A lawyer at the Conference was heard (by a not her lawyer) to dismiss the belief I here express that there can be intentional killing by omission. There is no doubt that in English law there can be murder by a course of omissions intended to cause death. In the text of the talk. I speak of such omissions as chosen “precisely with a view to bringing about death”. This, in fact, represents too narrow an understanding of what is required in law for murder by omission, as will be evident from the following direction approved by the Court of Criminal Appeal in R. v Gibbins and Proctor (1918) 13 Cr. App. R. 134 at 137-8: “… if you think that one or other of these prisoners wilfully and intentionally withheld food from that child so as to cause her to weaken and to cause her grievous bodily injury, as the result of which she died, it is not necessary for you to find that she intended or he intended to kill the child then and there. It is enough if you find that he or she intended to set up such a set of facts by withholding food or anything as would in the ordinary course of nature lead gradually but surely to her death.” (Emphasis added.) The Court in Gibbins and Proctor was aware of many earlier directions to like effect, and specifically approved that given in R. v Bubb and Hook (1850) 10 Cox C. C. 455 at 459. The concept of murder by omission is fully confirmed by the Infanticide Act 1938, s. 1(I), and the Homocide Act 1957, s. 2(1). (I am indebted for the foregoing to an unpublished paper by Prof. J. M. Finnis, ‘Murder and Paediatric ‘Holding Operations’ “.) The applicability of the direction in Gibbins and Proctor in Regina v Arthur (1981) was strangely and conspicuously overlooked by the judge in that case. But it will be recalled that in a written answer to a question about that case the then Attorney General, Sir Michael Havers, concluded: “I am mindful of the desire of many people to understand clearly what the legal position is in relation to cases such as gave rise to the prosecution of Dr. Arthur. I therefore say that I am satisfied that the law relating to murder and attempted murder is the same now as it was before the trial; that it is the same irrespective of the age of the victim; and that it is the same irrespective of the wishes of the parents or any other person having a duty of care to the victim. I am also satisfied that a person who has a duty of care may be guilty of murder or attempted murder by omitting to fulfill that duty, as much as by committing any positive act.” (Hansard, 9 March 1982, col. 349; emphasis added.) The most noteworthy oversight in the Report of the British Medical Association's Working Party on Euthanasia (London, BMA 1988) is its failure to recognize that an intention to kill may be accomplished by planned omissions. Paragraph 92 of the Report understands decisions to terminate someone's life as essentially involving “an act or intervention which causes death”. The Report's failure to recognize “intentional killing by omission” is directly connected with what, in my view, is the clearly euthanasiast recommendation (in paragraph 134) on what to do about babies with severe defects who may succeed in being “lingering survivors”: “Hydration should be provided and the patient should not be deprived of the normal cuddling that expresses a fundamental human concern”; in other words, it is acceptable to deprive the child of normal nutrition in order to ensure that it does not succeed in being a “lingering survivor”. Paragraph 134 reveals a glaring Achilles heel in the BMA Committee's supposed opposition to euthanasia. It is clear from paragraphs 172-175 that some of the decisions taken in some UK paediatric units are euthanasiast: but this fact about present practice is not acknowledged by the Working Party. For a fuller discussion of these matters see The Linacre Centre Working Party Report, Euthanasia and Clinical Practice: trends, principles and alternatives (London, The Linacre Centre 1982), especially pp. 5-10, 32-34, 50-53, 55-61, 63-66.
2.
The chairman of the Voluntary Euthanasia Society has sought to argue that to describe voluntary euthanasia as killing betrays a blindness to conceptual distinctions: the distinction is as obvious, she says, as the distinction between rape and “making love”. (See Jean Davies, “Raping and making love are different concepts: so are killing and voluntary euthanasia”, in Journal of Medical Ethics 14 (1988), 148-149.) “Making love” is itself a morally ambiguous euphemism, often employed in our society to describe sexual intercourse whether in a marital relationship, in an adulterous relationship, or as fornication. Rape is defined as “unlawful sexual intercourse with a woman without her consent”. It is distinguished from marital intercourse, adulterous intercourse and fornication by the absence of consent. But what it has in common with them is its being an act of sexual intercourse. Similarly, judicial execution of a man for a capital offense and euthanasia have it in common that they are acts of killing. The question of which of the acts, if any, is justified is not settled by the description of them as “killing”, any more than a similar question is settled about acts which can all be described as “sexual intercourse” by the mere use of that description (nor, for that matter, would it be settled if all the acts were euphemistically describable as “making love”).
3.
See GormallyLuke“A Non-Utilitarian Case against Voluntary Euthanasia”, in DowningA. B., and SmokerB. (eds.) Voluntary Euthanasia, London, Peter Owen1986, 72–95.
4.
For a position of the kind referred to, see the letter from Mrs. Jean Da vies, chairperson of the Voluntary Euthanasia Society, in IME Bulletin, No. 48, (March 1989), p. 2; see my reply in IME Bulletin, No. 50, (May 1989), p. 2.
5.
In these two paragraphs I repeat something of what I say at pp. 84-85 of the article cited in Note 2.
6.
After my criticism of the BMA Report in Note I above, I should like to acknowledge that the Report contains paragraphs which finely express the profound inappropriateness of euthanasia as a solution to the human predicament of adult patients who are dying in pain and distress. Particularly notable among these paragraphs is 146: It is precisely because human life has depths, and a value that may take fresh and unexpected form, even up until the moment of death, that it must not be cut short. This commitment to the preservation of life must be tempered with a sensitivity to the wishes and experiences of the dying patient. That sensitivity, indeed reverence, may be blunted, as medical sensitivities so often are, when there is an accepted “treatment to be offered rather than an ethically demanding situation to be confronted. Opting for a “treatment” — voluntary euthanasia — which can be administered given certain indications precipitates the danger of substituting a technique (which draws on professional skill) for a human response in the midst of a deeply human experience which, above all, requires us to draw on our full character as human beings. This implies that a reference for persons, and for the way that we ought to relate to persons in need and for the kinds of persons we want our doctors to be, tells against rather that for euthanasia.”
