The traditional view was encapsulated in the example of watching a person drown in shallow water and making no rescue effort, where commentators borrowed the line, "Thou shalt not kill but needst not strive, officiously, to keep another alive."
In R v Dytham (1979) QB 722 an on-duty police officer stood and watched a man beaten to death outside a nightclub.
This involves an element of culpability which is not restricted to corruption or dishonesty, but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.In the Attorney General's Reference (No 3 of 2003) (2004) EWCA Crim 868[2] police officers arrested a man with head injuries for a breach of the peace because of his abusive and aggressive behaviour towards the hospital staff who were trying to treat him.
It was held that the latter offence required that a public officer was acting as such, that he willfully neglected to perform his duty and/or willfully misconducted himself in a way which amounted to an abuse of the public's trust in the office holder, without reasonable excuse or justification; that whether the misconduct was of a sufficiently serious nature would depend upon the responsibilities of the office and the office holder, the importance of the public objects which they served, the nature and extent of the departure from those responsibilities and the seriousness of the consequences which might follow from the misconduct; that to establish the mens rea (Latin for "guilty mind") of the offence, it had to be proved that the office holder was aware of the duty to act or was subjectively reckless as to the existence of the duty; that the test of recklessness applied both to the question whether in particular circumstances a duty arose at all and to the conduct of the defendant if it did arise; and that the subjective test applied both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission.
[3] The general rule is that parents, legal guardians, spouses (see R v Smith (1979) CLR 251 where the wife died after giving birth to a stillborn child, delivered by her husband at home) and anyone who voluntarily agrees to care for another who is dependent because of age, illness or other infirmity, may incur a duty, at least until care can be handed over to someone else.
Mere neglect without some foresight of the possibility of harm resulting is not a ground of constructive manslaughter, even if that omission is deliberate.
Although the switching-off had to be performed by a doctor, and this is an act intentionally causing death, the law characterises this as an omission because it amounts simply to a cessation of the ongoing treatment.
Similarly, when the patient is a minor, emergency treatment to preserve life will not be unlawful (note the power to refer issues of consent to the courts under their wardship jurisdiction).
In death with dignity situations where a patient is incapable of communicating his wishes, a doctor may be relieved of his duty, as the House of Lords recognised in Airedale National Health Service Trust v Bland (1993) AC 789.
Here a patient who had survived for three years in a persistent vegetative state after suffering irreversible brain damage in the Hillsborough disaster continued to breathe normally, but was kept alive only by being fed through tubes.
This caused a train to collide with a hay cart, and the court ruled that "a man might incur criminal liability from a duty arising out of contract."
[6][7][8]In the law of negligence, if the defendant's conduct took the form of an omission, rather than a positive act, then it will be more difficult to establish that she owed a duty of care to the plaintiff.
In a case raised between the European Commission and France in 1995 following protests and violent action undertaken by French farmers interrupting the supply of Belgian tomatoes and Spanish strawberries into France, the European Court of Justice ruled that a state's failure to act can have just the same effect as state positive action:The fact that a Member State abstains from taking action or, as the case may be, fails to adopt adequate measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private individuals on its territory aimed at products originating in other Member States is just as likely to obstruct intra-Community trade as is a positive act.