Omissions and best interests Sample Clauses

Omissions and best interests. Medical decisions to abstain from intervention occur frequently at the end of life.146 In the majority of cases, there is no question of a physician being prosecuted for non- treatment. In many of these cases, the absence of criminal liability can be explained by reference to common-sense causation. Thus in cases in which the patient is dying from her underlying condition and nothing her physician does can avert or delay death, we may say that the ‘but for’ cause of death is the illness or disease, and not the physician’s withholding or withdrawing treatment.147 However, there may be cases in which an appeal to ‘but for’ causation alone fails to explain why the physician’s conduct is not criminal. We might encounter a scenario in which a patient provided intervention φ would die at T2, and the same patient not treated would die at T1. Assuming we were inclined to believe that intervention φ would have prolonged life, we might advance that the physician’s non-treatment decision shortens the patient’s life by the difference between T1 and T2; but for the abstention, the patient dies later. On this view, 144 eg No specialist knowledge is in principle required to apply the Mental Capacity Act 2005 test for capacity: Department for Constitutional Affairs, Mental Capacity Act 2005: Code of Practice (2007) para 4.36, 6.1 xxxxx://xxx.xxx.xx/government/uploads/system/uploads/attachment_data/file/224660/Mental_C apacity_Act_code_of_practice.pdf accessed 2015/12/12. 145 The extent of D’s duty is a matter for the Court, and not the jury: Xxxxx (n 121): [37]-[47]. 146 In a 2008 survey, Xxxxx Xxxxx found non-treatment decisions to occur in 21.8% of surveyed cases in which a physician had attended to a patient who died: C Xxxxx, ‘End-of-life decisions in the UK involving medical practitioners’ (2009) 23(3) Palliat Med 198, table 1. 147 Xxxxxxx (n 118). abstention causes death.148 However, the law allows that notwithstanding a physician’s conduct contributing to the time at which her patient dies, it may be held not to constitute a novus actus interveniens that breaks the causal chain set in motion by the patient’s underlying condition.149 This is because notwithstanding the doctor’s abstention being a factual cause of her patient’s death, her legal responsibility relies on the presence of a duty to act. When there is no duty to act, or where the duty has not been breached, the doctor’s conduct may not be the legal cause of death. We have seen that the physician’s legal d...