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

Lead Research Organisation: University of Manchester
Department Name: Law

Abstract

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?
 
Description Various ways in which the criminal law intersects with medicine.
Exploitation Route Via recommendations for best practice to be disseminated to interested practitioners
Sectors Healthcare,Government, Democracy and Justice
 
Description We have delivered recommendations the have developed from our research to CPS, police and HSE and are seeking to ensure that they are embedded in future practice and policy
First Year Of Impact 2012
 
Description Influence on Policy
Geographic Reach National 
Policy Influence Type Participation in a national consultation
Impact Our findings have influenced criminal justice agencies, medical defence organisations, health care professionals and professional organisations through the dissemination of our findings and policy recommendations at our seminars and conferences.
 
Description Arts and Humanities Research Council (AHRC) Follow on Funding
Amount £120,000 (GBP)
Organisation Arts & Humanities Research Council (AHRC) 
Sector Public
Country United Kingdom of Great Britain & Northern Ireland (UK)
Start 10/2011 
End 10/2012
 
Description Arts and Humanities Research Council (AHRC) Follow on Funding
Amount £120,000 (GBP)
Organisation Arts & Humanities Research Council (AHRC) 
Sector Public
Country United Kingdom of Great Britain & Northern Ireland (UK)
Start 10/2011 
End 10/2012
 
Description All collaborations 
Organisation Association of Chief Police Officers (ACPO)
Country United Kingdom of Great Britain & Northern Ireland (UK) 
Sector Private 
PI Contribution ? The collaborations developed with all of the above organisations and centres resulted in the successful application for follow on funding. A member of the Centre for Criminology and Criminal Justice at Manchester is now a co investigator for the project. The CPS, Association of Chief Police Officers (ACPO), HSE and coroners are all official partners in the project and are now engaging with our findings. The other groups are all attending seminars associated with the project.
 
Description All collaborations 
Organisation Crown Prosecution Service (CPS)
Country United Kingdom of Great Britain & Northern Ireland (UK) 
Sector Public 
PI Contribution ? The collaborations developed with all of the above organisations and centres resulted in the successful application for follow on funding. A member of the Centre for Criminology and Criminal Justice at Manchester is now a co investigator for the project. The CPS, Association of Chief Police Officers (ACPO), HSE and coroners are all official partners in the project and are now engaging with our findings. The other groups are all attending seminars associated with the project.
 
Description All collaborations 
Organisation Health and Safety Executive (HSE)
Country United Kingdom of Great Britain & Northern Ireland (UK) 
Sector Public 
PI Contribution ? The collaborations developed with all of the above organisations and centres resulted in the successful application for follow on funding. A member of the Centre for Criminology and Criminal Justice at Manchester is now a co investigator for the project. The CPS, Association of Chief Police Officers (ACPO), HSE and coroners are all official partners in the project and are now engaging with our findings. The other groups are all attending seminars associated with the project.
 
Description All collaborations 
Organisation School of Law
Department Centre for Criminology and Criminal Justice
Country United Kingdom of Great Britain & Northern Ireland (UK) 
Sector Academic/University 
PI Contribution ? The collaborations developed with all of the above organisations and centres resulted in the successful application for follow on funding. A member of the Centre for Criminology and Criminal Justice at Manchester is now a co investigator for the project. The CPS, Association of Chief Police Officers (ACPO), HSE and coroners are all official partners in the project and are now engaging with our findings. The other groups are all attending seminars associated with the project.
 
Description AvMA 
Organisation AvMA (Action Against Medical Accidents )
Country United Kingdom of Great Britain & Northern Ireland (UK) 
Sector Charity/Non Profit 
PI Contribution ? AvMA We engaged with Action Against Medical Accidents (AvMA) and conducted interviews with senior members. As a result of this association we were invited to present at two of their national conferences. The work that we conducted with the groups has also resulted in book and journal publications as well as conference presentations.
 
Description Centre for Criminology and Criminal Justice 
Organisation University of Manchester
Country United Kingdom of Great Britain & Northern Ireland (UK) 
Sector Academic/University 
PI Contribution ? We also developed collaborations with members of the Centre for Criminology and Criminal Justice within the Law School at Manchester University. Academic staff from this centre attended our seminars and conferences and provided input from a criminal justice stance.
 
Description MDU 
Organisation Medical Defence Union (MDU)
Country United Kingdom of Great Britain & Northern Ireland (UK) 
Sector Charity/Non Profit 
PI Contribution ? we developed good links within the Medical Defence Union (MDU). We interviewed senior lawyers within the MDU and were invited to write an article about our research for their journal. They participated in our internal conferences and seminars, engaging and discussing our findings. The work that we conducted with the groups has resulted in book and journal publications as well as conference presentations.
 
Description Police 
Organisation Greater Manchester Police
Country United Kingdom of Great Britain & Northern Ireland (UK) 
Sector Public 
PI Contribution ? Greater Manchester Police and the Metropolitan Police also cooperated with the work. The work that we conducted with the groups has resulted in book and journal publications as well as conference presentations.
 
Description Police 
Organisation Metropolitan Police Service
Country United Kingdom of Great Britain & Northern Ireland (UK) 
Sector Public 
PI Contribution ? Greater Manchester Police and the Metropolitan Police also cooperated with the work. The work that we conducted with the groups has resulted in book and journal publications as well as conference presentations.
 
Description 'Beyond Harm: Exploitation as a Criminal Law Principle', seminar presentation 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Invited seminar presentation as part of the Institute of Medical Law Seminar Series, at University of Birmingham, 14th May 2009.

Part of the work presented for this seminar is being published in a chapter entitled '"Consensual" Sexual Activity between Doctors and Patients: A Matter for the Criminal Law?', co-authored with Professor Hazel Biggs, in one of the edited collections of the project, The Criminal Law and Bioethical Conflict - Walking the Tightrope, (forthcoming, Cambridge University Press).
Year(s) Of Engagement Activity 2009
 
Description 'Doctors in the Dock', Public Lecture 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Public lecture presented to the Manchester Literary and Philosophical Society March 4 2010
Year(s) Of Engagement Activity 2010
 
Description 'Medical Manslaughter: Who if anyone, should be prosecuted?' seminar presentation 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Seminar presentation delivered at the Manchester Medical Society Meeting on 13th April 2011
Year(s) Of Engagement Activity 2011
 
Description 'Politically Proper? Connections between Medicine, Bioethics and Criminal Law', seminar presentation 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact A seminar given as part of the Bioethics and Medical Law seminar series at Lancaster University on 9th November 2011 based on work being completed for the monograph 'Medicine and Bioethics in the 'Theatre' of the Criminal Process' which the speakers are co-authoring (forthcoming, Cambridge University Press).
Year(s) Of Engagement Activity 2011
 
Description 'The HIV-Contaminated Blood Scandal in France: Analysing its Political and Legal Aftermaths', seminar presentation 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Seminar presentation given at the 'Continuities and Discontinuities: France Across the Generations, Association for the Study of Modern and Contemporary France' conference, The University of Stirling
Year(s) Of Engagement Activity 2011
 
Description 'The Role of the Criminal Law in Health Care Malpractice: A Comparative Analysis of the HIV/AIDS Blood Contamination Episodes in France and England', seminar presentation 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Postgraduate students
Results and Impact A seminar presentation given at the Postgraduate Research Conference 2011-2012, The University of Manchester
Year(s) Of Engagement Activity 2010,2011
 
Description 'When Should' Bad' Doctors Go to Gaol?', seminar presentation 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Seminar presentation National Centre for Primary Care, Manchester University, December 7 2010
Year(s) Of Engagement Activity 2010