Summerr 2008 Q3 – Omissions & Criminal Liability

October 2008 Q3 – Omissions & Criminal Liability

1.   Was Tess responsible for Elaine, did she owe a duty of care to Elaine?

2.   Is Tess Liable for what happened to Elaine?

3.   Did Seamus breach his duty of care?

4.   Is Seamus Liable for what happened to Elaine?

5.   Do Seamus’ actions break the chain of causation between Tess and Elaine?

Ordinarily the criminal law does not punish a failure to act. This was noted in R v Paine where it was stated that:

“If I see a man who is under my charge taking up a tumbler of poison, I should not become guilty of any crime by not stopping him. I am under no legal obligation to protect a stranger.”

In instances like this, though one’s actions may be morally culpable, no criminal liability will arise out of the failure to act. In some instances, however, the law also recognises a positive duty to act, for example in circumstances involving familial relations as was seen in R v Senior, where the defendant was a member of a religious organisation that believed any form of medication was immoral and constituted a lack of faith in God. His 8 month old child got pneumonia and the defendant refused for his child to be treated. The child subsequently died and the defendant was convicted of manslaughter as the court found that the defendant was under a duty to act because of the close relationship with the child.

R v Gibbins and Proctor is an example of how voluntarily acceptance of responsibility of someone can lead to a duty of care. In this case the wife of the first defendant had left him and he had moved in with the second defendant. Both defendants had children and they all lived in the same house. There was no shortage of money which was given by the first defendant to the second for housekeeping expenses. One of the first defendant’s children, a daughter, who was hated by the second defendant and had been physically abused and cursed at by her, was eventually left starve to death. Both of the defendants were found guilty of murder which both subsequently appealed. Their appeals were refused on the basis that the first defendant must have noticed how ill the child was and did nothing, no doctor was called. Implicit in this judgement is a condemnation of the first defendant’s failure to come to his daughter’s aid. The second defendant had taken charge of the child while under no obligation to do so. The child’s welfare was therefore the second defendant’s responsibility; despite this the child had been physically abused and deliberately denied food by the second defendant which caused her death. Another example similar to this is R v Stone and Dobinson where the deceased, an old woman, had been lodging with her brother, the first defendant, and his housekeeper who was also his mistress, the second defendant. The deceased used to pay her brother for her lodgings which consisted of a small room. She had a morbid fear of putting on weight and she refused to eat proper meals. She then became bedridden. The second defendant attempted to wash her with the help of a neighbour. An attempt was also made by them to get a doctor but it failed. Weeks later she was found dead in her room and her body was in dreadful condition. The doctor gave evidence saying that if she had received assistance anytime up to two weeks before she was found dead she may have survived. Defendants claimed that she was more like a stranger and that they were not responsible for her but the Court of Appeal decided since the first defendant was a blood relative and the second defendant fed and washed her that they claimed responsibility. They were both charged with manslaughter.

Another example of voluntarily taking responsibility for someone and different from the above examples is the Australian case of R v Taktak, the defendant in this case had hired a prostitute for a party, where he left her. He returned to the party later to find her unconscious after taking heroin. He took her away and tried unsuccessfully to revive her. Later he tried calling a doctor but she was already dead. It was found that by taking her away and thereby removing the possibility of help from others the defendant had assumed responsibility for her. The defendant was convicted of manslaughter.

It is quite clear from the above cases that Tess would be found to be responsible for Elaine, her niece. She did not have to take her niece in when her mother died but voluntarily chose to do so. This means Tess owed a duty of care to look after her niece, e.g. minimum provide her with food, clothes, shelter etc. Tess intolerance to her niece’s condition was negligent and she should have taken action to help her to cope with it. She should have made a better attempt at getting Elaine to eat her dinner and failing to do this she should have consulted a doctor. As Tess threw her dinner in the bin for 5 consecutive days she should have been aware of the gravity of Elaine’s situation. Tess would be found by the court to be liable for what had happened her niece and thus could be convicted of manslaughter. She would not be convicted of murder as she did not purposely starve her niece and made some attempt at providing for her. Another question may arise, however, and that is did the hospital visit break the chain of causation between Tess’ failure to act and Elaine’s death?

To answer this question we must look at the law regarding novus actus interveniens. This is where a third party’s actions intervene between the defendant’s actions and the result and may result in the defendant being relieved of liability. For a novus actus to occur the intervening actions must be independent of the defendant’s actions, and must effectively be the cause of the result. If we look at the case of R v Jordan, UK, where the defendant stabbed the deceased who was subsequently hospitalised. While in hospital he was given antibiotics, which he was allergic to, by two different doctors. He was also given abnormal amounts of liquids which waterlogged his lungs. In this case the medical treatment was not only not normal, but it was palpably wrong. The wound was not the cause of death, it was the medical treatment received in the hospital which was independent of the defendant’s actions. The defendant’s conviction was quashed, the medical treatment constituted a novus actus. In contrast to this in another UK case of R v Smith a soldier was stabbed in the arm and back by the defendant. Unknown to anyone the wound in the back had punctured a lung. In the medical field station the doctor was busy and did not appreciate the wound to the deceased’s lung. The treatment he gave was inappropriate and he died from haemorrhaging in his lung. The Court of Appeal accepted that the stab wound was still the operating and substantial cause of death. The court noted the actual chain of causation – the deceased was stabbed in the back, his lung was pierced and haemorrhaged, he died within two hours from the haemorrhaging, and in the interval there was sufficient time for a proper examination. Smith’s appeal was dismissed.

In the case at bar the visit to the hospital cannot constitute a novus actus because there was nothing the doctor could have done to help Elaine as the damage already caused, due to Tess’ negligence, was irreversible. The doctor’s actions were not effectively the cause of Elaine’s irrecoverable state. Tess is therefore liable for Elaine’s death, and could be convicted of manslaughter.

In regards to Seamus’ criminal liability this issue is quite difficult to predict what the courts would decide. They may decide he breached his duty towards Elaine when he, without any consultation, decided not to treat her. If we look back at the case of R v Smith the stab wound was considered to be the operating and substantial cause of death and the doctor’s actions did not constitute a novus actus interveniens. Similarly in the case at bar Tess’ negligence would be considered the operating and substantial cause of death. On the other hand the court may take the view that a doctor has no duty to continue life support when it is no longer in the best interests of the patient similar to Lord Diplock’s statement in R v Miller:

“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.”

This view was taken in the case of Airedale NHS Trust v Bland. In this case Anthony Bland who was a supporter of Liverpool F.C. injured in the Hillsborough disaster. He suffered severe brain damage that left him in a persistent vegetative state whereby the hospital, with the support of his parents, applied for a court order allowing him to 'die with dignity'. As a result he became the first patient in English legal history to be allowed to die by the courts through the withdrawal of life-prolonging treatment. In this situation however Mr. Bland had been in a persistent vegetative state for over three years with no signs of recovery and they felt it would be better for Mr. Bland and his family if the stopped the life support machine. In Seamus’ case he immediately decided that he would not treat Elaine without consulting another doctor, Elaine’s Aunt or even Mary the social worker. He may have been correct in his diagnosis but the courts may find that it was not his decision to make. Seamus’ may therefore be convicted of professional negligence in tort but as far as criminal liability is concerned it would be very hard to hold him liable for manslaughter.