END OF LIFE
2019/2020
MEDICAL LAW AND ETHICS I
, There is a distinction between a) bringing life to an end by positive means and b) withdrawing treatment
so that a patient is allowed to die (omission). Both are potentially criminal acts.
POSITIVE ACTS
Murder
Murder is an offence at common law which requires the unlawful killing of a 'life in being' with an
intention to kill or cause grievous bodily harm. The motive for killing is irrelevant to liability but the
mens rea is incredibly important:
Re Inglis [2010] –
Facts: A mother had a son who had been seriously injured. She was of the view that he had very little
quality of life and she killed him mercifully by injecting him with heroin.
Held: The defendant was convicted of murder. The Court of Appeal held that "mercy killing is murder"
and that "the law of murder does not distinguish between murder committed for malevolent reasons
and murder motivated by familial love" (per Lord Judge CJ).
Thus, regardless of whether the patient has capacity, there is a general prohibition on positive acts to
end life. This is, however (in the case of doctors), subject to the 'double effect principle':
R v Adams (1957) –
Facts: An elderly patient suffered from a stroke and was seriously ill as a consequence. The doctor
prescribed a lethal dose of diamorphine. Superficially, this is very much like Re Inglis, but the jury
crucially acquitted Dr Adams.
Held, per Justice Devlin: The doctor is entitled to do all that is 'proper and necessary to relieve pain and
suffering' even if the measures he takes may incidentally shorten life.
Ordinarily, the mens rea for murder can be inferred where death is a virtually certain consequence of
the defendant's acts (R v Woolin, per Lord Steyn).
Thus, this judgment is a significant departure from the ordinary principles of criminal law in order to
protect doctors and the doctor-patient relationship. However, there remains some uncertainty with
regards to sedation.
Assisting or encouraging suicide
Suicide was, previously, an offence at common law in England and Wales. Criminalisation resulted in
the stigmatisation of the families of the people who committed suicide. Suicide was thus decriminalised
in 1961 by virtue of section 1 Suicide Act.
Assisted suicide remains a criminal offence under section 2(1) Suicide Act 1961, punishable by up to
14 years' imprisonment. However, the statute recognises that cases of assistance with suicide will vary,
and that prosecution will not always be in the public interest; hence, section 2(4) provides that no
prosecution can go ahead without the consent of the Director of Public Prosecutions (DPP).
There have been a number of unsuccessful attempts to challenge this 'blanket prohibition' on assisted
suicide using human rights arguments. Although unsuccessful, a number of these cases might be
regarded as moving us, in small incremental steps, closer to legalising assisted dying.
2019/2020
MEDICAL LAW AND ETHICS I
, There is a distinction between a) bringing life to an end by positive means and b) withdrawing treatment
so that a patient is allowed to die (omission). Both are potentially criminal acts.
POSITIVE ACTS
Murder
Murder is an offence at common law which requires the unlawful killing of a 'life in being' with an
intention to kill or cause grievous bodily harm. The motive for killing is irrelevant to liability but the
mens rea is incredibly important:
Re Inglis [2010] –
Facts: A mother had a son who had been seriously injured. She was of the view that he had very little
quality of life and she killed him mercifully by injecting him with heroin.
Held: The defendant was convicted of murder. The Court of Appeal held that "mercy killing is murder"
and that "the law of murder does not distinguish between murder committed for malevolent reasons
and murder motivated by familial love" (per Lord Judge CJ).
Thus, regardless of whether the patient has capacity, there is a general prohibition on positive acts to
end life. This is, however (in the case of doctors), subject to the 'double effect principle':
R v Adams (1957) –
Facts: An elderly patient suffered from a stroke and was seriously ill as a consequence. The doctor
prescribed a lethal dose of diamorphine. Superficially, this is very much like Re Inglis, but the jury
crucially acquitted Dr Adams.
Held, per Justice Devlin: The doctor is entitled to do all that is 'proper and necessary to relieve pain and
suffering' even if the measures he takes may incidentally shorten life.
Ordinarily, the mens rea for murder can be inferred where death is a virtually certain consequence of
the defendant's acts (R v Woolin, per Lord Steyn).
Thus, this judgment is a significant departure from the ordinary principles of criminal law in order to
protect doctors and the doctor-patient relationship. However, there remains some uncertainty with
regards to sedation.
Assisting or encouraging suicide
Suicide was, previously, an offence at common law in England and Wales. Criminalisation resulted in
the stigmatisation of the families of the people who committed suicide. Suicide was thus decriminalised
in 1961 by virtue of section 1 Suicide Act.
Assisted suicide remains a criminal offence under section 2(1) Suicide Act 1961, punishable by up to
14 years' imprisonment. However, the statute recognises that cases of assistance with suicide will vary,
and that prosecution will not always be in the public interest; hence, section 2(4) provides that no
prosecution can go ahead without the consent of the Director of Public Prosecutions (DPP).
There have been a number of unsuccessful attempts to challenge this 'blanket prohibition' on assisted
suicide using human rights arguments. Although unsuccessful, a number of these cases might be
regarded as moving us, in small incremental steps, closer to legalising assisted dying.
