QUEENSLAND V ALYSSA GRACE NOLAN (an Infant, by her Litigation Guardian SHAUN NOLAN) and BETHANY ROSE NOLAN (an Infant, by her Litigation Guardian SHAUN NOLAN) [2001] 122 A Crim R 517

Published 17 Jul 2014

Alyssa Grace Nolan and Bethany Rose Nolan were conjoined cranipagus (joined at the head) twin girls born on 3 May 2001. The girls were born with separate brains, but shared cranial draining vessels (venous draining sinuses). In addition, Alyssa was born with one kidney, Bethany had no kidney and no bladder and Alyssa’s kidney removed waste from both the girl’s bodies. Also, Bethany was born with a club foot.

A few days before the 25 May 2001, Bethany developed hypertension (high blood pressure). Her hypertension was not responding to medication, and it progressed to hypertrophy in the left ventricle of her heart. The doctors found it difficult to treat Bethany’s condition. Alyssa’s blood pressure was not elevated and the medication used to treat Bethany would reduce Alyssa’s blood pressure which could diminish the flow of blood to Alyssa’s brain and compromise the function of Alyssa’s kidney which both girls depended on to survive.

On 25 May 2001, Bethany’s condition rapidly deteriorated. She went into cardiac failure and developed severe pulmonary oedema (fluid in the air spaces and tissues of the lungs). The hospital did their very best to keep Bethany alive, but despite all their efforts and with all possible assistance Bethany would not survive more than 24 hours. Sadly, Bethany’s death was imminent, but if Bethany died while still attached to Alyssa, Alyssa would also die within a few hours.

The State of Queensland applied to the Supreme Court of Queensland (parens patriae jurisdiction) at 11pm on 25 May 2001 for an order permitting the operation to separate Alyssa and Bethany. The purpose of the operation would be to save Alyssa’s life, but during the operation Bethany would die. The operation was scheduled at 6:30am on 26 May 2001. The Court was asked to : “(a) to confirm, in the exercise of its protective jurisdiction, that it is in the best interest 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 would lead to Bethany’s death would be an unlawful act”[1].

To address these matters the Court had to determine:

  • “Is it in the best interest of the children, in particulars Bethany, that the operation be performed?
  • Will the operation amount to an unlawful killing of Bethany?”[2]

In relation to the first issue the Court referred to the decision of The English Court of Appeal in Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480.

The Court agreed with the English Court of Appeal in that it determined that despite Bethany’s health issues her life was “not worthless or intrinsically worth less than her sisters”[3]  and that the “application was not to be decided by a comparison between the respective worth or value of the two lives”[4].

Adopting the reasoning of Ward J[5] in Re A (Children) (Conjoined Twins: Surgical Separation)[6] that the operation to separate Alyssa and Bethany was in the best interests of Alyssa, but would not impose a “corresponding detriment” on Bethany because her imminent death was caused by her inability to sustain life, therefore “the prospect of a full life for… [Alyssa] is counterbalanced by an acceleration of certain death for… [Bethany]. That balance is heavily in… [Alyssa’s] favour”. And the reasoning of and Walker LJ[7] in Re A (Children) (Conjoined Twins: Surgical Separation)[8] that “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 to give… [Alyssa] a reasonably good prospect of a long and reasonably normal life. [Bethany’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… [Bethany]. The proposed operation would therefore be in the best interests of each of the twins”.

In relation to the second matter, Chesterman J relied on section 286 of the Criminal Code (QLD) and interpreted the duty imposed by section 286 as extending to hospitals and doctors caring for children and babies, “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”[9]. In this regard His Honour interpreted section 282 of the Criminal Code (QLD) as supporting his position determining that section 282 “expressly recognises that there may be some medical exigencies in which an operation to save one life will result in the loss of potential (that is, unborn) human life but the act which causes the loss will not give rise to criminal liability… Here two actual lives are in existence. Nevertheless, section 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 the operation is reasonable having regard to all the circumstances of the case. The language is wide enough to encompass the relevant facts here. The operation is one to save the life of Alyssa. The circumstances, including the loss of Bethany would, in my opinion reasonable for the purposed of the section. Alyssa is to be regarded as the patient”[10].



[1] Queensland V Alyssa Grace Nolan (an Infant, by her Litigation Guardian Shaun Nolan) and Bethany Rose Bnolan (an Infant, by her Litigation Guardian Shaun Nolan) [2001] 122 A Crim R 517 at 519.

[2] Queensland V Alyssa Grace Nolan (an Infant, by her Litigation Guardian Shaun Nolan) and Bethany Rose Bnolan (an Infant, by her Litigation Guardian Shaun Nolan) [2001] 122 A Crim R 517 at 519.

[3] Queensland V Alyssa Grace Nolan (an Infant, by her Litigation Guardian Shaun Nolan) and Bethany Rose Bnolan (an Infant, by her Litigation Guardian Shaun Nolan) [2001] 122 A Crim R 517 at 519.

[4] Queensland V Alyssa Grace Nolan (an Infant, by her Litigation Guardian Shaun Nolan) and Bethany Rose Bnolan (an Infant, by her Litigation Guardian Shaun Nolan) [2001] 122 A Crim R 517 at 519

[5] Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480 at 529.

[6] Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480.

[7] Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480 at 592.

[8] Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480.

[9] Queensland V Alyssa Grace Nolan (an Infant, by her Litigation Guardian Shaun Nolan) and Bethany Rose Bnolan (an Infant, by her Litigation Guardian Shaun Nolan) [2001] 122 A Crim R 517 at 522.

[10] Queensland V Alyssa Grace Nolan (an Infant, by her Litigation Guardian Shaun Nolan) and Bethany Rose Bnolan (an Infant, by her Litigation Guardian Shaun Nolan) [2001] 122 A Crim R 517 at 522.

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