Criminal Law in the UK and Using of the Sleeping Drug in Medicine - Assignment Example

Doctor Archer and Doctor Brady are partners in a medical practice which operates from the White House Surgery Barchester. Nurse Chambers is the practice nurse. In one month Doctor Archer makes unannounced visits to two of his patients Molly and Dotty. Both Molly and Dotty are elderly but otherwise in good health but Doctor Archer injects them both with lethal doses of diamorphine. Molly and Dotty both die. The evidence is that Doctor Archer had been prescribed (and had been taking for some months) the sleeping drug Triazolam (Halcion) which had caused a derangement of thought and mood .Consider the criminal liability of Doctor Archer. Doctor Brady also has an elderly patient Maud who is unfortunately suffering from colon cancer which has spread to her liver. Maud is in great pain and Doctor Brady has been giving Maud injections of diamorphine to relieve the pain. Doctor Brady makes a further visit to Maud and finds her great pain. Maud is breathing in an irregular manner characteristic of someone close to death (the medical term is Cheyne-Stoking) and to make sure Maud suffered no further from the pain Doctor Brady gave Maud a final and lethal injection of diamorphine. Within ten minutes Maud dies. Consider the criminal liability of Doctor Brady. Would your answer be different if the drug had had no pain relieving properties but had merely killed Maud? Would your answer different if it had been Nurse Chambers who had administered the final injection of diamorphine to Maud instead of Doctor Brady? In order to be able to advise on the criminal liability of the parties in the above scenario it is necessary to consider the law in relation to murder. This will involved analysing the mens rea and actus reus required for the offence to be proven. It will also be necessary to consider direct and oblique intent in order to determine the most appropriate charge in each case. For completeness, it will be necessary to consider any possible defences available to the parties, in particular in relation to the medication being taken by one of the doctors. There will also be a discussion in relation to the administration of the overdose of painkillers in a situation where the patient has been diagnosed with a terminal illness, and whether the outcome would be any different if the overdose had been administered by the nurse instead of the doctor. This will require a discussion in relation to whether the nurse would have been aware that the higher dosage would cause the death of the patient. As the doctor is more likely to be higher qualified than a nurse, a greater degree of care would be expected of the doctor. Having considered all of the above, it should then be possible to determine the liability of each of the parties. The actus reus of an offence refers to the act of the accused, which, when combined with either the recklessness or intention of the accused causes the crime to be committed. For each crime, the actus reus of the offence will alter. For murder, the actus reus would be the direct act of the accused that caused the death of the victim. This means that the actus reus of an offence is the external element of the crime. The mens rea of a crime is the fault element of the offence and translates as the ‘guilty mind’. Murder was originally defined by Sir Edward Coke in the following terms When a man of sound memory and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the Kings Peace, with malice aforethought, so as the party wounded, or hurt…, die of the wound or hurt, … within a year and a day after the same1. Through legislative changes2 and case law precedents 3 the element of malice aforethought has now been restricted to narrower terms4. Prior to these changes, the courts needed to be convinced that an element of ill will or premeditation existed in order to find a defendant guilty. Since the changes the prosecution now only needs to prove that an intention to kill5 or an intention to cause grievous bodily harm6 existed. The wording of the Criminal Justice Act 2003 has also altered the level required for such charges to be brought, with the prosecution only being required to prove that the defendant intended to cause the victim serious bodily harm. Recent case law seems to suggest that only proof of direct intent to cause harm will suffice in proving the mens rea of the defendant7. Lack of direct intent can lead the courts to accept a plea to a charge of manslaughter. This generally occurs where the prosecution is unable to prove direct intent beyond reasonable doubt. Many defence counsels rely on trying to convince the jury that the victim’s death was more a misfortune rather than part of a deliberate plan8. This has occurred even when the actions of the defendant were the direct cause of the death. The prosecution has even struggled to prove direct intent in situations where the accused has made comments to others about his intention to kill the victim. The courts have often ruled that such admissions are insufficient to satisfy the requirements of direct intent9. The term malice aforethought seems to imply that only direct intention will suffice. Direct intention occurs where the accused actually wants the result that occurs and takes steps to ensure the outcome10. The prosecution can adduce foresight of the end result as evidence in support of the assertion that the accused intended to kill the victim11. By contrast, oblique intention occurs where the accused does not desire to cause serious harm to the victim, but continued to act in a manner that would be likely to result in the death of another12. Charges for murder have also been successful in cases where the prosecution is able to prove that the accused ought to have known that the harm they were inflicting might possibly lead to the death of the victim13. Problems arise in proving the intent of the accused as the test is a subjective test14. Juries are required to reach a verdict based on what they believe the accused actually foresaw or intended not on what the accused might have foreseen or intended15. Further problems are created in situations were the mental health of the defendant is in question16. In such situations, it is necessary to consider the law on automatism. Defence counsels are likely to raise the defence of automatism if there is evidence to suggest that the accused did not have the mens rea for the offence at the time the actions were carried out, due to the accused not being in control of their own actions. Automatism was defined in Bratty v Attorney General of Northern Ireland 17as "connoting the state of a person who, though capable of action, is not conscious of what he is doing ... It means unconscious involuntary action, and it is a defence because the mind does not go with what is being done." Lord Denning also commented that “No act is punishable if it is done involuntarily: and an involuntary act in this context…means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking…” The LCJ in Attorney-Generals Reference (No 2 of 1992)18 observed that .....the defence of automatism requires that there was a total destruction of voluntary control on the defendants part. Impaired, reduced or partial control is not enough.’ Although in this case, driving without awareness did not satisfy the requirements for the defence of automatism. In raising such a defence, the onus is placed on the accused to prove that they did not have the necessary mens rea at the time the offence was committed. The defence of non-insane automatism is used where the mental impairment is only temporary. This might occur where the accused has received a blow to the head or is under the influence of medication that impairs their judgment. The consumption of illegal drugs or alcohol will generally not give rise to a defence of automatism being accepted as the condition is regarded as being self induced19. Once the defence has been raised, the prosecution has to prove that the accused was not suffering from a malfunction of the mind suitable for the defence of automatism20. In R v Quick & Another 21 Lawton, L.J. said: "A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility.....In this case Quicks alleged mental condition, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed the working of his mind. It follows in our judgment that Quick was entitled to have his defence of automatism left to the jury and that Bridge J.s ruling as to the effect of the medical evidence called by him was wrong.” Successful defences of automatism have been brought where the offence was committed whilst the accused was under the influence of prescribed medication22. To rely on this as a defence the accused has to prove that the side effects of the medication caused him to act the way he did. It is also necessary for the accused to show that the medication has been taken correctly and that he has not taken more than the prescribed dosage23. In R v Sullivan [1984] 24 it was held that the actions of the defendant were a direct result of the medication and that the defendant was not in control of his own actions. Proof that the accused has not taken their medication correctly is likely to lead the court to conclude that the condition of the accused is self induced. In relation to the administering of medication to terminally ill patients, it is generally accepted that the criteria for proving murder has been satisfied by the deliberate actions of the accused. There have been several cases where persons who have assisted terminally persons to end their life in this manner have faced charges for murder25. Despite the fact that the accused is only assisting the patient to end their own life, the courts have indicated a willingness to accept a charge of murder26. The mens rea element of the offence of murder is deemed to be satisfied in these cases as it is obvious from the action of the person assisting that their intention is to help the patient to die. From all of the above, it is now possible to determine the liability of the parties. In relation to Dr Archer, the actus reus for murder is satisfied by the administering of the lethal overdose to Molly and Dotty. It could be argued that the mens rea for the offence has been satisfied as Dr Archer would have been aware that the administering of the dosage of painkillers would lead ultimately to the death of the patients. However, Dr Archer might be able to relay on the defence of automatism, if he can prove that the side effects of the prescribed drug he is taking caused him to lose control of his own actions. In order to rely on this, he would have to show that he had taken the medication correctly and that his behaviour was totally out of character. With regard to Dr Brady, it could be argued that his actions amount to murder as his actions demonstrate his direct intention to administer a lethal dosage of painkiller to Maud in order to end her suffering. Although the courts tend to take the view that assisting someone to die can lead to criminal charges for murder being brought, there is a generally tendency not to impose such a charge. As the drug is used to relieve pain, Dr Brady is likely to be more successful in avoiding a charge of murder. However, if the drug used had not been specifically for pain relief the courts might be more likely to charge the doctor with murder. A distinction has been drawn between the direct administering of medication designed to hasten death and the withdrawal of treatment to bring about death. In Airedale NHS Trust v Bland27 doctors were granted the right to remove a feeding tube, despite the fact that this would ultimately lead to the patients death. The decision was justified on the grounds that a patient who was able to decide on their own to withdraw from treatment would not be forced to have that treatment. Case law suggests that passive euthanasia might be acceptable in the UK but active euthanasia is still forbidden28. Challenges made by those wishing to have active euthanasia have been defeated29. Those who assist terminally ill patients to obtain euthanasia in other countries have faced prosecution when they return to the UK30. This seems to suggest that Dr Brady would be charged with murder for intentionally killing Maud. The situation might be different if the dose had been administered by the nurse, especially if she had been instructed by the doctor to give her the medication, as she could argue that she was only following instructions and did not realise that the dosage would be fatal. 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