Causation

The argument that ‘it wouldn’t have happened if the doctors hadn’t made such a mess of it’ has never been one with much chance of success in a criminal case - Justin Santiago

The courts have adopted a particularly strict approach to breaks in the chain of causation involving the conduct of medical professionals. It is for policy decisions that medical personnel are not held guilty of a crime since they are under a duty to act and are doing so in a fully informed manner to help in administering treatment in potentially life threatening situations. The courts have decided that the orginal wound must have ceased to operate AND the subsequent treatment was palpably abnormal.

Legal causation is important in all result crimes i.e. crimes such as murder which result in a prohibited consequence such as death. Legal causation differs from factual causation in that it seeks to find the most blameworthy factual cause as the basis for liability even if this is not the most immediate cause of death. An intervening act such as medical negligence may operate to break the chain of causation. There are several criteria by which the accused would still be liable regardless of negligent medical treatment :

1. If at the time of death, the original wounds or injuries inflicted by him were still an operative cause of that death
2. The accused would be convicted if the reason for death was a foreseeable consequence of his actions
3. The accused must take his victim as he finds him : R v Blaue

However a long line of cases have upheld the contention that to convict medical personnel for incorrectly administering treatment would require very strict tests. In R v Malcherek it was decided if the treatment is given bona fide by competent and careful medical practitioners, then the fact that the victim died will not exonerate the original assailant from responsibility for death.

In R v Jordan it was held that the medical treatment must have been palpably wrong to break the chain of causation and remove liability for causing death. Accordign to the court, death which resulted from normal medical treatment would not break the chain of causation.

In the case of R v Smith it was held that the medical treatment must be so overwhelmingly bad as to make the original wound merely part of the history would there be liability on the part of the doctors. If the original wound is still an operating and substantial cause then death can properly be said to be the result of the wound.

In R v Cheshire it was held by the Court of Appeal that although the trial judge had been wrong in misdirecting the jury that only recklessness on the part of doctors would break the chain of causation it was only in the most extraordinary cases that medical treatment of any injury would break the chain of causation. A number of further points were brought up that absolved the doctors from any liability. That the acts by the accused need not be the sole cause or even the main case of death. It need only contribute significantly to the result. The medical treatment can only exclude the accused if it was so independent of the accused’s act and itself was so potent in causing death so as to make the accused’s act insignificant.

Following R v Mellor in medical negligence cases, less emphasis would be placed on wrongful medical treatment due to policy reasons. As long as the other causes of death were a significant cause, these would have more bearing on the case.

In the case of medical cases where the doctor voluntarily end the life of a patient he would not be able to avail himself of the defence of necessity although as it is not a defence to murder : R v Dudley & Stephens. This is contrasted with Re A (conjoined twins) where the defence was allowed in cases where it was a lawful medical procedure an there was reference to a respectable body of opinion : R v Bolitho. It seems that the courts now do recognize a special defence for a doctor under certain circumstances. In Airdale NHS Trust v Bland, it was referred obiter that a doctor may, when caring for a patient who is dying, lawfully administer painkilling drugs, despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient’s life.