Murder or Suicide? The Legal Complexities of the 'Cause' of Death in Euthanasia

In the recent case where Berlinah Wallace was found guilty of using corrosive acid on Mark van Dogen with intent, but was not charged with murder, it was the UK’s understanding of assisted dying that really seemed to be on trial.

This article contains descriptions of graphic injuries.

On  January 2, 2017, Mark van Dongen’s life ended as a result of the assisted dying he had applied to receive in a Belgian hospital where euthanasia, under certain conditions, is legal. Van Dongen’s death ended 16 months of extreme suffering and pain caused by the actions of his former partner, Berlinah Wallace.

On May 17, 2018, the Bristol Crown Court in the UK found Wallace guilty of intentionally causing bodily harm by throwing a corrosive acid on her former partner’s face and body. The couple had met in 2010, but in August 2015, the relationship had ended and in September, van Dongen told Wallace that he wanted to start living with his new partner.

In the same month, Wallace bought concentrated sulphuric acid for less than Rs 2,000 from a global online seller, removed the label from the bottle and researched acid attacks online. By then, van Dongen had also called the police emergency number to say that Wallace had been harassing him and his new partner, threatening him with blackmail and suicide. Wallace was given a warning by the police under the Protection from Harassment Act.

But on September 22, 2015, while van Dogen was sleeping, Wallace threw a glass full of acid on him, saying “If I can’t have you, no one else will.”

The injuries Mark van Dongen sustained due to the acid were extremely severe, physically and psychologically. When first responders arrived at the scene, they thought he was covered in grey/black paint but it was his melting flesh. Van Dongen lost his sight in one eye, partially lost it in the other and was paralysed from the neck down with movement only in his eyes and mouth. He lost the ability to speak without a speech valve, lost an ear due to the acid burns, had 25% burns on his body and had to have his lower left leg amputated. His father reportedly said that the sulphuric acid permeated the membranes around van Dongen’s bones, resulting in the pain where he felt as though he was constantly burning.

Mark van Dongen and Berlinah Wallace. Credit: Wikimedia Commons

When van Dongen arrived at the hospital and saw himself in a mirror, he said he wanted to die rather than live with his injuries.

He was in the hospital for more than a year before being shifted to a residential care home. A Dutch national, van Dongen was then moved to Belgium when his friends and family managed to collect enough funds to arrange for a private ambulance for the journey. The new hospital he was admitted into was very close to his father’s house on the Dutch/Belgian border. Until then, his father had regularly been driving between the European mainland and the UK, mostly sleeping in his car to save costs and to be able to help care for his son.

A month after arriving in Belgium, van Dongen contracted a chest infection, the treatment for which would have resulted in him losing the ability to speak with his speech valve. It was at this point that van Dongen applied for euthanasia. After the medical and legal procedures were fulfilled, he passed away with medical intervention on January 2, 2017.

Cause and effect

When prosecuting harm in the UK, a causal link must be found between the accused’s actions and the eventual outcome. In other words, the accused’s actions must be the operating cause of the subsequent result. In 1910, in R v. White, the ‘but for’ principle was established to establish causation. The rule was simple: but for the accused’s actions, would the outcome have been the same? If the outcome would have been the same without the accused’s actions, causation does not exist. If the outcome was due to the accused’s actions, causation exists.

Fifty years later in R v. Smith, the principle was upheld, even when the actions of an intervening party existed between the act of violence and the death of the victim. In the latter case, the question became: would the death have occurred but for/without the actions of the accused? A break in the chain of causation, which would result in a not guilty verdict for the accused, would therefore only exist if the new intervening act “disturbs the sequence of events [and] can be described as either unreasonable or extraneous or extrinsic”.

The facts of the Smith case are particularly relevant for an understanding of the charges filed against Wallace and the jury’s decision. In Smith, one soldier stabbed another soldier. The stab wound had punctured one of the man’s lungs. As the medical practitioners attending to the injured soldier failed to diagnose the punctured lung, the soldier died from his injuries. Smith argued that if the soldier had received the correct medical treatment he would not have died. The court, however, ruled that were it not for the stab injury then the medical care would have been irrelevant. The intervening actions of the medical attendees were therefore not found to break the chain of events between the injury and the eventual outcome.

As a result of van Dongen’s death, Wallace was charged with murder and grievous bodily harm by using a corrosive acid with intent to cause harm. The jury found her unanimously guilty of using the corrosive acid with intent, but not of murder.

Perhaps the most significant obstacle to securing the murder conviction was van Dongen’s decision to have euthanasia. In the UK euthanasia, or assisted suicide, can still result in a manslaughter or murder charge against the doctors who administer the life-ending treatment. The first trial against Wallace was dismissed by the sitting judge; she felt that had the euthanasia taken place in the UK, the doctors who had administered the medicine may have faced a murder charge. Such a charge would have broken the causal link between Wallace’s actions and van Dongen’s death.

The trial had to consider whether there was a causal link between Wallace’s actions and van Dongen’s death. The prosecution argued by throwing the acid Wallace intended to cause serious harm, and that there was a direct causal link between the injuries van Dongen sustained and his decision to end his own life. The defence argued there was no foreseeable belief that a person would have died after having had acid thrown on them. They further argued that if van Dongen’s life had ended because of suicide, or by refusing treatment, that a causal link may have existed, but due to the Belgian doctors’ intervention by administering a life-ending medication, the chain of causation had been broken by their intervention.

It is likely that this reasoning swayed the jury from returning a guilty verdict. Focusing on the doctors’ role in the euthanasia as a break in the causal link fails to uphold the ‘but for’ principle that has existed since White and Smith. As van Dongen had expressed the desire to not live with his injuries when he was first admitted to the hospital, the sequence principle as in Smith could perhaps have been differently understood. If van Dongen had the physical ability to commit suicide, the act of the Belgian doctors intervening would have been redundant, with the eventual outcome of van Dongen’s injuries being his death.

Van Dongen’s death was clearly influenced by the injuries he sustained due to Wallace’s actions. His surviving family members have said the event changed all of his life and the person they knew, their brother, died the night he was attacked. What seems to be on trial is more the UK’s understanding of assisted dying, than Wallace’s actions and the chain of causation.

Whilst the UK is not currently considering a change to its euthanasia laws, from July this year, sulphuric acid with a concentration of over 15% would become a regulated substance and would no longer be available to purchase without a license. Many retail outlets have also voluntarily stopped selling corrosive acids to individuals under the age of 18, but they still remain widely available online.

Severyna Magill teaches international human rights law at Jindal Global Law School.