Judges must not play God

Colin Hart, Director of the Institute, said today:

“We do not believe it is right for Jodie to be separated from Mary. “Saving one is better than none” superficially makes sense, but in reality it can never be right for doctors to kill one person to benefit another. Judges and Doctors must not play God. Just because an operation can be performed doesn’t make it right.

The twins both share the same heart, lungs and liver, but they are two persons in the sight of God. We know that Mary can suckle, open an eye and respond to touch. She clearly has a functioning brain, but we do not how much.

This is a hard case and there are many difficult issues. But it is precisely these sort of hard cases which can set profoundly important precedents. Our stance is straight forward and we reject the arguments used to justify separation:

(1) Diagnoses

There is much uncertainty about the diagnoses. The first medical opinion said both twins had only three to six months to live whilst the second said it could be years. There is no guarantee that Jodie would survive even if she was separated from her twin sister. As far as is known there has never been a successful separation performed in this type of case : both twins have always died. This kind of conjoined twins is an extremely rare phenomenon so Doctors know very little about it. The quoted probability of Jodie surviving seems to be exaggerated and the views of the parents seem to have been so easily disregarded.

(2) Arguments

There have been many disturbing arguments put forward by Counsel for the health care trust including the ridiculous claim that Mary was attacking Jodie and so Mary could be killed by Doctors acting to defend Jodie. But it is the arguments used by the Judge which matter and Mr Justice Johnson in the first hearing used an argument which would set a very dangerous precedent.

(3) Withdrawing blood supply

Mr Justice Johnson argued that it was in Mary’s best interests that she die. The argument was essentially that Mary was not a person.

Mary’s blood supply could therefore be withdrawn as if it was a medical treatment. But it can never be right to withdraw someone’s blood supply in this way. If it was then it could become legal for doctors to intentionally accelerate death by refusing blood transfusions or ending kidney dialysis treatment. The editor of the Bulletin of Medical Ethics was right to say that legalising the withdrawal of someone’s blood supply is to legalise euthanasia.

Every patient needs blood just as every patient needs food and water. I believe that Mr Justice Johnson was profoundly wrong to apply the Tony Bland ruling in this case which has nothing to do with a patient in a persistent vegetative state (PVS). Even supporters of separation (such as Melanie Phillips) believe it is unsupportable to use the Bland ruling.

In the light of this I believe that the Court of Appeal must overturn the earlier judgement which would set a very dangerous precedent. But even if the judgement is overturned separation might still go ahead on new legal arguments.

(4) “Saving one better is than none” is really “ends justify the means”

In English law a deliberate intention to kill is defined as murder. It has therefore been argued that an operation to separate the twins can take place without the deliberate intention of killing Mary. This is based on the argument that Mary’s death would be an unintended consequence (“a double effect”) of the operation to save Jodie.

Of all the arguments in favour of the operation this by far the strongest and one on which people of integrity are divided. But it falls down on two grounds.

First the principle of double effect must involve a therapeutic benefit to the patient, but there is no benefit to Mary since a separation would kill her.

Second there is no way round the fact that Mary’s death is a primary intention of the operation to separate the twins. Indeed it has been argued that it is imperative that Mary be kept alive until the operation since if she dies beforehand Jodie’s chances of survival allegedly fall to 1%.

“Saving one better is than none” is really saying the ends justify the means.”

Ends.