THE TERMINATION OF LIFE‐SUPPORT MEASURES AND THE LAW OF MURDER
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00809.x |
| Published date | 01 July 1978 |
| Date | 01 July 1978 |
THE TERMINATION OF LIFE-SUPPORT
MEASURES
AND
THE LAW
OF
MURDER
DOCTORS do not institute life-support measures wherever the pro-
vision of such measures could prolong life. Similarly, doctors
sometimes discontinue life-support measures when the continued
provision of such measures could extend life. But despite the wide-
spread interest in the Karen Quinlan saga,’ there has been little
consideration of how the English courts would deal with the termina-
tion of life-support measures from
a
severely brain damaged, but
living, patient.2
In this article it is proposed to discuss the possibility of
a
doctor
being guilty of murder in terminating life-support measures from
someone whose continued life depends on them.
It
will be con-
venient to focus on one particular life-support measure
:
the artificial
ventilator or, as it
is
sometimes called, respirator or breathing
machine. It will be assumed that some patients who are incapable
of returning to consciousness, and are at least temporarily dependent
on artificial ventilation, may nevertheless be alive for legal purposes.
As the law of homicide distinguishes between acts and omissions,
it is convenient to distinguish-at least initially-between the with-
holding and the withdrawal
of
artificial ventilation.
“
Withholding
’’
will be used to refer to those cases where the doctor’s conduct would
undoubtedly be characterised in law as an omission, rather than
an act.
“
Withdrawal
”
will be used to refer to those cases where
the doctor’s conduct in terminating artificial ventilation might be
considered an act, rather than an omission. The distinction is not
drawn with the intention of prejudging the issue of whether the
means by which artificial ventilation is terminated is of any ethical
or legal significance. It is drawn simply for ease of exposition in
dealing with
an
area of the law which, for better or worse, does
distinguish between acts and omissions.
It is proposed to commence with the simpler issue of the with-
holding of artificial ventilation, and only then to deal with the
withdrawal of such measures.
THE WITHHOLDING
OF
ARTIFICIAL VENTILATION
In the law of homicide, conduct which accelerates death may be
considered
a
cause of death, even though death would liave occurred
shortly in any event.3 Causation is seen as
a
question of
“
fact
”
and of “law.” It
is
first necessary to show that, but for the con-
1
See.
e.g.
editorial,
The Times,
April
2,
1976.
2
A
notable exception is the paper by Ian Kennedy which appeared after this
article was written.
See
[1977]
Crim.L.R. 442-452.
3
Judges sometimes talk in terms
of
whether the death was caused
or
accelerated
by the conduct
in
question:
see
e.g.
R.
v.
Morby
(1882)
8
Q.B.D.
571,
575
(C.C.R.)
per
Stephen
J.
See
generally
R.
v.
Dyson
[1908]
2
K.B.
454, 457 (C.C.R.).
Cf.
R.
v.
Adams,
The
Times,
April
9, 1957.
423
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