Criminal Law

The criminal law.

Introduction.

It is obvious that the question whether or not this operation can be lawfully performed is crucial to the outcome of the appeal. What I confess I had not fully appreciated was how rooted in obscurity the answer to those difficulties was. Brooke L.J. was fully aware of all the intricacies and he set counsel a rigorous reading list to meet our concerns. I am, therefore, grateful to him for leading the way. In his judgment which I have read in draft, he so fully sets out the relevant material that I am happy to adopt it and I will not add to this lengthy judgment by needless repetition. In the light of his full exposition of the law, I can state the gist of my reasons for agreeing with him quite shortly.

Is there some immunity for doctors?

Archbold 2000: Criminal Pleading Evidence & Practice, para. 19-38, states that:-

"Bona fide medical or surgical treatment is not "unlawful" and therefore death resulting therefrom does not amount to murder, even though death or serious injury is foreseen as a probable consequence. Nor does it amount to manslaughter, unless the person giving the treatment has been guilty of "gross negligence"".

No authority is given for this sweeping statement. It is true that in Gillick Lord Scarman said at p. 190:-

Lord Mustill speaks of it in Bland. Yet hanging over Bland is the spectre of murder. To have crossed the Rubicon would have been to murder. I, therefore, approach the question of lawfulness of the proposed separation on the basis that, whatever immunity doctors do enjoy, they have no complete immunity. I have to be satisfied that in this case they will not be guilty of unlawfully killing Mary by active intervention - and perhaps of unlawfully killing Jodie by omitting to act in her interests if there is a duty upon them to do so.

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