Case Studies
REPORT: CASE STUDY 1
Title: Tainted Blood and ‘Stolen’ Organs: An Anglo-French Comparison
This study seeks to analyse and compare developments in relation to two healthcare scandals which emerged in recent years, namely, the HIV-contaminated blood scandal in France (l’affaire du sang contaminé), and the organ retention scandal in the United Kingdom (UK). Both caused immense public outrage and calls for criminal prosecution of healthcare professionals, managers and politicians. The French scandal resulted in a number of successful prosecutions, while the UK scandal did not.
The study aims to examine how the scandals emerged and were addressed in France and the UK. It will consider why the French blood scandal successfully engaged the criminal law, and analyse why this did not happen in the UK.
In addition, the study will track more recent healthcare scandals in both countries, namely the current prosecutions in France concerning the use of human growth hormone (hGH), and the deaths of 90 patients from the infectious disease, C. Difficile, at the Maidstone Hospital in Kent.
The study will first analyse the relevant national legal position to clarify how far the conduct in question was within the remit of the criminal law. In particular, there will be a focus on examining the then lack of sanctions under English law during the time in which organ retention took place, with respect to the use of body parts. The impact of the differing legal traditions in terms of resort to the criminal law will be examined, and an assessment will be made as to how far the utilisation of the criminal law to facilitate accountability in healthcare differs in France and the UK. An analysis will be made as to what extent these differences are explicable by reference to substantive law on the one hand, and differing socio-cultural and legal norms on the other hand.
The series of criminal prosecutions that took place arising out of the French blood scandal will be analysed and contrasted with the decision-making process that resulted in no prosecutions taking place in relation to any cases of organ retention in the UK, particularly in the case of Professor van Velzen. The extent to which patient and family groups actively sought criminal prosecution in both jurisdictions will be evaluated in the context of a comparative study of national perceptions of the role of the criminal process in such context.
The objectives of the study will be:
- To provide a critical account of both healthcare scandals;
- To review such scandals in the light of more recent healthcare controversies;
- To assess how far the role of the criminal process in healthcare practice and ethics is perceived differently in France and England, by reference to the above scandals/controversies;
The outcomes of the study will be:
- To incorporate the findings of the study within the wider project;
- To publish a chapter based on research done in the case study in the edited book planned for the project;
- To disseminate findings at appropriate national and international conferences;
- To develop an appropriate research agenda regarding this case study to be undertaken as part of the PhD studentship provided for under the project.
In relation to (5) above, Ms Melinee Kazarian has accepted a PhD studentship attached to Case Study 1, and began preliminary research for her PhD in September 2008. At the present time, she is preparing a detailed chronology of the French blood scandal, as well as identifying key points of comparison in relation to the use of the criminal law in healthcare in France, as opposed to England.
Professor Margaret Brazier and Dr Anne-Maree Farrell are co-supervising Ms Kazarian’s research. Dr Farrell’s PhD thesis involved a comparative study of public policy-making and regulation involving HIV-contaminated blood scandals in Ireland, France and the UK. As a consequence, Ms Kazarian already has access to a significant range of primary and secondary resources, as well as expertise, in relation to this issue.
Dr Farrell is also a Visiting Professor at the Institute for Health Law, based at the University of Paris V. Arrangements will be made with the Institute for Ms Kazarian and herself to be based at the Institute for a period of time in 2010. During this stay, the plan is to undertake a series of semi-structured interviews with key personnel involved in the French blood and hGH scandals, as well as conduct further general research on such issues. Monies have been set aside within the project budget for such research to be conducted.
In addition, a specific session examining issues raised by this case study will be organised for the upcoming international conference to be run as part of the project in November 2009.
C. Bremner (6/2/2008) ‘French Doctors Stand Trial for CJD Scandal’ The Times.
Health and Safety Executive (HSE) (30/7/2008) Press Release: HSE and Kent Police Decide Not to Investigate Maidstone and Tunbridge Wells NHS Trust http://www.hse.gov.uk/press/2008/e08038.htm, acc 31.7.2008.
Work has already begun on drafting an article examining the decision not to prosecute in relation to the C.difficile scandal at Maidstone Hospital, Kent (authors: Anne-Maree Farrell, Neil Allen & Professor Andrew Sanders).
REPORT: CASE STUDY 2
Title: Merciful Death or Murder?
A study focused on ending lives, examining the engagement of the courts in ‘mercy killing’, comparing developments in the UK and the Netherlands. The study explores the paradox whereby doctors are privileged over laypersons in acting on certain “legalized” killings by omission, e.g. withdrawing Artificial Nutrition and Hydration. Yet that same group is less privileged as the clinical choice to actively end life is denied them. And should a doctor take such steps, unlike a grieving relative, s/he is unlikely to have any charge of murder reduced by invoking diminished responsibility.
There are circumstances in which there is criminal liability for omissions. Why should withdrawing artificial nutrition and hydration from a PVS patient be an exception to this? Is the medical context considered distinctive and if so, should it be? Take, for example, a carer responsible for a mentally incompetent person who is incurably ill. She decides this person no longer has any real quality of life and starves him to death. Her behaviour would be likely to attract criminal liability for gross negligence manslaughter by omission. Why should the withdrawal of treatment from a PVS patient not? Is it because of the nature of the PVS patient’s condition, her lack of awareness of her situation? Why will the courts authorise a decision that continued treatment is no longer in her best interests in this context, but not allow quality of life judgments to be made in others?
The case study will also examine social and legal discourses and narratives surrounding PAS and relative/carer assisted death (RCAD). It will explore the application of the defence of diminished responsibility in cases of RCAD and the double effect doctrine in cases where a medical professional hastens death in this jurisdiction. Is law more sympathetic to the relative or carer, or the physician? Is the doctrine of double effect still relevant to contemporary medical practice? Does the application of the doctrine in English law offer a satisfactory method by which to ascertain a doctor’s lack of criminality? Do doctors who publicise their own unlawful acts of mercy killing (eg Kevorkian, Dr Moor) lose sympathy or gain support for their actions?
There will be a critical appraisal of whether the Dutch approach provides a more consistent and ethically defensible approach to medical behaviour that potentially shortens life (MBPSL). Whilst there is legal control over euthanasia in the medial context, is there a lack of legal control over terminal sedation? Is the distinction between euthanasia and terminal sedation clear-cut? Is too much reliance placed upon the doctor’s subjective intention and what implications does this have for the application of the double effect doctrine in our jurisdiction?
The objectives of the study will be:
- To analyse how the criminal law engages with doctors suspected of involvement in mercy killings in comparison with how relatives/carers are treated;
- To provide a critical appraisal of the law regarding acts and omissions in the medical context;
- To provide a comparative study of the law concerning MBPSL in the UK and the Netherlands;
- To assess whether the legal position in relation to the double effect doctrine and terminal sedation is ethically defensible;
- To produce ethico-legal analyses of the cases that are brought to light during the course of the project.
- To develop an appropriate research agenda from within this case study to be undertaken as part of the PhD studentship associated with the project.
Ms Alex Mullock has accepted the PhD studentship related to this case study and commenced her research in September 2008 focusing initially on the potential scope of a defence of necessity and developing the ethico- legal analyses referred to above.
Dr Charles Erin and Dr Suzanne Ost are directing this case study and co-supervising Ms Mullock’s research and Professor Margaret Brazier is deputising for Dr Ost during her maternity leave.
A specific session addressing this case study will be organised for the international project conference scheduled for November 2009.
. R v Cox (1992) 12 BMLR 38 but see R v Adams [1957] Crim LR 365.
. See S. Ost, ‘Euthanasia and the Defence of Necessity: Advocating a More Appropriate Legal Response’ in C.A. Erin & S. Ost (eds), The Criminal Justice System and Health Care (Oxford: Oxford University Press, 2007) pp.99-117.
. See A. Ashworth, Principles of Criminal Law (5th ed) (Oxford: Oxford University Press, 2006) pp.44-47.
. Stone v Dobinson [1977] QB 354; R v Gibbins & Proctor (1918) 13 Cr App R 134 (CA).
. See M. Wilks, ‘Medical Treatment at the End of Life – A British Perspective’, in Erin & Ost, ibid., pp.165-173.
. The phrase utilized by J. Griffiths, ‘Criminal Law is the Problem, Not the Solution’, in Erin & Ost, ibid., pp.119-135.