Look beyond the headlines – the case of Re JS

The case of Re JS (Disposal of Body) garnered front page headlines in the mainstream media. Once the sensationalism is discarded, the case remains a fundamentally tragic one. It was based on both a foundation that the child bringing the case would not survive much beyond the decision of the court, and that her wider family appeared locked in conflict that would subsist beyond her death. It saw a very experienced Judge, Mr Justice Jackson, grappling with both “a tragic combination of childhood illness and family conflict” and “the new questions that science poses to the law.”

The Facts

JS was a 14 year old girl. She was sadly diagnosed with a rare form of cancer and by August 2016 it was clear that she would not survive. Her parents had been separated for some years. JS had lived with her mother and had not seen her father since 2008. Their relationship was fractured. Relations between her parents were tactfully and simply described by the Judge as “very bad.” JS had a very specific wish in respect of what should happen upon her death. She wished for her body to be cryogenically frozen, in the hope that future medical science would allow her cancer to be treated and that she could have a second chance at life.

Court proceedings were started by JS herself because fundamentally, her parents were unable to agree upon what should happen to JS’ body after her death. Whilst her mother was supportive of her wishes, her father was not. Mr Justice Jackson was in no doubt that JS had the necessary capacity to start court proceedings. She was described as “a bright, intelligent young person who is able to articulate strongly held views on her current situation.” He met with JS in hospital on 7 October 2016, the day after he made his decision.

Mr Justice Jackson made it completely clear that the dispute between JS’ parents was not a dispute over the merits of cryogenics, nor was it an examination of whether JS’ wishes were sensible: “We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in JS’s position – what they must think.”

Approach of the Court

The approach taken by Mr Justice Jackson was to firstly check whether JS’ wishes were practically possible. Enquiries had to be made with the authorities in the United States, as that was where the cryogenic facility was based. Those enquiries, conducted through assistance from the NHS Trust caring for JS, were positive. The NHS Trust adopted a sensible position that whilst they were not endorsing cryogenics (and remained very uneasy over the procedure), anything that could be done to alleviate JS’ distress and anxiety was in her best interests.

Mr Justice Jackson then considered JS’ wishes upon death from a purely legal perspective. He noted that as JS was aged under 18, she could not make a Will: “My approach is therefore to try to remove the disadvantage that JS is under as result of her age. I do not intend to go further than that, as JS cannot be in a better legal position than she would be if she was an adult.” The central issue was therefore whether the court was able to intervene to resolve the dispute between JS’ parents.

Mr Justice Jackson was in no doubt that the court was able to intervene in these circumstances: “The court is not deciding or approving what should happen, but is selecting the person best placed to make those decisions after JS’s death.” In the case of JS, the view of the court was that it was JS’ mother who was the best person placed to make such decisions. Mr Justice Jackson made the following orders:

1. A Specific Issue Order permitting JS’ mother to continue to make arrangements, during JS’ remaining days, for the preservation of her body after her death.
2. An injunction against JS’ father preventing him from:
   – applying for a grant of probate after JS’ death;
   – making any attempt to dispose of JS’ body;
   – interfering with the efforts made by JS’ mother to dispose of JS’ body.
3. An order providing that upon JS’ death, her mother would be the sole administrator of her estate.

Outcome

JS passed away on 17 October 2016. She died peacefully. Unfortunately, it appears that on her final day of life, JS’ mother was heavily preoccupied with ensuring that the arrangements to preserve her body were in place. This prevented her from spending time with JS. It also appears that the practical arrangements to preserve her body were disorganised and had to be resolved in a manner that had not been planned or approved in advance.

Analysis

The decision of Mr Justice Jackson does not set any precedent, nor should it provide any endorsement of cryogenics: “If another health trust was ever to be faced with a similar situation, it would be entitled to make its own judgment about what was acceptable in respect of a patient in its care, and it might very well reach a different conclusion, as might another court. There are clearly a number of serious ethical issues, and I have received information about procedures performed on the body after death that would be disturbing to many people.” He later commented that the case does highlight the potential need for proper regulations over the preservation of bodies where cryogenics is involved.

In the opinion of the writer, the decision reached by Mr Justice Jackson was one rooted upon the basis of compassion and simple humanity. JS was facing an awful situation that few of us can contemplate and none of us would wish for. She had a very specific wish as to what should happen following her death. She might have chosen specific music to be played at her funeral or asked for her ashes to be scattered at her favourite place. However unusual her actual request was, it was one that mattered to her. Allowing that wish to be fulfilled clearly gave her some comfort in her final days of life.