Airedale NHS Trust v
Bland  HL
and morality - medical treatment - whether withdrawal of artificial
feeding lawful - patient in persistent vegetative state - maintenance of
life by artificial feeding]
Tony Bland seriously injured in the
was being kept alive only by extensive medical
care (not a life-support machine). He had survived for three years in
vegetative state (PVS).
to breathe normally, but was kept alive only by being fed through tubes.
He had no chance of recovery; his doctors (with the support of his family)
sought a declaration from the court that it would be lawful for them to
discontinue treatment so that he might die peacefully.
Treatment could properly be withdrawn in such circumstances, because the
best interests of the patient did not involve him being kept alive at all
In this case feeding
him was treatment and that treatment would not cure him and therefore was
not in his best interests.
It was lawful for D's
doctors to stop feeding him artificially.
Frenchay Healthcare National
Health Service Trust v S . Similar issues can arise in respect
of the very elderly or in respect of babies born with very severe mental
or physical handicaps, especially where major (and possibly repeated)
surgery would be needed to keep them alive see Re J
It was lawful for D's doctors to stop
feeding him artificially.
The court had no option but to make a decision one way or the other.
Attorney General’s Ref
(No 6 of 1980) CA
and morality - agreement to fight in public place - not in public interest
- does not affect properly conduct sport - lawful chastisement -
reasonable surgical interference]
D aged 18 and the victim, aged 17, agreed to fight.
Held: Not in the public interest for people to cause or try to cause
each other actual bodily harm.
Per curiam. Properly conducted games and
sports, etc. OK
Acquitted at trial.
Baker v Hopkins  CA
[Law and morality - courts attitude to resucers - tort law]
DD, a firm of contractors who had been employed to clean out a well.
Fumes from a petrol engine 30 feet below ground level gave of dangerous
Employees went down the well, and were overcome by the fumes. C were the
executors of the estate of a doctor who attempted to rescue the employees,
but in so doing was himself overcome by the fumes. All three men died.
Held: D were liable for all the deaths including the doctor.
It was a natural and probable consequence of the defendants' negligence
towards the employees that someone would attempt to rescue them; the
actus interveniens and
non fit injuria could not be successfully relied upon against the
"If... A by negligence places B in peril
in such circumstances that it is a foreseeable result that someone will
try to rescue B and if C does so try - ought C in any appropriate sense
to be described as a ' volunteer'? In my judgment the answer is No...If
C, actuated by an impulsive desire to save life, acts bravely and
promptly and subjugates any timorous over-concern for his own well-being
or comfort, I cannot think that it would be either rational or seemly to
say that he freely and voluntarily agreed to incur the risks of the
situation which had been created by A's negligence."
Haynes v Harwood  KB applied.
Bolam v Friern Hospital
and morality - defendant doctor may not be liable provided he acted in
accordance with general practice]
D, doctor failed to give a muscle relaxant; Complainant suffered a
fracture whilst he was undergoing electro-convulsive therapy. Differences
Held: Not negligent if he had acted in accordance with practice
Complainant’s claim failed.
Brown, R v (1993) HL
[ABH - harm caused - consent not relevant]
D1-5 engaged in various homosexual sadomasochistic practises in private.
They used genital torture and inflicted injuries, willingly and
enthusiastically participating in the commission of acts of violence
against each other for the sexual pleasure it engendered in the giving and
receiving of pain. None requiring medical treatment.
The courts will interfere, liability did occur, but not if it were a
lawful act. Public policy, fear of proselytisation, corruption, cult of
violence and potential for serious harm.
Absence of consent is
not an element of assault occasioning actual bodily harm or unlawful
Consent is a defence to the infliction of bodily harm in the course
of some lawful activity, but ought not to be extended to sadomasochistic
Lord Mustill, dissenting,
'these consensual private acts are [not] offences against the
existing law of violence',
Lord Slynn found no compelling reasons for creating criminal
Definition of assault:
"At common law, an assault is an act by which a person intentionally
or recklessly causes another to apprehend immediate and unlawful
personal violence and a battery is an act by which a person
intentionally or recklessly inflicts personal violence upon another.
However, the term 'assault,' is now, in both ordinary legal usage and in
statutes, regularly used to cover both assault and battery."
All Guilty of ABH and three of wounding
Central London Property v High Trees House  KBD Denning J
[Law and morality - the courts enforce a
leased a block of flats in London from C in 1937. When war broke out, many
flats were left empty as people were evacuated to escape bombings. C
agreed to reduce the rent by half if D stayed. D paid the reduced rent
until the end of the war, and C then claimed for the "arrears".
Held: Denning J "discovered" the equitable doctrine of promissory
estoppel, and said that although C were once again entitled to the rent
originally agreed after the war ended, they could not go back on their
promise to accept a reduced rent for the earlier years.
When a party to a contract makes a promise to the other, which he knows
will be acted on, that he will not enforce his strict legal rights; the
equitable principle of promissory estoppel makes that promise binding on
him until such time as he gives reasonable notice of his intention to
resume those rights.
Denning J (obiter
dicta) said that had Central London sued for the arrears for the
years 1940-45, it would have failed. It would have been estopped
from going back on its promise [as set out in the 1940 agreement] to
accept a reduction in rental, even though that promise had not been
supported by any consideration from High Trees because to hold otherwise
would have been unjust
British Railways Board  QBD
[Law and morality - courts approach to rescuers]
the railway board responsible for a major train accident caused by their
negligence. C the wife of a volunteer who took part in rescue work
suffered nervous shock and became psychoneurotic as a result of his
Held: Damages were recoverable for nervous shock even where the
shock was not caused by fear for oneself or the safety of one's children
and in the circumstances injury by shock was foreseeable.
ought to have foreseen the existence of a rescuer and accordingly owed him
Clark v MacLennan 
and morality - defendant doctor may not be liable provided he acted in
accordance with general practice]
D, doctor operated to relieve stress incontinence after birth one month
after the birth normal practice three months.
Held: D's departure from the general practice had not been justified.
Complainant’s claim succeeded.
Cox, R v
(1992) Winchester Crown Court, Ognall J
[Law and morality - doctors who kill may
be murderers - double effect]
D, a GP injected a lethal dose of potassium
chloride into his patient V who shortly afterwards she died comparatively
peacefully. V Lillian Boyes was an elderly lady,
terminally ill and in constant severe pain. With the knowledge and
approval of her family, she asked D to end her suffering by hastening her
Held: D could not be charged with
murder, because B had been cremated before any suspicion arose and the
cause of her death could not conclusively be proved, but the jury found
him guilty of attempted murder and the judge passed a suspended prison
Guilty of attempted murder given a 12 month
suspended prison sentence
Dudley & Stephens, R v (1884) CCR
F v West Berkshire
Health Authority  HL
and morality - sterilisation of mentally handicapped person - voluntary
in-patient at mental health hospital - inability of patient to consent -
court's jurisdiction to give or withhold consent to operation]
D, health authority decided to have C (36 yrs) sterilised, because of her
Held: It was in her best interests to be sterilised.
Fairchild v Glenhaven
and morality - tort - negligence - causation – breach of duty causing or
materially contributing to damage – whether C able to recover against
'either or both' employers]
Three conjoined appeals against an employer for damages for negligent
exposure to asbestos dust which had caused a mesothelioma, but C could not
show during which employment he had suffered the offending dust.
Held: C could succeed against either or both employers, and it was up
to them to sort out who would pay what proportion of the award.
had been employed by more than one employer and,
D had a
duty of care to prevent dust inhalation and,
been in breach of that duty and,
contracted mesothelioma, and
other cause of mesothelioma could be ruled out but,
not (because of the limits of human science) prove during which
employment he had inhaled the dust....
entitled to recover against both his employers.
conclusion was consistent with principle, and with authority, properly
conditions were satisfied, it was just and in accordance with common sense
to treat the conduct of both employers in exposing the claimant to a risk
to which he should not have been exposed as making a material contribution
to the contracting by the claimant of a condition against which it was the
duty of both employers to protect him.
considerations weighed in favour of such a conclusion. It was a conclusion
which followed even if one of the employers was not before the court.
It had not
been suggested in argument that the claimant’s entitlement against either
employer should be for any sum less than the full compensation to which he
was entitled, although either of them could of course seek contribution
against the other or against any other employer liable in respect of the
same damage in the ordinary way.
This decision was refined in
Barker v Corus  HL which stated that
damages should be set in proportion to the amount of
time a worker spent with a company.
Frenchay NHS Trust v S
and morality - medical treatment - best interests of patient to allow to
die - consent of court to be obtained first]
D, the hospital where S aged 24 was a patient. S was in a coma (PVS)
following a drug overdose. Feeding tube became detached consultant
recommended to do nothing.
Held: There was no reason to question the conclusion of the
consultant, who considered it in the best interest of the patient not to
operate to replace the tube.
S allowed to die.
Gillick v West Norfolk and Wisbech Area Health Authority  HL
and morality - whether doctor may give advice and treatment on
contraception to girl under 16 without parental consent]
Mrs Gillick a Roman Catholic mother of five daughters sought a
declaration that a doctor would be acting unlawfully if he gave
contraceptive treatment for any of her daughters without the mother's
It was argued on the one hand that teenage pregnancies
would increase if the courts ruled that parental consent was necessary, on
the other hand that the judges would be encouraging under-age sex if they
A doctor could
prescribe contraceptives to a girl under 16 to prevent damage to her
health, even though he knew it would assist a man to have unlawful sexual
By a majority of three to two. A child under 16 who can
fully understand the implications of the proposed treatment (a "Gillick
competent" child) can give her own consent to medical treatment.
(Since Parliament had not legislated, the courts had to make a decision
one way or the other.)
Mrs Gillick lost
Howe, R v  HL
and morality - judicial precedent – HoL - examples of departing -
influenced by morality]
D took part with others in two separate murders, and on a third occasion
the intended victim escaped. D's claim to have acted under duress was left
to the jury on two of the three counts, but D was convicted on all three
Held: Using the Practice Statement, departed from its decision in
Lynch v DPP for Northern Ireland  to say that no participant
(whether principal or accessory) can claim duress in defence to a murder
the House of Lords had held that duress was available as a defence to a
person who had participated in a murder as an aider and abettor. Not
to do so would produce the illogical result that, whilst duress is a
complete defence to all crimes less serious than murder, it is not even a
partial defence to a charge of murder itself.
Gotts  the decision in
Howe was extended by holding that duress is not a defence to attempted
Lord Griffiths said:
face a rising tide of violence and terrorism against which the law must
stand firm recognising that its highest duty is to protect the freedom
and lives of those that live under it. The sanctity of human life lies
at the root of this ideal and I would do nothing to undermine it, be it
ever so slight.”
factor in favour of overruling was that the cases were simply wrong as a
matter of morality. The earlier cases had carved out a duress defence for
certain secondary parties and now the Lords basically disagreed as a
matter of morality with what had been done. That Howe was decided in the
context of increased experience with and fear of IRA terrorism cannot be
overlooked. A secondary reason for the overruling is connected with the
Shivpuri factor that the exceptions carved out in the earlier cases lead
to uncertainty in their application.
Human Fertilisation and Embryology Authority Ex p. Blood, R v
and morality - artificial insemination - dead husband's sperm]
Blood's husband, Stephen, contracted meningitis and lapsed into a coma.
Samples of his sperm were collected by electro-ejaculation for later
artificial insemination. Her husband died shortly after the samples were
Fertilisation and Embryology Authority refused to give the necessary
consent to treatment in the UK citing the
Human Fertilisation and Embryology Act 1990 which required the written
consent of a donor to the taking of his sperm. They also refused to
authorise export of the sperm for treatment abroad.
Medical treatment for a woman and a man together could not
occur after the man who had provided the sperm had died.
absence of the necessary written consent meant that both Mrs Blood's
treatment and the storage of her husband’s sperm were prohibited by the
1990 Act, and any exceptions in the Act did not apply.
arts 59 and 60 of the EC Treaty, Mrs Blood, had a directly enforceable
right to receive medical treatment in another member state, and the
authority’s refusal to authorise the export of her husband’s sperm
infringed that right since it made the fertilisation treatment she sought
Blood was allowed to use the sperm abroad
[Comment]: Mrs Blood used the sperm in a Belgium clinic and later gave
birth to a boy, Liam.
She had a
second son Joel. by the same method .
Human Fertilisation and Embryology (Deceased Fathers) Act 2003 act,
mothers such Mrs Blood whose children were conceived after their father's
deaths, are given a six-month "window" in which to re-register their
Knuller v DPP
[Law and morality - courts dictate morality]
D published a gay contact magazine thereby conspiring to corrupt public
In Shaw (1962) the House of Lords held that the common law crime of
"conspiracy to corrupt public morals” existed despite many commentators
believing that it did not exist; effectively the HoL created it.
Lord Reid had dissented in Shaw, and still believed it to be wrong, but it
did not follow that it should now be reconsidered.
Lord Reid stated:
“I dissented in
On reconsideration I still think that the decision was wrong and I see
no reason to alter anything which I said in my speech. But it does not
follow that I should now support a motion to reconsider the decision. I
have said more than once in recent cases that our change of practice in
no longer regarding previous decisions of this House as absolutely
binding does not mean that whenever we think that a previous decision
was wrong we should reverse it. In the general interest of certainty in
the law we must be sure that there is some very good reason before we so
Nettleship v Weston 
[Law and morality - decisions based on policy]
D a learner
driver went out for her first lesson, supervised by a friend C. D crashed
the car into a lamppost, and C was injured.
Even learner drivers are to be judged against the standard of the
reasonably competent driver. The fact that a particular driver is
inexperienced and incompetent does not excuse his falling short of this
standard. It matters not that
a learner driver is doing her incompetent best.
Denning applied policy considerations in deciding this case because, he
said, the injured person can recover damages from the insurance policy;
however the insured party must be at fault first.
"Thus we are, in this branch of
the law, moving away from the concept: 'No liability without fault'. We
are beginning to apply the test: 'On whom should the risk fall?'
Morally the learner-driver is not at fault; but
legally she is liable to be because she is insured and the
risk should fall on her."
C won damages subject
to a deduction for contributory negligence.
Pretty v The United
Kingdom (2002) ECHR
and Morality - right to die - euthanasia]
Pretty was terminally ill with Motor Neurone Disease. She wanted to obtain
the right to be able to request medical help to die at a time of her
choosing. Particularly, to be given a guarantee that her husband would not
be prosecuted for assisting her suicide in an active way.
Director of Public Prosecutions did not have the power to give an
undertaking that he would not consent to prosecute the husband of a
terminally-ill woman if he helped his wife to commit suicide.
Mrs Pretty died on 11th May 2002 her case received worldwide coverage. She
was backed by the Voluntary Euthanasia Society (VES).
R v R (rape -
marital exemption)  HL
[Law and morality - changing attitudes]
D living apart from his wife raped
her in her parents’ home, which he had forcibly entered.
Held: Abolishing a husband's 250 year
old immunity from criminal liability for raping his wife The long-standing
rule that a wife was deemed to have given her consent irrevocably was no
"This is not the creation of a new
offence, it is the removal of a common law fiction which has become
anachronistic and offensive and we consider that it is our duty having
reached that conclusion to act upon it"
Lord Keith thought this was an example of
the common law evolving in the light of changing social, economic and
Re A (Children) (2000) CA
and Morality – conjoined twins – CA not a court of morals]
‘Jodie’ and ‘Mary’ joined at the lower abdomen. Jodie's heart and lungs
provided oxygenated blood for both. Both would die shortly if nothing were
done. If the twins were separated, Jodie had a good chance of a fairly
"normal" life but the operation would cause the immediate death of Mary.
The twins' parents opposed the application for religious reasons.
Held: Ward LJ said the court was ‘not a court of morals’ and
considered that the operation would be lawful self-defence i.e. the
doctors would be coming to the aid of Jodie.
may have a right to life, but she has little right to be alive...[she]
is killing Jodie... she sucks the lifeblood of Jodie.
[Mary] will survive only so long as Jodie survives. Jodie will not
survive long because constitutionally she will not be able to cope.
Mary's parasitic living will be the cause of Jodie's ceasing to live."
said there could be no doubt that in English law, a surgeon who performed
the separation knowing that it would inevitably hasten Mary's death would
be held to have caused that death and to have done so intentionally, even
though that would not have been his primary motive. So far as the law was
concerned, the doctrine of double effect did not apply here because Mary's
death would not be a side-effect of treatment that was in her best
interests overall. The defence of necessity would prevail:
has been said that there are three necessary requirements for the
application of the doctrine of necessity. The act is needed to avoid
inevitable and irreparable evil. No more should be done than is
reasonably necessary for the purpose to be achieved. The evil inflicted
must not be disproportionate to the evil avoided... I consider that all
these requirements are satisfied in this case.' [You should note
that this is in variance with cases such as Dudley and Howe].
Permission of operation granted, operation performed Mary died. The court
expressly stated that this case creates no precedent for future cases.
Re B (A
Minor) (Wardship: Medical Treatment) 
and morality - newly born Mongol child requiring operation to save life -
parents refusing consent - whether operation in child's best interests]
D, local authority. Surgeon agreed with parents to allow to die a child
with Down's and complications.
Held: Best interests of the child that she should have an operation,
child could expect normal span of life of a Mongol.
Child allowed to live.
(adult: refusal of medical treatment)  FD
and morality - the right to die]
D the hospital caring for the applicant Ms B who asserted her common law
right as a competent adult to refuse life-sustaining treatment. Ms B
became tetraplegic and suffered complete paralysis from the neck down, but
she was able to move her head and speak. She gave formal instructions to
the hospital through her solicitors that she wished artificial ventilation
to be removed, even though she realised that that would almost certainly
result in her death.
D argued "ambivalence" evidenced by the fact that Ms B had told the
doctors that she was glad that effect had not been given to an earlier
argued benevolent paternalism or parentalism ('doctor knows best') Dame
Elizabeth Butler-Sloss criticised this attitude in trenchant terms.
It is established since Re T (adult: refusal of
medical treatment) that a competent adult may refuse medical
treatment, even if the likely result will be their own death, and that
refusal may be for reasons which are rational, irrational, unknown or
non-existent. This right has been confirmed in
Airedale NHS Trust v Bland
 HL and Re MB (an adult: medical
treatment) , where can be found further ringing endorsements of
the right of a capable person to self-determination.
Moreover, there is a presumption of capacity, and it is for those
asserting the right to override the patient’s wishes to establish
incapacity, rather than for the patient to establish her own capacity:
Re C (adult: refusal of medical treatment).
Ms B was allowed to die and did so
peacefully some weeks later.
Re J (a Minor)  CA
and morality - right of parents - to decide on the medical treatment]
D, doctors decided not to use a ventilating machine should baby J cease
breathing. Baby suffered severe mental and physical handicaps.
Held: It was the right of parents, and the court, to decide on the
medical treatment. But, there was no absolute presumption in favour of
life. Although there was no right to kill, there was equally no
requirement to ‘strive officiously to keep alive’.
Mother's wishes approved; use of ventilator allowed.
Re S (Adult
Patient: Sterilisation) (2000) CA
and morality - mental disorder - medical treatment, consent to -
sterilisation operation - Whether in patient's best interests]
S, a woman of 29 with severe learning difficulties had a phobia about
hospitals and whose periods caused her distress. The mother's view that
the major advantage of the hysterectomy over a contraceptive device was
that it was a single procedure without the need for any further surgical
Held: Logically there could only be one best decision in S's best
interests and, as the weight of the medical evidence supported the less
invasive method as the preferred option, the mother’s concerns did not
tilt the balance towards major irreversible surgery for therapeutic
test became irrelevant to the judicial decision as to whether the
treatment was in the patient's best interests as that process required the
judge to have regard to the patient's welfare as the paramount
(Mental Patient: Sterilisation) applied.
Patient’s appeal allowed
Re T  CA
and morality - consent to medical treatment - refusal of blood transfusion
- whether refusal effective - whether doctors entitled to treat in
accordance with patient's best interests]
T aged 20 years old, 34 weeks' pregnant, did not want a blood transfusion,
because of her Jehovah's Witness beliefs. Her father wanted transfusion
Held: Although an adult patient was entitled to refuse consent to
treatment such a refusal may have been affected by illness, medication,
false assumptions, misinformation, or her will overborne.
Blood transfusion lawful
Re W (A Minor)  CA
and morality - girl 16 refusing consent to proposed treatment - whether
absolutely entitled to refuse treatment]
Local authority wanted to treat W against her wishes. W had anorexia
Held: Law did not confer on a 16 an absolute right to determine
medical treatment. Minor's wishes, which would be considered, could not
overrule consent given by the court. Best interests required immediate
W treated against her wishes
Roe v Ministry of Health
and morality - defendant may not be liable provided he acted in accordance
with general practice]
D, anaesthetist gave a spinal aesthetic contained in an ampoule, which had
been contaminated with phenol.
Held: The danger of invisible cracks not known until 1951.
Complainant’s claim failed
Shaw v DPP
and morality - courts attempts to dictate morality]
D conspired to corrupt public morals by publishing a booklet containing
details prostitutes, and their services.
This was hitherto an unused common law offence.
Held; Lord Tucker cited
precedents for the offence.
the sphere of criminal law, I entertain no doubt that there remains in
the courts of law a residual power to enforce the supreme and
fundamental purpose of the law, to conserve not only the safety and
order but also the moral welfare of the state, and that it is their duty
to guard it against attacks which may be the more insidious because they
are novel and unprepared for.”
Lord Reid (dissenting) said there were
widely differing opinions as to how far the law should punish immoral acts
done in private,
think that the law already goes too far, some that it does not go far
enough. Parliament is the proper place, and I am firmly of opinion the
only proper place, to settle that.”
Sheppard, R v  HL
and morality - wilful neglect of child - mens rea - accused genuinely
failing to realise child needed medical care - not an offence of strict
liability to be judged by the objective test of what a reasonable parent
would have done]
D's parents of 16-month-old son who died from hypothermia and
Held: A genuine lack of appreciation that the child needed medical
care or failure through stupidity, ignorance or personal inadequacy to
provide that care were both good defences because wilfully neglecting a
child was not an offence of strict liability. Not to be judged by the
objective test of what a reasonable parent would have done. The civil law
concept of negligence was not to be imported into the offence.
Sidaway v Bethlem
Royal Hospital  HL
and morality - defendant may not be liable provided he acted in accordance
with general practice]
D, surgeon. Complainant not informed of risk, suffered damage to the
Held: 'Bolam Test' applies to question of whether to disclose risk.
Her claim failed
Stone & Dobinson, R v
and morality - manslaughter - assumption of duty of care for infirm person
- indifference to obvious risk of injury to health - sufficient to prove
D’s lived with eccentric F, who was anorexic. F died in bed.
defendants had assumed the duty of caring for her.
Recklessness proved by indifference to an obvious risk or actual foresight
of the risk and running that risk. Mere inadvertence, however, was
insufficient to prove recklessness.
Youssoupoff v MGM Pictures (1934) CA
and morality - morality shifting over time]
C complained that she could be identified with the
character Princess Natasha in the film 'Rasputin, the Mad Monk'. The
princess claimed damages on the basis that the film suggested that, by
reason of her identification with 'Princess Natasha', she had been seduced
Held: The princess was awarded £25,000 damages.
It was contended that if the film indicated any
relations between Rasputin and 'Natasha' it indicated a rape of Natasha
and not a seduction.
Slesser LJ considered the film defamatory whether it
suggested rape or seduction:
for myself, cannot see that from the plaintiff’s point of view it
matters in the least whether this libel suggests that she has been
seduced or ravished. The question whether she is or is not the more or
the less moral seems to me immaterial in considering this question
whether she has been defamed, and for this reason, that, as has been
frequently pointed out in libel, not only is the matter defamatory if it
brings the plaintiff into hatred, ridicule, or contempt by reason of
some moral discredit on her part, but also if it tends to make the
plaintiff be shunned and avoided and that without any moral discredit on
her part. It is for that reason that persons who have been alleged to
have been insane, or to be suffering from certain disease, and other
cases where no direct moral responsibility could be placed upon them,
have been held to be entitled to bring an action to protect their
reputation and their honour. One may, I think, take judicial notice of
the fact that a lady of whom it has been said that she has been
ravished, albeit against her will, has suffered in social reputation and
in opportunities of receiving respectable consideration from the world.”
this woman is defamed in her sexual purity I do not think that the
precise manner in which she has been despoiled of her innocence and
virginity is a matter which a jury can properly be asked to consider.'