[Omissions - duty of husband to his wife]

D the husband of a woman who gave birth to a stillborn child at home, delivered by her
husband. D wanted to get medical attention for her but she would not allow this. Three
days later when she became unconscious, D called the doctor, who did not arrive until
after she died. The medical evidence was such that if a doctor had been summoned
earlier the woman might not have died.

Held: At the trial the judge instructed the jury that D owed a duty to his wife. The jury
could not agree upon the charge of manslaughter and was discharged from giving a
verdict.

Smith (1979) Crim LR 251

Mrs Smith was wary of Doctors and had asked her husband not to call them when she fell ill. Mr
Smith went along with the request from his wife and she later died. Mr Smith was charged, but
acquitted of manslaughter. The trial judge had emphasised that it pinged on whether Mrs Smith was
capable of rational decision-making. Had her condition been bad at the time she requested Mr Smith
that he were not to call the doctors, he may have been expected to override that request and call for
assistance. If on the other hand if she was well, and rational, at the time of requesting that the doctors
were not to be called then it would be reasonable to abide by her decision.

Ratio: The defendant had been convicted of the manslaughter by gross negligence of his wife.
On 14 March 2002 she had suffered a fall at home fracturing a number of bones including her
right leg and hip. The defendant sought no medical help until 4 April 2002 by which time his wife
was debilitated, very thin and suffering pressure sores. She did not survive her admission to
hospital. The defendant appealed against sentence.
Held: The fact that the deceased was unwilling to go to hospital and that she could have sounded
an alarm which would have been heard by the warden at their home were treated as mitigating
features.

The case of

- R v Smith [1979] Crim LR 251 suggest that spouse also have a special relationship, and,
as such, own each other a duty to act to aid each other. The jury in this case were directed
to consider whether it was reasonable for the defendant to abide by his wife's request that
he should not call a doctor, if, indeed, the wife had the capacity to make rational decisions at
the time of her request. The jury were unable to agree on a verdict and were eventually
discharged. However, the authority does suggest that spouses may have a special
relationship.

It might be argued that this suggestion is support by the case of

- R v Hood [2004] 1 Cr App R (S) 73: While the defendant was convicted on the basis of his
omissions here, it is not clear from the case whether he was convicted on the basis that he
held a special relationship with the victim, as her husband, or that he was deemed to have
voluntary assumed responsibility for her, as her sole carer.
The scope of a special relationship is not entirely clear. We know that parents children
relationship of covered within this category and it would appear that spouses also fall under
this category, but it is unlikely that blood relatives and separated spouses have a special
relationship. It would appear that a blood relationship does not automatically result in a
special relationship. Similarly, separated spouses and cohabiting couples will not necessarily
be in a clear special relationship, there may be a duty to act imposed due to voluntary
assumptions of responsibility.

A doctor patient relationship is clearly a special relationship. As such, a doctor has a duty to
keep the patient alive. This is a complicated and controversial area of the law. However a
doctor and is a patient's life through the administration of a drug which has the effect of
accelerating death, the doctor will be guilty of murder or manslaughter. In the case of

- Dr Arthur (1981) 12 BMLR 1: The jury acquitted the defendant after the trial judge directed
them that they should consider whether 'there was an act properly so called on the parts of
Dr Arthur, as distinct from simply allow the child to die'. Withholding food from the child and,
consequently, allow the child to die would not be unlawful. This is a 'negative' act, a mere
omission which no criminal liability can be imposed on the doctor.

This important issue was determined in the well-known case of

- Airedale NHS trust v Bland [1993] 2 WLR 316: The High Court granted the declaration and
was upheld on the appeal to the House of Lords. The house (acting in a civil capacity) held
that switching of the life-support machine amounted to an omission, not a positive act.
Consequently, there would be no resulting liability.

So, a doctor will be liable for murder or manslaughter where the doctor does a positive act
which brings about the death of the patient. The doctor also owes a patient a duty to act to
provide medical treatment in order to preserve the life of the patient. However, the courts
have taken a liberal approach insofar as doctors are concerned, so as to protect doctors
from criminal prosecution for murder when they withdraw treatment from a patient where it is
in the best interests of the patient to do so.