Intention and Causation in Medical Non-Killing

The Impact of Criminal Law Concepts on Euthanasia and Assisted Suicide

Glenys Williams

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135428341
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Analyzing the concepts of intention and causation in euthanasia, this timely new book explores a broad selection of disciplines, including criminal and medical law, medical ethics, philosophy and social policy and suggests an alternative solution to the one currently used by the courts, based on grading different categories of killing into a formalized justificatory defence.

This text explores how culpability, blameworthiness and liability are ascribed and how ascertaining mens rea and actus reus are problematic in an end-of-life decision-making scenario. Williams criticizes the way the courts rely so exclusively on the criminal concepts of intention and causation in such medical scenarios and examines and raises awareness of the inadequate and inappropriate legal framework within in which judges have to operate.

Topical and compelling, this significant contribution argues for a more open and honest approach which would, in turn, provide the certainty, consistency and equality required by the law.

This is a quintessential read for all students studying medical and healthcare law and the legal aspects of health and medicine.

Chapter 1

The concept of intention

There is no term fraught with greater ambiguity than that venerable Latin phrase that haunts Anglo-American criminal law: mens rea.

(Fletcher 1978: 398)

Euthanasia and murder

A standard dictionary defines euthanasia as ‘the act or practice of putting painlessly to death, especially in cases of incurable suffering’ (Chambers’ Twenty First Century Dictionary).¹ To the layman, this may imply two things: firstly, that it is at least a morally, if not legally, permissible activity and secondly, if it is not permissible, then it is an independent offence called ‘euthanasia’. What is less evident is that any person who carries out euthanasia is liable to be prosecuted for murder, because euthanasia is the intentional taking of life. This is so, despite the fact that euthanasia is carried out with compassionate motives, because the criminal law ostensibly takes no account of motives except at the sentencing stage.

Although the subject matter here is inherently medical, the criminal law concepts of intention and causation are the governing factors in establishing blameworthiness and liability. However, the criminal law of murder, with its emphasis on intention particularly, is an inappropriate way to deal with medical end-of-life issues because firstly, it is inconsistent and indeed impossible to combine the criminal intent of a murderer with the daily life of a medical professional (Wilson and Smith 1995: 389). Secondly, the whole concept of mens rea itself is fraught with the inherent problems of assessing intention, and the dangers of subjectivity, semantics, ‘constructibility’ (Griffiths 1994: 47) and ‘decontextualisation’ (Norrie 1986: 221).

In the medical scenario in particular, a doctor is not thinking about the implications of intention and causation when he is going about his daily work. Rather, his concern is with treating and caring for his patients in the most effective way possible. In performing this function, there are important ‘situational’ factors he has to take into account, such as the context in which an event occurs, the special doctor/patient relationship and the obligations and duties imposed by that relationship. It also includes the physical space where the events take place² (generally a hospital) together with the factors the parties would thus have to consider in making any decisions. This, in turn, would encompass the seriousness of the patient’s condition, his capacity or competence, his ability (or not) to give consent and the motives of the parties concerned. As Pellegrino (1996: 180) states:

[i]ntentions cannot be assessed in isolation from the other components of moral events. They must be related to the nature of the act in question, the circumstances under which it is performed, and its consequences.

However, the criminal law ignores both these and other elements inherent in euthanasia, and anomalies have arisen in the law of homicide as a direct result of judges, trained in criminal law, deciding issues which actually lie within the medical domain. The criminal law errs, not only in applying a criminal standard to doctors when they are making end-of-life decisions, but also in ignoring the context in which such decisions are made. A doctor is required by law to act in his patient’s best interests and it is both inappropriate and contradictory to confuse that role with the criminal intent required to satisfy the mens rea for murder (Wilson and Smith 1995: 389).

What is murder?

There is no statutory definition of murder,³ but there have been many unsuccessful attempts to place the offence on a statutory footing.⁴ The offence therefore remains a common law one while efforts to explain its meaning continue. It has, for example, been said that murder is a ‘result’ crime, because a forbidden consequence – death – has to be shown as part of the actus reus.⁵ This, however, does not define the elements of the offence and indeed, it has been suggested that it would be futile to attempt to do so.⁶ However, we do know that the actus reus element of the offence is that a person causes death by an unlawful act or omission, and that the mens rea element is ‘malice aforethought’. This presently encompasses not only an intention to kill (or cause grievous bodily harm),⁷ but also a much wider concept of indirect or oblique intention (foresight of virtual certainty). Essentially, this means that a person can be guilty of murder where he has foreseen that a virtually certain consequence of what he does is that someone will be killed, but it is not his intention to cause that consequence.

In the medical setting, this can be seen when a doctor withholds or withdraws life-sustaining treatment from a patient, and where he increases pain-killing medication to a patient which has the potential to hasten death. In both situations, the doctor foresees that the patient will die following his act or omission, although that is not his intention. As the legal meaning of intention has been extended to include foresight, this could therefore result in a doctor being found guilty of murder when he withdraws life-sustaining treatment, or increases medication which he foresees will hasten death. However, it will be seen that the courts use ‘tactics’ which, together with the adoption of a narrower definition of intention, avoid liability on the part of the doctor.

What is intention?

Psychologists and philosophers⁸ have often discussed the concepts of ‘intention’ and ‘intentionality’, but in the same way that defining murder is problematic, so also is the concept of intention. Jefferson, for example, adopts a layman’s understanding of the term in saying that ‘intention covers the state of mind where the accused aims or decides to kill’ (Jefferson 2006: 88). Aiming towards, or indeed making it our purpose to achieve a certain consequence, encompasses the idea of a plan or an objective the agent aims for in order to do something, or even the idea of doing something with a view to bringing about that which he wants or desires. Intention should not, however, be confused with desire, as anyone can intend a consequence, even if he does not desire it (Moore 1987: 246). Alternatively, it has been suggested that something can be intended if it is chosen, or if it is within the actor’s control (Hart 1968: 121–2) and more controversially, it has been said that intention is the reason for acting. Certainly this is incorrect because motive, and not intention, is the reason for acting (Horder 2000: 173).⁹

None of these enable a clearer understanding of the concept and meaning of intention, and neither does identifying its purpose. We know that the purpose of mens rea is to gauge blameworthiness; the more deliberate an act, the more blameworthy it is. Horder has said that one of the roles that intention plays is to constitute the criminal wrong (Horder 1995: 681). He is correct in so far as the guilty act taken together with deliberateness constitutes the crime and that therefore, to a certain extent, intention, once found, does play an (albeit limited) role as an indicator of blameworthiness. It also indicates that a greater degree of blame or culpability is at stake than in a reckless or (grossly) negligent act. However, it is also true that assessing blame or culpability more fully depends on other contextual issues which the criminal law (seemingly) excludes. Horder acknowledges this when he concedes that the degree of blame or culpability is measured by factors other than intention, such as sanity, maturity, voluntariness and control.

It has also been said that intention determines criminal liability for the consequences of actions (Duff 1989: 76). If so, then any imputation of intention must link the agent’s mental attitude with the results of his conduct. This definition ascribes responsibility for an intentional action. However, a person acting unintentionally can be just as responsible for wrongs as one who acts intentionally. While saying this is not fatal to the argument, it does nonetheless tell us that there is no point in relying solely on a definition of intention to demarcate the limits of criminal responsibility (Horder 1995: 680). Where euthanasia is concerned, other considerations, such as those noted by Horder above, together with the motive of the actor, the consent of the ‘victim’ and the status of the parties, are also relevant in the ascription of liability. These are the very important factors which distinguish euthanasia from murder and the cases examined in the following chapters show that the courts do consider these, although they would not admit to doing so. The consequence of this is that the concept of intention is applied inconsistently according to a judicial discretion which is arguably dependent on the status of the actor and the reasons for his actions (that is, his motives). This, in turn relates to preconceptions as to the blameworthiness and culpability of the actor and the role he plays in society.

The courts, intention and foresight

Where it can be adequately proved that the defendant intended to kill (that is, in cases of ‘direct’ intention) no problems arise, but defining the foresight element of intention has created problems for the courts since DPP v Smith ([1961] AC 290), Hyam, and R v Moloney ([1985] AC 905). In the latter, it was held that the mens rea of murder is the intention to cause death or really serious bodily harm. However, the court said that no elaboration should be given as to the meaning of intention in this context except in rare cases and that if such elaboration was considered necessary, the jury should be asked to consider two questions. Firstly, was death or serious injury a natural consequence of the defendant’s act and secondly, did the defendant foresee it as a natural consequence of his act? If the answer to both these questions was ‘yes’, then it could be inferred that he intended that consequence. Lord Bridge explained that unless foresight of the probable consequences was ‘little short of overwhelming’, it was not intention, but could only be evidence from which intention could be inferred. Thus, although he confirmed that foresight was not the same as intention, he unfortunately did not define what intention was.

In R v Hancock, R v Shankland ([1986] AC 455), as in Moloney, it was again noted that foresight was not the same as intention. However, Lord Lane, reading the judgment of the court, saw the Moloney guideline on the meaning of ‘natural consequence’ to be misleading; he explained that what it meant was ‘. . . that it must have been highly likely that the defendant’s act would cause death or serious injury before the inference can be drawn that he had the necessary intent’ (Hancock and Shankland at 460–1). On appeal (which was dismissed) it was said that the judge, if he had to explain to the jury at all, should only explain that the greater the probability of the consequences, the more likely it was that the consequence was foreseen and that if it was foreseen, the more likely it was that it was intended.

The case of R v Nedrick ([1986] 3 All ER 1) followed, in which it was held that where a defendant performs an act resulting in death, and the primary desire or motive was not to harm the victim, the judge should explain that intention is not desire. The judge should then ask two questions of the jury: how probable was the consequence that resulted from the defendant’s act, and did the defendant foresee that consequence? If death or really serious injury were foreseen as virtually certain consequences, the jury could infer that the defendant intended to kill or harm. In setting out his decisive test for intention, Lord Lane said:

. . . the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.

(Nedrick per Lord Lane at 4)

Again this does not define intention, but rather, simply reiterates that foresight, even of virtual certainty, does not constitute intention.

The case of R v Walker and Hayles ((1989) 90 Cr App R 226) did nothing to cast light on its meaning either. As in Moloney, Hancock and Nedrick, it was explained that there was no need to elaborate in straightforward cases on the meaning of intention, because the relevant intention is an intention to kill. It was agreed that the difficulty only arises when the defendant brings about a result he is not trying to achieve and does not want. Only in these rare cases does the judge need to elaborate. The Court of Appeal (rather surprisingly) confirmed that ‘very high degree of probability’ as used in the lower court, was not a misdirection, but that ‘virtual certainty’ (as used in Nedrick) would be better. In this case, intention could be inferred from a ‘very high probability of death’.¹⁰ The court went on to say that if and when the two questions posed in Nedrick were answered in the affirmative, one would be entitled to draw an inference that the defendant was intending or trying to kill the victim.

Five years later, in R v Scalley ([1995] Crim LR 504), it was ag...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgements
• Introduction
• Chapter 1: The concept of intention
• Chapter 2: The principle of double effect
• Chapter 3: Acts and omissions
• Chapter 4: Causation
• Chapter 5: Does a patient who refuses treatment commit suicide?
• Chapter 6: Does a doctor who withdraws treatment assist in a patient’s suicide?
• Chapter 7: Reforms and the future
• Conclusion
• Bibliography