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The religiously inspired principle of double effect in English medical law
Published in Clayton Ó Néill, Religion, Medicine and the Law, 2018
The case of Bland provides an additional example of the surreptitious interpretation and use of double effect in so far as it found in this case that the removal of a gastro tube from a dying patient lacked foresight and intention.93Bland has been criticised by sanctity of life supporters due to the fact that Mr Bland was still a human being and that the House of Lords accepted that, by withdrawing the treatment, the medical professionals intended to kill Mr Bland. As such, sanctity of life was breached.94 Keown is critical of Bland on the basis that their Lordships held that ‘it is lawful to withdraw tube-feeding from a patient in a “persistent vegetative state” (pvs), even with intent to kill him.’95 The crucial aspect to this, according to Foster, was that the tube was removed by medical personnel rather than by a lay person and so there was no mens rea for murder.96 Pattinson interprets Bland differently: the difference is that a lay person would perform an ‘act’, rather than the ‘omission’ of the doctor. This is actus reus, rather than mens rea.97
Criminal law theory
Published in John Rumbold, Automatism as a Defence in Criminal Law, 2018
One example of this is Holmes, who stated that an action “is a willed muscular contraction, nothing more” (Holmes, 1881). This definition covers the actions of the tennis player retrieving a difficult shot (as per Ryan, see Chapter 2) or the person swatting a fly (Dubber and Hornle, 2014). These actions are intended, even if they are largely instinctive. A better alternative to actus reus is arguably the “external element” (or “conduct element”), which would be synonymous with the illegal act. This would mean that the aspect of willing or voluntariness would fall under the “fault element”.
Specialist palliative care and euthanasia
Published in John Lombard, Law, Palliative Care and Dying, 2018
The manner in which the withdrawal of ANH is justified is of particular importance as the failure to provide nutrition and hydration may result in a murder charge.159 The elements of the offence of murder were set out in the second section of this chapter. The ‘building blocks’160 of a charge are the actus reus and mens rea. The actus reus may be performed by an action or an omission based on the circumstances. An act has been described as ‘events or states of affairs for which a person might be responsible according to the principles of responsibility that guide such judgments.’161 In general, liability does not attach in situations where a person fails to act unless there is a legal duty to do so. The withdrawal of ANH has been considered an omission by the courts, and its withdrawal could therefore meet the actus reus requirement if a legal duty exists to provide it.162 Such a duty arises in the relationship between healthcare professional and patient.163 As a result, a doctor or nurse might satisfy the actus reus requirement unless it could be shown that the withdrawal of treatment was in the patient’s best interests. This is the line of reasoning which was taken in Airedale N.H.S. v Bland164 and in Ireland in Re a Ward of Court.165
Integrating Neuroscience in Criminal Law: The Dutch Situation as an Example
Published in International Journal of Forensic Mental Health, 2019
Lucas Noyon, Michiel J. F. van der Wolf, Paul A. M. Mevis, Hjalmar J. C. van Marle
It is now generally accepted that the human brain works according to applicable laws of nature, in the sense that we assume that—in theory—a physical process exists for every instance of knowing, wanting or feeling. Recent discoveries have convinced some scientists that “free will” is an illusion. It should be pointed out at the outset of this article that here already appears to be an essential difference between the neurosciences and the criminal justice method, since the smallest level of analysis in criminal justice is the person with legal rights and obligations, not their organs or neurons. Reference is made in this context to a pitfall that neuroscientists fall into: the Mereological fallacy. This fallacy arises when a part (for example, the brain) is considered responsible for something that can only be considered responsible when it is whole (for example, person with legal rights) (Pardo & Patterson, 2010). Nevertheless, in the past few years it has become apparent that casting doubt on “free will” must be discussed by and within criminal law studies. Since in most jurisdictions criminal liability is founded on both harm (actus reus) and fault (mens rea), the latter includes establishing the extent to which culpability can be attributed to a person and at a first glance it seems difficult to perform this task when a “free will” is absent.
Characterizing Contemporary Criminal Responsibility Evaluees Using the Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-RF)
Published in International Journal of Forensic Mental Health, 2022
Jordan T. Hall, Jay S. Witherell, Yossef S. Ben-Porath
Under U.S. law, criminal conviction normally requires proof of both participation in a criminal act, the actus reus, as well as unlawful intent or mens rea. Courts generally recognize that an individual can lack the capacity necessary to be held criminally responsible for an unlawful act. This principle underlies the insanity defense, an affirmative defense used when a defendant’s mental capacity renders them not criminally responsible for the act. Although specific standards governing the insanity defense differ by jurisdictions, typically they require a mental disease or defect resulting in impaired cognitive or volitional abilities. Cognitive abilities refer to the capacity to accurately perceive reality and act rationally based on that perception, whereas volitional abilities concern the individual’s power to control their behavior (Borum, 2003). A successful insanity defense must establish that the defendant had a severe mental illness or defect at the time of the criminal act, as well as the resulting impaired ability to understand the nature and quality of an unlawful act, appreciate the wrongfulness of the act, or control behavior (Goldstein et al., 2013). As the insanity defense is rarely asserted and is frequently unsuccessful in the limited cases in which it is used, there is a dearth of research examining individuals who are either evaluated for or meet the legal criteria just described. The few existing studies indicate that acquittees typically suffer from chronic, disabling psychotic conditions that have resulted in past psychiatric hospitalizations (Koi & Chauhan, 2018). The majority of these studies used samples collected prior to 2000, indicating a need for more current descriptive research on this population.
Is Criminal Law Both Redundant and Inconsistent?: Crime and Consciousness in Light of Developments in Neuroscience
Published in AJOB Neuroscience, 2018
Most foundational theories of criminal law assess criminal and moral culpability based on whether the suspect possessed both mens rea and actus reus: the conscious evil mind of the corresponding voluntary criminal act. The terms are associated with the phrase, actus reus non facit reum nisi mens sit rea, that is, the act is not culpable unless the mind is guilty (Elonis v. US2015).