The Impact of the Criminal Process on Health Care Ethics and Practice

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.

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 of 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 also explore the attitudes of patients, professionals, and the general public to the prosecution of doctors for negligent malpractice. What drives demands for retribution? What is the effect of distrust in the regulators? And we will explore what the impact of what 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?