separate conjoined twins. The operation would enable the stronger twin (Jodie) to survive, but would inevitably result in the death of the weaker twin (Mary). Without an operation to separate, both twins would die within months. Ward LJ considered the extent to which a failure to permit medical intervention, or a refusal by the doctors to operate, might amount to a culpable omission.
Ward LJ:
I seem to be the lone voice raising the unpalatable possibility that the doctors and even – though given the horror of their predicament it is anathema to contemplate it – the parents might kill Jodie if they fail to save her life by carrying out the operation to separate her from Mary. Although I recoil at the very notion that these good people could ever be guilty of murder, I am bound to ask why the law will not hold that the doctors and the parents have come under a duty to Jodie. If the operation is in her interests the parents must consent for their duty is to act consistent with her best interests: see Lord Scarman in Gillick in the passages I have already set out. I know there is a huge chasm in turpitude between these stricken parents and the wretched parents in R v Gibbins and Proctor (1918) 13 Cr App R 134 who starved their child to death. Nevertheless I am bound to wonder whether there is strictly any difference in the application of the principle. They know they can save her. They appreciate she will die if not separated from her twin. Is there any defence to a charge of cruelty under section 1 of the Children and Young Persons Act 1933 in the light of the clarification of the law given by R v Sheppard [1981] AC 395 . . . Would it not be manslaughter if Jodie died through that neglect? I ask these insensitive questions not to heap blame on the parents. No prosecutor would dream of prosecuting. The sole purpose of the enquiry is to estab-lish whether either or both parents and doctors have come under a legal duty to Jodie, as I conclude they each have, to procure and to carry out the operation which will save her life. If so then performance of their duty to Jodie is irreconcilable with the performance of their duty to Mary. Certainly it seems to me that if this court were to give permission for the operation to take place, then a legal duty would be imposed on the doctors to treat their patient in her best interests, that is, to operate upon her. Failure to do so is a breach of their duty. To omit to act when under a duty to do so may be a culpable omission . . .
The [Archbishop of Westminster, who was permitted to make written submissions] would agree. He tells us that:
To aim at ending an innocent person’s life is just as wrong when one does it by omission as when one does it by a positive act.
COMMENTS AND QUESTIONS
1 Section 5 of the Domestic Violence, Crime and Victims Act 2004 introduces a new form of liability for homicide, the offence of causing or allowing the death of a child or vulnerable adult. The offence can be committed by way of act or omission and extends to situations where D fails to intervene to protect a child or vulnerable adult who is a member of the same household; see further Chapter 4.10.
2.5.4 LIABILITY FOR OMISSION BASED ON VOLUNTARILY ASSUMING A DUTY OF CARE
R v Stone and Dobinson [1977] QB 354 (CA) Geoffrey Lane LJ:
. . . In 1972, at 75 Broadwater, Bolton-on-Dearne in Yorkshire, there lived three people. Stone, an ex-miner now aged 67, widowed for 10 years, who is partially deaf, almost totally blind and has no appreciable sense of smell; Gwendoline Dobinson, now aged 43, who had been his housekeeper and mistress for some eight years, and Stone’s son called Cyril, aged 34, who is mentally sub-normal. Stone is of low average intelligence, Dobinson is described as ineffectual and somewhat inadequate.
There was an addition to that household in 1972. Stone had a younger sister called Fanny, about 61 at the date of her death. She had been living with another sister called Rosy. For some reason, probably because Rosy could not tolerate her any longer, she had decided to leave. She came to live at No 75, where she occupied a small front room . . . She was eccentric in many ways. She was morbidly and unnecessarily anxious about putting on weight and so denied herself proper meals. She would take to her room for days. She would often stay in her room all day until the two appellants went to the public house in the evening, when she would creep down and make herself a meal.
In early spring 1975 the police called at the house. Fanny had been found wandering about in the street by herself without apparently knowing where she was. This caused the appellants to try and find Fanny’s doctor. They tried to trace him through Rosy, but having walked a very consider-able distance in their search they failed. It transpired that they had walked to the wrong village.
Fanny herself refused to tell them the doctor’s name. She thought she would be ‘put away’ if she did. Nothing more was done to enlist outside professional aid.
In the light of what happened subsequently there can be no doubt that Fanny’s condition over the succeeding weeks and months must have deteriorated rapidly. By July 1975 she was, it seems, unable or unwilling to leave her bed and, on 19 July, the next-door neighbour, Mrs Wilson, gallantly volunteered to help the female appellant to wash Fanny. She states:
On 19 July Mrs Dobinson and I went to Fanny’s room in order to clean her up. When I went into the room there was not a strong smell until I moved her. Her nightdress was wet and messed with her own excreta and the dress had to be cut off. I saw her back was sore;
I hadn’t seen anything like that before. I took the bedclothes off the bed. They were all wet through and messed. And so was the mattress. I was there for about two hours and Mrs Dobinson helped. She was raw, her back, shoulders, bottom and down below between her legs. Mrs Dobinson appeared to me to be upset because Fanny had never let her attend to her before. I advised Mrs Dobinson to go to the Social Services.
Emily West, the licensee of the local public house, the Crossed Daggers, gave evidence to the effect that during the whole of the period, from 19 July onwards, the appellants came to the public house every night at about 7.00 pm. The appellant Dobinson was worried and told Emily West that Fanny would not wash, go to the toilet or eat or drink. As a result Emily West immediately advised Dobinson to get a doctor and when told that Fanny’s doctor lived at Doncaster, Emily West suggested getting a local one. It seems that some efforts were made to get a local doctor, but the neighbour who volunteered to do the telephoning (the appellants being incapable of managing the instrument themselves) was unsuccessful.
On 2 August 1975 Fanny was found by Dobinson to be dead in her bed . . . The pathologist, Dr Usher, gave evidence that the deceased was naked, emaciated, weighing five stone and five pounds, her body ingrained with dirt, lying in a pool of excrement . . . He said that the cause of death was (1) toxaemia spreading from the infected pressure areas (this could have been alleviated by keeping her clean) and (2) prolonged immobilisation.
. . . The Crown alleged that in the circumstances the appellants had undertaken the duty of caring for Fanny who was incapable of looking after herself, that they had, with gross negligence, failed in that duty, that such failure had caused her death and that they were guilty of manslaughter . . .
There is no dispute, broadly speaking, as to the matters on which the jury must be satisfied before they can convict of manslaughter in circumstances such as the present. They are: (1) that the defendant undertook the care of a person who by reason of age or infirmity was unable to care for herself; (2) that the defendant was grossly negligent in regard to his duty of care; (3) that by reason of such negligence the person died. It is submitted on behalf of the appellants that the judge’s direction to the jury with regard to the first two items was incorrect.
At the close of the Crown’s case submissions were made to the judge that there was no, or no sufficient, evidence that the appellants, or either of them, had chosen to undertake the care of Fanny.
That contention was advanced by counsel for the appellant before this court as his first ground of appeal. He amplified the ground somewhat by submitting that the evidence which the judge had suggested to the jury might support the assumption of a duty by the appellants did not, when examined, succeed in doing so. He suggested that the situation here was unlike any reported case. Fanny came to this house as a lodger. Largely, if not entirely due to her own eccentricity and failure to look after herself or feed herself properly, she became increasingly infirm and immobile and eventually unable to look after herself. Is it to be said, asks counsel for the appellants rhetoric-ally, that by the mere fact of becoming infirm and helpless in these circumstances, she casts a duty on her brother and Mrs Dobinson to take steps to have her looked after or taken to hospital? The suggestion is that, heartless though it may seem, this is one of those situations where the appel-lants were entitled to do nothing; where no duty was cast on them to help, any more than it is cast on a man to rescue a stranger from drowning, however easy such a rescue might be.
This court rejects that proposition. Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; Mrs Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in by mid-July. It was not disputed that no effort was made to summon an ambulance or the social services or the police despite the entreaties of Mrs Wilson and Mrs West. A social worker used to visit Cyril. No word was spoken to him. All these were matters which the jury were entitled to take into account when considering whether the necessary assumption of a duty to care for Fanny had been proved.
This was not a situation analogous to the drowning stranger. They did make efforts to care.
They tried to get a doctor; they tried to discover the previous doctor. Mrs Dobinson helped with the washing and the provision of food. All these matters were put before the jury in terms which we find it impossible to fault. The jury were entitled to find that the duty had been assumed. They were entitled to conclude that once Fanny became helplessly infirm, as she had by 19 July, the appellants were, in the circumstances, obliged either to summon help or else to care for Fanny themselves.