Causation and Intervening Acts in Criminal Law

According to Robin J.A. in Malette v Shulman[1], “the right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death…The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care.

For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others.”[2] R v Blaue[3], a famous causation case in criminal law, brings to foreground a thought-provoking debate about whether an individual’s religious beliefs and other psychological values could be included in the ‘thin skull’ rule and whether the refusal to take lifesaving medical treatment breaks the chain of causation that exists between the defendant’s wrongdoing and the purported outcome of that wrongdoing.

The facts of the case are as follows – Blaue, the defendant, stabbed a woman numerous times after she refused to have sexual intercourse with him. She was a Jehovah’s Witness and was therefore not in favour of blood transfusions. After the stabbing, she was taken to a hospital and was told that she urgently needed to have a blood transfusion, without which she would die. Owing to her religious beliefs, she refused to consent with the suggested treatment. As a result, she died in the hospital. While giving the judgment, Lawton L.J. stated that “those who use violence on other people must take their victims as they find them.”[4]

This, according to him, not only includes victims’ physical characteristics, but also their emotional, psychological and spiritual values and beliefs. This decision has proved to be extremely controversial and gives rise to various debates. Most understand the rationale behind the court’s judgment and agree that the defendant is, as a matter of fact, criminally liable for causing the injury. After all, the victim was at the receiving end of several stabbings, imposed by the defendant, who clearly had an intention of causing serious bodily harm, if not death. However, some feel that the death was the result of the victim’s refusal to carry out the blood transfusion.

They feel that the defendant should not be responsible for the unusual, irrational and unjustified religious beliefs of the victim. In addition, the defendant could not have possibly foreseen her backing out of receiving medical treatment in the hospital. The Blaue case creates many doubts about the doctrine of causation in criminal law. Was Blaue responsible for the victim’s death or was it an act of the victim, since it was her decision to refuse a blood transfusion? If we conclude that Blaue is indeed responsible for her death, another question comes to mind: Why is the victim not responsible for her own death? First and foremost, it is a fact that the victim sustained injuries due to numerous stabbings and it was Blaue who had inflicted them upon her.

Her not taking any steps to save herself did not instigate her death. Secondly, there is an application of the ‘thin skull’ rule in this case. An important principle of the law of causation is that defendants must ‘take their victims as they find them.’ This means that if a defendant pushes someone and because they have a thin skull, they crack their head and die, the defendant will be liable for causing their death. The Court of Appeal in Blaue indicated that the decision could be seen as a ‘thin skull’ example. It was established that the ‘thin skull’ rule goes beyond the physical characteristics of individuals, also including a person’s moral and religious beliefs.

Thirdly, the victim’s decision to not undergo blood transfusion, which would have clearly saved her life, was based on profound religious views and hence, did not constitute a novus actus interveniens. That is, it was not an intervening act. Nevertheless, the judgment has been critisised on various grounds. Why was the victim’s decision to refuse medical treatment seen as a subsisting condition rather than an intervening cause? Would it have been the same if the refusal was due to a fear of needles or the fact that she could not bear the pain and thought dying was the only way to end the agony? A decision steered by religious beliefs is a moral choice, that is, a free decision.

Why should the defendant endure the responsibility if the victim makes a free choice to kill herself any more than he should if, weakened by the injury, the victim took a controversial choice to end her life with dignity rather than enduring pain and life-long humiliation? Thus, to understand the Blaue case, we not only need to take into account causation in criminal law, but also the two doctrines which apply to the concept of proximate causation; the ‘thin skull’ rule and the principle of novus actus interveniens.

Causation – In criminal law, individuals that are guilty of a crime are penalised for the harm they cause if both the physical and the mental element of committing an offence is present. There must be a valid connection between an individual’s conduct and the result alleged to constitute an offence. The causation requirement attaches criminal responsibility to those individuals whose conduct is sufficient enough to bring about serious bodily injury or death. In Hallett[5], the accused assaulted a man and left him on a beach.

Over the next few hours, the man drowned. The court concluded that Hallett’s contribution to his death was more than minimal to hold him responsible for it. However, in Blaue, the defendant was found to be the substantial and operating cause of the woman’s death. That is, his stabbings is why she was admitted to a hospital in the first place. ‘Thin skull’ rule – The defendant must take the victim as he finds him or her and this means ‘the whole man and not just the physical man.’ This rule applies irrespective of whether the defendant is aware of the condition in the victim.

On one hand, there are instances where the victim suffers from a pre-existing condition which renders him or her more vulnerable to injuries. On the other hand, there are cases where the victim does not take medical treatment to heal wounds and suffers serious harm as a result.

A defendant cannot escape liability for a victim’s death as a result of an abnormality present in the victim or an internal, subsisting belief of the victim. It is his fault that he caused harm in the first place. In R v Hayward[6], a man chased his wife into the street shouting threats and kicked her. She collapsed and died from an unusual thyroid condition which made her susceptible to physical exertion and fear. He was convicted of manslaughter because he aggravated her pre-existing condition by physically assaulting her. This case is a good example of the ‘thin skull’ rule applying to the physical characteristics of an individual.

The fact that he could not possibly foresee her dying is not an excuse. However, can a victim's religious beliefs constitute a thin skull? With reference to Blaue, according to Hart and Honoré: “The question is not whether it is reasonable to believe that blood transfusion is wrong, but whether a person whose life is in danger can reasonably be expected to abandon a firmly held religious belief. The answer must be surely no.”[7] Religious beliefs and convictions are an internal characteristic of individuals, which is deeply rooted in their way of thinking and life. It is intrinsic to every person. Hence, people cannot be held legally accountable for possessing such sentiments.

Novus Actus Interveniens – The general principle is that an intervention by a third party will break the chain of causation if it is ‘free, deliberate and informed.’ In R v Kennedy[8], Kennedy prepared a syringe for the victim, who injected himself and died due to an overdose. Kennedy was convicted of unlawful manslaughter. The act of the victim, in injecting himself with the drug, was an intentional, free, deliberate and an informed action. Thus, the drug dealer is not guilty of unlawful manslaughter. In contrast, in R v Dear[9], the defendant slashed the victim repeatedly with a knife. The victim died two days later.

The defendant appealed against his conviction for murder, arguing that the chain of causation had been broken because the victim had committed suicide either by reopening his wounds or because he had failed to take steps to stop the blood flow after the wounds had reopened themselves. The court dismissed the appeal and held that the real question was whether the injuries inflicted by the defendant were a substantial and operating cause of the death. The victim's death resulted from excessive bleeding from the artery, which was triggered by the defendant when he attacked the victim. In Blaue, the refusal to get treatment does not break the chain of causation, despite the fact that it was informed and deliberate, because having such a belief is involuntary and requisite.

According to Hart and Honoré, “the question to be decided is whether the decision to refuse treatment is not merely deliberate and informed but also a free one. In view of the high value attached in our society to the matters of conscience, the victim, though free to accept any belief she wished, is not thereafter free to abandon her chosen belief merely because she finds herself in a situation in which her life may otherwise be in danger. So it was not her free act to refuse a transfusion.”[10] It was reasonably foreseeable that a Jehovah’s Witness would refuse a blood transfusion.

The victim had no choice due to her religion. It was not a free decision because, in a way, she was bound by it. It could be said that she simply let the wound take its natural course. Moreover, the death was caused due to the bleeding arising from the penetration of the lungs, which was brought about by the stabbings.

The substantial and operating cause test does not take into account a victim’s distinct characteristic. So long as victim died of internal bleeding due to the wound administered by Blaue, we need not ask further questions. However, if the principle of ‘taking your victims as you find them, including their beliefs’ is applied to more cases, it would have varying results. Let’s assume that X assaults Y. Y ends up committing suicide because she is mentally unstable or because she hopes to get X behind bars. Another example could be that X shoots Y on his left leg. Y could go to the hospital but decides to remove the bullet by himself. Unable to do so and still refusing medical treatment, he dies. Should X ‘take’ Y’s unstable, vengeful or negligent behaviour? Is that justified or is it unfair?

  1. Malette v Shulman [1991] 2 Med LR 162.
  2. Jerome Edmund Bickenback, Canadian cases in the philosophy of law, 4th edition, at 160 to 161.
  3. R v Blaue [1975] 1 WLR 1411.
  4. Michael T. Molan, Sourcebook on Criminal Law, 2nd edition, at 67.
  5. Hallett [1969] SASR 141. 
  6. R v Hayward (1908) 21 Cox 692.
  7. Denis Klimchuk, Causation, Thin Skulls and Equality (1998) at pg. 126.
  8. R v Kennedy [2007] UKHL 38.
  9. R v Dear [1996] Crim LR 595.
  10. Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law, at pg. 143.