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Bioethics, Medicine and the Criminal Law

Bioethics, Medicine and the Criminal Law Medicine and Bioethics in the Theatre of the Criminal Process

Author: Professor Margaret Brazier; Professor Suzanne Ost
Publisher: Cambridge University Press
ISBN: 9781107018259
Published In: May 2013
Format: Hardback , 308 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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To date, little analysis exists of the criminal process's roles as a regulator of medical practice and as an arbiter of bioethics, nor whether criminal law is an appropriate forum for judging ethical medical dilemmas. The conscription of criminal law into moral controversy and the (perceived) rise in criminal investigations of medical errors sets the backdrop for this innovative historical and theoretical analysis of the relationship between medicine, bioethics and the criminal process. Case studies on abortion, end of life and the separation of conjoined twins reveal how judges grapple with bioethics in criminal cases and the impact of 'theatre' on the criminal law's response to ethically controversial medical cases. A central argument is that bioethics and criminal law are not necessarily incompatible; rather, it is the theatre surrounding interactions between bioethics and criminal law that often distorts and creates tension.

• Focuses on a matter of growing contemporary significance that until now has not been considered in such detail

• Analysis of the subjects is enriched by the exploration of the connections and tensions between the fields of medicine, bioethics and criminal process

• Suggests ways to deal with the problems raised by the criminal process's regulation of medical practice and response to bioethical medical controversy

Acknowledgements	xii
Table of cases	xiv
Table of statutes	xvii
Introduction: beginning the story	1
The pervasive influence of the criminal process	4
The relevance of ‘theatre’	7
A story and some themes	9
Tensions and transient connections: the lighthouse's beam	10
Theatrical distortion	10
(Political) liberalism	11
Moral sentiment and medical politics	11
Part I Setting the scene	13
1 Courtrooms, ‘physic’ and drama	15
The ‘criminal process’ and the regulation of medicine before 1858	16
The gruesome history of dissection	20
No peaceful burial place	22
Body snatching	23
Causes célèbres in the twentieth century: faulty connections?	25
Bourne: a reluctant ‘rebel’?	26
Bodkin Adams: ‘deserved to hang 20 times over’	30
R v. Arthur: framing bioethical debate	33
2 Crime, doctors and the body (politic)	38
Medical ‘assaults’	40
Rhetoric not reality	41
Bodily integrity, autonomy, self-determination	42
The tort of battery and criminal assault – one and the same?	43
‘Proper medical treatment or care’	45
Not wholly or solely ours	52
Is my body mine?	52
Kidneys for sale	53
Organ retention	55
Appropriate consent	57
Organ trafficking	61
3 From ‘theatre’ to the dock – via the mortuary	66
Serious wrongs	71
What makes wrongs ‘serious’?	72
‘Medical manslaughter’	73
Responsibility for medial error	75
Gross negligence, recklessness and manslaughter	77
Moral luck and a game of chance	79
Harm short of death	80
Serious but not ‘wrong’	82
Escaping from sanctity of life?	83
Part II Judges on the stage: case studies	93
4 Protecting life before birth?	95
Not a unique dilemma?	96
‘Proper medical treatment’	99
Protecting women: the power of the profession	101
Protection of morals and society	105
Protecting future children	106
Decriminalising abortion: a case study from Canada	109
Muddling through in England	114
Abortion and sanctity of life	118
5 Medical (and non-medical) ending of life	124
Criminal responsibility and the (ir)relevance of motivation	125
Killing with compassion: motive's role in attenuating the strict legal response to assisted dying cases	126
Intention, causation, the doctrine of double effect and the murky waters of the ‘doctor's defence’	133
Intention	133
Causation	135
Double effect and its application in the medical setting	135
The slipperiness of the central premise(s) of the ‘doctor's defence’: does the DDE have a place in the criminal law?	137
Does the DDE reflect medical practice at the end of life?	145
Implications for the criminal law and bioethics	145
The criminal law's differentiation between doctors and relatives: a ‘benign conspiracy’?	148
(Evading) the criminal law's role in cases of withdrawing life-sustaining treatment	152
Charades and prosceniums: it's all an act, but to what end?	159
6 Which twin lives?	163
Jodie and Mary (Gracie and Rosie)	164
The heart of the matter: the criminal process	165
Necessity and ‘self-defence’: a utilitarian calculus disguised	166
Conflict of duty	167
Designated for death	168
‘A very unique case’?	168
The rejected ‘defences’	169
Immunity and double effect	169
‘Monstrous births’	172
Stillborn or a tumour?	174
Withdrawing life support	176
Part III Bioethics and the criminal law: connecting performances?	179
7 Drawing connections: moral philosophy, (political) liberalism, responsibility and the theatre of interpretation	181
Bioethics, moral philosophy and law	183
The criminal law, moral philosophy and introducing (political) liberalism	187
The ‘common morality’ and political liberalism	195
Responsibility in bioethics and criminal law	199
The theatre of interpretation	209
Moving from broader connections between bioethics and criminal law to more specific links	216
8 Parallels and disconnects: bioethical principles, principles of criminalisation and the rule of law	217
Principlism in bioethics	219
Principles of criminalisation	223
Parallels and disconnects between the ‘four principles’ in bioethics and principles of criminalisation	224
Nonmaleficence	224
Beneficence	230
Autonomy	237
(Liberal) justice	245
Connections between the four principles and the rule of law	247
Can principles of bioethics and the criminal law work together? Are they compatible?	250
Concluding thoughts: a story part told?	255
Theatrical distortions	257
Culture, medicine and public sentiment	259
Medicine framing the criminal process’ response: promoting a dialogue?	260
References	264
Index	284