Editorial
227
MEDICO-LEGAL JOURNAL Founded 1901
1992
Vol. 60
Part Four
EDITORIAL Doctors in the Dock: the last sixty years
As one would expect, conscientious and respected doctors are rarely prosecuted in the criminal courts for offences arising from their practise of medicine. Until recently, many believed that where a doctor's personal sense of ethics and duty brought him into conflict with the technicalities of the Law, the good sense of a jury would protect him from conviction if he impressed them as honest, caring and ethical. However, the recent conviction of Dr Nigel Cox for attempted murder (in the context of pain-relieving mercy killing of a terminally ill patient) by an obviously distressed jury has stripped away such illusions and left doctors feeling more vulnerable than ever. Further, at the other end of the scale, should be noted the recent unprecedented successful prosecutions for manslaughter against doctors whose reckless negligence caused the deaths of patients under anaesthesia. Doctors, so often accused of playing God, may be forgiven for feeling increasingly vulnerable before the Law. Leaving medical negligence, gross or otherwise to one side, there have been four cause celebres over the last sixty years, which have involved doctors and engaged nationwide public debate and interest, namely: Bourne, Bodkin Adams, Arthur and most recently Cox. All but Bourne were accused of unlawfully killing or attempting to kill their patients and all but Bourne were advised against going into the witness box to give evidence. All but Dr Bodkin Adams, a popular GP in Eastbourne with a large number of elderly patients and about whom rumours had begun to circulate for some time prior to prosecution, were highly respected consultants. All but Dr Cox were acquitted, though Dr Bodkin Adams was struck off for some years for offences relating to his failure to maintain a proper register relating to his use of dangerous drugs. Alec Bourne was unique in that he deliberately placed himself in jeopardy by informing the police of his intention to perform an abortion at St Mary's Hospital and defending his principles from the witness box on oath. The arguments accepted by the judge in support of the case for performing abortions in order to preserve not just the physical but also mental health of the mother went down in legal history and to a degree liberalised the law on abortion prior to the passing of the Abortion Act 1967 by Parliament. It is interesting to note that
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Bourne opposed the 1967Act. A ward is named after him at St Mary's Hospital but, sadly, it is the lawyers not the doctors who would recognise his name and his case history. Until the Act of 1967 (now further amended by the Human Fertilisation and Embryology Act 1990) R v Bourne [1939] 1 KB 687 was the leading case on the permitted limits of lawful abortion and child destruction under sections 58 and 59 of the Offences Against the Persons Act 1861 and the Infant life Preservation Act 1929 Act respectively. In jurisdictions such as Southern and Northern Ireland, where section 58 and 59 of the Offences Against the Person Act 1861 have not been amended and liberalised, Bourne's case remains the seminal one. In a nutshell, Alec Bourne, a respected obstetrician and gynaecologist, was charged under s58 of the Offences Against the Persons Act of causing a criminal miscarriage by reason of his decision to perform an abortion on a fifteen year old girl who had been raped by soldiers in Hyde Park in 1938. He was exonerated by the judge before the jury. In the 1950sDr Bodkin Adams found himself at the centre of a prosecution for the murder of an elderly patient whom he had given large doses of morphine. Dr Bodkin Adams had many elderly patients who were resident in nursing homes and whom he visited very regularly. He was very popular with the patients and their families. Perhaps unwisely, he encouraged grateful patients and their families to remember him in their willsrather than pay him fees which at that time attracted very heavy rates of tax. When patients died in their eighties of no paticular cause and Dr Bodkin Adams was seen to inherit a Rolls Royce or a canteen of silver cutlery, tongues began to wag. Years after the death of the patient in question, Dr Bodkin Adams was charged with murder, though there were rumoured to be many similar cases. To the chagrin of the prosecution, however, Dr Bodkin Adams' lawyers did not allow the garrulous doctor to go into the witness box thus limiting the scope for examintion of precisely what had occurred and what dose of morphine had been administered. The nurses' evidence was weak and contradictory and Dr Bodkin Adams was acquitted though many thought him guilty, not only of killing off Mrs Morell, who was over eighty and disabled by a stroke, but many other elderly patients. Dr Leonard Arthur was accused of murdering a Down's syndrome baby (whose parents did not want him to survive). He was acquitted in 1981 after a prosecution for murder was reduced to attempted murder following rejection of the prosecution's expert evidence on the state of the baby's poor health which could have resulted in the baby's death at any moment. A series of paediatricians went into the witness box and testified as to the appropriateness of Dr Arthur's management of the case but, like Bodkin Adams, Dr Arthur did not go into the witness box himself. There was (and remains) enormous controversy focused on the legal rights of handicapped babies to be provided with all manner of medical care and support and the ethics and legality of discontinuing such treatment. Dr Arthur was acquitted amid general relief and anxiety only to die from a brain tumour some six months later. Unlike Bourne, Bodkin Adams and Arthur, Dr Cox was found guilty as charged - namely of attempted murder of a terminally ill patient who was
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suffering from unbearable and untreatable pain. Dr Cox gave her a potassium chloride injection and recorded it in her notes. Since potassium chloride has no analgesic qualities and is lethal in the quantities prescribed, there was little which could be offered by way of a defence to the charge that the intent of Dr Cox had been to cause death when he administered it. The judge did not accept the argument that the doctor's intention was to relieve pain and incidentally to shorten life as was successfully argued in Bodkin Adams. Though in Bodkin Adams, there was no evidence that Mrs Morell had been in pain and needed pain relieving drugs, and much was made of Dr Bodkin Adams ignorance of the effects of large doses of morphine! Dr Nigel Cox received a generally very sympathetic press and the jury who convicted him were clearly distressed at their findings. Many feel that he acted ethically albeit foolishly and overstepped the legal limit. Arguably, he could have achieved the same effect by giving large quantities of analgesics. In the event, Dr Cox had to wait a year for trial while suspended from his hospital (on full pay) and now faces a General Medical Council hearing and, subject to the Council's findings, faces a further hearing in connection with his employment by the health authorty. He received a suspended prison sentence double the length meted out to the two doctors whose negligence killed two otherwise healthy patients. He does not intend to appeal either sentence or verdict. * Diana Brahams 'See Euthanasia: Doctor convicted of attempted murder page 272.
The Professional Conduct Committee of the General Medical Council met on the 16th and 17th November to consider Dr Cox's case. A number of possible options were open to them having heard the evidence including erasure or suspension from the Medical Register, transfer to the Health Committee or to conclude the case. In their decision they point out that every doctor has a duty to obey the law and that it iswholly outside the duty of a doctor to shorten life in order to relieve suffering. The committee recorded its sympathy with the family and Dr Cox and note that it was not disputed that Dr Cox acted in good faith. Their decision concludes with these words: 'In particular the Committee have considered whether they should direct the erasure of your name from the Register or the suspension of your registration. They have also taken careful note of the sentence pronounced by the criminal court. The court tempered justice with mercy. The Committee propose, having heard evidence of the clinical situation in this exceptional case, to follow the same course. With these words, therefore, your case is now concluded.' R. T. Shepherd
227
MEDICO-LEGAL JOURNAL Founded 1901
1992
Vol. 60
Part Four
EDITORIAL Doctors in the Dock: the last sixty years
As one would expect, conscientious and respected doctors are rarely prosecuted in the criminal courts for offences arising from their practise of medicine. Until recently, many believed that where a doctor's personal sense of ethics and duty brought him into conflict with the technicalities of the Law, the good sense of a jury would protect him from conviction if he impressed them as honest, caring and ethical. However, the recent conviction of Dr Nigel Cox for attempted murder (in the context of pain-relieving mercy killing of a terminally ill patient) by an obviously distressed jury has stripped away such illusions and left doctors feeling more vulnerable than ever. Further, at the other end of the scale, should be noted the recent unprecedented successful prosecutions for manslaughter against doctors whose reckless negligence caused the deaths of patients under anaesthesia. Doctors, so often accused of playing God, may be forgiven for feeling increasingly vulnerable before the Law. Leaving medical negligence, gross or otherwise to one side, there have been four cause celebres over the last sixty years, which have involved doctors and engaged nationwide public debate and interest, namely: Bourne, Bodkin Adams, Arthur and most recently Cox. All but Bourne were accused of unlawfully killing or attempting to kill their patients and all but Bourne were advised against going into the witness box to give evidence. All but Dr Bodkin Adams, a popular GP in Eastbourne with a large number of elderly patients and about whom rumours had begun to circulate for some time prior to prosecution, were highly respected consultants. All but Dr Cox were acquitted, though Dr Bodkin Adams was struck off for some years for offences relating to his failure to maintain a proper register relating to his use of dangerous drugs. Alec Bourne was unique in that he deliberately placed himself in jeopardy by informing the police of his intention to perform an abortion at St Mary's Hospital and defending his principles from the witness box on oath. The arguments accepted by the judge in support of the case for performing abortions in order to preserve not just the physical but also mental health of the mother went down in legal history and to a degree liberalised the law on abortion prior to the passing of the Abortion Act 1967 by Parliament. It is interesting to note that
228
M edico-Legal Journal60/4
Bourne opposed the 1967Act. A ward is named after him at St Mary's Hospital but, sadly, it is the lawyers not the doctors who would recognise his name and his case history. Until the Act of 1967 (now further amended by the Human Fertilisation and Embryology Act 1990) R v Bourne [1939] 1 KB 687 was the leading case on the permitted limits of lawful abortion and child destruction under sections 58 and 59 of the Offences Against the Persons Act 1861 and the Infant life Preservation Act 1929 Act respectively. In jurisdictions such as Southern and Northern Ireland, where section 58 and 59 of the Offences Against the Person Act 1861 have not been amended and liberalised, Bourne's case remains the seminal one. In a nutshell, Alec Bourne, a respected obstetrician and gynaecologist, was charged under s58 of the Offences Against the Persons Act of causing a criminal miscarriage by reason of his decision to perform an abortion on a fifteen year old girl who had been raped by soldiers in Hyde Park in 1938. He was exonerated by the judge before the jury. In the 1950sDr Bodkin Adams found himself at the centre of a prosecution for the murder of an elderly patient whom he had given large doses of morphine. Dr Bodkin Adams had many elderly patients who were resident in nursing homes and whom he visited very regularly. He was very popular with the patients and their families. Perhaps unwisely, he encouraged grateful patients and their families to remember him in their willsrather than pay him fees which at that time attracted very heavy rates of tax. When patients died in their eighties of no paticular cause and Dr Bodkin Adams was seen to inherit a Rolls Royce or a canteen of silver cutlery, tongues began to wag. Years after the death of the patient in question, Dr Bodkin Adams was charged with murder, though there were rumoured to be many similar cases. To the chagrin of the prosecution, however, Dr Bodkin Adams' lawyers did not allow the garrulous doctor to go into the witness box thus limiting the scope for examintion of precisely what had occurred and what dose of morphine had been administered. The nurses' evidence was weak and contradictory and Dr Bodkin Adams was acquitted though many thought him guilty, not only of killing off Mrs Morell, who was over eighty and disabled by a stroke, but many other elderly patients. Dr Leonard Arthur was accused of murdering a Down's syndrome baby (whose parents did not want him to survive). He was acquitted in 1981 after a prosecution for murder was reduced to attempted murder following rejection of the prosecution's expert evidence on the state of the baby's poor health which could have resulted in the baby's death at any moment. A series of paediatricians went into the witness box and testified as to the appropriateness of Dr Arthur's management of the case but, like Bodkin Adams, Dr Arthur did not go into the witness box himself. There was (and remains) enormous controversy focused on the legal rights of handicapped babies to be provided with all manner of medical care and support and the ethics and legality of discontinuing such treatment. Dr Arthur was acquitted amid general relief and anxiety only to die from a brain tumour some six months later. Unlike Bourne, Bodkin Adams and Arthur, Dr Cox was found guilty as charged - namely of attempted murder of a terminally ill patient who was
Editorial
229
suffering from unbearable and untreatable pain. Dr Cox gave her a potassium chloride injection and recorded it in her notes. Since potassium chloride has no analgesic qualities and is lethal in the quantities prescribed, there was little which could be offered by way of a defence to the charge that the intent of Dr Cox had been to cause death when he administered it. The judge did not accept the argument that the doctor's intention was to relieve pain and incidentally to shorten life as was successfully argued in Bodkin Adams. Though in Bodkin Adams, there was no evidence that Mrs Morell had been in pain and needed pain relieving drugs, and much was made of Dr Bodkin Adams ignorance of the effects of large doses of morphine! Dr Nigel Cox received a generally very sympathetic press and the jury who convicted him were clearly distressed at their findings. Many feel that he acted ethically albeit foolishly and overstepped the legal limit. Arguably, he could have achieved the same effect by giving large quantities of analgesics. In the event, Dr Cox had to wait a year for trial while suspended from his hospital (on full pay) and now faces a General Medical Council hearing and, subject to the Council's findings, faces a further hearing in connection with his employment by the health authorty. He received a suspended prison sentence double the length meted out to the two doctors whose negligence killed two otherwise healthy patients. He does not intend to appeal either sentence or verdict. * Diana Brahams 'See Euthanasia: Doctor convicted of attempted murder page 272.
The Professional Conduct Committee of the General Medical Council met on the 16th and 17th November to consider Dr Cox's case. A number of possible options were open to them having heard the evidence including erasure or suspension from the Medical Register, transfer to the Health Committee or to conclude the case. In their decision they point out that every doctor has a duty to obey the law and that it iswholly outside the duty of a doctor to shorten life in order to relieve suffering. The committee recorded its sympathy with the family and Dr Cox and note that it was not disputed that Dr Cox acted in good faith. Their decision concludes with these words: 'In particular the Committee have considered whether they should direct the erasure of your name from the Register or the suspension of your registration. They have also taken careful note of the sentence pronounced by the criminal court. The court tempered justice with mercy. The Committee propose, having heard evidence of the clinical situation in this exceptional case, to follow the same course. With these words, therefore, your case is now concluded.' R. T. Shepherd
