Criminal Law. Mark Thomas
case example
Charge: n/a. Declaration sought to withdraw life-saving treatment
Case progression: High Court – Declaration granted
Court of Appeal – Appeal dismissed
House of Lords – Appeal dismissed
Point of law: Whether withdrawing life support treatment amounts to murder
In Airedale NHS Trust v Bland [1993] AC 789, Anthony Bland was injured in the Hillsborough Stadium disaster, suffering irreversible brain damage, and as a result was in a persistent vegetative state (PVS). The doctors confirmed that there was no hope of recovery or improvement in his case. The doctors, with the support of Anthony’s parents, sought a declaration to withdraw life-saving treatment and to allow Anthony to die.
Stephen Brown P in the High Court granted the declaration which was appealed by the Official Solicitor to the Court of Appeal on the basis that a withdrawal of treatment would amount to murder. The Court of Appeal dismissed the appeal of the Official Solicitor, who then appealed to the House of Lords asking the question as to whether such withdrawal was a positive act or omission and whether it amounted to murder. The House of Lords dismissed the appeal and reaffirmed the declaration to allow Anthony to die.
Lord Goff answered the question as follows:
I agree that the doctor’s conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition: and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient.
The removal of treatment, therefore, is considered as being an omission. One can explain the decision in Airedale in the following manner:
•A doctor, responsible for the patient’s health, will not be considered as committing an act in circumstances where they withdraw treatment. The removal (or ‘discontinuation’) of treatment is to be treated in the same way as if treatment was never given in the first place. In this regard, the conduct of the doctor is to be considered an omission.
•On the other hand, should a third party turn off the life support machine (eg such as a jealous ex-partner), this is likely to be considered an act, as opposed to an omission.
This latter point was made by Lord Goff in the following terms:
I also agree that the doctor’s conduct is to be differentiated from that of, for example, an interloper who maliciously switches off a life support machine because, although the interloper may perform exactly the same act as the doctor who discontinues life support, his doing so constitutes interference with the life-prolonging treatment then being administered by the doctor. Accordingly, whereas the doctor, in discontinuing life support, is simply allowing his patient to die of his pre-existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient’s life, and such conduct cannot possibly be categorised as an omission.
Butler-Sloss P in NHS Trust A v M [2001] Fam 348 confirmed the principles in Bland and found that a failure to provide medical treatment will not be incompatible with Article 2 of the ECHR (the right to life) in circumstances where the continuation of life is not in the best interests of the patient.
The distinction between acts and omissions following Bland has been criticised by the likes of Ashworth (‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424) who argues:
Whether we term certain events ‘acts’ or ‘omissions’ may be both flexible in practice and virtually insoluble in theory: for example, does a hospital nurse who decides not to replace an empty bag for a drip feed make an omission, whilst a nurse who switches off a ventilator commits an act? It would seem wrong that criminal liability or non-liability should turn on such fine points, which seem incapable of reflecting any substantial moral distinctions in a context where the preservation of life is generally paramount. … The proper solution is not to warp the concepts of omission, duty, knowledge and causation, but to provide for such cases to be determined on new principles of justification. This would require the courts to be explicit about the grounds for exonerating doctors or nurses, rather than concealing the reasons behind the act/omission distinction. (emphasis added)
2.7Causation
Where the defendant is charged with any result crime (ie a crime which requires a particular consequence to occur in order for liability to exist – see 2.3.2), the prosecution must prove that his act or omission caused the prohibited result. Causation applies only to result crimes and has no part to play in conduct-only crimes given that the end result itself is irrelevant. Figure 2.2 demonstrates this principle.
Many students often cite causation as an element separate to that of the actus reus and mens rea. This is incorrect. Causation is an essential element of the actus reus of a criminal offence where an end result is necessary for liability to be present (result crimes). Therefore, ensure that when you deal with causation, you make it clear that it remains part of the actus reus of an offence.
Figure 2.2Conduct and result crimes and causation
in practice
In most cases, causation rarely becomes an issue. For example, in homicide cases, how the victim came to die is usually not in dispute. Often it is obvious that a victim, let us say Jack, died as a result of the act of the defendant, say Jill, in shooting him.
However, you are expected to be aware of the full remit of causation in your study of criminal law. Therefore, where there is a dispute, the question of causation is one for the jury to decide as a matter of fact. It is the duty of the trial judge to direct the jury on the legal principles relating to causation, but it is for the jury, applying those principles, to decide if the causal link between the defendant’s conduct and the prohibited consequence has been established.
There are two main principles in causation:
•causation in fact (factual causation); and
•causation in law (legal/imputable causation).
The prosecution must prove both tests of causation in order for a defendant to be liable. The decision as to whether the prosecution has proven causation is a matter of fact for the jury (recently affirmed in R v Clarke and Morabir [2013] EWCA Crim 162). A further principle that requires discussion is that of new and intervening acts. Considered further at 2.7.3, new and intervening acts are those that may disrupt the existence of liability against a defendant where the defendant’s conduct is no longer considered the ‘cause’ of the end result.
In approaching an issue of causation, therefore, it is essential to follow a set plan.
Figure 2.3Approaching causation
We shall consider both forms of causation now and then deal with new and intervening acts.
2.7.1Factual causation
Also known as ‘causation in fact’, this test requires the prosecution