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the detrimental affect of this potential outcome on Y. The judge referred to a case from
the United States which concerned the donation bone marrow from twin brothers. In
that case it was said that a psychological benefit could be realistically found to exist if
there was an existing relationship between the healthy child and the sibling (Curran v
Bosze [1990]). However, in Y, such a relationship did not exist. The judge said “that it
was not possible accurately to describe the relationship between the plaintiff and the
defendant as particularly strong” (Connell J, p. 4). Y’s sister did not visit regularly and
their relationship largely consisted of Y’s sister sending Y cards, presents and
photographs. So the judge looked to the relationship that Y had with her mother to
justify the procedure.
To establish that there would be detrimental affects if Y’s sister died as a result of not
having the bone marrow transplant from Y, the judge turned to the evidence of experts.
A consultant in the psychiatry of learning disability gave evidence that Y may well
have had some recollection of the early years of living in the family home with her
sisters. It was said that Y would be negatively affected if her mother was upset by her
sister’s death. The judge asked the question: “Why subject the defendant to the process
of bone marrow extraction?” The answer was found in the medical evidence: “It is to
her emotional, psychological and social benefit. This is the expert opinion of Dr Berney
[the consultant psychiatrist] who is very experienced in these matters” (p. 8).
In considering the detrimental effects to Y of the actual bone marrow harvesting
procedure, the judge also turned to medical evidence. Experts said that the risk of
complications from the anaesthetic that would be required to complete the procedure
was very low “i.e. less than one per 10,000” (p. 8). The judge was reassured by the
evidence that Y had undergone several general anaesthetics, one of which was for a
hysterectomy, with no adverse effects.
By couching the decision largely in terms of the clinical judgement, the difficult value
judgements and the inherent subjective nature of the decisions were portrayed in terms
of medical facts and expert evidence. At no point did the court ask what the
disadvantages to Y were regarding the violation of her bodily integrity beyond the
medical risks of the procedure. Nor did the court consider whether it is right or wrong
to proceed with the bone marrow donation solely based on what appear to be utilitarian
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