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Home , Evidence (law), R v Instan

Jrournal ofmedical ethics, I983, 9, 12-15

Symposium 1: The Arthur case - a proposal for

Diana and Malcolm Brahams and , respectively, practising in London

Editor's note mortem was carried out by Professor Alan Usher. On 2 February i98I, Dr Arthur was charged with the baby's Following the acquittalofDrLeonardArthur in the case of , and on I7 October he was brought to at the Down's syndrome infant the co-authors ofthe first Leicester Crown . He pleaded 'Not guilty'. paper in this symposium prepared a draft bill on the It was the prosecution's case that the baby had died treatment ofchronically disabled infants which has since of lung stasis caused by DF i i8 poisoning in a child been informally commended by the Director ofPublic with Down's syndrome, and that this had been the Prosecutions. A second contributor, a student, also result of a deliberate intent by Dr Arthur to kill the argues for legislation as being the most effective wayfor child; in addition, it was alleged that the child had been society to have its standards clarified and observed. In a deliberately deprived of food and medical treatment, final paper Dr Havard, Secretary ofthe British Medical and that from the moment that Dr Arthur wrote his Association, opposes legislation believing it would raise note, he was doomed to die. far more problems than it would resolve. The first article The prosecution's largely collapsed when was originally published in the Law Society's Gazette. Professor Usher's post mortem studies were found to be incomplete and therefore inaccurate. Professor Emery, the defence expert, who was a paediatric The trial and ofDr Leonard Arthur has posed pathologist, had revealed from the histology that the more problems than it has solved. Moreover, it reveals child had calcification of the brain, fibro-elastosis of an alarming divergence between the law on the one the heart and congenital abnormalities of the lung. hand, and prevailing medical practice and public opin- Professor Usher, though a distinguished pathologist, ion on the other. was not an expert in this field of tiny babies, and his Dr Arthur is a respected senior consultant paediatri- conclusions that the baby had been healthy apart from cian employed at Derby City Hospital. His ordeal mongolism and had an 8o per cent chance of survival began, when, on Saturday 28 June i98o, Mrs Molly were wrong. The defence contended that accordingly, Pearson gave birth to a baby boy suffering from the prosecution's case had been conceived in ignorance Down's syndrome (mongolism), and he was called in to and inaccuracy, and the charge of murder was with- examine the baby. The parents were very distressed by drawn on the direction of Farquharson J, and a charge their baby's severe and irreversible handicap, and of substituted on 27 October, after rejected him. Dr Arthur made a note: 'Parents do not the trial had been on foot for ten days. Indeed, the wish it to survive. Nursing care only'. He made out a remarked: 'It is a prospect one views with some prescription for DF i i8, a morphine-type drug, com- alarm that expert evidence can be given to you in a prising dihydrocodeine. The drug was to be given charge ofmurder which turns out to be incomplete and orally, not more than four-hourly, in 5 milligram inaccurate'. However, he then went on to praise Pro- doses, to alleviate the baby's distress as and when it fessor Usher's frankness in admitting the correctness arose. The baby, by now christened John, died 69 of the defence's further evidence when he was recalled hours later at 5. I0 am on i July. His cause ofdeath was to the stand. given as broncho-pneumonia due to consequences of Throughout the trial, the prosecution conceded that Down's syndrome. A member of the society Life Dr Arthur's motives were of the highest order; he had contacted the alleging that the baby had been adopted the course oftreatment he considered the most drugged and starved to death and placed in a side ward humane for the baby, and the family. However, the to die. Police officers called to ask Dr Arthur about the prosecution declared, the time had not come in this events which had led to the baby's death, and a post country when a doctor could say: 'Because you are mentally-handicapped and your parents do not want you to survive, I'm going to take such steps as to ensure Key words that you do not survive'. This type of behaviour must Law and medical ethics; severely handicapped infants; bring a doctor like Dr Arthur into conflict with the medical ethics; Down's syndrome infants. . Symposium I: The Arthur case - a proposalfor legislation 13

The defence submitted that bringing the case had active steps to ensure that the baby would die, with the been a tragic , and it asked the to return a of bringing that event about? that would mean that in the future, parents and 2) Ifthe jury concluded this was proved, then a second doctors could make decisions in such agonising and question faced them: had the prosecution convinced terrible situations without the fear that an informer them that the steps taken by Dr Arthur amounted to an would rush to report them to the police. to murder the child? A large number of eminent and respected doctors In two hours the and just jury unanimously acquitted Dr specialists went into the witness box to testify on Arthur. Notwithstanding, it seems to us that the moral Dr Arthur's behalf; he himself offered no evidence. and From these many , it seemed clear that Dr ethical questions raised in this trial remain legally Arthur's treatment had fallen within the current ac- in issue. The decision establishes little in the way of cepted norms of medical practice. In our , it is principle, and to a large extent turns on its own narrow well summed up by the evidence given by Dr Peter . The jury's verdict may, however, be construed as Dunn, a paediatric specialist: Intensive care would be a refusal to convict a doctor of murder for 'allowing a given to any child, regardless of how severely handi- severely handicapped baby to die'. It should be added capped he was, when it was the wish of the parents. that the prosecution failed to make out its case that the Pressure would not be exerted on the parents by a baby was starved to death; the baby weighed the same responsible paediatrician; it was easier to treat a child. at death as it did at birth, 3.23 kgs. A normal, healthy But one had to face reality. 'Some children are born mother does not produce milk for three days and a with such frightful handicaps that we think it is reason- baby will not suffer if he is given only water, or water able to accept the parents' decision that in the interest and sugar, until the mother's milk flows. Baby John oftheir own child, or life is not in died within three days. He was fed distilled water prolonging, long that mixed i interest. It is an extremely complex matter. No with DF i8; he was chronically ill and died paediatrician takes life; but we accept that allowing quickly. No effort was made to save him. babies to die - and I know the distinction is narrow, but Allowing a baby to die we all feel it tremendously profoundly - is in the baby's interest at times'. The British Medical Association However, what might the position be if an otherwise (BMA) Handbook on Ethics (i) can be understood impli- healthy child with Down's syndrome did not develop citly to endorse this view. an appetite and was not induced to feed and died after I0-2I days? This, in the doctors' reckoning, would The judge's summing-up have constituted allowing a baby to die. In so allowing, it is common to aid the process by administering Farquharson J's summing-up contained, inter alia, the appetite-reducing drugs; this in our view amounts to following weights and balances: the case posed serious more than nonfeasance, and is in positive mal- questions affecting medical practice and it also affected It the feasance. is also said that these powerful drugs such public interest. The jury were to eschew all emo- as DF i i8 may harm the baby and hasten its end, tion and distinguish between Dr Arthur's high though they may be given to alleviate the distress it motives, and his intentions behind the treatment he feels from its illness, general condition and, we submit, prescribed for the baby. Explaining the prosecution lack of sustenance. The law of murder and man- case, the judge continued 'Certainly, in this country no slaughter is so well established that we do not propose individual is given sole power of life or death over to re-state it in any detail. Suffice it to say that in another . . . All must be alive to the danger of giving general the law distinguishes between nonfeasance, too much power to anyone, in the medical or other acts ofomission, and malfeasance, acts ofcommission. professions, to exert influence over the life and health To commit positive acts with the intent to kill or cause of the public at large'. After delivering this salutary grievous may amount to murder; by con- warning to the jury, the judge dropped this compensat- trast, the criminal law at rarely punishes ing factor into the scales: 'Whatever ethics a profession mere nonfeasance or . However, once a duty might evolve they could not stand on their own or towards a person arises, nonfeasance, ifit is wilful and survive if they were in conflict with the law . . . I intended to achieve grievous harm or death, may suf- imagine you will think long and hard before conclud- fice even for murder (R v ing that doctors of the eminence we have heard here Gibbins and Proctor) (2), have evolved though generally, mere acts ofomission are chargeable standards that amount to committing a with . Where the victim is a child, s. i of '. the Children Before the jury retired to consider their verdict, they and Young Persons Act 1933 may apply. were advised In Gibbins and Proctor (2) a man and the woman with by the judge to consider the issues in two whom he was living were held guilty of murder of the parts: man's child where the woman with the man's concurr- i) The jury must decide whether the prosecution had ence, withheld food from the child, intending its death convinced them that Dr Arthur, when prescribing the or . By living with the man and regime he did, took steps to bring about the death of receiving money from him for food, the woman as- the child intending that he should die. Did he take sumed a duty towards the child. Though most omis- 14 Diana and Makolm Brahams sion cases are founded on neglect, in our view, it is the Attorney-General for their opinion on the point of arguable that deliberately withholding food and medi- law. A question to the effect ofwhether a regime which cal treatment and foreseeing the consequences that the allows a child to die with the ofthe parents may child may die may amount to manslaughter, murder or amount to murder or manslaughter might perhaps be be chargeable under s. i of the Children and Young framed from the facts and principles lying behind the Persons Act I933. Though the circumstances of R v prosecution, should the Attorney-General be willing to Instan (3) were vastly different from the kind ofclinical become involved. Though this is a possible solution, involved in 'allowing a child to die' there is we feel that the spectrum may be too broad for such an some analogy to be drawn. In Instan, a niece was held approach. to have a moral duty to care for her helpless 73-year-old We therefore set out below a draft Bill, which is less aunt who for the last ten days of her life was suffering an expression of our own of how the law from gangrene in her leg. The niece offered her aunt no should stand, than an attempt to create a statutory food and called no medical help. She was convicted of framework within which doctors may legally continue manslaughter since she had a duty to her aunt, and her what appears already to be widely accepted medical failure to offer her food and call in medical help had practice in relation to seriously and irreversibly handi- accelerated her death. capped babies. Medical science and operational tech- Another seemingly irreconcilable element in prevail- niques have rapidly advanced, and are to some extent ing medical practice is that of giving such very great responsible for the aggravation of these agonising life weight to the parents' wishes that a child should be and death decisions. How should the law face up to the allowed to die. That the parents' wishes should be challenge? Subject to a reference by the Attorney- disregarded because the interests ofthe child are para- General (5): i) It can either do nothing and go largely mount and there is a duty to preserve life, is well by default; 2) bring in a new statutory offence for illustrated in Re B (A Minor) (4) where a baby was doctors who fail to treat except in cases of incurable made a ward ofcourt, following her parents' refusal to illness of infants or where treatment would simply give consent for a life-saving operation to be carried prolong suffering, which would go some way toward out. The baby had Down's syndrome. The Court of enforcing the law as it stands now; or3) introduce a Bill Appeal gave its consent for the baby to have the on the lines suggested below. There is no happy solu- operation. tion, and the only thing in favour ofthis Bill for Limita- Notwithstanding the law, it seems probable that an tion of Treatment is that it does set out to regulate English jury will be most reluctant to convict a doctor, doctors' behaviour and lay down more thorough guide- who in , with the consent of the parents, lines and safeguards for the treatment of chronically 'allows a severely handicapped baby to die' with all the handicapped babies than exist at present. implications discussed above. Further, since the prac- tice is apparently well established, and Dr Arthur's was Draft Limitation of Treatment Bill the first case hauled before the , there is an A bill to regulate the conduct ofthe medical profession understandable reluctance on the part of the Director and others in the treatment of chronically disabled of Public Prosecutions (DPP) to prosecute, even when infants. reports of such incidents are submitted to him. This must be a very unsatisfactory state of affairs. The law i) Where apart from the provisions ofthis Act it would seems out of step and either goes by default or has otherwise be an offence it shall not be an offence if a evolved double standards to protect a doctor whereas a registered medical practitioner fails to administer or parent would in similar circumstances almost certainly ceases to administer to a patient under his care, treat- be convicted of homicide. ment necessary to preserve and/or prolong the life of that patient in the circumstances set out in S.2 below. 2) Where the patient is an infant under the age of 28 Changing ethics and morality in society days and; Ethics and morality in society are not rigid and the law (i) All persons having the rights ofa parent or guardian can be adjusted to take account of changes if those over the patient have consented in writing to cessation changes are felt to be for the good of society as a whole. or limitation of treatment by the medical practitioner. The past 20 years have, among other things, seen the (ii) Two medical practitioners acting in good faith (one passing of the Suicide Act i 96I, the controversial Ab- of whom may be the patient's own doctor) and at least ortion Act I967, the Sexual Offences Act I967 (which one of whom shall be a qualified paediatrician as amended the law in relation to homosexual acts by men hereinafter defined and both of whom shall be of not over 2I in private) and the various relating to less than seven years standing shall certify in writing divorce, by which the whole conception of the mat- that the patient is suffering from a severe physical and rimonial offence has supposedly been replaced with the or mental disability which in their opinion (having irretrievable breakdown of marriage. It has been sug- regard to the state ofmedical knowledge at the time) is gested elsewhere that R v Arthur might be referred to (a) irreversible or for which no treatment reasonably the Court of Appeal and ultimately to the House of available to the patient would result in the significant Lords, under s.36 of the Criminal Act I972 by alleviation of the said disability or Symposium I: The Arthur case - a proposalfor legislation 15

(b) of such gravity that the patient (after receiving all the use of such artificial aids as are normally available reasonably available treatment) would enjoy no to disabled people. worthwhile quality of life. 4) Nothing in this Act shall entitle the medical prac- 3) In considering whether the disability is of such a titioner to withhold food or sustenance from the character as that referred to in s.2(ii)(b) ofthis Act the patient unless in the opinion ofthe practitioner formed two medical practitioners shall be required to take into in good faith the provision of such food or sustenance account: shall directly increase the degree of pain and suffering (i) The degree of pain and suffering (both mental and occasioned by the patient. physical) likely to be encountered by the patient should 5) No person having a conscientious objection to the his life be prolonged cessation of treatment authorised by this Act shall be (ii) the ability and willingness of the parents of the under any duty to sign a certificate under S.2(ii) patient to provide the care and facilities appropriate to aforesaid. the patient's condition 6) (Definitions of 'medical practitioner' and 'paediatri- (iii) the likely effect on the mental and physical health cian' etc). ofthe parents and other members ofthe patient's family (Commentary begins on page i8) of the need to provide such care and facilities to the patient during his probable lifetime References and footnotes (iv) the likely treatment and conditions which would be available to the patient in the event of failure by his (i) British Medical Association (BMA) Handbook on ethics. family to provide such care and facilities 32, para 5, entitled Severely malformed infants. (v) the additional pain and suffering likely to be (2) R v Gibbins and Proctor (I9I8) 13 Cr App (Court of encountered by the patient arising from the need for Appeal) 134 to life (3) (I893) I QB 450. See also R v Stone (i977) frequent and repeated surgery required preserve QB (Queen's ) 354. (vi) the likely ability of the patient (4) Re B (A Minor) I98I Weekly law reports I421 CA. (a) to communicate (5) Since this article was first published, in The Law (b) to be aware of his surroundings and his condition Society's gazette, the Attorney-General has chosen not to (c) to perform unassisted at least some basic bodily refer any questions to the Court ofAppeal in that he has functions felt that the law on murder and manslaughter was clear (e) to achieve a degree of mobility taking into account and that the Arthur case turned on its own facts.

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