‘The Medical Professional as Special before the Criminal Law’

Ost, Suzanne (2020) ‘The Medical Professional as Special before the Criminal Law’. In: Criminality at Work :. Oxford University Press.

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Abstract

This chapter explores the special treatment that the criminal law bestows upon medical professionals, illustrating how the medical profession is an example of a relatively autonomous category of personal work relations that, in some significant respects, is dealt with uniquely. It considers how a doctor’s professional role can be exculpatory, looking to certain defences that are only available to medical professionals in the contexts of abortion and a defence loosely based on the doctrine of double effect in cases involving the administration of certain drugs at the end of life. Yet it also examines the criminal liability that the medical professional can attract if, for example, she removes a patient’s organ without appropriate consent, or creates an embryo outside the human body without a licence. It reflects upon the way in which compliance with responsible medical practice/acting in ‘good faith’ in providing ‘proper medical treatment’ can reduce the likelihood of prosecution, and public interest arguments for and against criminalising doctors’ conduct. It is contended that the strongest arguments in favour of the criminal law’s special treatment relate to the public interests in recognising the beneficial role that doctors play in society and in protecting the patient from serious wrongs that can be perpetrated through the doctor’s position of power. It concludes by considering whether there is something distinctive about the medical profession that means it is a unique category of the professions for the criminal law to deal with.