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
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
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
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..”
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
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
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)
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
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)
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
Criminal Law Aspects
Competent 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
Criminal Law Aspects
Advance 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
Criminal Law Aspects
Incompetent 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
Criminal Law Aspects
Assisting 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)
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
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
House of Lords
Report 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
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.