British courts rule conjoined twins should be separated, against wishes of parents.
September 23, 2000 10:58 AM   Subscribe

British courts rule conjoined twins should be separated, against wishes of parents. One will live, one will die. Lord Justice Ward: "50% of the population will agree with the decision - 50% will think we have gone potty."
posted by ericost (9 comments total)
I've been trying to decide how US law would rule on this, and the first question I've been finding myself asking is "Who would even bring it to the attention of a court?" Courts in the US cannot act proactively; someone "with standing" has to bring suit. (Which means that just anyone can't do it, it has to be someone directly involved.) If this case were to exist in the US, only the parents and other close relatives and I think the doctors could have standing. My best guess is that this would not have ended up in court at all here, that the doctors would follow the will of the parents and let the twins die. Given agreement inside the family, the only way it would have ended up in court is if the doctors disagreed and brought suit to force the operation, and I don't think that's likely.

There's plenty of court precedent here for parents being allowed to refuse extreme treatments for their babies and instead permitting them to die naturally, even to the point of refusing to let them be fed so that death is certain; it's happened many times with court permission. So even if the doctors had brought such a suit, I think the courts would have sided with the parents.

I don't know if the same is true in Britain (that the courts are not proactive and that suit must be brought by someone with standing), but if it is, just who with standing brought this suit?
posted by Steven Den Beste at 12:30 PM on September 23, 2000

Rats; I wish I could really edit my posts with IE5.5.

Also, the courts in the US have always distinguished between passively permitting a child which has already been born to die (which they often permit) and actively killing a child who has already been born (which is always much different and I think basically is murder). Right off the top of my head, I can think of no case in which courts have permitted doctors to commit what amounts to active euthanasia on a child which has already been born, even to save the life of another child.

The only cases even remotely comparable are cases where babies have been declared brain-dead, and then have been used as transplant donors. But by definition, that child is legally already dead, so the surgeons are not "killing" it. That doesn't apply to this case; the head they want to kill in this operation may have a sub-standard brain but it isn't brain-dead.

I honestly think the court got it wrong. I think the parents are right. I think nature should be permitted to take its course, and the babies should be permitted to die.
posted by Steven Den Beste at 12:42 PM on September 23, 2000

If this case were to exist in the US, only the parents and other close relatives and I think the doctors could have standing.

The parents brought the case against the hospital.

And that's all I have to say on this thread, really: everyone who's been involved with it, from the doctors through to the Appeal Court judges, has been left emotionally shattered by the issues at stake.

(Although one codecil: the judgement had to take into account the legal question of common assault, as the weaker twin is actually drawing life from the stronger. Which shows that the law is a blunt-edged tool, but the only one we possess for such times.)
posted by holgate at 12:59 PM on September 23, 2000

Does the court have to take the wishes of the parents into consideration? It seems like they ought to be primarily concerned with defending the twins' best interests. Not that it's clear what the twins' best interests are.

Also, does a self-defense argument apply to this case? If the stronger twin were to kill the weaker twin in order to save her own life, I can see how that would be self-defense. But does that empower a doctor to act as the stronger twin's agent and kill the weaker twin?
posted by shylock at 1:59 PM on September 23, 2000

Then the fundamental situation here was that the hospital/doctors, on their own, decided to perform the operation and the parents were attempting to prevent it.

That definitely is different than the US; in most cases doctors require permission to perform any kind of treatment at all. The situation in the US would have been that the doctors asked the parents for permission to perform the operation, the parents refused it, and unless the doctors wanted to go to court, the twins would then have been permitted to die naturally.

I find it surprising, and offensive, that a physician in the UK can force treatment on you against your will.

There have been cases where treatment has been forced here in the US (most commonly in the case of religious sects who believe in faith healing) but in all such cases a guardian was legally assigned to look out for the interests of the child, and permission came from the guardian. The doctors still can't work without permission.

The only case of which I'm aware in which a doctor can treat you without permission is if you are unconscious and your life is at threat. In that case the "Good Samaritan" laws kick in. But as soon as the patient regains consciousness, they must get permission if they are to continue treatment.
posted by Steven Den Beste at 6:38 PM on September 23, 2000

One thing to note is that in most states "brain dead" is NOT legally dead ... in fact, that's how the term "brain dead" arose -- a way to label someone whose life was effectively over but whom the law still regarded as alive.

The legal standard for death traditionally was, and remains in most jurisdictions, pulmonary-coronary death -- i.e., irreversible failure of the breathing and circulation. A doctor determines when death occurs by observing that pulmonary-coronary arrest has occurred and determines that resucitation efforts would be or has been futile.

Continuation of the respiratory and circulatory process by artificial means, even in the face of brain death, continues life legally. Most of the cases on this point don't actually shift the definition of legal death, but, rather, revolve around when brain death does or should justify the determination that resucitation is futile and the withdrawal of the life support sustaining respiration and circulation.
posted by MattD at 10:08 PM on September 23, 2000

Sorry, Matt, the problem with that is that there are many cases where someone whose heart was operating perfectly was declared as "brain dead" -- and then used as a transplant donor, including removal of the perfectly healthy heart. No cardiac failure took place, but the donor was still considered "dead".

Anyone remember Jon-EriK Hexum? A promising actor who took himself out with a gun loaded with blanks. He was joking around with one, put it to his temple, pulled the trigger, and the concussion from the blank round broke a piece of his skull lose and drove it through his brain. The gun might as well have been loaded.

It turns out that he carried a California Organ Donor's Card (as do I) and he was declared brain-dead and used as an organ donor. Among other organs taken were his perfectly good heart, which continued to work while they took care of all the paperwork. Though there's no way of telling for sure, it's likely that his heart continues to beat, in someone else's body.

On the other side of the coin, you have Barney Clark who lived for several weeks with no heart at all, but a perfectly active brain.

I don't know where you get your information, but I was under the impression that "brain death" had become the standard now nearly everywhere, because "heart death" simply makes no sense any longer with modern medical techniques.

It seems to me that if you are correct, heart transplants would never take place because healthy donor hearts could never legally be harvested without committing murder. By the time natural cardiac falure took place, the heart would no longer be healthy enough to transplant.

But at least hundreds of heart transplants take place every year. Somehow or other, the donors are being declared dead without reference to cardiac failure.

Where do you get your information on this?
posted by Steven Den Beste at 11:13 PM on September 23, 2000

So I went out and did some research and found some references, and the definitions of "death" that I found in various legal references said "see 'brain death'". None of them referred to cardiac death. Since these were the results of searches, I don't know if the links will continue to work indefinitely.

Oran's Dictionary of the Law

I found the legal definition of death for the state of California. Interestingly, it permits either cardiac failure or brain failure as sufficient for declaration of death.

I also found the definition of death for Missouri, and it only included cardiac failure. I think it probably varies by state, but I suspect most states accept cessation of brain activity as legal death. (For those of you outside the US, Missouri is not considered a very progressive place.) Probably the California statute is pretty typical.
posted by Steven Den Beste at 12:16 AM on September 24, 2000

Steven, thanks for that research. I don't think we necessarily disagree (not that agreeing or not matters in a largely empirical question such as this): cardio-pulmonary death was the traditional sole rule, and brain death evolved into a clinical (and, now, in many cases) legal equivalent as medical science advanced.

The core of end-of-life determinations is often quite complex and very incompletely addressed in the law. In practice, you are dead when a doctor compentent to make the decision declares you dead or your family decides to allow you to die.

The uncertainty has interesting implications. Take the case of three clinically indistinguishable PVT (permanent vegatative state) patients with no or only brainstem EEG being maintained on a heart-lung machine. Each meets the criteria for "brain death."

Patient one: family agrees on an organ donation. Cardio-pulmonary maintenance continues until heart is fully removed. Time of death of donor: in a traditional jurisdiction, the time that the heart is taken out (i.e., the patient is technically killed by the transplant team). Time of death in a non-traditional jurisdiction: don't know. (Might be "backdated" to effective time of brain death).

Patient two: family refuses donation, authorizes plug to be pulled. Time of death = 30 or 60 seconds after plug is pulled if cardio-pulmonary activity doesn't resume.

Patient three: the family refuses to pull the plug, even though there is no legal or medical-ethical problem with doing so. Patient is alive for legal purposes indefinitely, regardless of whether or not the state in question would allow him to be declared brain dead.

This could be vitally important in the case of wills. Imagine that Patient Three and his father had both been in a car accident and Dad was a widower with no will. If Patient Three survives long enough (avoiding "simultaneous death" rules), he inherits a share of Dad's estate, which would then pass to Patient Three's heirs when Patient Three's plug is pulled. However, if Patient Three dies simultaneously, or within the "simultaneous death" window, Patient Three's sibling(s) get all of Dad's estate and Patient Three's heirs get nothing. (In many states, grandchildren and/or daughters/sons in law are disregarded in when divvying up the money of an intestate person between his children.)
posted by MattD at 11:49 AM on September 24, 2000

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