Omission (law)

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In law, an omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the criminal law, an omission will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defendant is in breach of that duty. In tort law, similarly, liability will be imposed for an omission only exceptionally, when it can be established that the defendant was under a duty to act or duty of care.

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Criminal law

In the criminal law, at common law, there was no general duty of care owed to fellow citizens. 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." (Arthur Hugh Clough (1819–1861)) in support of the proposition that the failure to act does not attract criminal liability. Nevertheless, such failures might be morally indefensible and so both legislatures and the courts have imposed liability when the failure to act is sufficiently blameworthy to justify criminalisation. Some statutes therefore explicitly state that the actus reus consists of any relevant "act or omission", or use a word that may include both. Hence, the word "cause" may be both positive in the sense that the accused proactively injured the victim and negative in that the accused intentionally failed to act knowing that this failure would cause the relevant injury. In the courts, the trend has been to use objective tests to determine whether, in circumstances where there would have been no risk to the accused's health or well-being, the accused should have taken action to prevent a foreseeable injury being sustained by a particular victim or one from a class of potential victims. [1]

So, returning to the drowning example, the accused would be liable if the victim was a child in a pool with a water depth of six inches, or there was a flotation device nearby that could easily be thrown to the victim, or the accused was carrying a mobile phone that could be used to summon help. However, the law will never penalise someone for not jumping into a raging torrent of water, i.e. the law does not require the potential saver to risk drowning even though the individual might be a lifeguard paid to patrol the given beach, river or pool. No matter what the terms of employment, an employee can never be required to do more than what is reasonable in all the circumstances. In R v Dytham (1979) QB 722 an on-duty police officer stood and watched a man beaten to death outside a nightclub. He then left without calling for assistance or summoning an ambulance. He was convicted of the common law offence of willful misconduct in public office. Widgery CJ said:

The allegation was not one of mere non-feasance, but of deliberate failure and willful neglect. 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. He later stopped breathing in the police station and all attempts at resuscitation failed. Five police officers, who were involved in the care of A at the time of his death, were charged with manslaughter by gross negligence and misconduct in a public office. 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]

Assumption of responsibility for care of dependants

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. In three cases, the duty was implied:

Statutory omissions

Misprision of felony was abolished in 1967 but new statutory offences of failure to comply with a duty to disclose terrorist acts or funding under s19(2) Terrorism Act 2000, and failure to disclose knowledge or suspicion of money laundering maintain the tradition. Similarly, the appropriation element in s1 theft may be committed by an act or by keeping when there is a duty to return the property, a deception under s15(4) Theft Act 1968 may be committed by what is not said or done, and "dishonestly secures" under s2(1) Theft Act 1978 may also be committed by omission (see R v Firth (1990) CLR 326 in which the defendant failed to tell the NHS that patients using NHS facilities were in fact private patients thereby obtaining the use of the facilities without payment). One of the simpler examples is the offence of failing to report a road traffic accident (s. 170 Road Traffic Act 1988). [4]

Duty to act when the defendant has created the danger

A person who creates a dangerous situation may be under a duty to take reasonable steps to avert that danger. In R v Miller (1983) 2 AC 161, the defendant was sleeping rough in a building. He fell asleep on his mattress while smoking a cigarette. When he woke, he found that the mattress was smouldering but, instead of calling for help, he simply moved into another room. This allowed the fire to spread. He was convicted under the Criminal Damage Act 1971 for recklessly causing damage by omission. Lord Diplock said:

...I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence.

But although this may apply to the generality of offences, "constructive manslaughter" is different. R v Lowe (1973) QB 702, the defendant committed the offence of neglecting his child under s1 Children and Young Persons Act 1933, and this caused the child's death. It was held that there should be a difference between commission and omission. Mere neglect without some foresight of the possibility of harm resulting is not a ground of constructive manslaughter, even if that omission is deliberate. R v Khan & Khan (1998) CLR 830, confirmed that there is no separate category of manslaughter by omission unless the omission constitutes a breach of duty to act. The defendants supplied a 15-year-old prostitute with twice the amount of heroin likely to be taken by a regular user. The defendants left her unconscious in the flat, returning the next day to find that she had died of the overdose. Had medical assistance been called, the girl would probably not have died. The unlawful act was supplying the drug but the death was caused by the quantity injected by the victim. The trial judge invited jury to consider liability on the basis of the defendants' failure to summon medical assistance. On appeal, the conviction was quashed because the brothers had not accepted a duty to act before she took the heroin. [5]

Failure to provide medical treatment

In general terms, doctors and hospitals have a duty to provide appropriate care for their patients, and an omission may breach that duty except where an adult patient of ordinary capacity terminates the duty by refusing consent. There is a conflict in public policy. The policy of patient autonomy enshrines a right of self-determination—patients have a right to live their lives how they wish, even if it will damage their health or lead to premature death. Society’s interest is in upholding the concept that all human life is sacred and should be preserved if at all possible. It is now well established that the right of the individual is paramount. In Re C (Adult: Refusal of Treatment) (1994) 1 WLR 290, a patient diagnosed as a chronic, paranoid schizophrenic refused to allow his gangrenous foot to be amputated. This was permitted because his general capacity showed him capable of understanding the nature, purpose and effect of the life-saving treatment. In Re B (Adult: Refusal of Medical Treatment) (2002) 2 AER 449 the presumption that an adult has full capacity can be rebutted if:

(a) the person is unable to understand the information relevant to the decision, especially as to the likely consequences of having or not having the treatment; or
(b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at a decision.

Ms B was a competent but paralysed, ventilator-dependent patient, and she won the right to have the ventilator turned off. 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. The doctors’ conduct qualifies as lawful "passive euthanasia". If the particular doctor invited to omit further treatment has conscientious objections, a doctor who will undertake the omission should be sought. But, in more general cases of necessity, urgent surgery may not be unlawful to preserve life pending any judicial decision. 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. It was held that treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs. Lord Goff nevertheless drew a fundamental distinction between acts and omissions in this context:

... the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end ... the former may be lawful, either because the doctor is giving effect to his patient's wishes ... or even in certain circumstances in which ... the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be.

Duty to act when contracted to do so

In R v Pittwood (1902), the defendant was convicted of gross negligence manslaughter after he failed to close the gate on a level crossing as he was contracted to do. 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."

Preventing and prosecuting war crimes

Following the Nuremberg Trials international law developed the concept of command responsibility. It holds that military commanders are imposed with individual responsibility for war crimes, committed by forces under their effective command and control, they failed to prevent or adequately prosecute, if they:

either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes. [6] [7] [8]

Tort law

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. The rationale is that a positive duty is more onerous to fulfill than a negative duty, and therefore limits more severely the liberty of the duty-bearer. [9] [10]

See also

Related Research Articles

Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

In criminal law, mens rea is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of mens rea and actus reus before the defendant can be found guilty.

In criminal law, actus reus, Latin for "guilty act", is one of the elements normally required to prove commission of a crime in common law jurisdictions, the other being mens rea. In the United States it is sometimes called the external element or the objective element of a crime.

In criminal law, diminished responsibility is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental functions were "diminished" or impaired.

In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining criminal liability, or offenses that requires mens rea, a mental state of guilt.

<i>Bolam v Friern Hospital Management Committee</i>

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. Bolam was rejected in the 2015 Supreme Court decision of Montgomery v Lanarkshire Health Board in matters of informed consent.

Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is combined with mens rea to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses.

In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than malice, but is more blameworthy than carelessness.

<span class="mw-page-title-main">Canadian tort law</span> Aspect of Canadian law

Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.

Murder is an offence under the common law legal system of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to unlawfully cause either death or serious injury. The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker, chapter 14 states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.

In English tort law, an individual may owe a duty of care to another, in order to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability will be imposed upon the tortfeasor to compensate the victim for any losses they incur. The idea of individuals owing strangers a duty of care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. The doctrine was significantly developed in the case of Donoghue v Stevenson, where a woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.

In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

R v Dytham [1979] Q.B. 722 is an English criminal law case dealing with liability for omissions. The court upheld the common law mantra that if there is a duty to act, then failure to do so is an offence.

<span class="mw-page-title-main">English criminal law</span> Legal system of England and Wales relating to crime

English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.

Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.

In the North American legal system and in US Occupational Safety and Health Administration regulations, willful violation or willful non-compliance is a violation of workplace rules and policies that occurs either deliberately or as a result of neglect.

The omissions of individuals are generally not criminalised in English criminal law, save in many instances of a taking on of a duty of care, having contractual responsibility or clearly negligent creation of a hazard. Many comparator jurisdictions put a general statutory duty on strangers to rescue – this is not so in English law. Defenders and reasoners of the position regard it as wrong for the criminal law to punish people in many circumstances for committing no physical act, which it is argued would be an infringement on human autonomy. Academics arguing for reform argue that a social responsibility to assist others should exist, particularly where there would be no danger to the rescuer.

English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim's legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the "King's peace". The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim's death, so long as the former caused the latter.

<i>R v Adomako</i> UKHL case on gross negligence manslaughter

R v Adomako[1994] UKHL 6, was a landmark United Kingdom criminal law case where the required elements to satisfy the legal test for gross negligence manslaughter at common law were endorsed and refined. It was held that in cases of manslaughter by criminal negligence involving a breach of duty the gross negligence test relied on by the Court of Appeal was sufficient and that it was not necessary to direct a jury to consider whether the recklessness definition should be applied. The test, as set out in R v Bateman 19 Cr. App. R.8 and Andrews v DPP [1937] AC 576, confirmed that there needed to be in existence a breach of duty of care where the serious and obvious risk of death was reasonably foreseeable and that the breach or omission in question caused actual death and that the conduct of the defendant, when all the circumstances were considered, was so bad as to amount to a criminal act or omission. The requirement to show that the defendant's breach of duty was "gross" helped develop the definition of gross negligence.

References

  1. ↑ Cardi, W. Jonathan (2005). "Reconstructing Foreseeability" (PDF). Boston College Law Review. 46: 921–988. SSRN   844949 . Retrieved July 31, 2018. foreseeability of the plaintiff and foreseeability of the type of the plaintiff's injury operate to limit the consequences of a defendant's negligent act. Although the defendant may have wrongfully created some risk of injury to some category of people, the consequences of that wrong must be limited to people and injuries that were reasonably foreseeable
  2. ↑ http://uniset.ca/other/css/2005QB73.html
  3. ↑ "Deliberate Indifference Law and Legal Definition". USLegal.com (USLegal, Inc.). Retrieved July 31, 2018. intentionally refusing to respond to an inmate's complaints has been acknowledged as constituting deliberate indifference
  4. ↑ "Failing to Stop & Report". Section 170, Road Traffic Act 1988. RoadTraffic.com (Dominic Sellar & Co. – experts in Scotland road traffic law). Retrieved July 31, 2018. two separate offences can arise following an accident. The first is failing to stop at the scene of the accident, and the second is failing to report the accident to the police. A driver who fails to comply with these duties is guilty of an offence under section 170 of the Road Traffic Act 1988.
  5. ↑ O'Hanlon, Kate (March 25, 1998). "Law Report: Manslaughter by omission requires duty to act" . The Independent . Archived from the original on 2022-05-24. Retrieved July 31, 2018. Before a jury could convict of manslaughter, they had to be sure that the defendant was criminally responsible for the killing...[In] order to be criminally responsible for the consequences of an omission a person must stand 'in such a relation to the victim that he is under a duty to act'.
  6. ↑ Joint Criminal Enterprise and Command Responsibility Archived 2007-06-10 at the Wayback Machine by Kai Ambos, Professor of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the University of Göttingen; Judge at the State Court (Landgericht) Göttingen, Journal of International Criminal Justice, originally published online on January 25, 2007
  7. ↑ "E LAW - Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution - Text".
  8. ↑ Command Responsibility The Mens Rea Requirement, By Eugenia Levine, Global Policy Forum, February 2005
  9. ↑ "Stovin v Wise".
  10. ↑ Honoré, Tony (1991). "Are Omissions Less Culpable?".{{cite journal}}: Cite journal requires |journal= (help)

Literature

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