Medical Treatment Cases in Light of Ward LJs Judgment - Essay Example

?Discussion of medical treatment cases in light of Ward LJ’s judgment in Re A The Right to Life is an absolute right. This Article 2 assertion allowsone, regardless of origin, conviction and nature to enjoy the right to live in order to debunk any external threats to their own existence. Thus, it imposes upon public authorities, such as the police, armed forces, etc to protect a threat to an individual’s life if it is legitimately held to exist. Of course, the title Absolute Right is a little misleading to say the least, as the Act itself provides certain exceptions as to when and if the Right to Life may be forgone. These exceptions, such as those found in times of war, in the justifiable use of force by public officials in their line of duty, making an arrest, etc, allow the respective authorities to breach the right to life without consequence. One such exception is in the case of the medical profession, where several instances may arise when a treatment rendered by the practitioners may or may not prove beneficial to the patient and may result in death as a likely consequence. Re A (Children) (Conjoined twins: Medical Treatment) (No.1) (2000) is a fine example of this, and the decision awarded by the Court of Appeal upholding a defense of necessity considered both the decision of the parents and the surgical prowess of the medical practitioners so as to take that course of action which was least detrimental to either twin. Thus, arose several different dilemmas all in one go, combining ethics, profession and legal liabilities under one umbrella, the defense of necessity. Legally, the importance of determining the least harmful course of action is protected by the aforementioned defense. Where the right to life is under threat, the courts held in Re A, there can be no excuse to violate it unless on balance there was a clear distinction to be made in favor of undergoing a treatment which curbs a greater evil from being committed than the one which has to be undergone. In this case, the evil itself is a breach of the right to life, or the eventual death of Mary as a result of the surgical procedure. Mary and Jodie, who were Siamese twins, would both have had to end their life if they were not separated and Mary, being the weaker twin with failing organs and drawing blood from Jodie, was to be in essence the cause of Jodie’s death, who was developing normally otherwise. Thus, the two deaths were a far worse result than just one, and the defense of necessity appropriately applied as it prevented a greater evil, the deaths of both, from occurring and resulting in the eventual death of Mary, the weaker sibling. The case of Re A and the defense of necessity Ward LJ’s description of Mary as one who has a “right to life but little right to be alive” (Re A (medical treatment) (2000)) pertains to the dilemma that plagues the Article 2 absolute right of the European Convention of Human Rights. When the case was decided in September, it was still one month short of the date of the HRA 1998 becoming fully enforceable in the domestic courts. However, the three judges who decided the case, Brown, Ward, and Robert Walker LJJ in the Court of Appeal had varying reasons to sustain the decision to allow the surgery even though it was to result in the eventual death of a human being, no matter how feeble she may be. All three were agreed on the point that the wishes of the parents were to be given the highest regard, but still went against the parent’s application to stop the surgery from happening citing the welfare of the children as their primary source of reasoning. In doing so they considered several legal implications of preceding judgments which, although could be applied in varying forms to present scenario did not entirely form precedents to the current case. In first instance, Justice Johnson held the surgery to be beneficial to both Mary and Jodie, in so much as allowing Jodie to lead a happy healthy life and citing death as the best course of action for Mary who was too weak to sustain herself and would have to live a life of misery. Justice Johnson drew this conclusion by comparing the circumstances of the case to those found in Airdale NHS Trust v Bland (1993) in which the doctors were allowed to end the permissive vegetative state of a patient simply by withdrawing life support, which in essence, is a negative act. If the same argument was followed through, and the surgeons in Jodie and Mary’s case were allowed the positive act of surgery, it could not only be distinguished on the facts from Bland, but also breach Article 2 of the ECHR which protected Mary’s right to life and as such was declared as an error in his judgment by the Court of Appeal (as per Ward and Brown LJ). The more apt description put forward in this case for allowing the surgery, after due consideration of both the parent’s wishes as well as the expert surgeon’s opinions, was that the invasive surgery was directed towards the betterment of Jodie, upholding her right to life, but the fact that Mary was to die as a result was not and never would form part of the intention. This was important, as for the act of surgery to be illegal, the surgeons must have a certain degree of guilty intent (Gillick v West Norfolk and Wisbech Area Health Authority [1986]), which is nowhere to be found in the current case. Thus, to protect the Article 2 right of Jodie, the surgery was allowed. In matters of Mary, the defense of necessity may also be applicable where her death was foreseen (as per Browne LJ). But primarily, the surgeons would not be deviating from the natural course of actions by too much, since Jodie’s right to life as well as Mary’s right to life were both at risk if the surgery was denied, they merely aimed to protect Jodie’s right to life, and therefore lacked the intent to render their act unlawful simply because Mary, in her autonomous non-conjoined state, could not sustain her own life. In Re A (2000), both the parents’ wishes as well as the surgeons’ expert opinions were considered, and ultimately the decision was made in the betterment of the twin children involved. The judges also pertain to other factors in their decision making, such as the cognitive abilities of the child so that an 18 month old child who suffered from an irreparable form of spinal muscular atrophy was allowed to be long-term ventilated, but restricted the doctors from further surgical procedures which may worsen his condition (see NHS Trust v MB [2006]). This result was in contrast to that of Bland, where medical assistance in sustaining life was stopped because it prolonged a disproportionate form of misery, however, a recommendation was made to update the law because of the advancing position of technology. In contrast, even though the parents’ opinion are held in high regard, the children in question form the paramount concern of the judges and the surgeons merely render their expert advice on which basis the ideal course of action is chosen. Moral Implications The first and foremost consideration to be taken into account for such a grant by the courts as in Bland, is that of the allowance of euthanasia, which, on the surface of it, violates the legal sanctity of life1. Allowing a surgeon to dismiss a patient’s life in light of his suffering in the current state would be a violation of principles set forth by the tradition of life preservation and self-determination throughout the course of history. The Law Commission itself disregards it, considering a discussion on euthanasia only as part of a discussion on murder2. However, there has been some support for euthanasia in light of Bland in recent times. Price argues that old practices that dismissed the idea of assisted suicide could no longer be held to be the driving force for the upkeep of customary concepts of personal autonomy, as every situation had to be dealt with its own facts, determining the quality of life of the patient in question in order to make an informed and affirmatively stable decision about the future of his life3. Robert Young also supports voluntary euthanasia4, as he pertains it to uphold “respects for persons autonomous choices” (p. 21-2) and invoke a feeling of “compassion for the feeling of patients” (p. 23) and it is in support of public policy to allow the prevalence of voluntary euthanasia (p. 24-8). It is evident that both these theories have a tendency to proclaim support for voluntary euthanasia but not involuntary euthanasia, such as the one seen in Bland, where the surgeons recommend against a treatment as a result of which the patient would die. These theorists in essence proscribe patient autonomy more than expert advice in cases where the person is of sound mind and capable of making an informed decision about their own life. Conclusion Essentially, the circumstances of a case are paramount in determining the course of action in cases of medical treatment, but surgeon advice can go only so far as determining the result. Parents have just as important a say, if not more (see NHS Trust). Other factors such as the benefits derived from an operation and the cognitive abilities of patients in question (NHS Trust), do have considerable weight on decision making, but ultimately, the courts are seen to modify the course of action in order to bring about their desired effect, whether through the defense of necessity or through an order to omit further treatment. Read More