli.
Whilst Jodie’s heart was stable, there was some
concern that the strain placed on her heart by having
to pump the blood for two bodies, instead of one,
would begin to show in the near future.
The medical evidence was unanimous that Mary
was not capable of separate survival and was wholly
dependent upon Jodie for life.
Whilst Jodie was described as alert and
responsive, from a physical point of view she was
not growing, although she was eating well. It was
thought that Mary was drawing nutrition from Jodie
and growing at her expense.
If they were to remain joined, the evidence was
that the twins would have a life expectancy of
approximately three to six months.
The medical opinion was that Jodie had a good
chance for a normal life if she could be separated
from Mary. The doctors conceded, however, that
such an operation would kill Mary.
Due to religious beliefs, the twins’ parents would
not consent to the separation procedure being
performed and therefore the hospital sought a
declaration from the court that it could lawfully
proceed with the operation without the need for
parental consent.
Arriving at the decision that Jodie should be
given every opportunity for life, the court needed to
be persuaded that the operation could be lawfully
performed. It is perhaps this aspect of the case
which caused the court the greatest difficultly.
Careful consideration was given to the many
defences available to the medical staff for
performing such an operation and it was considered
that, as the doctors were coming to the aid and
assistance of Jodie, the operation could be justified
on the grounds of self-defence.
 McGRATH and
The extent of parental consent
The ability of the parents to give or withhold
consent for the proposed treatment was not in issue
in the case. All parties acknowledged that the
parents could legally consent or withhold consent
for the operation. Ward LJ was of the view that it
would have been a perfectly acceptable response for
the hospital to follow the parents’ wishes in
allowing both babies to die, however fundamentally
the medical team disagreed with the decision.
It might be assumed that the hospital made the
application to the court in the exercise of its duty of
care owed to Jodie, to ensure that everything
possible was done to give her the best chance at life.
However, whilst the court accepted that the hospital
owed the children it treated a duty of care to act in
accordance with good medical practice, 5 it held that
the duty is subject to the qualification that, if time
permits, it must obtain the consent of the parents
before undertaking serious invasive treatment.6 It is
for this reason that Ward LJ commented:
“Other medical teams may well have accepted
the parents’ decision. Had St Mary’s done so,
there could not have been the slightest criticism
of them for letting nature take its course in
accordance with the parents’ wishes. Nor should
there be any criticism of the hospital for not
bowing to the parents’ choice. The hospital have
care of the children and whilst I would not go so
far as to endorse a faint suggestion made in the
course of the hearing that in fulfilment of that
duty of care, the hospital were under a further
duty to refer this impasse to the court ... the
hospital is entitled … to seek the court’s ruling.” 7
Pursuant to the principles of family law,8 a
parent, in giving or withholding consent for medical
treatment, must act in the best interests of the child.
However, the question arises as to whether parents
can consent to a procedure which they know will
result in the death of one of their children.
Consent will ordinarily transform what would
otherwise be unlawful into acceptable conduct.9
However, there are limits to the extent to which
5
Bolam v Friern Hospital Management Committee [1957]
1 WLR 582.
6
Re J (A Minor)(Wardship: Medical Treatment) [1991] Fam 33
at 41.
7
[2000] 4 All ER 961 at 987 per Ward LJ.
8
Re J (A Minor) [1990] 3 All ER 934.
9
R v Coney (1882) 8 QBD 534.
3 JOURNAL OF LAW AND MEDICINE –
consent will make an otherwise unlawful act lawful.
A person cannot consent to his or her own death. 10
Consent will not be a defence to an act done for the
purpose of causing bodily harm.11 The rationale for
these exceptions to the general rule is that it is not in
the public interest that a person should cause bodily
harm to another without good reason.12
In the present case the parents, being Roman
Catholic and guided by the Church, refused their
consent for the operation on the grounds that they
could not accept that they should be responsible for
killing one of their children to enable the other to
live. They argued that every person had a right to
life and they therefore could not consent to a
procedure which they knew would lead to the death
of one of their daughters.
If, however, the parents of Mary and Jodie had
consented to the performance of the operation,
would that really have made the operation lawful?
In Australia, parents have the power to consent
to medical treatment that is necessary to preserve
life or to treat an illness. Medical treatment that
involves major, irreversible surgery may be beyond
the scope of parental power, where the treatment
has serious consequences for the biological, social
and psychological development of a child.13 In
Secretary, Department of Health and Community
Services v JWB and SMB14 the High Court of
Australia found that parents did not have the power
to consent to non-therapeutic medical procedures
for their children and court authorisation was
required. English courts, however, seem to have
accepted that parents can consent to non-therapeutic
medical treatment, as long as they act in the best
interests of the child.
The parental power to consent, however, exists
only to the extent that a child is incapable of giving
consent for himself or herself.15 As it is no defence
that a person consented to his or her own death, the
question must be asked: Could Mary and Jodie’s
parents consent to the operation which in effect
would mean consenting to Mary’s death, and if they
could, did that consent release the hospital staff
involved from all criminal liability? In the present
10
Boughey v The Queen (1986) 161 CLR 10.
11
R v Coney (1882) 8 QBD 534; R v Donovan [1934] 2 KB 498.
12
R v Brown [1994] 1 AC 212.
13
L Formica, “Special Medical Procedures and the Family
Court” [1994] Law Institute Journal 1049.
14
(1992) 175 CLR 253 (Marion’s Case).
 The Killing of Mary: Have We Crossed the
15
Gillick v West Norfolk AHA [1986] 1 AC 12.

February 3
 McGRATH and
case all members of the court seem to have accepted
that it would. However, no detailed consideration of
the point was given.
The competing interests of the children
When exercising its parens patriae jurisdiction,
the welfare of the child must be the court’s
paramount consideration.16 The court was therefore
faced with having to act in both the best interests of
Mary and the best interests of Jodie. What might
constitute the best interests of a child had been
discussed in earlier cases and was expressed as
follows:
“The operation or other treatment will be in their
best interests if, but only if, it is carried out in
order either to save their lives, or to ensure
improvement or prevent deterioration in their
physical or mental health.”17
The evidence before the court left no doubt that
the operation was in Jodie’s best interests. The risks
of the proposed operation were negligible and its
performance would increase her life expectancy
dramatically. It was generally considered that she
would be able to walk and should live a normal to
fairly normal life.
In contrast to this, the proposed surgery would
cut the aorta feeding oxygenated blood to Mary and
would lead to her immediate death. Ward LJ
considered that the only benefit which Mary might
gain from such surgery was bodily integrity and
dignity. He considered, however, that such a gain
was artificial as she would be dead before she could
enjoy her independence. This was compounded by
the fact that, if independent, Mary had no capacity
for life.
The court recognised that the performance of the
operation would deny Mary her inherent right to
life. All judges agreed that, if looking at Mary’s
predicament in isolation, and ignoring the benefit to
Jodie, the court should not sanction the operation.
The court was therefore faced with an impossible
task:
 to sanction the operation was to sentence Mary
to death;
 not to do so would lead to the death of Jodie as
well.
In order to resolve the seemingly impossible
16
Section 1(1) of the Children Act 1989 (UK).
17
Re F [1990] 2 AC 1 at 55 per Lord Brandon of Oakbrook.
3 JOURNAL OF LAW AND MEDICINE –
dilemma before it, the court performed a careful
process of balancing the possible benefits to be
gained by Jodie from the surgery against the
detriment to Mary.
For Jodie, the operation would extend her life
expectancy and allow her to live a close to normal
life. For Mary, the operation would bring about her
death perhaps a few months earlier than what
otherwise might have been.
There was also evidence that, if Jodie survived,
she was likely to require further surgery to allow her
to walk and it was not known whether her bowel
would function normally. At worst she might
require a colostomy.
One of the reasons put forward by the parents in
support of their request for nature to be allowed to
take its course, was that, as they would be returning
to their own country which had very limited
facilities, they did not believe that they would be
able to care adequately for Jodie and to provide her
with the further treatment she would require. There
was some brief discussion that Jodie might be
required to remain in England to be cared for when
her parents returned to their homeland.
It would seem from the judgment that, whilst
consideration was given to the parents’ views,
significant weight was not placed upon the potential
for lack of family support which might be available
to Jodie following the surgery. In the event that she
was unable to return home with her parents, it was
not clear from the judgment whether she would be
made a ward of the state, or how her care would be
provided. In sidestepping around such issues, the
court found the parents to have taken an overly
pessimistic view of the situation.
This is a particularly interesting approach for the
court to have taken, given their decision on a similar
issue in Re T (a minor) (medical treatment).18 In
that case the parents of a child who required a liver
transplant refused to consent to the operation
despite evidence that the operation had an 80 to 90
per cent success rate. The reasons for the refusal
included, amongst other things, that the parents no
longer resided in England and would need to travel
back for the operation. They were also concerned
about the nature of the treatment. In those
circumstances, which are not dissimilar to the
circumstances described by Mary and Jodie’s
parents, the Court of Appeal refused to grant
18
[1997] 1 WLR 242.

approval for the operation, citing the complicated
nature of the surgery and the many years of special
care required to be given by the mother as the
principal reasons in support of its decision.19
It may, of course, be argued that the complexity
of the proposed separation operation and the need
for the parents’ commitment to caring for Jodie
post-operatively, would be far greater than was the
situation before the court in Re T. However, for
reasons which are not altogether clear, the court did
not adopt the same approach to the matter.
Whilst one can understand the intuitive and
emotional reasoning behind the court’s decision, it
does not appear to be in keeping with earlier
decisions and it may now be difficult to identify any
guiding principles to be applied in relation to the
making of such decisions in the future.
Is the operation lawful?
Having arrived at its decision that the operation
should be performed, the court was then required to
decide whether it could lawfully be performed.
It was accepted that the performance of the
operation would bring about the intentional killing
of Mary. However, if the operation was not
performed, Jodie would also die.
If the operation was not performed, the death of
Jodie would only lead to murder if it was shown
that the medical staff had a duty to provide such
treatment and failed to do so. Ward LJ stated 20 that
he could not endorse the suggestion that the hospital
had made the application to the court in fulfilment
of its duty of care to Jodie, and that the hospital
could not have been criticised for following the
parents’ wishes.
In view of these comments, with which
Brooke LJ and Robert Walker LJ agreed, it may
therefore be argued that the doctors were under no
duty to provide treatment to Jodie and therefore
their omission to perform the operation would have
been lawful on Bland principles.
If this approach had been adopted, the court
could have acquiesced in the parents’ wishes and
lawfully refused the separation surgery. In Bland it
was held that there was no duty to treat if the
treatment would be futile or if it was not in the best
interests of the patient. We therefore return to what
was in the best interests of Jodie. If the court had
19
Ibid at 252.
February
The Killing of Mary: Have We Crossed the
applied its earlier decisions of Re T and Re C,21 then
the Bland principles would have been easily
complied with. Instead, the members of the court
held that Jodie should live, and in making this
decision they were then required to provide some
justification or excuse for allowing the intentional
killing of Mary.
A murder charge might not have seemed
appropriate in these unusual circumstances but with
the certainty of Mary dying as a result of the
operation, the result would be murder according to
the requirements set out by law. Mary was a life in
being and the doctors operated with the intention of
killing her (according to the accepted wider
definition of intention, which includes all events
reasonably foreseeable as intended). Ward LJ and
Brooke LJ both accepted that the doctors intended
to kill Mary.22 However, Ward LJ captured the
mood of the judgment when he insisted that “the
law must allow an escape by permitting the doctors
to choose the lesser of the two evils”.23
Ward LJ stated that the operation would not
offend the sanctity of life principle as the separation
would protect Jodie from unjust attack. Mary could
be killed in self-defence as she was draining the
lifeblood from Jodie. This statement suggests that
his Lordship had already decided that Mary was
“designated for death”.24 After all, the lifeblood
circulating through the twins’ bodies was as much
Mary’s as it was Jodie’s. The idea that if a person
will die in any event, it is acceptable to sacrifice that
person to save others had previously been accepted
by some religious leaders, when asked to give their
view on the separation of conjoined twins in similar
circumstances.25
The notion that impending death justifies murder
is not endorsed by the law. The closest that the law
comes to allowing such an event is by providing
that murder may be justified if the protagonist acted
out of necessity. Necessity has traditionally been
given a narrow reading by the courts.26 However,
when considering the approach taken by the court in
Re A (Children), it may be that the increasing
number of
21
[1989] 2 All ER 782.
22
Robert Walker LJ found that there was no such intention but
this is surely contrary to law.
23
Ibid at 1016.
24
Ibid at 1010.
25
See G J Annas, “Siamese Twins: Killing One to Save the
20
[2000] 4 All ER 961 at 987.
3
 McGRATH and
Other” Hastings Center
Report, April 1987.
26
R v Dudley (1884) 14 QBD
273..

3 JOURNAL OF LAW AND MEDICINE –


health law cases coming before the courts may be
slowly leading to a widening of this defence. Some
commentators argue that necessity may provide a
possible defence for doctors who have been charged
with assisting suicide by administering painkilling
drugs to patients.27
In Re A (Children), Brooke LJ found that the
defence of necessity was made out. His Lordship
identified three requirements for the application of
the doctrine:
1. that the act is needed to avoid inevitable and
irreparable evil;
2. that no more should be done than is reasonably
necessary for the purpose to be achieved; and
3. that the evil inflicted must not be
disproportionate to the evil avoided.
Whilst Brooke LJ found that all three requirements
were satisfied, each of the requirements is
potentially problematic when applied to cases of
conjoined twins. An “inevitable and irreparable
evil” can only be said to arise in a case such as the
present one, where Mary would inevitably kill
Jodie, who would otherwise have an excellent
chance of survival. It is entirely different if the
prognosis for both twins is poor or if there is not
one twin who is clearly weaker.
The last element in the defence of necessity
involves a balancing exercise to determine whether
the surgery and consequential killing of one twin is
preferable to the “evil avoided”. This invites a much
broader analysis of the situation than the defence
was originally constructed to deal with. For
example, there is nothing to prevent the court
looking into the possible future life of the surviving
twin and balancing that against the “evil avoided”.
In a report on the Lakeberg twins28 the authors
suggest that the medical facts, together with the
possible social problems to be encountered if
surgery is performed, are all factors which should
be considered when weighing up the pros and cons
of separation surgery. However, whilst these
additional factors may be a legitimate part of the
decision- making process, dealing with them in
terms of the defence of necessity is inappropriate
because it broadens the scope of the defence.
Such a broad
27
See J Griffiths, “Assisted Suicide in The Netherlands” (1995)
58 MLR 232.
28
D C Thomasma, J Muraskas, P A Marshall, T Myers,
P Tomich and J A O’Neill Jr, “The Ethics of Caring for
Conjoined Twins: The Lakeberg Twins”, Hastings Center
Report, July-August 1996.
February
The Killing of Mary: Have We Crossed the
defence of necessity is surely contrary to public
policy and invites misuse.
Despite the court’s findings in this case, an
analysis of the case law leads to the inescapable
conclusion that killing Mary is murder and that no
defence is available. However, in practical terms, if
this were so, doctors would be hesitant to separate
conjoined twins unless the long-term survival of
both twins was guaranteed and this, of course,
would be a most unsuitable outcome. It is perhaps
for this reason that the Court of Appeal went to such
lengths to justify and excuse the act.
Conclusion
In Bland the House of Lords called upon
Parliament to legislate for those areas of law dealing
with withdrawal of treatment and end-of-life
decision-making, so that the position would be clear
to all those required to work in the area and others
affected by it. The English Parliament has to date
chosen not to act in this regard and this case
highlights the difficulties and uncertainties which
exist in this particular area of the law. One can
understand why a government might be hesitant to
formalise the law dealing with such an issue, given
the recent difficulties experienced by the Northern
Territory Government when attempting to introduce
its controversial euthanasia legislation.
What is evident in this case is that, instead of
stating the law and then applying the particular
facts, the judges arrived at their decision as to what
the outcome should be and then desperately sought
to find legal principles to support this position. One
cannot help but think that the easier decision for
them, both logically and on legal grounds, would
have been to accept the parents’ wishes and allow
nature to take its course.
The court did make a clear statement that its
decision was peculiar to the unusual circumstances
before it and should not be interpreted as authority
for the wider proposition that a doctor can kill a
patient once the doctor has determined that the
patient cannot survive. This said, however,
circumstances similar to the extended proposition
referred to will no doubt come before a court for
consideration at some point in the future and it will
be interesting to see the impact that the decision in
Re A (Children) may have on the decision-making
process.
3