107
Medicine and the Law Religious beliefs and parental duty On July 4,1990, after 14 hours of deliberation, a Boston jury convicted David and Ginger Twitchell of involuntary manslaughter and of wanton and reckless disregard for their child’s health.1 As Christian Scientists the Twitchells had relied on prayer and did not call a doctor to their 2!-year-old son, who died of a treatable bowel obstruction on April 8, 1986. Although the case was the fifth prosecution of Christian Scientists in 2 years, it is the first in Boston since 1971, when the much disputed Massachusetts religious exemption law on spiritual healing was passed. There have, since 1982, been some twenty-nine prosecutions against members of religious groups who have allowed their children to die rather than call in a doctor, and there have been nineteen-eonvictions.2 In Massachusetts manslaughter carries a penalty of up to 20 years in prison, but in cases such as this the US courts normally make a probation order, which is non-punitive, and the Twitchells have been given a 10-year probation term with the condition that they seek medical care for their three children when necessary. Judge Sandra Hamlin, of the Suffolk Superior Court, rejected a prosecution request that the couple be automatically sent to gaol if they breached the probation order, leaving the court a discretion to award punishment after a hearing.
Legal exemptions for spiritual healing, Massachusetts The Twitchells’ lawyer has appealed, claiming that the judge wrongly interpreted and/or failed accurately to instruct the jury on the protection afforded to spiritual healing by a 1971 amendment to the State’s Child Abuse and Neglect Law (chap 273). This amendment states that "A child shall not be deemed to be neglected or lack proper physical care for the sole reason that he is being provided remedial treatment by spiritual means alone in accordance with the tenets and practice of a recognised church or religious denomination by a duly accredited practitioner thereof." Critics believe that this amendment should be repealed or at the least amended. One proposal-not passed in 1989 but to be resubmitted this year-would add the words "unless medical care is necessary to protect the child from suffering serious physical harm or illness". During the Twitchell trial, the prosecution contended that the law (as currently amended) did not apply to a child who was seriously ill, while The Christian Science Church believes that the law grants immunity no matter how ill the child. In the view of Wendy Mariner (associate professor of health, Boston University) the law "sends the wrong message to parents... Even if the correct interpretation of the religious exemption is that it still permits the state to intervene to provide medical care for a child when necessary, the fact that many people believe that it allows parents to use prayer healing instead of medical care means that some children who could be saved will suffer and die". Miss Mariner, however, considers that the religious exemption may be invalid since it probably violates the first amendment to the US Constitution, which forbids states from making any law respecting an establishment of religion and expressly forbids granting preferences among religious groups. Since the exemption was enacted to protect one or two religions it would seem to be unconstitutional, Mariner argues. If valid, it leaves the sick children of certain religious groups without the protection of the state; these groups include Jehovah’s Witnesses, Christian Scientists, End Time Ministries, and the Church of God of the Union Assembly, all of which believe in the power of spiritual healing.
Supporters of the exemption argue that parents have a right to their religious beliefs-but, as Mariner points out, "it is not true that parents have a right to let their children suffer and die for the sake of the parents’ religious beliefs". In 1944, in Prince v Massachusetts (321 US 158), the US Supreme Court said that "Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children." The Peculiar People, UK In the UK, where a person owes a duty of care to another, he is under a duty to act so as to preserve that person’s life. Parents owe that duty to their children. Furthermore the Children and Young Persons Act 1933 provides that a parent (or other person legally liable) shall be deemed to have neglected a child in a manner likely to cause injury to health, and thereby to be guilty of a misdemeanor if that person fails to provide adequate medical aid for the child. A similar provision has been on the statute book since the Prevention of Cruelty to and Protection of Children Act 1899. The early reported cases involved prosecutions of parents who were members of a sect called the Peculiar People, who believed that all resort to medical aid in illness was sinful. In Rv Senior ([1898]1 QB 283, 284) a man was charged with the manslaughter of his infant child. The child, aged 8 or 9 months, had died of diarrhoea and pneumonia. The father had not sought medical aid even though he knew how sick the child was. The medical evidence was that the child’s life would probably have been saved if medical assistance had been procured. The ability to pay for such help was not at issue and he had been a good father in other respects. The Peculiar People, of which the father was a member, based their religious doctrines on the treatment of the sick on the Epistle of James (chap 5, vv 14 and 15). "Is any sick among you? Let him call for the elders of the church; and let them pray over him, anointing him with oil in the name of the Lord; and the prayer of faith shall save the sick, and the Lord shall raise him up..." The sect did not allege that medical aid was expressly forbidden-merely that to use it indicated "a want of faith in the Lord". The sect would give comfort and warmth (the baby had been given brandy) but no
drugs. Willsy directed the jury that there could be no doubt that the man had wilfully abstained from calling in medical assistance even though he knew the child was in great danger. The question was whether his failure to seek medical help amounted to neglect causing serious injury to a child’s health. The jury convicted. At the appeal, which did not succeed, Lord Russell CJ said that "At the present day, when medical aid is within the reach of the humblest and poorest members of the community it cannot reasonably be suggested that the omission to provide medical aid for a dying child does not amount to neglect..." Recent UK cases In R v Sheppard ([1981] 394 at 405) by a majority of 3 to 2 the House of Lords held that the mental requirement of wilful neglect within the meaning of the 1933 Act requires that regard be paid to the state of mind of those charged with wilful neglect. Section 8 of the Criminal Justice Act 1967 requires a subjective investigation into the mind of the person charged, to enable a magistrate or a jury to answer the question, posed by Lord Diplock: "What in fact did the defendant think the position was regarding his child’s health at the relevant time-that is if he gave the matter any thought at all". Sheppard, however, was a case of neglect through ignorance rather than wilful refusal to allow medical help on religious grounds. The UK never has had a religious exemption allowing a parent to deprive his child of the right to medical treatment but the common law as it stood in the mid-19th century was thought not to protect children adequately from their parents’ religious scruples (or neglect) and the prevailing statute put an absolute duty on parents to obtain medical treatment for a sick child. Although the 1933 Act has now been reinterpreted in R v Sheppard as not imposing strict liability (see above), it would seem that from the moment that a parent knows that his child will be at risk if medical aid is not summoned he will be convicted of manslaughter if that child dies as a
consequence.
108
Religious objections to the giving of medical treatment to children in Britain today are more likely to come from Jehovah’s Witnesses than the Peculiar People, and, as in any case where parental wishes do not seem to be in accordance with the best interests of the child, the child may be made a ward of court. In an emergency, doctors must act as they deem necessary for the welfare of the child but must be prepared to defend their actions so a second opinion is always desirable. A few weeks ago, a Greek Cypriot couple, practising Jehovah’s Witnesses with a child with leukaemia, came to London seeking treatment. They were advised at the Hospital for Sick Children that a blood transfusion was necessary to preserve her life. Unwilling to agree, the parents secretly removed the child from hospital and left the country despite widespread media coverage and a court order. Back in Cyprus, and under the threat of an equivalent legal order there, the parents eventually returned the child to hospital for treatment, which was to include a blood transfusion. Diana Brahams Wong DS. Christian Science couple convicted in son’s death. Boston Globe July 5, 1990. 2. Sege I. Spiritual healing spurs debate on rights. Boston Globe July 5,1990. 3. Testimony before the Massachusetts Joint Committee on Judiciary concerning House Bill 4728 (March 15, 1989). 1.
Obituary Ladislav Polak Dr Polak, who was killed in a road accident on June 1, was one of the leading experimental dermatologists in the 20 years from 1965 to 1985. His earliest publications, written while he was still working in his native Prague, were on the role of the sympathetic and parasympathetic nervous system in contact dermatitis. In 1965 he joined the department of immunology of the Institute Dermatology in London, where he turned his attention particularly to animal models of contact sensitivity to chromium. Perhaps the most important feature of this work was that, up to that time, there had been no investigation in depth into models of disease, as seen in the clinic, to water soluble sensitisers. Following his highly productive period in London, where he was also one of the first to investigate the role of complement in acute and chronic inflammatory reactions, Polak joined Johann Frey at Hoffmann la Roche in Basel. Frey had for many years attempted to understand the mechanism underlying immunological tolerance in contact sensitivity, and together they set about reinvestigating the problem. On Frey’s death in 1974 Polak took over the direction of Frey’s department and at about the same time involved himself in the investigation of the role of suppressor cells as a mechanism of tolerance in contact sensitivity. In this he used cyclophosphamide to break tolerance and continued the study with the use of parabiotic animals. In later studies, he began to add in-vitro techniques with T cell lines and T cell clones to the many approaches he had used over the years. Polak always regarded the guineapig as the best animal model for the investigation of skin diseases. Polak considered that the animal produced results that were more relevant to human disease and used to say that one might obtain any results one wished from the cheaper mouse, with its multitude of genetically defmed inbred lines. In his last years Dr Polak became blind but still impressed his audiences with his ability to continue lecturing, pointing with uncanny accuracy at projected data on the screen. J. L. Turk
Noticeboard Training of prison
medical officers
Medical work in prisons will become a specialty in its own right, if the recommendations of a working party of the Royal College of Physicians are followed. In its report,’ published last week, the working party, commissioned by the Chief Medical Officer, Sir Donald Acheson, says that standards of practice in some parts of the Prison Medical Service (PMS) are lower than they should be, because the training of prison medical officers is not defined. Doctors working full time in the service are isolated from the rest of the medical profession, provision for continuing education and academic stimulation is inadequate, and there are few opportunities for research, says the report. Recruitment of part-time medical officers (mostly local general practitioners) is difficult, says the report, because the pay is poor, the posts are non-pensionable, and the doctors have to find their own locums to cover for absences. In the working party’s view, some of the recruitment difficulties relate to the unsatisfactory physical conditions in prisons, especially the older ones, where they remain "appallingly bad". Overcrowding and grossly inadequate sanitary arrangements, including the degrading procedure of "slopping out", make the provision of health care all but impossible, it says. The problems of the Prison Medical Service, the report comments, cannot be solved without serious attempts to rectify these shortcomings. In the past, critics of the PMS have suggested that the service should become part of the National Health Service, but the working party regards this change as impracticable and unlikely to improve the service in the short term. Another proposal, to make the PMS a special health authority within the NHS, it also rejects because this would involve complicated relations between the Prison
Department and the NHS. The working party wants to make prison medicine the career of first choice for full-time entrants, and to this end it offers proposals for a formal three-year training programme (to include service work carried out under supervision) and a recognised career structure. Entrants would have opportunities for continuing education and research. 1. The Prison Medical Service in England and Wales: recruitment and training of doctors. Report of a working party of the Royal College of Physicians to the Chief Medical Officer. London: Home Office and Department of Health. 1990. £3.20. ISBN 0-862525179.
of
Living
in the tropics
The prospect of living and working in a tropical country is, for many in temperate zones, a dream come true-but how does reality match up to the dream? The culture of a developing country can be surprising and shocking, and adjustment to a totally different way of life may be difficult if a family is unprepared for change. According to a new book published by the Royal Tropical Institute in Amsterdam1 the transition into a new culture can be eased by taking steps to avoid too abrupt a break with the past. Young children, for instance, can maintain links between old and new country by corresponding with ex-classmates (by letter or by tape recordings)
by undertaking joint projects. Living in the Tropics is written by three paediatricians as a practical guide to parents with young children going to work in a developing country. In remote areas, medical expertise and help may be severely limited, so by far the greater part of the book is allocated to various aspects of family health, including advice on or
first aid and medicines and other items that may be valuable for families going to be based in extremely remote areas. tropics with children. By Öry FG, Voorhoeve HWA, Stigter JCM (translated by L. van Gemert, Keith Anderson). Amsterdam: Royal Tropical Institute, 1989. Pp 93. ISBN 9068320238.
1. In the
Medicine and the Law Religious beliefs and parental duty On July 4,1990, after 14 hours of deliberation, a Boston jury convicted David and Ginger Twitchell of involuntary manslaughter and of wanton and reckless disregard for their child’s health.1 As Christian Scientists the Twitchells had relied on prayer and did not call a doctor to their 2!-year-old son, who died of a treatable bowel obstruction on April 8, 1986. Although the case was the fifth prosecution of Christian Scientists in 2 years, it is the first in Boston since 1971, when the much disputed Massachusetts religious exemption law on spiritual healing was passed. There have, since 1982, been some twenty-nine prosecutions against members of religious groups who have allowed their children to die rather than call in a doctor, and there have been nineteen-eonvictions.2 In Massachusetts manslaughter carries a penalty of up to 20 years in prison, but in cases such as this the US courts normally make a probation order, which is non-punitive, and the Twitchells have been given a 10-year probation term with the condition that they seek medical care for their three children when necessary. Judge Sandra Hamlin, of the Suffolk Superior Court, rejected a prosecution request that the couple be automatically sent to gaol if they breached the probation order, leaving the court a discretion to award punishment after a hearing.
Legal exemptions for spiritual healing, Massachusetts The Twitchells’ lawyer has appealed, claiming that the judge wrongly interpreted and/or failed accurately to instruct the jury on the protection afforded to spiritual healing by a 1971 amendment to the State’s Child Abuse and Neglect Law (chap 273). This amendment states that "A child shall not be deemed to be neglected or lack proper physical care for the sole reason that he is being provided remedial treatment by spiritual means alone in accordance with the tenets and practice of a recognised church or religious denomination by a duly accredited practitioner thereof." Critics believe that this amendment should be repealed or at the least amended. One proposal-not passed in 1989 but to be resubmitted this year-would add the words "unless medical care is necessary to protect the child from suffering serious physical harm or illness". During the Twitchell trial, the prosecution contended that the law (as currently amended) did not apply to a child who was seriously ill, while The Christian Science Church believes that the law grants immunity no matter how ill the child. In the view of Wendy Mariner (associate professor of health, Boston University) the law "sends the wrong message to parents... Even if the correct interpretation of the religious exemption is that it still permits the state to intervene to provide medical care for a child when necessary, the fact that many people believe that it allows parents to use prayer healing instead of medical care means that some children who could be saved will suffer and die". Miss Mariner, however, considers that the religious exemption may be invalid since it probably violates the first amendment to the US Constitution, which forbids states from making any law respecting an establishment of religion and expressly forbids granting preferences among religious groups. Since the exemption was enacted to protect one or two religions it would seem to be unconstitutional, Mariner argues. If valid, it leaves the sick children of certain religious groups without the protection of the state; these groups include Jehovah’s Witnesses, Christian Scientists, End Time Ministries, and the Church of God of the Union Assembly, all of which believe in the power of spiritual healing.
Supporters of the exemption argue that parents have a right to their religious beliefs-but, as Mariner points out, "it is not true that parents have a right to let their children suffer and die for the sake of the parents’ religious beliefs". In 1944, in Prince v Massachusetts (321 US 158), the US Supreme Court said that "Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children." The Peculiar People, UK In the UK, where a person owes a duty of care to another, he is under a duty to act so as to preserve that person’s life. Parents owe that duty to their children. Furthermore the Children and Young Persons Act 1933 provides that a parent (or other person legally liable) shall be deemed to have neglected a child in a manner likely to cause injury to health, and thereby to be guilty of a misdemeanor if that person fails to provide adequate medical aid for the child. A similar provision has been on the statute book since the Prevention of Cruelty to and Protection of Children Act 1899. The early reported cases involved prosecutions of parents who were members of a sect called the Peculiar People, who believed that all resort to medical aid in illness was sinful. In Rv Senior ([1898]1 QB 283, 284) a man was charged with the manslaughter of his infant child. The child, aged 8 or 9 months, had died of diarrhoea and pneumonia. The father had not sought medical aid even though he knew how sick the child was. The medical evidence was that the child’s life would probably have been saved if medical assistance had been procured. The ability to pay for such help was not at issue and he had been a good father in other respects. The Peculiar People, of which the father was a member, based their religious doctrines on the treatment of the sick on the Epistle of James (chap 5, vv 14 and 15). "Is any sick among you? Let him call for the elders of the church; and let them pray over him, anointing him with oil in the name of the Lord; and the prayer of faith shall save the sick, and the Lord shall raise him up..." The sect did not allege that medical aid was expressly forbidden-merely that to use it indicated "a want of faith in the Lord". The sect would give comfort and warmth (the baby had been given brandy) but no
drugs. Willsy directed the jury that there could be no doubt that the man had wilfully abstained from calling in medical assistance even though he knew the child was in great danger. The question was whether his failure to seek medical help amounted to neglect causing serious injury to a child’s health. The jury convicted. At the appeal, which did not succeed, Lord Russell CJ said that "At the present day, when medical aid is within the reach of the humblest and poorest members of the community it cannot reasonably be suggested that the omission to provide medical aid for a dying child does not amount to neglect..." Recent UK cases In R v Sheppard ([1981] 394 at 405) by a majority of 3 to 2 the House of Lords held that the mental requirement of wilful neglect within the meaning of the 1933 Act requires that regard be paid to the state of mind of those charged with wilful neglect. Section 8 of the Criminal Justice Act 1967 requires a subjective investigation into the mind of the person charged, to enable a magistrate or a jury to answer the question, posed by Lord Diplock: "What in fact did the defendant think the position was regarding his child’s health at the relevant time-that is if he gave the matter any thought at all". Sheppard, however, was a case of neglect through ignorance rather than wilful refusal to allow medical help on religious grounds. The UK never has had a religious exemption allowing a parent to deprive his child of the right to medical treatment but the common law as it stood in the mid-19th century was thought not to protect children adequately from their parents’ religious scruples (or neglect) and the prevailing statute put an absolute duty on parents to obtain medical treatment for a sick child. Although the 1933 Act has now been reinterpreted in R v Sheppard as not imposing strict liability (see above), it would seem that from the moment that a parent knows that his child will be at risk if medical aid is not summoned he will be convicted of manslaughter if that child dies as a
consequence.
108
Religious objections to the giving of medical treatment to children in Britain today are more likely to come from Jehovah’s Witnesses than the Peculiar People, and, as in any case where parental wishes do not seem to be in accordance with the best interests of the child, the child may be made a ward of court. In an emergency, doctors must act as they deem necessary for the welfare of the child but must be prepared to defend their actions so a second opinion is always desirable. A few weeks ago, a Greek Cypriot couple, practising Jehovah’s Witnesses with a child with leukaemia, came to London seeking treatment. They were advised at the Hospital for Sick Children that a blood transfusion was necessary to preserve her life. Unwilling to agree, the parents secretly removed the child from hospital and left the country despite widespread media coverage and a court order. Back in Cyprus, and under the threat of an equivalent legal order there, the parents eventually returned the child to hospital for treatment, which was to include a blood transfusion. Diana Brahams Wong DS. Christian Science couple convicted in son’s death. Boston Globe July 5, 1990. 2. Sege I. Spiritual healing spurs debate on rights. Boston Globe July 5,1990. 3. Testimony before the Massachusetts Joint Committee on Judiciary concerning House Bill 4728 (March 15, 1989). 1.
Obituary Ladislav Polak Dr Polak, who was killed in a road accident on June 1, was one of the leading experimental dermatologists in the 20 years from 1965 to 1985. His earliest publications, written while he was still working in his native Prague, were on the role of the sympathetic and parasympathetic nervous system in contact dermatitis. In 1965 he joined the department of immunology of the Institute Dermatology in London, where he turned his attention particularly to animal models of contact sensitivity to chromium. Perhaps the most important feature of this work was that, up to that time, there had been no investigation in depth into models of disease, as seen in the clinic, to water soluble sensitisers. Following his highly productive period in London, where he was also one of the first to investigate the role of complement in acute and chronic inflammatory reactions, Polak joined Johann Frey at Hoffmann la Roche in Basel. Frey had for many years attempted to understand the mechanism underlying immunological tolerance in contact sensitivity, and together they set about reinvestigating the problem. On Frey’s death in 1974 Polak took over the direction of Frey’s department and at about the same time involved himself in the investigation of the role of suppressor cells as a mechanism of tolerance in contact sensitivity. In this he used cyclophosphamide to break tolerance and continued the study with the use of parabiotic animals. In later studies, he began to add in-vitro techniques with T cell lines and T cell clones to the many approaches he had used over the years. Polak always regarded the guineapig as the best animal model for the investigation of skin diseases. Polak considered that the animal produced results that were more relevant to human disease and used to say that one might obtain any results one wished from the cheaper mouse, with its multitude of genetically defmed inbred lines. In his last years Dr Polak became blind but still impressed his audiences with his ability to continue lecturing, pointing with uncanny accuracy at projected data on the screen. J. L. Turk
Noticeboard Training of prison
medical officers
Medical work in prisons will become a specialty in its own right, if the recommendations of a working party of the Royal College of Physicians are followed. In its report,’ published last week, the working party, commissioned by the Chief Medical Officer, Sir Donald Acheson, says that standards of practice in some parts of the Prison Medical Service (PMS) are lower than they should be, because the training of prison medical officers is not defined. Doctors working full time in the service are isolated from the rest of the medical profession, provision for continuing education and academic stimulation is inadequate, and there are few opportunities for research, says the report. Recruitment of part-time medical officers (mostly local general practitioners) is difficult, says the report, because the pay is poor, the posts are non-pensionable, and the doctors have to find their own locums to cover for absences. In the working party’s view, some of the recruitment difficulties relate to the unsatisfactory physical conditions in prisons, especially the older ones, where they remain "appallingly bad". Overcrowding and grossly inadequate sanitary arrangements, including the degrading procedure of "slopping out", make the provision of health care all but impossible, it says. The problems of the Prison Medical Service, the report comments, cannot be solved without serious attempts to rectify these shortcomings. In the past, critics of the PMS have suggested that the service should become part of the National Health Service, but the working party regards this change as impracticable and unlikely to improve the service in the short term. Another proposal, to make the PMS a special health authority within the NHS, it also rejects because this would involve complicated relations between the Prison
Department and the NHS. The working party wants to make prison medicine the career of first choice for full-time entrants, and to this end it offers proposals for a formal three-year training programme (to include service work carried out under supervision) and a recognised career structure. Entrants would have opportunities for continuing education and research. 1. The Prison Medical Service in England and Wales: recruitment and training of doctors. Report of a working party of the Royal College of Physicians to the Chief Medical Officer. London: Home Office and Department of Health. 1990. £3.20. ISBN 0-862525179.
of
Living
in the tropics
The prospect of living and working in a tropical country is, for many in temperate zones, a dream come true-but how does reality match up to the dream? The culture of a developing country can be surprising and shocking, and adjustment to a totally different way of life may be difficult if a family is unprepared for change. According to a new book published by the Royal Tropical Institute in Amsterdam1 the transition into a new culture can be eased by taking steps to avoid too abrupt a break with the past. Young children, for instance, can maintain links between old and new country by corresponding with ex-classmates (by letter or by tape recordings)
by undertaking joint projects. Living in the Tropics is written by three paediatricians as a practical guide to parents with young children going to work in a developing country. In remote areas, medical expertise and help may be severely limited, so by far the greater part of the book is allocated to various aspects of family health, including advice on or
first aid and medicines and other items that may be valuable for families going to be based in extremely remote areas. tropics with children. By Öry FG, Voorhoeve HWA, Stigter JCM (translated by L. van Gemert, Keith Anderson). Amsterdam: Royal Tropical Institute, 1989. Pp 93. ISBN 9068320238.
1. In the
