Criminal Law Aspects

1. Criminal Law Aspects • Homicide • The unlawful killing of a human being • Murder • Common Law offence • The unlawful killing of a human being under the Queen’s Peace with malice aforethought

2. Criminal Law Aspects • Manslaughter A lesser crime than murder • Voluntary manslaughter – the defendant has the mens rea for murder but has one of the recognised defences - extremely unlikely to be relevant to health care personnel. • Involuntary manslaughter • Constructive manslaughter – where the defendant commits an unlawful act that causes death • Gross negligence manslaughter – where the defendant acts in breach of duty – most relevant to medical care

3. Criminal Law Aspects • Assisted suicide • S2 Suicide Act 1962 A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years

4. Criminal Law Aspects • Offences Against the Person • S23 Offences against the Person Act 1861 • An offence to “unlawfully administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as to thereby endanger the life of such a person..”

5. Criminal Law Aspects‘Active Euthanasia’ • Deliberate termination of life - • R v Bodkin Adams (1957) – acquitted of murder • Devlin, J : “ No doctor,nor any man, no more in the case of a dying man than a healthy, has the right to cut the thread of life” • R v Carr (1986) – acquitted of murder • Mars Jones, J – a patient is entitled to every hour that God has given him however seriously ill he might be • R v Cox (1992) – convicted of attempted murder • R v Moor (1999) – acquitted of murder

6. Criminal Law Aspects‘Active Voluntary Euthanasia’ • Mercy Killing - • Airedale NHS Trust v Bland (1993) Lord Mustill stated: “… that ‘mercy killing’ by active means is murder … has never, so far as I know, been doubted. The fact that the doctor’s motives are kindly will, for some, although not for all, transform the moral quality of his act, but this makes no difference in law. It is the intent to kill or cause grievous bodily harm which constitutes the mens rea of murder, and the reason why the intent

7. Criminal Law Aspects‘Passive Euthanasia’ Omissions are not criminal • R v Arthur (1981) – criminal case –– unwanted newborn baby with Down’s Syndrome – prescribed dihydrocodeine and ‘Nursing care only’ – no attempts to revive when developed broncho-pneumonia • doctor acquitted of attempted murder • Court drew distinction between acts and omissions • Court decided ‘procedure’ was one which could be supported by a responsible body of medical opinion (Bolam test)

8. Criminal Law Aspects‘Passive Euthanasia’ (cont) Withdrawing treatment not criminal ‣ Airedale NHS Trust v Bland(1993) – incompetent adult – PVS (permanent vegetative state) • Best interests test and Bolam test of professional standards • Lawful in ‘hopeless’ cases • Withdrawal of treatment includes: • withholding/not commencing treatment (e.g. not resuscitating) • Ceasing treatment (e.g. removing a feeding tube) ‣ BMA guidelines

9. Criminal Law Aspects‘Passive Euthanasia’ (cont) Withholding treatment not criminal ‣ Do not resucitate orders (DNRs) • based on concept of medical futility • Involves quality of life decisions • form of withholding treatment: resuscitation – medical treatment (incompetent patients – treatment on basis of best interests; competent patient – consent required and able to refuse) Re R (Adult: Medical Treatment) (1996) treatment likely to be unsuccessful and burdensome - withholding resuscitation and medication would be in patient’s best interests and so lawful ‣ BMA/RCN/UK Resuscitation Council Guidelines (2001)

10. Criminal Law Aspects ‘Passive Euthanasia’ (cont) • Punishable Omissions Airedale NHS Trust v Bland (1993) Law Lords rejected the view that liability attaches only to acts but never to omissions – could be liability for an omission if a prior duty to act existed and was breached “a person may be criminally liable for the consequences of an omission if he stands in such a relation to the victim that he is under a duty to act. Where the result is death the offence will usually be manslaughter, but if the necessary intent is proved it will be murder” Lord Mustill

11. Criminal Law AspectsCompetent patient • Competent adult able to refuse any treatment • Permissible to withdraw life-support and allow terminally ill patient to die at patient’s request provided patient is legally competent • Positive act to actively terminate a terminally ill patient’s life NOT permissible whether patient is competent or incompetent

12. Criminal Law AspectsAdvance directives or living wills • Declaration by competent adult concerning medical treatment in the event of future incompetence and the occurrence of medical conditions • Decision must have been made when the patient was • Demonstrably competent • Acting voluntarily, and • The decision must cover the prevailing circumstances when treatment contemplated • No statutory authority

13. Criminal Law AspectsIncompetent patient • Withholding/withdrawing treatment - ‘passive, non-voluntary euthanasia’ • ‘Best interests’ principle • Sanctity of life principle not absolute • Forbids taking of active steps to shorten life of a terminally ill patient • Does not justify compelling the keeping alive of terminally ill patient where it would merely prolong suffering

14. Criminal Law AspectsAssisting terminally ill • Key principles: · medical treatment may be administered to a terminally ill person to alleviate pain although it may hasten death, but medical treatment may not be given intended to bring about death • doctrine of double effect · subject to judicial authority it is permissible to cease to take active steps to keep a patient in a permanent vegetative state alive • distinction between positive acts causing (and intending) death and the negative act of withdrawing or withholding treatment which artificially prolongs life (and by doing so will inevitably and intentionally result in death). Bland(1993)and more recently confirmed by Pretty(2002)

15. The Diane Pretty Case (2002) European Convention on Human Rights decisions: • Art 2 (right to life) – sanctity of life principle – cannot be interpreted as conferring a right to assisted suicide – the state had no positive duty to recognise such a right • Art 3 (prohibition from torture or inhuman or degrading treatment) – does not encompass a right to die • Art 8 (right to respect for private and family life) – does not relate to manner in which a person chose to die • Art 9 (freedom of thought) – cannot be used to justify conduct that was prohibited by criminal law • Art 14 (prohibition of discrimination) – did not apply as no other Convention rights were engaged

16. Criminal Law: Summary • Active euthanasia (mercy killing) • illegal – homicide • Assisting suicide • illegal • Passive euthanasia • not necessarily illegal • Intending relief of distress, but foreseeing death • normally legal • Withdrawing/withholding treatment • legally equivalent – passive, not active treatment • Competent patient refusing life-saving treatment • not suicide, lawful

17. House of LordsReport of Select Committee on Medical Ethics 1994 • ‘right to refuse treatment is far removed from the right to request assistance in dying’ – 236 • ‘recommend no change in the law to permit euthanasia’ – 237 • 'We concluded that it was virtually impossible to ensure that all acts of euthanasia were truly voluntary and that any liberalisation of the law in the United Kingdom could not be abused. We were also concerned that vulnerable people - the elderly, lonely, sick or distressed - would feel pressure, whether real or imagined, to request early death.' Lord Walton, the committee chairman, in a speech to the House of Lords on 9 May 1994

18. Parliamentary Bills Medical Treatment (Prevention of Euthanasia) Bill 2000 • Clause 1: It shall be unlawful for any person responsible for the care of a patient to withdraw or withhold from the patient medical treatment or sustenance if his purpose or one of his purposes in doing so is to hasten or otherwise cause the death of the patient. Patient (Assisted Dying) Bill (Bill No.37) • A Bill to enable a competent adult who is suffering unbearably as a result of a terminal or a serious and progressive physical illness to receive medical help to die at his own considered and persistent request; and to make provision for a person suffering from such a condition to receive pain relief medication.