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14 Extract from the judgment in R v Malcherek; R v Steel [1981]

2 All ER 422, 422 –429

This material relates to the Criminal law subject guide, Chapter 7.

Criminal law Study pack page 79

R v Malcherek; R v Steel [1981] 2 All ER 422, 422–429

Lord Lane: This is not the occasion for any decision as to what constitutes death.
Modern techniques have undoubtedly resulted in the blurring of many of the
conventional and traditional concepts of death. A person’s heart can now be removed
altogether without death supervening; machines can keep the blood circulating
through the vessels of the body until a new heart can be implanted in the patient,
and even though a person is no longer able to breathe spontaneously a ventilating
machine can, so to speak, do his breathing for him, as is demonstrated in the two cases
before us. There is, it seems, a body of opinion in the medical profession that there is
only one true test of death and that is the irreversible death of the brain stem, which
controls the basic functions of the body such as breathing. When that occurs it is said
the body has died, even though by mechanical means the lungs are being caused to
operate and some circulation of blood is taking place.

We have had placed before us, and have been asked to admit, evidence that in each
of these two cases the medical men concerned did not comply with all the suggested
criteria for establishing such brain death. Indeed, further evidence has been suggested
and placed before us that those criteria or tests are not in themselves stringent
enough. However, in each of these two cases there is no doubt that whatever test is
applied the victim died; that is to say, applying the traditional test, all body functions,
breathing and heartbeat and brain function came to an end, at the latest, soon after
the ventilator was disconnected.

The question posed for answer to this court is simply whether the judge in each case
was right in withdrawing from the jury the question of causation. Was he right to rule
that there was no evidence on which the jury could come to the conclusion that the
assailant did not cause the death of the victim?

The way in which the submissions are put by counsel for Malcherek on the one hand
and by counsel for Steel on the other is as follows: the doctors, by switching off the
ventilator and the life support machine, were the cause of death or, to put it more
accurately, there was evidence which the jury should have been allowed to consider
that the doctors, and not the assailant, in each case may have been the cause of death.

In each case it is clear that the initial assault was the cause of the grave head injuries in
the one case and of the massive abdominal haemorrhage in the other. In each case the
initial assault was the reason for the medical treatment being necessary. In each case
the medical treatment given was normal and conventional. At some stage the doctors
must decide if and when treatment has become otiose. This decision was reached, in
each of the two cases here, in circumstances which have already been set out in some
detail. It is no part of the task of this court to inquire whether the criteria, the Royal
Medical College confirmatory tests, are a satisfactory code of practice. It is no part of
the task of this court to decide whether the doctors were, in either of these two cases,
justified in omitting one or more of the so called ‘confirmatory tests’. The doctors are
not on trial: Steel and Malcherek respectively were...

There is no evidence in the present case here that at the time of conventional death,
after the life support machinery was disconnected, the original wound or injury was
other than a continuing, operating and indeed substantial cause of the death of the
victim, although it need hardly be added that it need not be substantial to render the
assailant guilty. There may be occasions, although they will be rare, when the original
injury has ceased to operate as a cause at all, but in the ordinary case if the treatment
is given bona fide by competent and careful medical practitioners, then evidence will
not be admissible to show that the treatment would not have been administered
in the same way by other medical practitioners. In other words, the fact that the
victim has died, despite or because of medical treatment for the initial injury given
by careful and skilled medical practitioners, will not exonerate the original assailant
from responsibility for the death. It follows that so far as the ground of appeal in each
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of these cases relates to the direction given on causation, that ground fails. It also
follows that the evidence which it is sought to adduce now, although we are prepared
to assume that it is both credible and was not available properly at the trial (and a
reasonable explanation for not calling it at the trial has been given), if received could,
under no circumstances, afford any ground for allowing the appeal.

The reason is this. Nothing which any of the two or three medical men whose
statements are before us could say would alter the fact that in each case the assailant’s
actions continued to be an operating cause of the death. Nothing the doctors
could say would provide any ground for a jury coming to the conclusion that the
assailant in either case might not have caused the death. The furthest to which their
proposed evidence goes, as already stated, is to suggest, first, that the criteria or the
confirmatory tests are not sufficiently stringent and, second, that in the present case
they were in certain respects inadequately fulfilled or carried out. It is no part of this
court’s function in the present circumstances to pronounce on this matter, nor was it
a function of either of the juries at these trials. Where a medical practitioner adopting
methods which are generally accepted comes bona fide and conscientiously to the
conclusion that the patient is for practical purposes dead, and that such vital functions
as exist (for example, circulation) are being maintained solely by mechanical means,
and therefore discontinues treatment, that does not prevent the person who inflicted
the initial injury from being responsible for the victim’s death. Putting it in another
way, the discontinuance of treatment in those circumstances does not break the chain
of causation between the initial injury and the death.

Although it is unnecessary to go further than that for the purpose of deciding the
present point, we wish to add this thought. Whatever the strict logic of the matter
may be, it is perhaps somewhat bizarre to suggest, as counsel have impliedly done,
that where a doctor tries his conscientious best to save the life of a patient brought to
hospital in extremis, skilfully using sophisticated methods, drugs and machinery to do
so, but fails in his attempt and therefore discontinues treatment, he can be said to have
caused the death of the patient.

For these reasons we do not deem it either necessary under s.23(2) of the Criminal
Appeal Act 1968 nor desirable or expedient under s.23(1) to receive the proposed
evidence of the doctors which, in statement form, has been placed before us. Likewise,
there is no ground for saying that the judge in either case was wrong in withdrawing the
issue of causation from the jury. It follows that the appeal of Malcherek is dismissed. It
now remains to consider the application in the case of Steel in so far as it relates to the
matters other than causation.