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compatible donor. Y appeared to be a suitable donor. However, Y did not have the
capacity to give her consent to the bone marrow donation. Y’s sister sought a
declaration that bone marrow could lawfully be taken from Y, even though she could
not give her consent for the procedure.
Employing the best interest test, the judge found that the benefit to Y’s sister of the
bone marrow harvest would also bring positive affects for Y. It was said that if
anything happened to Y, that Y’s mother would be detrimentally affected and that
might undermine the relationship that Y had with her mother.
It was to the emotional, psychological and social benefit of the
defendant to act as done to her sister because in this way her positive
relationship with her mother was most likely to be prolonged. The
disadvantages to the defendant of the harvesting procedure were very
small. The bone marrow donated by the defendant would cause her no
loss and she would suffer no real long-term risk…
Harvesting of bone marrow from the defendant who is incapable of
giving informed consent would amount to assaults upon the defendant
and would therefore be illegal unless shown to be in the best interests of
the defendant and therefore lawful.
Re Y [1997] (England)
A question about whether it is ever justifiable to proceed with a non-consensual
invasive medical procedure which appears to have no direct therapeutic benefit for that
person raises questions of ethical and social concern. For example, is it acceptable to
use people who have no understanding of a procedure as a resource of medical benefit
for others? Does someone who is intellectually disabled have the right not to be
subjected to invasive medical procedures for the benefit of someone else? And if they
do have those rights, should the law uphold them over all other considerations? If Y
were not intellectually disabled, she would be able to make her own decision. Is it
possible to assume that people with capacity in Y’s situation would want to help their
very ill sister?
In order to invoke the best interests test in Re Y [1997], the judge had to demonstrate
that the procedure would be of some benefit to Y. The link was made between the
potential consequences of Y not donating her bone marrow (the death of her sister) and
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