Note: This is the reading material for Professor Stuesser’s criminal law class which will take place at Pre-Law Forum on June 4/11. It is imperative that you read this case several times in advance of his class. Also, you MUST print a copy of this material to bring to his class at Pre-Law Forum.
CRIMINAL LAW: AN INTRODUCTORY CLASS
For Law School Bound
Professor Eric Colvin, Bond University
HOMICIDE BY OMISSION
- (1) Every one is under a legal duty
- ) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
- ) to provide necessaries of life to their spouse or common-law partner; and
- ) to provide necessaries of life to a person under his charge if that person
- (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
- (ii) is unable to provide himself with necessaries of life.
Airedale NHS Trust v Bland.  AC 789 (House of Lords)
- An extract is attached.
- The full decision can be found at:
Baby Bill was born two months prematurely. Dr. Nightingale was the pediatrician on duty at the hospital. She arranged for Bill to be placed on a life-support machine because of his very weak condition. Unfortunately, Bill also suffered from severe spina bifida and hydrocephalus. Nightingale explained Bill’s condition and prognosis to his parents and advised them that immediate surgery would be required if Bill was not to die from infection within a few days. She also explained that Bill would probably die very quickly without the life-support machine. The parents requested that the machine be turned off so that Bill could “be allowed to die a natural death”. Nightingale said that she would comply with their wishes. She switched off the machine and Bill died a few minutes afterwards.
Is Nightingale criminally liable for the death of Bill? Descriptions of spina bifida and hydrocephalus are attached. (You may assume that, if Nightingale is criminally liable, the offence committed would be murder.)
FROM THE WEBSITE OF THE SPINA BIFIDA ASSOCIATION OF AMERICA
|What is Spina Bifida?|
|Spina bifida is the most frequently occurring permanently disabling birth defect. It affects approximately one out of every 1,000 newborns in the United States.Spina bifida, the most common NTD, is one of the most devastating of all birth defects. It results from the failure of the spine to close properly during the first month of pregnancy. In severe cases, the spinal cord protrudes through the back and may be covered by skin or a thin membrane. Surgery to close a newborn’s back is generally performed within 24 hours after birth to minimize the risk of infection and to preserve existing function in the spinal cord.Because of the paralysis resulting from the damage to the spinal cord, people born with spina bifida may need surgeries and other extensive medical care. The condition can also cause bowel and bladder complications. A large percentage of children born with spina bifida also have hydrocephalus, the accumulation of fluid in the brain. Hydrocephalus is controlled by a surgical procedure called “shunting” which relieves the fluid build up in the brain by redirecting it into the abdominal area. Most children born with spina bifida live well into adulthood as a result of today’s sophisticated medical techniques.|
|What about the physical limitations?|
|Children with spina bifida need to learn mobility skills, and often with the use of crutches, braces, or wheelchairs can achieve more independence. Also, with new techniques children can become independent in managing their bowel and bladder problems. Physical disabilities like spina bifida can have profound effects on the child’s emotional and social development. It is important that health care professionals, teachers, and parents understand the child’s physical capabilities and limitations. To promote personal growth, they should encourage children (within the limits of safety and health) to be independent, to participate in activities with their non-disabled peers and to assume responsibility for their own care.|
|What are secondary conditions associated with spina bifida?|
|Special attention is needed to identify and treat secondary disabilities. Due to the wide range of neurological damage and mobility impairment it can be difficult to identify some secondary disabilities. Attention should be focused on the psychological and social development of children and young adults with spina bifida. Many recent studies, including the SBAA’s Adult Network Survey, clearly indicate the presence of emotional problems that result from factors such as low self-esteem and lack of social skills training.Examples of secondary conditions associated with spina bifida are latex allergy, tendinitis, obesity, skin breakdown, gastrointestinal disorders, learning disabilities, attaining and retaining mobility, depression, and social and sexual issues.|
Euthanase disabled babies, say doctors
From correspondents in London
November 06, 2006 12:00am
ONE of Britain’s leading medical colleges is calling on the health profession to consider permitting the euthanasia of seriously disabled newborn babies.
The proposal by the Royal College of Obstetricians and Gynaecology is a response to the number of such children surviving because of medical advances.
The college is arguing that “active euthanasia” should be considered for the overall good of families, and to to spare parents the emotional burden and financial hardship of bringing up the hardest-hit babies.
“A very disabled child can mean a disabled family,” the doctors say.
“If life-shortening and deliberate interventions to kill infants were available, they might have an impact on obstetric decision-making, even preventing some late abortions, as some parents would be more confident about continuing a pregnancy and taking a risk on outcome.”
Geneticists and medical ethicists supported the proposal – as did the mother of a severely disabled child – but a prominent children’s doctor described it as social engineering.
The college called for active euthanasia of newborns to be considered as part of an inquiry into the ethical issues raised by the policy of prolonging life in newborn babies. The inquiry is being carried out by the Nuffield Council on Bioethics.
The proposal does not spell out which conditions might justify euthanasia, but in The Netherlands mercy killing is permitted for babies with a range of incurable conditions, including severe spina bifida and the painful skin condition called epidermolysis bullosa.
Pieter Sauer, co-author of the Groningen Protocol, the Dutch national guidelines on euthanasia of newborns, claims British pediatricians unofficially perform mercy killings, and says the practice should be open.
“In England they have exactly the same type of patients as we have here,” Dr Sauer said. “English neonatologists gave me the indication this is happening in their country.”
Although euthanasia for severely handicapped newborn babies would be contentious, some British doctors and ethicists are now in favour.
The professor of human genetics at University College London, Joy Delhanty, said: “I would support these views. I think it is morally wrong to strive to keep alive babies that are then going to suffer many months or years of very ill health.”
The college’s submission was welcomed by John Harris, a member of the Government’s Human Genetics Commission and professor of bioethics at Manchester University.
“We can terminate for serious fetal abnormality up to term but cannot kill a newborn,” he said. “What do people think has happened in the passage down the birth canal to make it OK to kill the fetus at one end of the birth canal but not at the other?”
Edna Kennedy of Newcastle upon Tyne, Nightingalese son suffered epidermolysis bullosa, said: “In extremely controlled circumstances, where the baby is really suffering, it should be an option for the mother.”
However, John Wyatt, consultant neonatologist at University College London hospital, said: “Intentional killing is not part of medical care.”
From The Sunday Times in London in the Australian
Airedale NHS Trust v Bland (Bland’s case)
 AC 789
House of Lords
Lord Goff of Chieveley: My Lords, the facts of the present case are not in dispute … I propose simply to adopt the sympathetic and economical summary of the Master of the Rolls …
Mr Anthony David Bland, then aged 171/2, went to the Hillsborough Ground on 15 April 1989 to support the Liverpool Football Club. In the course of the disaster which occurred on that day, his lungs were crushed and punctured and the supply of oxygen to his brain was interrupted. As a result, he suffered catastrophic and irreversible damage to the higher centres of the brain. The condition from which he suffers, and has suffered since April 1989, is known as a persistent vegetative state (PVS). PVS is a recognised medical condition quite distinct from other conditions sometimes known as ‘irreversible coma’, ‘the Guillain-Barré syndrome’, ‘the locked-in syndrome’ and ‘brain death’ Its distinguishing characteristics are that the brain stem remains alive and functioning while the cortex of the brain loses its function and activity. Thus the PVS patient continues to breathe unaided and his digestion continues to function. But although his eyes are open, he cannot see. He cannot hear. Although capable of reflex movement, particularly in response to painful stimuli, the patient is incapable of voluntary movement and can feel no pain. He cannot taste or smell. He cannot speak or communicate in any way. He has no cognitive function and can thus feel no emotion, whether pleasure or distress. The absence of cerebral function is not a matter of surmise; it can be scientifically demonstrated. The space which the brain should occupy is full of watery fluid. The medical witnesses in this case include some of the outstanding authorities in the country on this condition. All are agreed on the diagnosis. All are agreed on the prognosis also: there is no hope of any improvement or recovery. One witness of great experience described Mr Bland as the worst PVS case he had ever seen.
Mr Bland lies in bed in the Airedale General Hospital, his eyes open, his mind vacant, his limbs crooked and taut. He cannot swallow, and so cannot be spoon-fed without a high risk that food will be inhaled into the lung. He is fed by means of a tube, threaded through the nose and down into the stomach, through which liquefied food is mechanically pumped. His bowels are evacuated by enema. His bladder is drained by catheter. He has been subject to repeated bouts of infection affecting his urinary tract and chest, which have been treated with antibiotics. Drugs have also been administered to reduce salivation, to reduce muscle tone and severe sweating and to encourage gastric emptying. A tracheotomy tube has been inserted and removed. Genito-urinary problems have required surgical intervention. A patient in this condition requires very skilled nursing and close medical attention if he is to survive. The Airedale National Health Service Trust have, it is agreed, provided both to Mr Bland. Introduction of the nasogastric tube is itself a task of some delicacy even in an insensate patient. Thereafter it must be monitored to ensure it has not become dislodged and to control inflammation, irritation and infection to which it may give rise. The catheter must be monitored: it may cause infection (and has repeatedly done so); it has had to be resited, in an operation performed without anaesthetic. The mouth and other parts of the body must be constantly tended. The patient must be repeatedly moved to avoid pressure sores. Without skilled nursing and close medical attention a PVS patient will quickly succumb to infection. With such care, a young and otherwise healthy patient may live for many years.
_ At no time before the disaster did Mr Bland give any indication of his wishes should he find himself in such a condition. It is not a topic most adolescents address. After careful thought his family agreed that the feeding tube should be removed and felt that this was what Mr Bland would have wanted. His father said of his son in evidence: ‘He certainly wouldn’t want to be left like that.’ He could see no advantage at all in continuation of the current treatment. He was not cross-examined. It was accordingly with the concurrence of Mr Bland’s family, as well as the consultant in charge of his case and the support of two independent doctors, that the Airedale NHS Trust as plaintiff in this action applied to the Family Division of the High Court for declarations that they might ‘(1) … lawfully discontinue all life-sustaining treatment and medical support measures designed to keep [Mr Bland] alive in his existing persistent vegetative state including the termination of ventilation nutrition and hydration by artificial means; and (2) … lawfully discontinue and thereafter need not furnish medical treatment to [Mr Bland] except for the sole purpose of enabling [Mr Bland] to end his life and die peacefully with the greatest dignity and the least of pain suffering and distress’ After a hearing in which he was assisted by an amicus curiae instructed by the Attorney-General, the President of the Family Division made these declarations (subject to a minor change of wording) on 19 November 1992. He declined to make further declarations which were also sought.
_ The Official Solicitor, acting on behalf of Anthony Bland, appealed against that decision to the Court of Appeal, who dismissed the appeal. Now, with the leave of the Court of Appeal, the Official Solicitor has appealed to your Lordships’ House …
_ The central issue in the present case has been aptly stated by Sir Thomas Bingham MR to be whether artificial feeding and antibiotic drugs may lawfully be withheld from an insensate patient with no hope of recovery when it is known that if that is done the patient will shortly thereafter die …
_ I start with the simple fact that, in law, Anthony is still alive. It is true that his condition is such that it can be described as a living death: but he is nevertheless still alive. This is because, as a result of developments in modern medical technology, doctors no longer associate death exclusively with breathing and heart beat, and it has come to be accepted that death occurs when the brain, and in particular the brain stem, has been destroyed: see Professor Ian Kennedy’s paper entitled ‘Switching off Life Support Machines: The Legal Implications’, reprinted in Treat Me Right, Essays in Medical Law and Ethics, 1988, especially at pp 351–2, and the material there cited. There has been no dispute on this point in the present case, and it is unnecessary for me to consider it further. The evidence is that Anthony’s brain stem is still alive and functioning and it follows that, in the present state of medical science, he is still alive and should be so regarded as a matter of law.
_ It is on this basis that I turn to the applicable principles of law. Here, the fundamental principle is the principle of the sanctity of human life … a principle long recognised not only in our own society but also in most, if not all, civilised societies throughout the modern world, as is indeed evidenced by its recognition both in Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953 (Cmd 8969), and in Article 6 of the International Covenant of Civil and Political Rights 1966.
_ But this principle, fundamental though it is, is not absolute. Indeed there are circumstances in which it is lawful to take another man’s life, for example by a lawful act of self-defence, or (in the days when capital punishment was acceptable in our society) by lawful execution. We are not however concerned with cases such as these. We are concerned with circumstances in which it may be lawful to withhold from a patient medical treatment or care by means of which his life may be prolonged. But here too there is no absolute rule that the patient’s life must be prolonged by such treatment or care, if available, regardless of the circumstances.
_ First, it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so: see Schloendorff v Society of New York Hospital (1914) 105 NE 92, 93, per Cardozo J; S v McC (orse S) and M (DS Intervener); W v W  AC 24, 43, per Lord Reid; and Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871, 882, per Lord Scarman. To this extent, the principle of the sanctity of human life must yield to the principle of self-determination (see ante, at 351H–352A, per Hoffmann LJ), and, for present purposes perhaps more important, the doctor’s duty to act in the best interests of his patient must likewise be qualified.
_ But in many cases not only may the patient be in no condition to be able to say whether or not he consents to the relevant treatment or care, but also he may have given no prior indication of his wishes with regard to it. In the case of a child who is a ward of court, the court itself will decide whether medical treatment should be provided in the child’s best interests, taking into account medical opinion. But the court cannot give its consent on behalf of an adult patient who is incapable of himself deciding whether or not to consent to treatment. I am of the opinion that there is nevertheless no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of the circumstances. Indeed, it would be most startling, and could lead to the most adverse and cruel effects upon the patient, if any such absolute rule were held to exist. It is scarcely consistent with the primacy given to the principle of self-determination in those cases in which the patient of sound mind has declined to give his consent, that the law should provide no means of enabling treatment to be withheld in appropriate circumstances where the patient is in no condition to indicate, if that was his wish, that he did not consent to it. …
_ I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient’s life to an end …
_ At the heart of this distinction lies a theoretical question. Why is it that the doctor who gives his patient a lethal injection which kills him commits an unlawful act and indeed is guilty of murder, whereas a doctor who, by discontinuing life support, allows his patient to die, may not act unlawfully — and will not do so, if he commits no breach of duty to his patient? Professor Glanville Williams has suggested (see his Textbook of Criminal Law, 2nd ed, 1983, p 282) that the reason is that what the doctor does when he switches off a life support machine ‘is in substance not an act but an omission to struggle’, and that ‘the omission is not a breach of duty by the doctor, because he is not obliged to continue in a hopeless case’.
_ 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. 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.
_ The distinction appears, therefore, to be useful in the present context in that it can be invoked to explain how discontinuance of life support can be differentiated from ending a patient’s life by a lethal injection. But in the end the reason for that difference is that, whereas the law considers that discontinuance of life support may be consistent with the doctor’s duty to care for his patient, it does not, for reasons of policy, consider that it forms any part of his duty to give his patient a lethal injection to put him out of his agony.
_ I return to the patient who, because for example he is of unsound mind or has been rendered unconscious by accident or by illness, is incapable of stating whether or not he consents to treatment or care. In such circumstances, it is now established that a doctor may lawfully treat such a patient if he acts in his best interests, and indeed that, if the patient is already in his care, he is under a duty so to treat him: see Re F (Mental Patient: Sterilisation)  2 AC 1, in which the legal principles governing treatment in such circumstances were stated by this House. For my part I can see no reason why, as a matter of principle, a decision by a doctor whether or not to initiate, or to continue to provide, treatment or care which could or might have the effect of prolonging such a patient’s life, should not be governed by the same fundamental principle. Of course, in the great majority of cases, the best interests of the patient are likely to require that treatment of this kind, if available, should be given to a patient. But this may not always be so. To take a simple example given by Thomas J in Re JHL (unreported), 13 August 1992, at 35, to whose judgment in that case I wish to pay tribute, it cannot be right that a doctor, who has under his care a patient suffering painfully from terminal cancer, should be under an absolute obligation to perform upon him major surgery to abate another condition which, if unabated, would or might shorten his life still further. The doctor who is caring for such a patient cannot, in my opinion, be under an absolute obligation to prolong his life by any means available to him, regardless of the quality of the patient’s life. Common humanity requires otherwise, as do medical ethics and good medical practice accepted in this country and overseas. As I see it, the doctor’s decision whether or not to take any such step must (subject to his patient’s ability to give or withhold his consent) be made in the best interests of the patient. It is this principle which, in my opinion, underlies the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient’s life. Such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful. Moreover, where the doctor’s treatment of his patient is lawful, the patient’s death will be regarded in law as exclusively caused by the injury or disease to which his condition is attributable.
_ It is of course the development of modern medical technology, and in particular the development of life support systems, which has rendered cases such as the present so much more relevant than in the past. Even so, where (for example) a patient is brought into hospital in such a condition that, without the benefit of a life support system, he will not continue to live, the decision has to be made whether or not to give him that benefit, if available. That decision can only be made in the best interests of the patient. No doubt, his best interests will ordinarily require that he should be placed on a life support system as soon as necessary, if only to make an accurate assessment of his condition and a prognosis for the future. But if he neither recovers sufficiently to be taken off it nor dies, the question will ultimately arise whether he should be kept on it indefinitely. As I see it, that question (assuming the continued availability of the system) can only be answered by reference to the best interests of the patient himself, having regard to established medical practice. Indeed, if the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately should, be discontinued where it is no longer in his best interests to provide it. The question which lies at the heart of the present case is, as I see it, whether on that principle the doctors responsible for the treatment and care of Anthony Bland can justifiably discontinue the process of artificial feeding upon which the prolongation of his life depends.
_ It is crucial for the understanding of this question that the question itself should be correctly formulated. The question is not whether the doctor should take a course which will kill his patient, or even take a course which has the effect of accelerating his death … The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care …
_ [A] distinction may be drawn between (1) cases in which, having regard to all the circumstances (including, for example, the intrusive nature of the treatment, the hazards involved in it, and the very poor quality of the life which may be prolonged for the patient if the treatment is successful), it may be judged not to be in the best interests of the patient to initiate or continue life-prolonging treatment, and (2) cases such as the present in which, so far as the living patient is concerned, the treatment is of no benefit to him because he is totally unconscious and there is no prospect of any improvement in his condition. In both classes of case, the decision whether or not to withhold treatment must be made in the best interests of the patient. In the first class, however, the decision has to be made by weighing the relevant considerations …
_ With this class of case, however, your Lordships are not directly concerned in the present case; and though I do not wish to be understood to be casting any doubt upon any of the reported cases on the subject, nevertheless I must record that argument was not directed specifically towards these cases, and for that reason I do not intend to express any opinion about the precise principles applicable in relation to them.
_ By contrast, in the latter class of case, of which the present case provides an example, there is in reality no weighing operation to be performed. Here the condition of the patient, who is totally unconscious and in whose condition there is no prospect of any improvement, is such that life-prolonging treatment is properly regarded as being, in medical terms, useless. As Sir Thomas Bingham MR pointed out, ante, at 335G–H, in the present case, medical treatment or care may be provided for a number of different purposes. It may be provided, for example, as an aid to diagnosis; for the treatment of physical or mental injury or illness; to alleviate pain or distress; or to make the patient’s condition more tolerable. Such purposes may include prolonging the patient’s life, for example to enable him to survive during diagnosis and treatment. But for my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient’s life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition. It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means, which must cause considerable distress to his family — a distress which reflects not only their own feelings but their perception of the situation of their relative who is being kept alive. But in the end, in a case such as the present, it is the futility of the treatment which justifies its termination. I do not consider that, in circumstances such as these, a doctor is required to initiate or to continue life-prolonging treatment or care in the best interests of his patient. It follows that no such duty rests upon the respondents, or upon Dr Howe, in the case of Anthony Bland, whose condition is in reality no more than a living death, and for whom such treatment or care would, in medical terms, be futile.
_ In the present case, it is proposed that the doctors should be entitled to discontinue both the artificial feeding of Anthony, and the use of antibiotics. It is plain from the evidence that Anthony, in his present condition, is very prone to infection and that, over some necessarily uncertain but not very long period of time, he will succumb to infection which, if unchecked, will spread and cause his death. But the effect of discontinuing the artificial feeding will be that he will inevitably die within one or two weeks.
_ Objection can be made to the latter course of action on the ground that Anthony will thereby be starved to death, and that this would constitute a breach of the duty to feed him which must form an essential part of the duty which every person owes to another in his care. But here again it is necessary to analyse precisely what this means in the case of Anthony. Anthony is not merely incapable of feeding himself. He is incapable of swallowing, and therefore of eating or drinking in the normal sense of those words. There is overwhelming evidence that, in the medical profession, artificial feeding is regarded as a form of medical treatment; and even if it is not strictly medical treatment, it must form part of the medical care of the patient. Indeed, the function of artificial feeding in the case of Anthony, by means of a nasogastric tube, is to provide a form of life support analogous to that provided by a ventilator which artificially breathes air in and out of the lungs of a patient incapable of breathing normally, thereby enabling oxygen to reach the bloodstream. The same principles must apply in either case when the question is asked whether the doctor in charge may lawfully discontinue the life-sustaining treatment or care; and if in either case the treatment is futile in the sense I have described, it can properly be concluded that it is no longer in the best interests of the patient to continue it. It is true that, in the case of discontinuance of artificial feeding, it can be said that the patient will as a result starve to death; and this may bring before our eyes the vision of an ordinary person slowly dying of hunger, and suffering all the pain and distress associated with such a death. But here it is clear from the evidence that no such pain or distress will be suffered by Anthony, who can feel nothing at all. Furthermore, we are told that the outward symptoms of dying in such a way, which might otherwise cause distress to the nurses who care for him or to members of his family who visit him, can be suppressed by means of sedatives. In these circumstances, I can see no ground in the present case for refusing the declarations applied for simply because the course of action proposed involves the discontinuance of artificial feeding …
[After agreeing, somewhat reluctantly, that the opinion of the court should be sought in all cases such as the present, his Lordship dismissed the appeal. Lords Browne-Wilkinson, Keith of Kinkel, Lowry and Mustill delivered separate judgments, agreeing that the appeal should be dismissed.]