State of Qld v Alyssa Nolan & Anor

[2] Alyssa has only one kidney. Bethany has no kidneys and no bladder. As well she has a condition commonly referred to as club foot which is sometimes an indication of underlying brain damage. Though joined at the head the girls have separate brains though they share the cranial draining veins ("venous draining sinuses"). They thus share blood flow. This has enabled Bethany to survive, Alyssa's one kidney removing waste from the bloodstream of both girls.

[3] In the days prior to 25 May 2001 Bethany developed increasing hypertension from a cause which could not be ascertained. Her high blood pressure proved resistant to drug therapy and she developed hypertrophy in the left ventricle of the heart. A difficulty in treating Bethany's hypertension is that Alyssa's blood pressure is not elevated. The drugs which lower Bethany's blood pressure also reduce Alyssa's with the potential to diminish the flow of blood to her brain or compromise the function of the one shared kidney.

[4] During the evening of 25 May Bethany's condition deteriorated rapidly. Her hypertension caused cardiac failure. As well she developed severe pulmonary oedema (fluid in the tissues and air spaces of the lungs). These clinical signs indicated that Bethany's death was an immediate prospect. Should she have died while still joined to her sister, Alyssa too would have died within hours. The skill of the staff at the Royal Childrens' Hospital kept Bethany alive but the prognosis was that even with all possible assistance she could not survive more than about 24 hours, or a little longer.

[5] Late on 25 May the State of Queensland applied to the Supreme Court for an order permitting an operation to separate the twins. Its purpose was to save the life of Alyssa but in circumstances where there was no prospect that Bethany could live beyond it. Apart from her compromised heart the operation would leave her without an essential cerebral vein and, of course, no kidney. She is too young for dialysis.

[6] The court's sanction to the procedure was sought because although necessary for the preservation of Alyssa's life it would prove immediately fatal to Bethany.

[7] The jurisdiction appealed to is that which was formally vested in the Sovereign but was transferred in centuries past to the Lord Chancellor and from him personally to the Courts of Chancery and then to those courts which, like the Supreme Court, exercise the jurisdiction of that court. It is exercised to protect the person and property of subjects, particularly children who are unable to look to their own interests. The court has a wide power in relation to the welfare of infants. The dominant factor in the exercise of the jurisdiction is always what is in the best interests of the child in question. In a passage approved by Brennan J in Marion's case [1992] HCA 15; (1991-1992) 175 CLR 218 at 280 it was described by Lord Esher MR in R v Gyngall [1893] 2 QB 232 at 241:

"The court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child."

The power is to be exercised for the protection of those whose plight enlivens it. See also Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615 at 633.

[8] Although the court may make orders contrary to the wishes of a child's parents if satisfied that it is in the child's best interest to do so this is not such a case. Mr and Mrs Nolan have given their consent to the operation notwithstanding the inescapable consequence it must have for Bethany. Dr Isles, who attended the hearing, informed me that he had explained their daughters' plight to them, the surgical options available, and the risk to Alyssa involved in the procedure. A note made of the conversation signed by Dr Isles, Dr Theile and Dr Campbell as well as by Mr and Mrs Nolan contains the summary:

"Bethany has had a rapid demise over the last 12 hours. . . her death is felt to be immanent. Surgical separation has been recommended and confirmed with several second opinions.

Result of surgery: chance of Alyssa dying = 60 - 80%

. . . The operation will be performed to attempt to save Alyssa's life . . ."

It was Dr Isles' opinion that Mr and Mrs Nolan understood the explanation and agreed that the operation should be performed.

[9] The court was approached for two reasons: (a) to confirm, in the exercise of its protective jurisdiction, that it is in the best interests of Alyssa and Bethany that the operation should proceed; and (b) to obtain the opinion of the court as to whether performing the operation which will lead to Bethany's death will be to do an unlawful act. Distressing as the thought may be in the present circumstances it is the case that a strict application of the Criminal Code ("the Code") might result in those taking part in the operation having committed an offence. It is, obviously, a crime for any person unlawfully to kill another unless the killing is justified excused or authorised by law. Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

[10] The provisions of the Code have another relevance to the application. It would not be in a child's best interests that it be subjected to an unlawful, especially a criminal, act.

[11] There were thus two considerations that had to be addressed before the application could be decided. They were:

(a) is it in the best interests of the children, and in particular of Bethany, that the operation be performed?

(b) will the operation amount to the unlawful killing of

[12] The stark, indeed the brutal, facts which underlie the application are that Bethany's life will come to an end within a few hours. Her death will lead to her sister's loss of life. An operation performed almost immediately will hasten Bethany's end but provide the best chance for Alyssa to survive and grow into normal childhood, adolescence and maturity.

[13] The application throws up the harsh reality that there is no commonality of interest between the sisters in undergoing the operation. It will benefit Alyssa by giving her a chance of a normal life but it will lead to Bethany's death. It confers no advantage on her. What, then, is in the best interests of the children?

[14] The same problem confronted the (English) Court of Appeal in September last year and I gratefully accept the analysis and conclusions of the judges who decided Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254; [2001] 2 WLR 480. In this case, as in that, the operation cannot bring about any improvement in Bethany's condition or prevent any deterioration to her health.

Notwithstanding the handicaps with which she was born and the ineluctable consequence they have for her life expectancy, it cannot be said that her life is worthless or is intrinsically worth less than her sister's. The application is not to be decided by a comparison between the respective worth or value of the two lives. That was the approach of the Court of Appeal and I agree with it.

The court approached the dilemma posed by the conflicting interests by accepting that the right to life of both twins is equal. It then turned to consider whether the proposed treatment was in the best interests of both. The answer was that the operation was of decided advantage to one but there would not be a corresponding detriment to the other. Although her life would be shortened she was "doomed for death . . . because her capacity to live . . . (was) fatally compromised". According to Ward LJ :

"The prospect of a full life for J is counterbalanced by an acceleration of certain death for M. That balance is heavily in J's favour." (p 529).

[15] Robert Walker LJ summarised his opinion on this point in much the same terms. He said (592):

". . . an operation to separate them would be in the best interests of each . . .

In this case the purpose of the operation would be to separate the twins and so give J a reasonably good prospect of a long and reasonably normal life. M's death would not be the purpose of the operation, although it would be its inevitable consequence . . . She would die, not because she was intentionally killed, but because her own body cannot sustain her life.

Continued life, whether long or short, would hold nothing for M . .

The proposed operation would therefore be in the best interests of each of the twins. The decision does not require the court to value one life above another."

[16] The reasoning is entirely apposite to the present application and is, with respect, an inexorable product of the circumstances. The condition of the twins and their future without surgery indicate what is to be done in their bests interests.

[17] In Re A it does not provide the same assistance with respect to the second point: whether the operation will be lawful. This is for the reason that two of the Lords Justices answered the question in the affirmative by reference to the little invoked doctrine of necessity which justifies conduct otherwise criminal. The doctrine is, however, a creature of the common law and finds only a very limited role in the Code.

[18] The defence of necessity was explained by Brooke LJ (in Re A 567):

" . . . the argument that a person ought to be permitted to breach the letter of the criminal law in order to prevent a greater evil befalling himself or others has long been recognised . . . but it has, in English law, not given rise to a recognised general defence of necessity, and in relation to the charge of murder, the defence has been specifically held not to exist . . . no system of positive law can recognise any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value . . . To . . hold that ostensibly illegal acts can be validated on the basis of their expediency would import an undue subjectivity into the criminal law . . . However that does not . . . deal with the situation where someone commendably infringes a regulation in order to prevent another person from committing what everyone would accept as being a greater evil . . . In that situation it cannot be satisfactory to leave it to the prosecuting authority not to prosecute . . ."

[19] The English courts have also recognised a similar but not identical defence of "duress of circumstances" which is available where it is established that the person in question has been compelled to act as he did by the pressure of threats or other circumstances of imminent peril to which he was subjected. The impact of that pressure on his freedom to choose his course of action excuses him from criminal liability. This part of the concept is recognised by s 25 of the Code. It differs from the defence of necessity in which the person's mind is not irresistibly overcome by external pressures. The basis for the defence of necessity is that the conduct in question is not regarded as harmful because on a comparison of two evils the choice of avoiding the greater harm was justified (See In Re A at 568-9).

Applying that principle to the English twins Brooke LJ thought that the operation was needed to avoid inevitable and irreparable evil (ie the death of J); no more was to be done than was reasonably necessary for the purpose of saving J's life; and that the evil inflicted (ie the death of M) was not disproportionate to the evil avoided (ie the death of J). Therefore by the doctrine the death of M by the operation was necessary to avoid a greater evil in the death of both girls.

[20] The judgment of Robert Walker LJ (588) recognises that the difficulty presented to the law by these cases is unique. There is no precedent nor even truly helpful analogy "to the situation which the court has to consider". His Lordship went on:

". . . the law as to the defence of necessity is going to have to develop on a case by case basis . . . I would extend it, if it needs to be extended, to cover this case. It is a case of doctors owing conflicting legal and not merely social or moral duties. It is a case where the test of proportionality is met, since it is a matter of life and death, and on the evidence M is bound to die soon in any event. It is not a case of evaluating the relative worth of two human lives, but of undertaking surgery without which neither life will have the . . . wholeness which is its due."

[21] The approach to this part of problem taken by Ward LJ was slightly different. It is an approach which does have a counterpart in the Code. He said (534-536):

"(The doctors) are under a duty to M not to operate because it will kill (her), but they are under a duty to J to operate because not to do so would kill her.

What then is the position where there is a conflict of duty? . . . Justification is founded upon some positive duty . . . What are the doctors to do if the law imposes upon them a duty which they cannot perform without being in breach of M's right to life if at the same time the respecting of her right puts them in breach of the equally serious duty of respecting J's right to life? . . . In those circumstances . . . the law must allow an escape through choosing the lesser of the two evils. . . . Faced as they are with an apparently irreconcilable conflict, the doctors should be in no different position from that in which the court itself was placed in the performance of its duty to give paramount consideration to the welfare of each child. The doctors must be given the same freedom of choice as the court has given itself and the doctors must make that choice along the same lines as the court has done . . . so the conclusion has to be that the carrying out of the operation will be justified as the lesser evil and no unlawful act would be committed."

[22] It is, I think, right that the conflict referred to by Ward LJ arises under the Code. Section 286 provides that:

"(1) It is the duty of every person who has care of a child under 16 years to -

(a) provide the necessaries of life for the child; and

(b) take the precautions that are reasonable in all the circumstances to avoid danger to the child's life, health or safety; and

(c) take the action that is reasonable in all the circumstances to remove the child from any such danger;

and he or she is held to have caused any consequences that result to the life and health of the child because of any omission to perform that duty . . ."

The person who has "care of a child" is extensively defined by subsection (2). The definition is capable of extending to the hospital and doctors who undertook, or were given the responsibility of, caring for the babies. They have an obligation imposed by the section to supply such medical and surgical care and skill as is reasonable in the circumstances to prevent them coming to harm. It may not be stretching things to say that the obligation would, in some circumstances, extend to performing an operation to save Alyssa's life. That obligation, if discharged by the performance of the operation, will result in the death of Bethany. The operation which is compelled by law is a justification for the act which has that result. The killing is therefore not unlawful.

[23] There is another reason why the operation would not constitute a criminal offence. Section 282 of the Code provides that:

"A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient's benefit, or upon any unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case."

[24] It may be taken as certain that Sir Samuel Griffith did not have the present sort of case in mind when drafting that section but his terms are wide enough to encompass it. The section expressly recognises that there may be some medical exigencies in which an operation to save one life will result in the loss of a potential (ie unborn) human life but the act which causes the loss will not give rise to criminal liability. That situation is not identical to the present case. The law does not regard human existence as beginning until birth though, of course, there are provisions protecting the unborn. Here two actual lives are in existence. Nevertheless s 282 abnegates criminal responsibility for a surgeon who performs an operation in good faith and with reasonable skill upon any person if it is for the patient's benefit and if the operation is reasonable having regard to all the circumstances of the case. The language is wide enough to encompass the relevant facts here.

[25] The operation is one to save the life of Alyssa. The circumstances, including the loss of Bethany, would, in my opinion, make the operation reasonable for the purposes of the section. Alyssa is to be regarded as the patient.

[26] The court cannot authorise the commission of an unlawful act, particularly a criminal act. The purpose of the application was not to obtain the court's sanction for conduct that would otherwise be criminal. What was sought was a declaration, in the exercise of the court's protective jurisdiction, that the operation was in the girls' best interests (though conventional legal terminology is pathetically inadequate in the case of Bethany) and the court's opinion that the surgery would not offend against the Code.

[27] The application was brought on as a matter of urgency at 11.00 p.m. on Friday 25 May and did not conclude until close to midnight. The operation was scheduled for 6.30 the next morning. There was no time for the preparation or delivery of reasons. I indicated that I would prepare reasons which would be published in the normal way in order that there should be a public record of the application, the circumstances that led to it and the reasons which led me to sanction the proposed cause of action.

1. I declare that an operation to separate the conjoined twins Alyssa Grace Nolan and Bethany Rose Nolan may be lawfully carried out in an attempt to save the life of Alyssa Grace Nolan.

2. I order that Alyssa Grace Nolan and Bethany Rose Nolan be permitted to undergo, and the applicant's servants and agents be permitted to perform surgery to effect the physical separation of the children.