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Kay Gilderdale [2008]

Her daughter was completely disabled through long-term multiple sclerosis. The daughter had tried on several occasions and repeatedly continued to try to commit suicide. She kept trying to kill herself. She also pleaded with her mother for her mother to take steps. Eventually Kay Gilderdale did administer a lethal cocktail of drugs to her daughter so that her daughter would die.

It just really shows how people in this position are really at the mercy of the courts because Kay Gilderdale refused to plead diminished responsibility. She refused to say "I was mentally imbalanced". She was very clear that this was her choice, and what her daughter wanted, and she wasn't going to use the law of diminished responsibility as an excuse. So, she was clear. She was not unbalanced. She did not wish to use diminished responsibility.

Now, eventually her charge was reduced to attempted murder, because on causation the courts couldn't actually tell whether it was her lethal dose or what the daughter was still taking which eventually killed the daughter. That was the charge, but the jury refused to convict her. Even though they should have done, the jury just refused to convict her.

Everything was pleasant. There should have been an open and shut attempted murder case, but the jury refused to convict her.

What Kay Gilderdale then did to avoid a retrial was plead guilty to assisting in a suicide, which is a lesser offence.

So, effectively she had tried to end her daughter's life, but in this case the jury stubbornly refused to enter in a conviction.

But it really is in the hands of the court – the judge and the jury -- as to which side of the line cases are drawn.


R v Inglis [2010]

Mrs. Inglis’s son Joe had suffered head injuries following a road accident and he was left in what is known as a permanent or persistent vegetative state (PVS). Mrs. Inglis just could not bear to see him like this. She was absolutely convinced that he would not have wanted to live like this. So she obtained and administered a lethal dose of heroin which killed him.

So, these are both similar cases – mothers completely convinced that their child would not have wished to carry on living and similarly obtaining a lethal cocktail of drugs – but in the Inglis case she was convicted of murder, and she is still currently serving her sentence, albeit she was let out on license in 2013.


R v Cox [1992]

The burden of proof is “beyond reasonable doubt”

Dr. Cox killed his patient using potassium chloride, having been requested to do so by the patient repeatedly. The patient was suffering and incredibly ill and he wanted to end his life. Eventually Dr. Cox gave in and killed him using potassium chloride. The body was then cremated, and so in terms of causation there was no evidence to conclusively confirm the cause of death. So, you might think that he evaded conviction. However, on the facts, the court was happy that he had administered the drug and so he was convicted of attempted murder. So, rather than murder, which was problematic because the body had been cremated, he was still nonetheless convicted of attempted murder. Interestingly, however, he was not struck off by the GMC.

The chemical that was use there was potassium chloride. That wasn't pain relief, and so in that particular case there was no scope for the courts to use this Doctrine of Double Effect.


Tony Nicklinson case [2014] UKSC 38

In the picture to your left he was in his late 40s, or just early 50s. He was healthy in a rugby player. He then had a stroke. It was a catastrophic stroke which left him with what is known as "locked in syndrome". All he is able to move is his eyelids.

So, he was unable to communicate; he was unable to feed himself; he was completely incapacitated apart from being able to communicate through blinking.

You'll see the essence of his argument there which went all the way to the Supreme Court in 2014. He said that because the law was so rigid, the current law on murder did not accommodate his Article 8 rights, which were to respect his private and family life, which included controlling the manner of his death.

So, that was his argument – based on Article 8 of the ECHR, he said that the current law was so rigid it did not accommodate his autonomous rights to choose the manner of his death. He was desperate; his family said that they were unable to help him. So he was reliant on doctors and he was wanting a defence of necessity brought into the law. He asked the Supreme Court to bring in a defence of necessity, which would allow doctors to escape liability in cases like this where they were following a desperate plea from the patient.

That was unsuccessful. What the Supreme Court said was that to introduce this defence would legalize euthanasia through the back door, and that they felt was a step for Parliament. So, the court was asked this question, but they said no that they would not bring in this new defence because it was for Parliament to decide and not them.


R v Adams [1957]

What was said by Judge Devlin is important. He said a doctor can do all that is necessary to alleviate suffering. So, judge Devlin in R v Adams -- a doctor can do all that is necessary to alleviate suffering, even if such measures shortened the patient's life.

So, effectively what the Doctrine of Double Effect says is that if someone is in pain towards the end of their life, then you can douse them up with pain relief and sedation in order to alleviate that pain, even if the level of dose that you give is sufficient to shorten their life.

Focusing on the mens rea of murder, your intention is to alleviate pain. Therefore, you lack the mens rea for murder.


R v Woolin [1999]

In this case the court said that if you foresee something as a virtual certainty (oblique intention) then that should equal intention.

So, effectively that is what the general criminal law said, and yet the courts do consistently still say that they support the Doctrine of Double Effect in a medical context. So there is some level of uncertainty as to how legally valid this doctrine is. Nonetheless, it is still something else which exists whereby if doctors do administer effectively an overdose of pain relief and someone dies it allows the courts, if they desire, to find a lack of intention – lack of mens rea – for murder.


Section 1, Children’s Act 1989

The starting point is that Best Interests test


Re Wyatt [2005]

The court said in this case was that best interests covers not just medical interests, but it is a holistic assessment, which we already know, which covers emotional and all other welfare elements. So, when the doctors assess best interests, it is not purely looking at medical interests.


Re C [1998]

Before Charlotte Wyatt there is a baby 16 months old. She was being ventilated and the opinion was that the ventilation was "burdensome". Now, that is a word that is important.

In part of the assessment of "best interests", the courts are looking always to see whether the treatment is "burdensome" on this balance sheet approach. It is the treatment burdensome?
In this case that the doctors felt it was. The parents of the child disagreed, but the courts there again sided with the doctors. So the ventilation was discontinued and the baby died.


Re K [2006]

The doctor’s assessment was that the child had no pleasure at all from life – life was described as being pitiful, and once again, in the face of parental objection, the doctors went to court and the court agreed with the doctors that it was in the child's best interest to withdraw treatment.

You could go on. There are literally tons of cases. Some of them are… Often the courts do side with the doctors. But effectively what the courts are looking at is the best interests of the child, and just going back to the law on murder, if it is in the best interest of the child not to treat or to discontinue treatment, because the courts classify this as an omission, in that case there is no duty to continue and so there is no actus reus for murder.

Why is the court involved? Because doctors need the sanction of the court to confirm effectively that what they are doing is acceptable to avoid finding themselves falling afoul of the criminal law.


NHS Trust v X [2012]

In all of the other cases the child was conscience, very very unwell, and the court was looking at the best interest test in order to decide whether carrying on with treatment was too burdensome or not.

In this particular case the child is not conscious. Using this balance sheet exercise, asking whether the treatment was burdensome…you just could not do it, because without any form of consciousness, a child cannot suffer any experiences, suffer any pain, or experience any pleasure at all.

So, in this particular case, quite recently, the court said when asking best interest questions the approach was different. You needed to focus on whether future treatment would be futile.

So, talking about whether treatment was burdensome, you just couldn't. So there was a different question to feed into this best interests analysis – would the treatment be futile?


Re A [2001]

This is the case again, which was just in the news, which was about a pair of conjoined twins – the Attard Twins. It was a sad case. There was a pair of twins conjoined at the chest and if they weren't separated then both would definitely die. That was the dilemma that their parents had. Without an operation to separate them they would both die. But if they were separated only one of them could survive. So, effectively the operation to separate would end the life of one of the twins.

Now, the doctors wished to do this; they wished to save the life of one of the twins, but they wanted confirmation that in so doing they wouldn't end up being charged with murder in relation to the other twin, because whichever way you look at this, this is definitely positive action. This is not omitting to do something; this is surgically separating one twin from the other. This is positive intentional conduct.

The parents were very much against this. They were very religious. So, they objected to the doctor's course of action. So, it all ended up in the courts. The court confirmed that this would be positive action. So, the law is relating to omissions, that we have just looked at, could not apply, but nonetheless the Court of Appeal sanctioned the treatment.

They did so on a variety of different grounds.

Lord Justice Brooke said in relation to the living twin a defense of “necessity” would arise. So, you needed to kill one person to save the life of another.

Lord Justice Ward said that the weaker twin, the one that died, was killing the stronger twin, and therefore the defence that would apply would be self-defense. In other words, in order to defend the stronger twin from death, the weaker twin had to be killed.

Lord Justice Walker invoked a version of the Doctrine of Double Effect – so intending to save the life of the twin was the main intentional act; the unintended consequence was the death of the other twin, which patently was not true on the facts.

But that case is interesting because it just shows the dilemmas that the courts have to go through. They are faced with a very rigid law on murder, and yet they definitely wanted this one twin to survive. Survive the girl did. This is her pictured on the slide in 2014; she was 15 at the time. Her name is Gracie Attard.

She gave an interview on the impact of what happened to her and her family. Eventually, having lost the court case, the parents were happy with what happened and the outcome, which was one healthy child; but the twin did die.


Mental Capacity Act, Section 4.

A lot of the law is very very similar to children, the focus being on best interests.

Just by way of introduction, if you are dealing with an incompetent adult, and remember you were talking about someone 16 years or above, they fall under the Mental Capacity Act, Section 4.


Airedale NHS Trust v Bland [1993]

Tony Bland was the last victim of the Hillsborough Disaster. He was crushed at that football match. The injuries he suffered…he was 17 1/2 when he was crushed. The injuries that he suffered left him in a PVS state, and that is the way he remained for 3 1/2 years. He could breathe, but he had to be fed and hydrated through tubes.

His parents were adamant that he would not have wished to have lived like this. So, the parents approach the doctors and asked the doctors to withdraw his artificial nutrition and hydration (ANH). The doctors felt that this was in his best interests, but they wanted confirmation from the court, because obviously their fear was that if they got it wrong they could find themselves liable for murder.

Now, the decision itself is quite important both for PVS, and indeed, for some other points which can be relevant in other cases. So, what the court in Bland confirmed as regards doctors and medical treatments, sanctity of life was important, but it was not an absolute.

They also classed AHN as a form of treatment as opposed to just basic food and water.

That is quite controversial because once something is classed as a treatment, and this is sort of be done by the children’s cases already, then it can be treated and seen as an intervention cases already, which is burdensome, and it is easier to talk about withdrawing it then if you just sought his basic food and water, the means of life.

So, the House of Lords classed ANH as a form of treatment – it was an intervention, a medical treatment. And in so doing, it was much easier to see it as burdensome when you look at the best interest test.

Withdrawing ANH was to be treated as an omission, an omission to continue feeding.


Re M [2011]

Now, the lady in question here was not in PVS. She was in what was called a “minimally conscious state”. She wasn't a PVS patient.

For her, which of course was not relevant to the decision in Bland, the court said that there was to be a difference between withholding treatment and withdrawing treatment that had already been started.

So, withholding future treatment and withdrawal of treatment already started.

The court also looked at her best interests, and they found that she did have some sensory perception of pain. She was one of those patients that did follow the sun came up through her room – her eyes would look up and she would appear to sometimes smile. So she did appear to have some pleasure in life.

But what the court decided for her was that the best interest test was relevant, but sanctity of life prevailed even though she had in her life before her illness said that she would never want to end up in this sort of position. So, she had made her prior views known; she hadn't ever signed what is known as an advanced decision, however. So, she had never committed to reviews to paper, but despite her prior views, and indeed the views of her family, in this particular case and in contrast to Bland and other PVS cases, her position just wasn't bad enough and sanctity of life prevailed. It was not in her best interest to withdraw the treatment.

But, because this distinction was made about withholding future treatment, the court did say that a do not resuscitate order could remain in place as with regards to future resuscitation.


Mental Capacity Act 2005, Section 24-26

Requirements for an Advanced Decision are set out. They relate to cardiopulmonary resuscitation (CPR) only


Re R [1996]

It was a non-PVS patient and minimal state of awareness. The doctors had signed a DNR order and the court agreed that not resuscitating was in the patient's best interests.

Effectively it is also back to “best interests”. That it would not be in someone's best interests to resuscitate.


R (Tracey) v Cambridge NHS Trust [2014]

Mrs. Tracey suffered from a catalogue of problems – she had a car accident and she had a neck injury which left her paralyzed. She was then diagnosed with terminal cancer. But she was conscious and she had full capacity. She was completely aware of everything that was going on.

The doctors in her case signed a DNR order without consulting her or her family.

What this case confirms is that failure to consult a patient with capacity about a DNR order is a breach of their Article 8 rights. Effectively, you can put in place a DNR order as a doctor for patients with capacity or for those that lack capacity. The basis for your decision, and if you look at the GMC guidance, is “best interests”, but if the patient has capacity then the Tracey case says that you must consult; a failure to do so, even though it is the doctor's decision still (it is not the patient's decision), will be a breach of the patient's Article 8 human rights.


R (Burke) v GMC [2005]

what Mr. Burke said was that he always wanted to have artificial nutrition and hydration should he ever needed in his future life. He wanted to insist that ANH was given to him should he ever needed. He wanted to be able to put this in an advanced decision. So, Advanced Decisions are usually about refusing treatment. He wanted confirmation that he could say “look, if ever I need this then I want you to provide me with artificial nutrition and hydration."

What he therefore said was he felt that the GMC guidance which gave the decision on ANH to doctors was inappropriate. It was illegal because he should have the right to make that choice for himself. So, that was what he argued. He should be able to decide for the future if he wanted to to insist on ANH, and the GMC guidance, he said, giving the decision to doctors was illegal and offended his right to take that decision himself.

Now, what the Court of Appeal decided is that it works only one way. So patients can decide not to have treatment but they cannot insist on a particular treatment in the future. So, patients can't demand – treatment is always determined by what is in their best interest, which is a medical decision.

As a result of that, the GMC guidance which was in place in 2005, and indeed the current guidance, was perfectly fine. It was lawful to confirm that this was a medical clinical decision.

But what the court did say, and this would be a rare case I think, is if you had a competent person who was already receiving artificial nutrition and hydration and they made their wishes known once treatment had started, then withdrawing the treatment in that case would be murder.