Academic journal article Health Law Journal

Reversal of Fortune - Re A (Conjoined Twins) and Beyond: Who Should Make Treatment Decisions on Behalf of Young Children?

Academic journal article Health Law Journal

Reversal of Fortune - Re A (Conjoined Twins) and Beyond: Who Should Make Treatment Decisions on Behalf of Young Children?

Article excerpt

1. Introduction

The question of who should have the last say in medical treatment decisions on behalf of young children crops up whenever parents and physicians cannot agree on a course of treatment and the courts get involved in the decision-making process. Even though such problems arise frequently, the respective roles of the courts, the medical profession and the parents in the context of treatment decisions on behalf of young children are not clearly defined. While the relevant legal principles seem straightforward, their application in practice is fraught with uncertainty. This is partly because treatment decisions on behalf of young children have to be made in the child's best interests. The best interests analysis is complicated because every course of treatment will normally involve risks as well as benefits, and various treatment alternatives will often be available. Furthermore, it must be decided whether only medical risks and benefits of the suggested treatment should be balanced in a given case, or whether othe r interests such as the child's psychological well-being, the impact of the medical decision on the life of the child as a whole, and its impact on family relations or on third parties should also be considered.

In the light of these uncertainties, it is evident that the question of who should make treatment decisions on behalf of young children is of the utmost importance, as different decision makers will have different perceptions of the child's best interests. (1) Parents can be expected to take a broad view of the child's best interests and to include non-medical factors in the equation, even though they are likely to attach great significance to medical advice. Physicians will in all likelihood concentrate on the child's medical interests when recommending a certain course of treatment. Courts, once involved, will often be faced with the task of resolving a conflict between the parental and the medical view of the child's interests. They have to decide how much weight to accord to the wishes of the parents, and how much significance to attach to medical opinion. Thus, the issues of how to determine the best interests of the child and of who should determine the best interests of the child, are only at first sig ht clearly distinguishable, but in fact very closely linked.

The inconsistencies of the current English approach to these problems have been highlighted by the recent case of Re A (Conjoined Twins) (2) regarding the separation of conjoined twins who had been born in a hospital in Manchester. The twins were joined at the lower abdomen and shared a common artery. The lungs and heart of one of the twins, Mary, were too deficient to supply her blood with oxygen, and if she had been born a singleton she would not have survived. Through the common artery her sister, Jodie, supplied her with oxygenated blood. The medical prognosis was that without an operation to separate the twins, Jodie's heart would eventually fail, probably within 3 to 6 months, so that both children would die as a consequence. If, on the other hand, the twins were separated, Mary would die during the operation, as soon as the common artery was clamped off, while Jodie had a good chance to survive and, with several operations, could probably enjoy what Ward L.J. called "a life that will be worthwhile." (3 )The parents, devout Roman Catholics, refused to give their consent to the operation, as saving one child by allowing the other child to be killed violated their religious beliefs. They also worried about Jodie's quality of life, given that in Gozo, where the family lived, the necessary medical facilities to cope with her disabilities were not easily available. The hospital sought an authorisation from the High Court that the operation could lawfully be performed, which was granted by Johnson J.

On appeal, the Court of Appeal decided that it would have been acceptable for the physicians to comply with the parents' request not to operate. …

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