Although the civil and family courts have been involved in questions of medical accountability and ethics for some time, for most of the twentieth century, the criminal courts were engaged in matters relating to medicine principally as a forum to resolve ethical conflict on controversies touching on sanctity of life. The judges approached that function with seeming reluctance and a tendency to defer to the medical profession to define what constituted ethical, and thus lawful conduct. In relation to accountability for medical malpractice, the criminal justice system was rarely invoked and when doctors were prosecuted for “medical” assault or manslaughter, judges exhibited a preference to protect allegedly errant professionals.
Such questions of medical malpractice are now increasingly coming before the criminal courts in the United Kingdom and the criminal law has been drawn into the fray, becoming a major actor in the resolution of ethical conflict and regulation of aberrant professional conduct. In the past decade, the courts have to some extent departed from the earlier tradition of deference to medical brethren.
However, the changing role of the criminal process in medicine has been neglected. There is relatively little literature addressing the appropriate boundaries of the criminal process in resolving ethical conflict, or the theoretical legal analysis of the law's relationship with health care, or the practical impact of the criminal justice system on doctors, patients and the delivery of health care. Principal texts on both medical and criminal law devote little attention to this question. Where such research has been conducted, individual ethical or legal questions, such as the permissibility of passive euthanasia or criminal liability for fatal errors, are addressed separately with no attempt made to evaluate the fundamental role of the criminal process in regulating medicine.
Our research will fill the lacuna in the literature. The project charts the growing trend to resort to the criminal process, and examines whether putting more health professionals in the dock results in sounder ethics or better health care. We explore demands for retributive justice, and analyse how it is that fundamental questions about the ethics of abortion, euthanasia and patient behaviour often fall to be determined by the judiciary rather than elected lawmakers. The project seeks to provide a comprehensive analysis of the role that is, and ought to be, played by the criminal process in the regulation of medical practice and medical ethics. The research will examine the legal and ethical developments in the United Kingdom and, where appropriate, compare the operation of the criminal process in the UK with that in New Zealand, France and the Netherlands.
Among other matters, our research will look at decisions made by UK courts on questions such as abortion, neonaticide, and euthanasia, and consider whether the courts are the right forum in which such decisions should be made. Are fundamental questions for life and death rightly matters for unelected judges rather than parliament? We will look at the attitudes of the judiciary and question their understanding of contemporary medical ethics. We will examine whether doctors have been, or still are, accorded a privileged status when called to account for (mal) practice. Have doctors been allowed to define ethical, and thus lawful, conduct in the criminal courts? Is any such status gradually being eroded, making doctors more susceptible to criminal prosecution? In looking at those questions we shall explore the attitudes of patients, professionals and the general public to the prosecution of doctors for negligent malpractice. What drives demand for retribution? What is the effect of distrust in the regulators? And we will explore what the impact of the increasing use of criminal prosecution might be on the delivery of health care in the UK. Will it be beneficial, promoting ethical behaviour and deterring bad practice, or will it result in a move to truly defensive medicine?
- To complete a comprehensive analysis of the role of the criminal justice system in regulating medical (mal) practice and ethics in the UK.
- To identify factors that have resulted in a fear of the criminal law, and more frequent resort to prosecution of doctors.
- To assess how far (if at all) any such trend derives from social factors special to medicine or from broader societal attitudes which focus on blame and retribution.
- To evaluate how far the engagement of the criminal process with medicine is constructive or, to the contrary, destructive of good medicine utilising selected comparative analyses.
The research integrates doctrinal analysis of law, ethical discourse, and socio-legal analysis of law and legal processes. It will utilize three principal methodologies:
(1) Doctrinal analysis including, where appropriate, comparative analyses with other jurisdictions. Working from primary legal sources, and the literatures in the fields of moral philosophy, medical ethics, and jurisprudence, the research will seek to identify the penetration of the criminal process in debates on the boundaries of ethical medical practice, and to evaluate the justification for this.
(2) Empirical studies designed to illuminate why and how the criminal process has become central to both major research questions: the circumstances in which resort to court is used to resolve ethical dilemmas (e.g. seeking a declaration that instituting or withdrawing treatment does not contravene the criminal law; prosecuting for medical `assault' or medical manslaughter); and the factors influencing law enforcement officials. Interviews and focus groups will be utilised with various groups including the selected legal practices and hospitals in the Manchester area. In addition, using records from various sources such as the CPS and local police, an attrition study will be conducted, analysing the cases in which there was, and was not, a police investigation, an inquest, CPS or HSE involvement, prosecution and sentence. We will look at CPS evaluations of both the evidential test as well as the role of ‘public interest’ factors in prosecution decisions.
(3) Two Case Studies will shed further light on the central questions:
- A comparative analysis of `scandals' generated by infected blood in France, and organ retention in the UK. Both gave rise to anger, distrust, and demands for retribution. We will draw on work by Farrell on blood scandals and Brazier's experience chairing the Retained Organs Commission.
- A study focused on ending lives, examining the engagement of the courts in “mercy killing” comparing developments in the UK, the USA 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.