The doctor's defense

The paper takes as its point of departure a relatively recent case which attracted publicity in Britain, concerning a doctor charged with (but acquitted of) the murder of his terminally ill patient, and critically examines the criminal law of England and Wales relating to homicide in the context of medical practice. While similar issues obviously arise in many other countries, no comparative study is attempted in the paper. However, the arguments which have been presented are of more than local interest. From an analysis of this case and others, it appears that there is in common law something which can be called the doctor s defense. It holds that a doctor may, when caring for a patient who is suffering great pain, lawfully administer pain-killing drugs, despite the fact that, as the doctor well knows, one certain or highly probable consequence will be to shorten the patient s life. Current justifications for this defense are either incoherent or too weak. Some require that different conceptions of intention be deployed, depending on whether the agent is a doctor or not. Others rely on the philosophically controversial doctrine of double effect. Still others invoke an implausible notion of minimal causation. All these justifications apply readily enough to morally and factually easy cases, but fail in hard cases where the need for some justification is most pressing. These justifications seem incapable of providing adequate guidance to prosecutors or trial judges. Absent principled and transparent justification, the English criminal justice system exhibits different outcomes on what appear to be broadly similar facts. It is disturbing that the law is uncertain and incapable of giving adequate guidance. A doctor, compelled by conscience to intervene to end a person s life, should certainly be ready and willing to face rigorous legal scrutiny, but the law applied should not be arbitrary and random, nor should the outcome turn solely or chiefly on prosecutorial discretion or the predilections of the trial judge. The hope is to find a better rationale for the doctor s defense through an analysis of professional ethics and the concept of a recourse role.