Necessaries of Life

Introduction

The duty to provide necessaries of life is codified in Section 151 of the Crimes Act 1961. It provides:

1. Every one who has charge of any other person unable, by reason of detention, age, sickness, insanity, or any other cause, to withdraw himself from such charge, and unable to provide himself with the necessaries of life, is (whether such charge is undertaken by him under any contract or is imposed upon him by law or by reason of his unlawful act or otherwise howsoever) under a legal duty to supply that person with the necessaries of life, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that person is caused or if his life is endangered or his health permanently injured, by such omission.
2. Every one is liable to imprisonment for a term not exceeding 7 years who, without lawful excuse, neglects the duty specified in this section so that the life of the person under his charge is endangered or his health permanently injured by such neglect.

The New Zealand Crimes 1961 can be traced to the Crimes Act 1908 and the Criminal Code Act 1893.

The 1893 Act was itself the culmination of a series of reports, draft codes and draft bills prepared in England as far back as 1833. By far the most influential draft criminal code was compiled in 1878 under the stewardship of Sir James Stephen. The 1878 "Stephen Code" was never enacted in England but it did form the basis of statutory criminal codes in New Zealand, Canada, and a number of Australian States. The "Stephen Code" analysed and adopted most common law offences and principles, including the duty to provide necessaries of life.

Common Law Duty to Provide Necessaries of Life

In his text "Digest of Criminal Law" first published in 1877 Sir James Stephen illustrated with three examples the common law duty to provide necessaries of life. The relevant part of the text reads:

1. A, neglects to find proper food and lodging for her servant B, who has a weak mind but is 23 years old. B's life is shortened by such neglect. A is criminally responsible if B was in such an infeebled state of body and mind as to be helpless and unable to take care of herself, or was under the dominion and restraint of A, and unable to withdraw herself from A's control; otherwise not. [1]
2. B, a girl of 18 comes from service to the house of her mother, A, and is there confined of a bastard child. A does not provide a midwife, in consequence of which B dies. A is not criminally responsible for this omission. [2]
3. A persuades B, an aged and infirm woman, to live in his house, and causes her death by neglecting to supply her properly with food and fire, she being incapable of providing for herself from age and infirmity. A is criminally responsible for this neglect. [3]

The second example provided by Sir James Stephen merits careful attention. The case of R v Shepherd was used to illustrate an instance where no common law criminal offence occurred if a mother failed to obtain midwifery care for her pregnant daughter. An examination of that case reveals the Crown alleged the defendant was motivated by "a great ill will" and had "purposely neglected to procure a midwife, or other proper person to attend her daughter" in labour. The mother was convicted of manslaughter by a jury but the conviction set aside on appeal because the deceased "... was beyond the age of childhood, and entirely emancipated", thereby suggesting that the deceased was able to provide herself with midwifery care.

Medical Necessaries of Life

A failure to provide medical services has been held to breach section 151 in some circumstances. Two very distressing New Zealand cases and a Canadian example illustrate this point.

In R v Moore [4] the New Zealand Court of Appeal upheld a conviction against the equivalent of Section 151(2) Crimes Act 1951 when a woman who had care of a three year old boy failed to get medical attention for the child who was suffering from a large and obvious haematoma on his head. The child died of other conditions and accordingly the woman was not convicted of manslaughter but was convicted under the equivalent of section 151(2) because the child's life was endangered by the accused's inattention to the child's haematoma.

In R v Burney [5] the New Zealand Court of Appeal upheld convictions against the parents of a young girl who died in appalling circumstances. The parents failed to get medical attention for their daughter who died after suffering from malnutrition, staphylococcal bronchial pneumonia, anaemia and chronic skin sepsis.

In the Canadian case of R v Tutton [6] the parents of a five year old diabetic boy were convicted of manslaughter after they refused to administer regular injections of insulin. Their child died from complications arising from diabetic hyperglycaemia. The failure to provide appropriate medication in that case constituted a breach of the parents' duty to provide necessaries of life.

Recent Decisions

Careful judicial attention to the meaning of necessaries of life in a medical setting occurred in the Auckland Area Health Board v Attorney General [7] . That case focussed on the plight of a 59 year old man who was admitted to Auckland Hospital suffering from Guillain-Barré syndrome. He was transferred to Auckland Hospital's department of critical care medicine and placed on a ventilator. He continued to receive artificial ventilation for close to 12 months. After his admission to hospital the patient continued to deteriorate. Ultimately he suffered a complete absence of conduction of his nerves and degeneration of his nerve axons. He was eventually completely denervated and could not communicate. He was described as being in a "totally locked in and locked out" state.

Eight months after the patient's admission the unanimous opinion of four Neurologists and four Intensivists at Auckland Hospital was that the patient's condition was so severe and so profound he could not recover. They all believed it was appropriate to withdraw ventilatory support and allow the patient to die. The patient's wife and brother (his only family) agreed with the suggestion to withdraw ventilation. An Ethics Committee of the Auckland Area Health Board (as it was then known) was also consulted. The Ethics Committee supported the decision to withdraw ventilation. But what about the legal position? Would a crime be committed if the patient was taken off the ventilator and allowed to die? Central to this issue was whether or not the ventilator in this particular case constituted as necessary of life. Would the doctors breach section 151 of the Crimes Act if they removed the ventilator from the patient knowing that by doing so the patient's life would soon terminate? In answering this question the High Court accepted the submission advanced on behalf of the doctors that a ventilator could not be considered a necessary of life if it could not prevent, cure or alleviate the disease or condition which endangered the health of the patient. Thus the patient's case could be distinguished from other instances in which the provision of medical assistance had been held to be a necessary of life. In the previous cases referred to above, medical assistance could have cured, prevented or alleviated the patient of the condition from which they ultimately succumbed. In the case argued in the Auckland High Court, there was no prospect of recovery. Maintaining the patient on a ventilator merely prolonged his death. The Court concluded therefore that the doctors had no duty in this case to continue to provide artificial ventilation and that withdrawal of ventilatory support would not constitute a failure to provide a necessary of life.

Rau Williams Case [8]

During the months of September and October 1997 the New Zealand media focussed on the plight of a 64 year old Northland man, Mr Rau Williams. Mr Williams came to public notice through most unfortunate circumstances. In October 1996 Mr Williams was admitted to Whangarei Hospital where he was diagnosed as a diabetic. Within 2 to 3 days of his admission to hospital he suffered renal failure. With dialysis he recovered sufficiently from the acute phase of renal failure so as to be able to return home. On 20 June 1997 he was re-admitted to Whangarei Hospital where his condition was diagnosed as chronic end stage renal failure. The only treatment which would assist Mr Williams was a renal transplant. Due to limited supply of donor kidneys it could take up to 7 years to carry out a transplant. Patients considered suitable for a transplant are treated by dialysis pending the obtaining of a suitable organ. Mr Williams' suitability for acceptance onto dialysis treatment was assessed. On 3 September 1997 North Health wrote to Mr Shortland, the nephew of Mr Williams and a family spokesman and advised that Mr Williams was not eligible for the renal replacement programme and that the Hospital would discontinue interim dialysis treatment on 17 September 1997. Proceedings were issued in the Whangarei High Court by Mr Shortland. Applications to judicially review North Health failed in the High Court. Following the High Court proceedings, an appeal was filed in the Court of Appeal. Two grounds of appeal were advanced in the Court of Appeal. The first was that the actions of North Health were arguably unlawful and that the failure to provide dialysis treatment constituted a breach of the duty which rested with the Hospital to provide necessaries of life. The second ground, which will not be discussed in this paper, argued Mr Williams' right to life as codified by Section 8 of the New Zealand Bill of Rights Act 1990 was breached by his exclusion from the dialysis programme.

The submission that North Health Limited might be breaching the duty to provide necessaries of life for Mr Williams was based upon an analysis of Auckland Area Health Board v Attorney General. In that decision, the High Court stated that doctors would have a lawful excuse to remove ventilatory support if the decision was in accordance with good medical practice. The High Court explained "good medical practice" so as to establish a "lawful excuse" to remove the necessaries of life in terms of Section 151 would be satisfied if four conditions were met; namely:

• That the decision to withdraw life support systems was made in good faith and in the best interests of the patient;
• That the decision conformed with prevailing medical standards;
• That the decision was made in consultation with a recognised ethical body;
• The family of the patient gave their fully informed consent to the proposal.

The argument in the Court of Appeal concentrated on the last three criteria identified in the Auckland Area Health Board case. The Court of Appeal determined that in the case of Mr Williams the decision to withdraw life support systems was made in good faith and conformed with prevailing medical standards. Although there had been no attempt made to obtain consent from a recognised ethical body and the family did not give their informed consent to the proposal to remove Mr Williams from dialysis, the Court of Appeal said these obligations were not mandatory.

It is to be emphasised that the analysis conducted by the Court of the Appeal of the judgment in Auckland Area Health Board v Attorney General focused solely on whether or not the doctors charged with the care of Mr Williams had a lawful duty for not providing necessaries of life. There was no argument before the Court of Appeal, and no discussion in the judgment as to whether or not the dialysis machine was in fact a necessary of life. The argument under Section 151 simply dealt with the issue of whether or not the actions of North Health in excluding Mr Williams from dialysis constituted a lawful excuse for not providing a necessary of life.

There could be little doubt that the dialysis machine was a necessary of life. The evidence before the Court was that without dialysis Mr Williams would soon die. With dialysis his life would be prolonged. The fatal effects of end stage renal failure would have been alleviated, albeit for an arguably short duration. The quality of Mr Williams' prolonged life may not have been entirely satisfactory, but, on the basis of the evidence before the Court, it was a life he wished to live. Prolonging the life which the patient wishes to live is a legitimate goal of medicine. Mr Williams' circumstances were vastly different from the patient in Auckland Area Health Board v Attorney General. The ventilator in that case could not alleviate the effects of Guillain-Barré syndrome from which the patient quickly died when the ventilator was disconnected. Mr Williams, on the other hand, could have had the fatal effects of end stage renal failure prolonged for several months, during which time he would have had a quality of life that he was (according to the evidence) willing to accept.

Conclusion

Section 151 Crimes Act 1961 provides a rare illustration of how, in some circumstances, omissions can result in criminal liability. Traditionally the criminal law endeavours to draw a distinction between acts and omissions. This distinction is based on the supposition that intentionally doing something is more culpable than allowing something to happen without interference.

It is the traditional distinction between omissions and commissions that caused the House of Lords to describe the withdrawal of nasogastric feeding from Antony Bland [9] as an omission rather than an act. It is quite apparent however that the commission/omission dichotomy cannot be easily applied to the medical scene. The general proposition that people have limited duties to save others is not helpful in the medical domain because health professionals are under a duty to use their skills, so far as is reasonable, for the benefit of their patients. This overriding duty of care must eclipse any artificial distinctions that the criminal law may try to make between acts and omissions.

The duty to provide necessaries of life continues to play a role in regulating professional behaviour in a medical setting. On 6 August 2001 a Christchurch medical practitioner pleaded guilty to failing to provide necessaries of life when a patient undergoing cosmetic surgery died in most unfortunate circumstances.

The cases analysed in the preceding paragraphs illustrate that the law will impose criminal liability on health professionals and others who have responsibility for the care of incapacitated persons if they fail to provide those in their care with medical treatment and services which could cure, alleviate or prevent a deterioration in health. This area of the law had a most unpromising start. If the facts of R v Shepherd were to arise today, there is every likelihood that the mother who neglected to get the assistance of a midwife for her daughter in labour would not be treated as leniently as she was. The case is now only of historical interest and is perhaps a striking illustration of indefensible Victorian standards.

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[1] R v Charlotte Smith (1865) L&C 607

[2] R v Shepherd (1862) L&C 147

[3] R v Marriott (1838) 8 C&P 425

[4] [1954] NZLR 893

[5] [1958] NZLR 745

[6] (1989) 48 C.C C. (3d) 1299

[7] [1993] 1 NZLR 235

[8] Shortland v North Health [1998] 1 NZLR 433

[9] [1993] 1 All ER 821

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Dr David Collins, QC

©
2001