Bioethics, Medicine and The Criminal Law, Volume 3 Medicine and Bioethics in The Theatre of The Criminal Process by Margaret Brazier Suzanne Ost

more information - www.cambridge.
org/9781107018259
Bioethics, Medicine and the Criminal Law
Volume III
To date, little analysis exists of the criminal process’ roles as a regula-

tor of medical practice and as an arbiter of bioethics, nor of whether
criminal law is an appropriate forum for judging medical ethical dilem-
mas. The conscription of criminal law into moral controversy and the
(perceived) rise in criminal investigations of medical errors sets the
backdrop for this innovative, contemporary, historical and theoretical
analysis of the relationship between medicine, bioethics and the crim-
inal 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 eth-
ically controversial medical cases. A central argument is that bioethics
and criminal law are not necessarily incompatible; rather, it is the the-
atre surrounding interactions between bioethics and criminal law that
often distorts both and creates tension.
m a r g a r e t b r a z i e r is Professor of Law at the University of

Manchester.
s u z a n n e o s t is Professor of Law at Lancaster University.
Cambridge Bioethics and Law
This series of books was founded by Cambridge University Press with Alexander
McCall Smith as its first editor in 2003. It focuses on the law’s complex and
troubled relationship with medicine in both the developed and the developing
world. Since the early 1990s, we have seen, in many countries, increasing resort
to the courts by dissatisfied patients and growing use of the courts to attempt
to resolve intractable ethical dilemmas. At the same time, legislatures across the
world have struggled to address the questions posed by both the successes and
the failures of modern medicine, whereas international organisations such as the
WHO and UNESCO now regularly address issues of medical law.
It follows that we would expect ethical and policy questions to be integral to the
analysis of the legal issues discussed in this series. The series responds to the high
profile of medical law in universities, in legal and medical practice, and in public
and political affairs. We seek to reflect the evidence that many major health-related
policy debates in the United Kingdom, Europe and the international community
involve a strong medical law dimension. With that in mind, we seek to address
how legal analysis might have a transjurisdictional and international relevance.
Organ retention, embryonic stem cell research, physician-assisted suicide and the
allocation of resources to fund health care are but a few examples among many.
The emphasis of this series is thus on matters of public concern and/or practical
significance. We look for books that could make a difference to the development
of medical law and enhance the role of medico-legal debate in policy circles.
That is not to say that we lack interest in the important theoretical dimensions of
the subject, but that we aim to ensure that theoretical debate is grounded in the
realities of how the law does and should interact with medicine and health care.
Series Editors
Professor Margaret Brazier University of Manchester
Professor Graeme Laurie University of Edinburgh
Professor Richard Ashcroft Queen Mary, University of London
Professor Eric M. Meslin Indiana University
Books in the series

Marcus Radetzki, Marian Radetzki, Niklas Juth
Genes and Insurance: Ethical, Legal and Economic Issues
Ruth Macklin
Double Standards in Medical Research in Developing Countries
Donna Dickenson
Property in the Body: Feminist Perspectives
Matti Häyry, Ruth Chadwick, Vilhjálmur Árnason, Gardar Árnason
The Ethics and Governance of Human Genetic Databases: European
Perspectives
Ken Mason
The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction
Daniel Sperling
Posthumous Interests: Legal and Ethical Perspectives
Keith Syrett
Law, Legitimacy and the Rationing of Health Care
Alastair Maclean
Autonomy, Informed Consent and the Law: A Relational Change
Heather Widdows, Caroline Mullen
The Governance of Genetic Information: Who Decides?
David Price
Human Tissue in Transplantation and Research
Matti Häyry
Rationality and the Genetic Challenge: Making People Better?
Mary Donnelly
Healthcare Decision-Making and the Law: Autonomy, Capacity and the
Limits of Liberalism
Anne-Maree Farrell, David Price and Muireann Quigley
Organ Shortage: Ethics, Law and Pragmatism
Sara Fovargue
Xenotransplantation and Risk: Regulating a Developing Biotechnology
John Coggon
What Makes Health Public? A Critical Evaluation of Moral, Legal, and
Political Claims in Public Health
Mark Taylor
Genetic Data and the Law: A Critical Perspective on Privacy Protection
Anne-Maree Farrell
The Politics of Blood: Ethics, Innovation and the Regulation of Risk
Stephen Smith
End-of-Life Decisions in Medical Care: Principles and Policies for Regulating
the Dying Process
Michael Parker
Ethical Problems and Genetics Practice
William W. Lowrance
Privacy, Confidentiality, and Health Research
Kerry Lynn Macintosh
Human Cloning: Four Fallacies and Their Legal Consequence
Heather Widdows
The Connected Self: The Ethics and Governance of the Genetic Individual
Amel Alghrani, Rebecca Bennett and Suzanne Ost
Bioethics, Medicine and the Criminal Law Volume I: The Criminal Law and
Bioethical Conflict: Walking the Tightrope
Danielle Griffiths and Andrew Sanders
Bioethics, Medicine and the Criminal Law Volume II: Medicine, Crime and
Society
Margaret Brazier and Suzanne Ost
Bioethics, Medicine and the Criminal Law Volume III: Medicine and
Bioethics in the Theatre of the Criminal Process
Bioethics, Medicine and
the Criminal Law
Volume III
Medicine and Bioethics in the Theatre
of the Criminal Process
Margaret Brazier and Suzanne Ost

c a m b r i d g e u n i ve r s i t y p r e s s
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Cambridge University Press
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C Margaret Brazier and Suzanne Ost 2013
This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2013
Printed and bound in the United Kingdom by the MPG Books Group
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Library of Congress Cataloguing in Publication data

Brazier, Margaret.
Bioethics, medicine and the criminal law. Volume III. Medicine and bioethics
in the theatre of the criminal process / Margaret Brazier and Suzanne Ost.
p. cm. – (Cambridge bioethics and law)
Includes bibliographical references and index.
ISBN 978-1-107-01825-9 (hardback)
1. Physicians – Malpractice – Criminal provisions. 2. Bioethics. 3. Criminal
law – Philosophy. 4. Medical errors – Moral and ethical aspects. 5. Medical
care – Law and legislation – Criminal provisions. I. Ost, Suzanne. II. Title.
K4366.B73 2013
345 .02 – dc23 2012046427
ISBN 978-1-107-01825-9 Hardback
Cambridge University Press has no responsibility for the persistence or

accuracy of URLs for external or third-party internet websites referred to
in this publication, and does not guarantee that any content on such
websites is, or will remain, accurate or appropriate.
In memory of Mary Jacobs and Hilda Ost –
Y.C.L.M.A.M.T.I.L.Y.
[The connection between bioethics and criminal law] resembles the
lighthouse in its working, which sends one ray and then no more for a
time; save that [the connection] is much more capricious in its mani-
festations and may flash six or seven beams in quick succession . . . and
then lapse into darkness . . .
– V. Woolf, Orlando (with modification) (1928)
You cannot have art that does not in some way distort. . . . Therefore,
you do not see the whole, you only see a part through this distorted
view, this particularization.
– D. Heathcote, Collected Writings on Education and Drama (1984)
Contents
Acknowledgements page 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

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
ix
x Contents
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

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
Contents xi
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?
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
Acknowledgements
This book is one of the major outputs of the AHRC-funded project The
Impact of the Criminal Process on Health Care Ethics and Practice, and we
are extremely grateful for the Council’s support. We would also like to
thank the Universities of Manchester and Lancaster for granting us study
leave to help facilitate the completion of this book.
Certain colleagues, in particular, deserve special thanks. Dave Archard,
Emma Cave, Sara Fovargue, Sheelagh McGuinness and Alex Mullock
offered valued comments on either the proposal for this book or drafts of
chapters. Participants at seminars in Manchester and Lancaster, includ-
ing Sarah Beresford, Bela Chatterjee and Sarah Devaney, helped us
refine our ideas. We are especially grateful to John Coggon for drawing
our attention to the relevance of political liberalism. Our colleagues in
the AHRC project (Amel Alghrani, Becki Bennett, Charles Erin, Anne-
Maree Farrell, the late Peter Gooderham, Danielle Griffiths, Mélinée
Kazarian, Alex Mullock and Andrew Sanders) listened to our ramblings
and offered generous support. Many of our students were subjected to
early drafts of our ideas. We are grateful to the copy-editor, William H
Stoddard, for his thorough and efficient work and to Ekta Vishnoi for
her management of the production process. We could not have com-
pleted this book without the patient support of our families, Rodney and
Victoria Brazier and Nick, Lily and Matthew Green.
The desire to write a book involving the concept of theatre has proven
irresistible to SO. I have much to thank Joan Fitz-Gibbon for that – for
encouraging my love of theatre and English literature and for setting
me on the path to where I am today. I have so much to thank my co-
author and dear friend Margot for, for all her help and sound guidance
throughout the time I have known her and for being such a wonderful
godmother to Lily. I owe a huge debt of gratitude to Sara Fovargue, who
is both a true friend and an incredibly supportive colleague. Thanks also
to Hazel Biggs for her continued help and support. I have benefitted
greatly from the support that Peter Skegg, Margaret Otlowski, Andrew
Ashworth, Alisdair Gillespie and Sigrun Skogly have provided and I am
xii
Acknowledgements xiii
sincerely grateful to each of them. Thanks to John and Yvonne Ost and
Bob and Jenifer Green for all their support. Bob, thank you for always
expressing an interest in my work. Finally, as ever, I am most indebted
to my wonderful husband Nick, and to Lily Jorja and Matthew Luke, my
treasured little mischief-makers.
Table of cases
A, B and C v. Ireland [2010] ECHR 2032

AB v. Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB)
Airedale NHS Trust v. Bland [1993] AC 789
Airedale NHS Trust v. Bland [1993] 1 All ER 821
Appleton v. Garrett [1996] PIQR P1
Attorney General v. David English and another (1982) The Times, 16 July
Attorney General’s Reference (No 6 of 1980) [1981] QB 715 (CA)
Attorney General’s Reference (No 3 of 1994) [1996] 2 All ER 10 (CA)
Attorney General’s Reference (No 3 of 1994) [1997] 3 All ER 936 (HL)
Avsar v. Turkey [2001] EHRR 1014
B v. An NHS Hospital Trust [2002] EWHC 429 (Fam)
Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118
Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771
Bravery v. Bravery [1954] 3 All ER 59
British Pregnancy Advisory Service v. Secretary of State for Health [2011]
EWHC Admin 235
C v. S [1987] 1 All ER 1230 (CA)
Chatterton v. Gerson [1981] 1 All ER 257
Chester v. Afshar [2004] UKHL 41
The Creutzfeld–Jakob Disease Litigation [1995] 54 BMLR 1 (QBD)
Devi v. West Midlands Health Authority [1980] 7 CL 44
Dr Groenvelt’s Case (1697) 9 Will Bl
Dr Handyside’s Case (1604)
H (A Healthcare Worker) v. Associated Newspapers; H v. N [2002] EWCA
195
Hashman and Harrup v. UK (2000) 30 EHRR 241
In re Guardianship of Schiavo 789 so 2d 348 (Fla, 2001)
In the Matter of Karen Quinlan, an Alleged Incompetent 70 N.J. 10 (1976)
Jepson v. The Chief Constable of West Mercia Police Constabulary [2003]
EWHC 3318
Kokkinakis v. Greece (1994) 17 EHRR 397
Leigh v. Gladstone (1909) 26 TLR 139
xiv
Table of cases xv
A Local Authority v. E (by her litigation friend, the Official Solicitor) and
others [2012] EWHC 1639 (COP)
Master v. Miller (1791) 4 TR 320
Morgentaler v. New Brunswick [1994] 117 DLR (4th) 793 (Canada)
Paton v. BPAS [1978] 2 All ER 987
R v. Adams [1957] Crim LR 365
R v. Adomako [1995] 1 AC 171 (HL)
R v. Arthur (1981) 12 BMLR 1
R v. Bourne [1938] 3 All ER 615
R v. Bourne [1939] 1 KB 687
R v. Brown [1994] 1 AC 212 (HL)
R v. Cato (1976) 62 Cr App R 41
R v. Collins and Ashworth Special Hospital Authority ex p Brady [2000]
Lloyd’s Rep Med 355
R v. Cox (1992) 12 BMLR 38
R v. Dudley and Stephens (1884) 14 QBD 273
R v. Dica [2004] EWCA Crim 1103
R v. Dica [2004] 3 All ER 593 (CA)
R v. Ethical Committee of St Mary’s Hospital (Manchester), ex p Harriott
[1988] 1 FLR 512
R v. Handley (1874) 13 Cox CC 79
R v. Howe [1987] AC 417
R v. Inglis [2010] EWCA Crim 2637, [2011] 1 WLR 1110
R v. Ireland, R v. Burstow [1998] AC 147 (HL)
R v. Martin [1989] 1 All ER 652
R v. Miller [1983] 2 AC 161
R v. Misra and Srivistava [2004] EWCA Crim 2375
R v. Moor [2000] Crim LR 31
R v. Morgentaler [1988] SCR 30 (Canada)
R v. Morgentaler [1993] 3 SCR 463 (Canada)
R v. Newington (1990) Crim LR 593
R v. Prentice, R v. Adomako, R v. Holloway [1993] 4 All ER 935 (CA)
R v. Prentice [1994] QB 302
R v. Richardson (Diana) [1999] QB 444 (CA)
R v. Russell (1832) 1 Moo CC 356
R v. Stone, R v. Dobinson [1977] QB 354
R v. Tabassum [2000] Lloyd’s Rep Med 404 (CA)
R v. Woollin [1999] 1 AC 82
R (on the application of AM) v. DPP [2012] EWHC 2381 (Admin)
R (on the application of Burke) v. General Medical Council [2005] EWCA
Civ 1003
xvi Table of cases
R (on the application of Nicklinson) v. Ministry of Justice [2012] EWHC

2381 (Admin)
R (on the application of Purdy) v. DPP [2009] UKHL 45
R (on the application of Smeaton) v. Secretary of State for Health [2002]
2 FLR 146
Rance v. Mid-Downs Health Authority [1991] 1 QB 587
Re A (children) (conjoined twins: surgical separation) [2001] Fam. 147 (CA)
Re C (a minor) (medical treatment) [1998] 1 FLR 384
Re F (in utero) [1989] 2 All ER 193 (CA)
Re J [1991] Fam 33
Re J (child’s religious upbringing and circumcision) [2000] 1 FCR 307
Re MB (an adult: medical treatment) [1997] 2 FCR 541 (CA)
Re S (adult patient: sterilisation) [2000] 3 WLR 1288
Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 (CA)
Re Wyatt (a child) (medical treatment: parents’ consent) [2004] EWHC
2247 (Fam)
Rees v. Darlington Memorial Hospital NHS Trust [2003] UKHL 52
Reibl v. Hughes (1980) 114 DLR (3d) 1
Roe v. Wade 410 US 113, (1973)
Rowley v. DPP (2003) EWHC Admin 693
Savage v. South Essex Partnership NHS Foundation Trust [2008] UKHL
74
Schindler v. Schiavo 780 So 2d 176, 177 (Fla Dist Ct App, 2001)
Scott v. Shepherd (1773) 2 W.Bl 892
Sidaway v. Governors of Bethlem Royal Hospital [1985] AC 671
Smith v. Littlewoods Organisation Ltd. [1987] 1 All ER 710 (HL)
St George’s HC NHS Trust v. S [1998] 3 WLR 936
Stafford v. UK (2002) 35 EHRR 32
Vo v. France (2005) 10 EHRR 12
W v. Egdell [1990] Ch 359
Wason v. Walter (1868), L.R 4 QB 73
William Rose (in error) v. College of Physicians, London [1703] English
Reports 857
Winnipeg Child and Family Services (Northwest Area) v. G(DF) [1997] 3
SCR 925 (Canada)
X v. Y [1988] 2 All ER 648
Table of statutes
Abortion Act 1967

s.1
Anatomy Act 1832
Births and Deaths Registration Act 1953
s.41
Children and Young Persons Act 1933
s.1(i)
Coroners and Justice Act 2009
s.52
s.62
Criminal Justice Act 2003
s.269
Schedule 21
Female Genital Mutilation Act 2003
s.1(1)
s.6
Homicide Act 1957
s.2(1)
Human Fertilisation and Embryology Act 1990
s.3(1)
s.12(e)
s.42
Human Fertilisation and Embryology Act 2008
Human Organ Transplants Act 1989
Human Tissue Act 1961
Human Tissue Act 2004
ss.1–3
s.5
s.32
s.33
s.53
Schedule 1 Parts 1 and 23
xvii
xviii Table of statutes
Infant Life (Preservation) Act 1929

Medical Act 1983
Mental Capacity Act 2005
s.4(5)
s.44
Mental Health Act 1983
s.127
Offences against the Person Act 1861
s.20
s.47
s.58
s.59
Prohibition of Female Circumcision Act 1985
Sexual Offences Act 1967
Sexual Offences Act 2003
ss.38–41
Suicide Act 1961
Surrogacy Arrangements Act 1985
Theft Act 1968
s.1
Introduction
Beginning the story
‘You are far from being bad men’.

Such were the words spoken in 1993 by a judge sentencing two doctors
for gross negligence manslaughter.1 A year earlier, Ognall J directed the
jury in Dr Nigel Cox’s trial for attempted murder. He stressed that Dr
Cox was ‘a man of unblemished reputation and character’ who had acted
with ‘intense compassion’ for his patient.2 We address the content and
context of both cases later. We begin with the question of how doctors
who are not ‘bad men’, or who are acknowledged to have acted from
the highest of motives, end up in the dock. How does medicine become
entangled with the criminal process? This is one of two linked concerns
of this work. First, we seek to evaluate the engagement of the criminal
process with medical practice and bioethical debates. In so doing, we
address the ‘unquestioned assumption’ that the (criminal) courts are the
appropriate forum to resolve ethical conflict.3 As Ashworth observes:
The uncertainties posed by the ambivalence and flexibility of the judicial
approach to [cases involving medicine and bioethical conflict] suggest that
there are difficulties at various levels in the criminal law’s response to medical
problems – over the principles that should come into play, whether the conflicts
between them can be resolved to the extent of stating some general rules, and
whether it is desirable to state rules or preferable to conceal what the courts are
doing.4
Secondly, we assess how far the dramatic context of both trials involv-
ing doctors and public debates about bioethical controversy involving
medicine affects and even distorts any analysis of what role the criminal
process should play in the regulation of medical practice and medical
ethics.
The closing decades of the twentieth century witnessed the dramatic
evolution of scholarly and public interest in the interaction between
1 Merry and McCall Smith 2001: 18–19. 2 R v. Cox (1992) 12 BMLR 38.
3 Veitch 2007: 141. 4 Ashworth 1996: 192.
1
2 Introduction: beginning the story
medicine, law and ethics. A vibrant subdiscipline of ‘medical law’

emerged in the UK’s universities. Not everyone applauded. Scholars
questioned the integrity of the subject area.5 Doctors faced with grow-
ing numbers of clinical negligence claims and a level of legal scrutiny of
medical practice unknown for over a century were unsurprisingly uncom-
fortable with such developments.6 The phenomenon of medicine itself
and the study of the ethics of both clinical medicine and medical sci-
ence (i.e., bioethics) became a major focus for the law that could not be
ignored.
Under the umbrella of medical law, several areas of law engaged with
medicine. At the forefront lay the law of tort in developing clinical neg-
ligence principles, the evolution of the law on consent, and the gradual
assimilation of confidentiality as a quasi-tort. Family law was prominent
in, to give just a few examples, disputes about children’s medical care,
controversy surrounding fertility treatment and the thorny issue of deci-
sion making on behalf of mentally incapacitated patients. On numerous
occasions, case law proved inadequate and legislation was introduced
to remedy defects in medical law and regulate emerging technologies.7
Criminal law was present on the stage, sometimes in a leading role as
in the prosecutions of Drs Prentice, Sullman8 and Cox, more often
in a less obvious role as in Airedale NHS Trust v. Bland 9 and in Re
A (Minors) (Conjoined Twins: Surgical Separation).10 Relatively little was
written about how and why criminal law permeates medical law. In 1957,
Glanville Williams published one of the first modern books in England to
fall within the genre of what was to become medical law, The Sanctity of
Life and the Criminal Law. For Williams, criminal law stood at the centre
of the law’s relationship with medicine. Somehow, in succeeding decades,
criminal law was often demoted to a bit part. In one notable exception,
the criminal law’s treatment of medical professionals was addressed in
an important essay by Ashworth in the 1990s.11 Other than this, the
criminal law’s role has been overlooked. We hope to restore it to centre
stage.
We use the language of theatre unashamedly, for unlike many anal-
ogous professions, medicine has seen legal disputes about its practice
and ethics played out in a dramatic fashion. Court cases that address
questions of abortion or euthanasia attract the kind of attention often
5 Veitch 2007. 6 Brazier and Cave 2011: 236–9.

7 For example, the Human Fertilisation and Embryology Acts of 1990 and 2008 and the
Mental Capacity Act 2005.
8 R v. Prentice, R v. Adomako, R v. Holloway [1993] 4 All ER 935, CA.
9 [1993] 1 All ER 821. 10 [2001] Fam. 147. 11 Ashworth 1996.
reserved for celebrity disputes or true theatrical productions. Note, in

this country, the much publicised prosecution of Dr Aleck Bourne after
he challenged abortion laws in 1938,12 the trial of Dr Bodkin Adams
in 1957,13 and the hearings in 2000 seeking to determine if conjoined
twins could lawfully be separated when one was doomed to die as soon
as the scalpel cut her loose from her sister.14 In the USA, the landmark
decision in Roe v. Wade15 and the history of repeated attempts to reverse
that decision have acquired the same prominence as any soap opera. The
years of litigation over the fate of Terri Schiavo16 became an international
drama. The public galleries in the Bourne and Adams trials were full; law
became spectacle. Nor is medicine as spectacle unknown. In the fifteenth
and sixteenth centuries, Europe’s anatomy theatres were as much sources
of entertainment as the ‘real’ theatres. In modern times, the exhibition of
plastinated bodies by Dr Gunther Von Hagens continues that tradition.
Medicine and bioethics touch on the very nature of health, life and death
and so have innate dramatic qualities. It is thus unsurprising that they
feature so heavily in real theatre, in literature and in popular culture.
Medical soap opera and theatre dominate the airwaves and prime time
television.17 Speculations about ethical boundaries of medical science
are the stuff of much science fiction.18
How does a study of the criminal process and its role in medical prac-
tice and bioethics fit with a study of portrayals of medicine in the real
theatre and the theatre of the media, literature and popular culture? Are
we overstretching ourselves in a vain attempt to build bridges between
the well-established tradition of criminal law scholarship, legal history,
the contested jurisdiction of medical law, the vast domain of bioethics
and the emergent study of law and literature? We acknowledge that we
embark on a perilous journey and lack reliable maps. One of our aims
is to evaluate how far the development of criminal law principles that
play a role in regulating medical practice and bioethics is influenced and
12 R v. Bourne [1939] 1 KB 687. 13 R v. Adams [1957] Crim LR 365.

14 See n.10 above. 15 410 US 113, (1973).
16 Schindler v. Schiavo 780 So 2d 176, 177 (Fla Dist Ct App), 2001); In re Guardianship of
Schiavo 789 so 2d 348 (Fla, 2001).
17 Illustrated in this recent opening narration from the lead character in the US drama
Grey’s Anatomy, Meredith Grey: ‘There was a time when they used to call operating
rooms an operating theatre. It still feels like one. Scores of people get ready for the
show. The sets are arranged. There are costumes, masks, props. Everything has to be
rehearsed, choreographed. All leading to the moment when the curtain goes up.’ Grey’s
Anatomy, Series 8, Episode 11, ‘This Magic Moment’. UK showing on Sky Living,
29 February 2012.
18 Gurnham 2009.
distorted by the drama that often surrounds the making and application
of law. The criminal process has intrinsic drama, an appeal to the lay
public not shared by all cognate areas of law. Behaviour labelled crimi-
nal indicates to many a moral culpability, conduct outlawed by society.
Criminal law’s relationship with debates on morality, especially in the
context of medicine, gives it an immediacy that tax law may lack. The
interpretation of a tax statute may be of huge importance to those at risk
of paying more tax. It is unlikely to spark the public imagination as does
the question of whether a dreadful error in the Intensive Therapy Unit by
a junior doctor should be punished as manslaughter, or whether doctors
who terminated a pregnancy at a late stage of gestation when a fetus had
a cleft palate should face gaol.19 Moreover, portrayals of the criminal
process and medicine may be far from accurate and public interest is on
occasion prurient interest. This is important in its own right. For just as
the criminal process attracts such theatrical attention, so we contend that
portrayals and conceptions of medicine and medical behaviour may, in
turn, affect the law’s development.
The pervasive influence of the criminal process

The role of the criminal law in medicine and bioethics is self-evident
in certain cases. When a doctor who made a fatal error is prosecuted
for manslaughter or a doctor who is accused of easing the passing of a
dying patient by hastening his death is charged with murder, these are
overtly criminal law issues. But many other cases relating to the practice
of medicine, although presenting as a matter of family law before a family
court judge or in the Court of Protection, equally entail the application
of criminal law principles to medicine.
An obvious example is Airedale NHS Trust v. Bland. Tony Bland had
suffered massive brain damage when he suffered crushing injuries in the
disaster at Hillsborough Football Stadium. He had lain in a persistent
vegetative state (PVS) for more than two years, his life maintained by
artificial nutrition and hydration. The form of the case involved an appli-
cation for a declaration heard initially before the President of the Family
Division. There was no Crown Court trial, no prosecution as such. But
the trigger for the hearing to establish if it was lawful to withdraw life sup-
port was concern that although Tony Bland’s doctors and family agreed
that his feeding tube should be withdrawn and the young man allowed to
die, any doctor who removed the tube might face a murder charge. The
19 See n.8 above; Jepson v. The Chief Constable of West Mercia Police Constabulary [2003]
EWHC 3318.
court was invited to rule if passive euthanasia was lawful and adjudicate
on a major debate in bioethics, as well as regulating the medical care
of the dying. The scope of the criminal law lay at the centre of judicial
decision making.
As a further example, in the conjoined twins case, a crucial issue of
family law arose: could the twins be separated against their parents’
wishes? Again, criminal law took the starring role, albeit in the family
courts. Separating the twins meant the immediate and inevitable death
of the weaker twin. Were the surgery murder, the operation could not go
ahead whatever the parents’ views.
Criminal law touches on medicine and bioethics in different guises.
Murder and manslaughter are general criminal offences, in no way spe-
cial to medicine.20 The challenge for law is to ensure that the particular
needs of medical care can be accommodated within offences not designed
to address the dilemmas doctors and patients face today. We are not
directly concerned with doctors such as the notorious Harold Shipman,
who killed at least 215 of his patients for unknown motives. Shipman
was a serial killer who happened to be a doctor. We are concerned
with how the criminal law engages with doctors who seek to practise
compassionately at the end, or beginning, of life, who seek to honour
their patients’ wishes and find themselves at the centre of bioethical and
popular debates on abortion and assisted dying – cases which involve
a ‘profound level of moral conflict’.21 For the medical lawyer and the
bioethicist, the consequence of a ‘wrong’ answer is, at most, stringent
criticism. The doctor may find himself or herself in the dock. We are also
concerned with the doctor who makes a fatal error and faces prosecution
for gross negligence manslaughter. How well does the criminal process
address the issue of accountability for medical errors? Until relatively
recently, in England at least, the story might have been one of doc-
tors being privileged by judicial deference.22 In much of what passes for
medical law, that deference has markedly declined. Judges have robustly
supported competent patients’ rights to make autonomous choices about
treatments.23 The best interests of mentally incapacitated patients are no
longer the preserve of medical expert opinion.24 In the context of the
criminal law, although deference may no longer prevail, the practice of
the profession and medical experts’ opinions continue to weigh heavily
20 Although the term ‘medical manslaughter’ is often utilised, there is no such specific
offence at law.
21 Veitch 2007: 132. 22 Miola 2012.
23 B v. An NHS Hospital Trust [2002] EWHC 429 (Fam); St George’s HC Trust v. S [1998]
3 WLR 936. Chester v. Afshar [2004] UKHL 41.
24 See Re S (Adult Patient: Sterilisation) [2000] 3 WLR 1288.
in terms of determining the law. Some degree of privilege still protects

the doctor.
Another factor renders the profession vulnerable. In theory at least, the
criminal law allows little room to distinguish between individual cases.
The question is: was the law broken or not, with no principled means,
outside defences such as self-defence and necessity, to say, ‘well it was, but
for a good/legitimate cause’. The criminal law is, on its face, implacable.
It may be contrasted to family law where the courts deciding on the fate
of very sick neonates,25 or wrestling with the awful results of applying the
letter of the law to foreign surrogacy arrangements, can mould the law
to the demands of justice and compassion in a particular case.26
But the criminal law’s role in medicine today is far from limited to the
need to fit medical (mis)conduct into the general offences punished by
penal law. Increasingly in the UK, as emergent and/or controversial areas
of medicine are subject to special regulation, breaches of the regulations
imposed are made express and discrete criminal offences. To give just two
examples, a doctor or a scientist who creates a human embryo in vitro or
keeps such an embryo beyond the fourteen-day limit set by the Human
Fertilisation and Embryology Act 1990 does not just risk losing his or her
clinic their licence, but could face a ten-year jail sentence.27 A pathologist
who removes or retains human material post mortem without appropriate
consent as required by the Human Tissue Act 2004 may be prosecuted
and gaoled for up to three years.28 The criminal law’s encroachment on
regulation in such instances prompts two questions. What should the
criminal law’s role be in regulating medical science?29 And given that,
for the most part, these specific crimes are created in areas of ethical
controversy, how do criminal law and bioethics fit together? This second
question is our focus. Return to the example of the pathologist. The
Human Tissue Act makes him or her a criminal if he or she retains
organs without consent. Yet there are those who argue that no wrong
can be done to the dead and that any interest of a bereaved family in the
body of their loved one must cede to the interests of the living in medical
education and research.30
Untangling the substantive criminal law applying to medicine and
bioethics is like untangling a ball of wool that the family cat has been
playing with. Another factor complicates the task. In England and Wales,
crucial decisions that shape how the criminal process affects medical
25 See e.g. Re Wyatt (a child) (medical treatment: parents’ consent) [2004] EWHC 2247
(Fam).
26 See Brazier and Cave 2011: 382–3. 27 S.3(1) and s.42. 28 S.5.
29 Alghrani and Chan 2012. 30 Harris 2002.
practice and bioethics are made not in the courts and accessible in
reported judgments, but by the Crown Prosecution Service (CPS) and in
some cases its head, the Director of Public Prosecutions (DPP). For this
reason, we often refer to the criminal process rather than the criminal
law. We address the role played by the CPS and the DPP in subsequent
chapters. When a fatal error by a doctor is investigated by the police, any
question of prosecution will be referred to a specialist unit of the CPS. In
settling the criteria used to determine whether to prosecute a doctor, the
law in books differs from the law in practice.31 A better-known example is
the DPP’s guidance setting out the circumstances in which a person may
or may not be likely to face prosecution for assisting suicide. It happens
that doctors who help patients to die will apparently find little comfort in
the guidelines.32 The important issue is that, in effect, the DPP is making
the law on assisted dying even more of a hotbed of bioethical controversy
and that the highest court in the UK commanded him to do so.33
Nor is the DPP’s role the only reason that our focus is on the criminal
process and not simply the principles of criminal law. It seems sometimes
that the criminal process is perceived as the only, or best, legal vehicle
to obtain justice in the wake of medical error or scandal. Families who
have lost a relative to medical error may press for prosecution and where
an injury occurs short of death and no criminal offence has been com-
mitted, the victim may find civil redress and disciplinary action against
the doctor inadequate. In the scandal that erupted in the UK when it
became known that pathologists had routinely retained organs from the
dead with no consent, angry families called for prosecution.34 Justice
becomes equated with a gaol sentence, and thus the criminal process is
viewed as an essential means to right the wrong.
The relevance of ‘theatre’

Legal debates about medicine and ethical controversy do not take place
in a vacuum; once the criminal process is engaged, drama frames the
proceedings. In that drama, the media play a large role. Does a ‘theatrical’
context enhance or inhibit the development of legal principles apt to
meet the needs of the matter before the courts, or under consideration
by the DPP, or when new proposals to amend the law are to be debated?
The presentation of individuals and human dilemmas may cloud rational
31 We allude to research carried out as part of the broader project from which this book
arises. See Griffiths and Sanders 2013b.
32 Crown Prosecution Service [CPS] 2010a: para 43.
33 In R (on the application of Purdy) v. DPP [2009] UKHL 45.
34 Retained Organs Commission 2004.
debate. Public sympathy for families who have accompanied relatives to

die at the Swiss right-to-die ‘clinic’ run by Dignitas had, we argue, a
significant effect on the guidelines demanded by the House of Lords and
developed by the DPP.35 The eloquence and courage of Debbie Purdy in
her quest for clarity about the likely legal consequences for her husband
if he helps her to die created strong popular support for her cause.
In the context of families helping relatives to reach Switzerland, real
theatre played its part in the television drama about the case of Dr Anne
Turner starring the popular actress Julie Walters.36 Theatre and litera-
ture have long shaped debate about medicine and the criminal process.
The perception of the physician in society is mirrored in its literature.
And in centuries past, the low esteem in which the physician or surgeon
or apothecary was held made him more vulnerable to legal attack. The
influence of theatre and literature on ethical debate is by no means uni-
form, in the sense that one could judge that it favours (only) a liberal or
conservative approach. Science fiction may be conservative in its effect,
with frightening stories of unhappy child clones bred to be organ banks
for more privileged ‘naturals’.37 Any effect on legal debate may be acci-
dental. A good story, a compelling drama, will often not be even-handed.
Imagine Brave New World where the fictional technology was used only
responsibly to give all those who wanted it a chance to have the health-
iest children. There were no Alphas and no Epsilons. The book would
not have sold as it did. In contrast, the aforementioned television drama
about Anne Turner’s quest for an assisted death was liberal in orientation
and effect, supporting the pro-assisted-dying argument. Literature influ-
ences debate by its ability to catch interest rather than any dispassionate
service to the public interest.
The concept of theatre is also relevant because so much of what the
judges do in the cases we address involves orchestrated framing, the
manipulation of legal concepts, interpretation (of the facts of the case,
the story of legal precedent and the particular ethical dilemma) and
translation (of ethical issues into criminal law discourse). The concept
of theatre we employ is a liberal one, encompassing drama both within
and without the courtroom, legal and bioethical literature,38 narrative
construction, media coverage and the spectacle of medicine. The con-
cept of theatre is notoriously difficult to define. However, according
to definitions that fit with the broader ideas in this work, an audience
is the essential requirement for something to be described as theatre:
35 Above, nn.32 and 33.

36 ‘A Short Stay in Switzerland’, BBC 1, 25 January 2009. 37 Darnton 1999.
38 Note Herring’s notion of bioethics ‘as entertainment’. Herring 2010: 19.
‘[t]he only thing that all forms of theatre have in common is the need
for an audience.’39 Such an understanding is capable of capturing all
the aspects we have mentioned previously. In addition, ‘[t]he core of the
theatre is an encounter . . . The theatre is an act engendered by human
reactions and impulses, by contacts between people’.40 This contact can
be by way of, for example, the judge engaging with those involved in the
case before him or her; the bioethicist being involved in dialogue with
readers; public reaction to a significant medical development, such as the
first face transplant; the defendant’s counsel’s interpretation and appli-
cation of judicial precedent. The essential components of the concept of
theatre are an actor/player/author, an audience and narrative.
A story and some themes

Within this book we try to achieve a number of ends which sometimes
conflict. The book tells a story of how the criminal law and process
remain a significant part of the framework within which medicine and
bioethics are regulated. Criminal law’s range is so huge that in seeking
to ensure that the story is more than a superficial canter over the multi-
tude of ‘crimes’ that doctors risk committing, we had to make difficult
choices about what to include. Part I sets the scene, identifying links and
conflicts between bioethics, medicine, the criminal law and theatre. Part
II presents the criminal courts and law as the theatre in which medical
cases involving bioethical controversy are played out, and also consid-
ers the impact that other external theatrical forces have on criminal law.
Case studies illustrate how judges have grappled with bioethics, suggest-
ing tensions between bioethics and the criminal process. Part III adds the
major theoretical component to our analysis. Can the criminal law be an
appropriate forum for resolving bioethical medical conflict – do criminal
law and bioethics connect? Can principles of bioethics and criminal law
work together? Our narration of this story is shaped by the fact that we
are more medical lawyers than criminal lawyers or bioethicists. Our con-
struction of the story, our own theatre, is framed by the lens of medical
law. A criminal law theorist or bioethicist might well offer a different
theatre, narrative and conclusion.
Besides telling a story, we seek to discern what can be learned from
the story. Is there, can there be or should there be coherent themes
that tell us when and how medicine, bioethics and the criminal law
should meet? We attempt to unearth some form of theory or theories,
but should be clear from the outset that what we find is that although,
39 Brook 1977: 154. 40 Grotowski 1968: 56 and 58.

for instance, respect for autonomy (and political liberalism) has strong
connections to medicine, bioethics and criminal law, the connections are
far from solid and tensions emerge. Medical politics may trump political
liberalism. Human sentiment plays a role and rational answers are not
always feasible. Principle and practice conflict. The ethicist can build
a model of what ought to be. The lawyer struggles to apply principle
to legal concepts never designed to address the complexity of modern
medicine or bioethics. The following themes are core to our story.
Tensions and transient connections: the lighthouse’s beam

The connections between criminal law, medicine and bioethics are anal-
ogous to the moving beam of light emanating from a lighthouse. Some-
times the connections are lucid and brightly lit; at other times they are cast
in shadows. For example, as Chapters 7 and 8 illustrate, the concept of
responsibility in some respects lights up a clear connection between crim-
inal law, bioethics and the medical professional, but this connection then
moves into the shadows cast by the differing functions of the criminal law
and bioethics. By way of a further example, sometimes the connection
between medicine, bioethics and the criminal law provided by political
liberalism is transparent. At others, especially in Chapter 2’s context of
the body, the connection looks strong when we consider how the law
endorses bodily integrity but, once we ask about freedom to choose what
we do with our bodies, is sometimes lost or prevented because of moral
sentiment, the limits of cultural acceptability and/or politics. Although
the lighthouse’s beam returns and criminal law, medicine and bioethics
can work in harmony, there are periods of darkness in which there is
more of a disconnect and a tension between the fields.
Theatrical distortion
Although the theatre involved in cases of bioethical controversy is capti-
vating, one of the central themes of this work is that this theatre causes
tension between the criminal law, medicine and bioethics. Just as Plato
castigated poetry in The Republic as falsification, as ‘presenting images
that are at several removes from the truth’,41 we claim that theatre has a
distorting effect, blurring the reality of the situation. Plato’s ambiguous
notion of the pharmakon42 is also of some relevance here; partly because
of the theatre surrounding the cases we explore, the criminal law appears
41 Plato 1992: Book 3, section 389b and Book 2, section 382d; Tanner 2010: 130.
42 See Derrida 1981; Plato 1992: loc. cit.
to offer both a remedy for and an exacerbation of bioethical conflict in

medicine.43 Although it may ‘cure’ by offering a resolution to ethical
conflict, its application (and avoidance) often misrepresents the reality of
medical practice. For example, in Chapter 5 we argue that in end-of-life
cases, the orchestrated framing and charades that judges engage in distort
the truth and do not reflect medical practice. Furthermore, the theatre
surrounding such cases means not only that the pressure on judges is
immense, but also that in cases where the criminal law’s spotlight can be
avoided such as Bland, it is, wherever possible.
(Political) liberalism
Liberalism is a powerful connector between criminal law, bioethics and
medicine. It is commonly perceived to be the predominant framework of
the criminal law: bioethics was brought into being during the liberal age
in America, and the liberal paradigm now permeates medicine and the
doctor–patient relationship. In Chapter 7, we contend that the legitimacy
of rules that make up the normative code reflected in both the criminal
law and bioethics is grounded, in part, in political liberalism. It is no
coincidence that responsibility, a key notion in liberal societies, plays a
prominent role in criminal law and bioethics. We see in Chapter 8 that the
four principles forming one of the most prominent theories in bioethics –
autonomy, beneficence, nonmaleficence and justice – reflect and find
their authority in liberal values. We identify how these principles connect
with principles of criminalisation and the criminal law’s reflection of the
rule of law. Although we contend that political liberalism can offer a
partial means of resolving conflict and uniting medicine, bioethics and
the criminal law, earlier chapters in the book highlight the obstacles
placed in the way of this resolution being achieved.
Moral sentiment and medical politics

The forceful presence of moral sentiment affects the chances of political
liberalism resolving conflict and tensions between criminal law, medicine
and bioethics. Chapters 2, 4 and 5 explore how moral sentiment and
cultural acceptability limit the criminal law’s recognition of individual
autonomy in the context of consented-to harms to the body, such as
circumcision, and frame debates on abortion and end of life. Turning
to medical politics, Beck argues that the public sphere remains outside
43 We do not go so far as to suggest that criminal law poisons as well as cures in our context
and thus do not fully embrace the oxymoron that the pharmakon presents.
of medicine, lagging behind medical developments because the requi-

site knowledge and understanding exist only within the medical realm.
Consequently, medicine is a site of subpolitics:
the legislative and executive branches lie united in the hands of medical research
and practice. . . . It is the model of an undifferentiated authority to act, which
does not yet know the separation of powers, and in which social goals only need
be conceded to the affected parties retrospectively, as secondary consequences
that have already become a reality.44
The politics of medicine (involving, for example, questions related to how

far medical advances should be (ethically) permissible, to what should
be defined as medical issues and to what constitutes lawful behaviour)
lies within medicine. The consequence of this is medical power:
medicine as a professional power has secured and expanded for itself a fun-
damental advantage against political and public attempts at consultation and
intervention. In its fields of practice, clinical diagnosis and therapy, it not only
controls the innovative power of science, but is at the same time its own par-
liament and its own government in matters of “medical progress”. When it has
to decide on “malpractice”, even the “third force” of jurisprudence has to take
recourse to medically produced and controlled norms and circumstances, which
according to the social construction of rationality can ultimately be decided only
by medical people and by no one else.45
The implications are that questions of legality related to medical practice
are influenced and, in some cases, shaped by the medical profession.
For instance, we explore in Chapters 2–5 how the notion of ‘proper
treatment’, decided by the medical profession, can make lawful what
would be criminal if carried out by anyone not a doctor. However, in so
doing, medical power can sometimes play a positive role alongside polit-
ical liberalism in achieving a resolution to bioethical conflict. Moreover,
although our consideration of medical politics is influenced by Beck, we
do not suggest that medical professionals’ criminal liability should not be
informed by an awareness of the doctor’s role. Rather, we recognise that
medical professionals undertake a distinctive role that can differentiate
behaviour occurring in the context of medical practice from behaviour in
other contexts, and the criminal law should take account of this.
Having set the scene, we next move to explore the long-standing
engagement between medicine, crime and bioethics.
44 Beck 1992: 209. 45 Ibid.: 210.

Part I
Setting the scene

1 Courtrooms, ‘physic’ and drama
In the latter decades of the twentieth century, the rapid rise in claims
for medical negligence and the growing number of court cases address-
ing doctors’ responsibilities and the rights of patients were seen as
a modern phenomenon. Medical law was hailed as ‘a comparatively
young subject’,1 albeit medical ethics was acknowledged to have a longer
history.2 Early in the twenty-first century, concerns were expressed about
what was seen as the emergent role of the criminal process in regulating
medicine, especially in the context of prosecutions of doctors for gross
negligence manslaughter and consequent potentially adverse effects on
medical practice.3 In Chapters 2 and 3, we show that the criminal pro-
cess does intrude into several key issues in medical practice, extending
far beyond the narrow focus of prosecutions for fatal errors. The criminal
law lays the foundation of the law governing most aspects of the prac-
tice of medicine. However, possible adverse effects may be exaggerated.
Doctors are still treated ‘kindly’ in the criminal process in England, even
if the more extreme manifestations of judicial deference observed in the
late twentieth century have abated.
In this chapter, we hope to show that engagement between medicine
and the criminal process is not a new phenomenon. Medicine, crime
and bioethics have a long and dramatic history together. Nor was the so-
called tradition of judicial deference to the doctor as well entrenched in
history as it sometimes appears to be;4 judicial attitudes to doctors have
waxed and waned over the centuries, mirroring public perceptions of the
role of the ‘doctor’. The courts have for centuries been the ‘theatre’ in
which controversy surrounding medical practice and what we now style
‘bioethics’ is played out,5 and in the past, as today, the public and the
nascent media were entranced by medical dramas. From the sixteenth
1 See Kennedy and Grubb 2000: 3. And see Veitch 2007.

2 See Freeman 2008b; Miola 2007: Chapter 2.
3 Ferner and McDowell 2006 (discussed more fully in Chapter 3, at p. 74).
4 See Brazier 2008b. 5 Freeman 2008b.
15
16 Part I: Setting the scene
to the start of the nineteenth century, the regulation of medicine was

effectively in the domain of the criminal law. The central ethical issue
of that era, the development of scientific research and the dissection of
cadavers, was mediated, if clumsily, via the criminal process. Moving
to more recent times, we introduce three courtroom dramas from the
twentieth century. One theme pervades this ‘history’: social attitudes to
medicine and the degree of trust or lack thereof affect how the criminal
process relates to medical ethics and medical practice. The political power
and influence of the medical profession are a key factor in debates.
The ‘criminal process’ and the regulation of medicine

before 1858
Intimations that doctors should be wary of the ‘criminal law’ date back
to ancient history. In Mesopotamia over 3000 years ago, the Code of
Hammurabi declared that if a surgeon’s skill (or luck) saved a lord’s life
he was to be rewarded with ten shekels of silver, but should he cause the
death of the lord, ‘his hand shall be chopped off’.6 This would appear
to be a strict liability crime with no requirement to prove simple, never
mind gross, negligence. In medieval Europe, the pronouncements of
the Roman Catholic Church embedded a theocratic version of medical
ethics into canon law. Until the Reformation, canon law might itself be
seen as a form of criminal process and gradually principles of canon
law on matters such as abortion and suicide seeped into the criminal
law, although common law judges often injected a significant dose of
pragmatism into the evolving law.
The Medical Act 1858 and the creation of the General Medical Coun-
cil (GMC) marked the end of a long struggle to establish a unified pro-
fession and granted respectability to the vocation of medicine. Before
1858, three different sorts of doctors competed for the market in ‘med-
ical services’ and fought to exclude from that market a wide variety of
other ‘healers’, including herbalists,7 alchemists and midwives. The three
sets of competing ‘doctors’ were the physicians, the surgeons and the
apothecaries.8 In the estimation of the physicians, only they belonged to
a profession and the other two were mere tradesmen. For three centuries,
the physicians sought to dominate and control all forms of medical prac-
tice, using the criminal process as a tool in their battle with competitors
and to enforce their rules on its own members. In 1518, the London
6 Porter 1997: 45.

7 For an engaging account of the battles between the College of Physicians and the herbal-
ists, see Woolley 2004.
8 See Brazier 2008b: 466–9.
Courtrooms, ‘physic’ and drama 17
College of Physicians was granted a charter by Henry VIII (confirmed

by statute in 1522) and empowered to license the practice of ‘physic’
in London or within seven miles of the city.9 A physician licensed by
the College was entitled to practise anywhere in England and Wales.
Outside London, bishops enjoyed the power to license physicians and
midwives.10 There were two tiers of physicians: the Fellows who ran
the College and Licentiates who were permitted to practise under the
College’s direction. The College appointed Censors who prosecuted any
person suspected of practising ‘physic’ without a licence and any physi-
cian arraigned for mala praxis (malpractice).11 Unlicensed practice was
punished by a fine of £5 for every month of unlicensed (illegal) practice.
Physicians found guilty of mala praxis could be sent to gaol. The College
employed its Censors not only to control its own members, but also to
regulate the other two ‘professions’. They claimed a monopoly over cer-
tain profitable forms of practice, a monopoly underpinned by the criminal
process.
Surgeons in the sixteenth and seventeenth centuries were perceived as
a lower form of doctor despite the evidence that the original Fellowship
of Surgeons developed an embryonic code of ethics. The amalgamation
of the Guild of Surgeons with the Barbers to form the Barber–Surgeons
Company in 1540 firmly placed the surgeons ‘in trade’.12 The Quacks’
Charter (as a statute of 1543 was named) further undermined the sur-
geons, defaming them in the Preamble and denying the surgeons anything
like the physicians’ monopoly. It was the physicians’ own prohibition on
any form of bloodletting that left the surgeons a space in the market.
The apothecaries, the third of the three ‘medical professions’, had an
even lower status, although they probably provided care for greater num-
bers of people than their rivals. In practice, they worked much as family
doctors do today. Their place in the medical market was secured by the
exclusion from the College of any surgeon, drug compounder or ‘any
other artificer’. The mixing and making of medicines was seen a trade
beneath the physicians’ dignity. The sting in the tail for the apothe-
caries was that they were prohibited from providing medical treatment
in London save under the supervision of a physician. The apothecary
could make up the medicine, but diagnosis and prescription fell to the
physician, and an apothecary who defied the rules could face charges of
unlicensed practice and the swingeing monthly fine that went with such
a charge.13
9 See Gelfand 1993.

10 By virtue of an earlier statute of 1511 or 1512; 3 Henry VIII c II; Woolley 2004: 35–6.
11 See, for example, Dr Groenvelt’s Case (1697) 9 Will 3 BR.
12 See Brazier 2008b: 468. 13 See Brazier 2008b: 468–9.
The Censors of the College were vigorous in their pursuit of unli-

censed practitioners, be they surgeons, apothecaries or other healers.
They constituted both a police force and a medical forerunner of the
CPS. Woolley describes the Censors in the seventeenth century as roam-
ing ‘the streets in a vindictive mood’ seeking out any errant apothecary.14
Several courtroom battles ensued.15 In 1634, the notorious Star Cham-
ber heard complaints raised by the physicians against the apothecaries.16
Any suspicious death17 in which an apothecary or a surgeon was involved
was seized on by the College as evidence of the inferiority of the other
professions, with little thought for the possible fate of the unfortunate
practitioner. Nor were charges of unlicensed practice the only snare of
the criminal process that the non-conforming doctor must face. Indict-
ments for witchcraft18 were not uncommon and needed less by way of
proof that the ‘doctor’ had by any malpractice caused the death.
The criminal process at this time was utilised both as a regulatory
tool and as an instrument to protect one set of vested interests. Even
the more exalted physicians were at daily risk of criminal charges for
any failing of practice, to a much greater degree than today. But it was
a criminal process that was dominated by the physicians. The College
defined good practice and used the law to discipline those who defied it.
Their persistent pursuit of dissenters within and without their ranks did
not inspire public trust. Literary and popular references to doctors of all
types were uncomplimentary. John Gay summed it up in The Beggars’
Opera: ‘Man may escape the rope and the gun. Nay, some have escaped
the doctor’s pill.’19 The physicians’ attempts to dominate all medicine
and the use of the criminal process to enforce their rules received a major
setback in William Rose (in error) v. The College of Physicians (London).20
William Rose, an apothecary, had attended John Seale and made up and
administered medicines for him. Mr Seale refused to pay and reported
Rose to the College of Physicians for unlicensed practice, as at no stage
did a physician examine or prescribe for Seale. Rose was charged and
convicted by a jury and his appeal to the Court of King’s Bench failed.
So Rose sought a writ of error before Parliament, the only means for a
further appeal. Every Fellow of the College was summoned to the House
of Lords. Rose won his case. The technical argument was that although
Rose charged Seale for the medicine he compounded, he provided advice
free and that gratuitous advice was not practising physic. The jury had
14 Woolley 2004: 123. 15 Ibid.: 127–32. 16 Ibid.:128. 17 Ibid.: 124–8.

18 Ibid.: 213–15. 19 The Beggars’ Opera SC Viii air Xxvi: and see Woolley 2004: 123.
20 (1703) English Reports 857.
found for him on the facts and the House of Lords held that his con-
viction was thus in error. No reasons were given for the decision, but
the defeat was a huge blow to the College. The hearing pitched the two
camps in stark opposition to each other.21 The College portrayed the
apothecaries as unqualified and prone to exploit patients. They were not
bred to have suitable skill. The apothecaries argued that gratuitous advice
had long been sanctioned as lawful and attacked the College’s efforts to
monopolise all forms of medicine. They argued that many people, espe-
cially the poor and those taken suddenly ill, relied on the apothecary,
being unable to afford the physician’s fee. The case pitted two visions
of medicine against one another. The criminal process was indeed the
theatre in which some of the future shape of medicine was crafted.
Before leaving the Censors and moving on to the next phase of medico-
legal history, the further roles of the Censors must be noted. They were
not only, and not even primarily, the guardians of medical monopoly and
good practice. They were also the Censors of letters and morals. They
sought to control (censor) all books and writings on medicine.22 As
Censors of morals, they might be seen as taking on the role now enjoyed
by the GMC, advising physicians on matters of medical ethics. Little that
relates to modern bioethics, or even Christian charity, can be discerned
in the moral ‘code’ that the Censors enforced. The ‘code’ addressed
such matters of etiquette as the requirement for proper dress and the use
of titles. It prohibited bad-mouthing brother physicians or interfering in
colleagues’ cases without invitation.23 This conflation of ethics, etiquette
and monopoly survived the Censors’ demise and endured well into the
twentieth century.24
It took centuries for the warring doctors to reconcile sufficiently to
allow the formation of the GMC. The 1858 Act and its successors no
longer sought to use the criminal law to protect a monopoly in medicine.
Unlicensed practice as such ceased to be an offence. Rather, the offence
became deliberately and falsely representing oneself to be a registered
medical practitioner.25 Poor practice, of itself, no longer placed the doc-
tor in the literal dock. The doctor facing disciplinary proceedings might
be struck off. He could no longer be fined or go to gaol. But in its origi-
nal language of ‘infamous conduct in any professional respect’26 and the
21 For fuller discussion, see Brazier 2008b: 470–2 and for a comprehensive account of the
hearing, see Clark 1964–6: 476–9.
22 Woolley 2004: 39–40. 23 Woolley 2004: 40. 24 See Gillon 1986: Chapter 5.
25 See now Medical Act 1983 s.49. And see s.49A for the related office of pretending to
have a current licence to practise.
26 See Smith 1993.
requirement that any charge against the doctor be proved beyond reason-
able doubt, the GMC retained the flavour of the criminal law.27 Its powers
were in one sense greater than those of the courts, as it could deprive
a doctor of livelihood and reputation. Moreover, the GMC acquired
greater powers than the College, becoming investigator, prosecutor and
judge. The GMC faced a barrage of criticism toward the end of the
twentieth century, being accused of prioritising the protection of doc-
tors. Successive reforms refocused the GMC’s powers on establishing
fitness to practise and replaced the criminal standard of proof with the
lower civil standard.28 In 2010, the GMC looked set to lose its powers
of judging doctors to the Office of the Health Professions Adjudicator
(OHPA). The OHPA fell victim to the cuts imposed by the incoming
Coalition government. However, the GMC has initiated its own inter-
nal reforms, devolving decisions on fitness to practise to the Medical
Practitioners Tribunal Service (MPTS), which is headed by a judge and
separated from the Council’s other functions.29 The GMC will continue
to investigate and ‘prosecute’ fitness-to-practise cases, but the ‘judicial’
function is now de facto if not de jure independent.30
Fitness-to-practise proceedings today are removed from the criminal
justice process, yet echoes of the criminal process that once regulated
medicine persist. The MPTS has powers which in many ways match
those of the criminal courts in the capacity to remove the ‘offender’ from
a ‘stage’ where he or she is a danger to others. For many doctors, the
GMC is a more potent threat than the courts. Many cases of bioethical
conflict (such as Dr Adams and Dr Cox)31 that go initially to the criminal
courts are later subject to the GMC’s scrutiny.
The gruesome history of dissection

We move now to a second historical connection between medicine and
the criminal process, a connection which also links into bioethical debates
that continue to this day, and has had a profound effect on how medicine
is perceived in the public domain. The medieval doctor had few effec-
tive treatments at his disposal whichever one of the medical professions
he belonged to. Bloodletting, purging and emetics and extraordinary
27 Although the GMC regularly reiterated that its disciplinary function was not punishing
a doctor: Smith 1993:57–8.
28 General Medical Council (Fitness to Practise) (Amendment in Relation to Standard of
Proof) Rules Order of Council 2008; SI 2008/1256.
29 Available at www.mpts-uk.org.
30 Legislation will be needed to give the MPTS legal status.
31 See below, at 30–33 and Chapter 5.
and often toxic mixtures often did more harm than good. More funda-
mentally, there was abysmal ignorance about just how the human body
worked. Absent any real grasp of anatomy, much of medicine in the fif-
teenth to seventeenth centuries was guesswork. The Renaissance marked
the birth of the study of anatomy and the growth of understanding of
physiology, allowing medicine to develop as a science.32 However, the
English College of Physicians remained ‘ambivalent about science in
medicine’.33
In 1543, Vesalius published his De human corporis fabrica, a work that
Sawday describes as marking the appearance of the ‘outlines of what
we might term moral anatomy’.34 Other works followed rapidly and
medicine began to be transformed. Self-evidently, to achieve that trans-
formation, doctors, scientists and artists needed dead bodies to cut up.
The ‘public’ had conflicting opinions on dissection and the anatomists’
rise. Fear fought fascination.35 There was a dread of ending up on the dis-
secting table.36 The Roman Catholic Church’s doctrine of bodily resur-
rection condemned dissection, and the faithful feared that if their corpses
were cut up they would be denied resurrection. Yet the anatomy theatres
where the doctors practised their craft attracted large audiences: ‘[as] a
theatrical performance, indeed, the anatomy theatres rivalled the stage for
the hold it exerted on those who flocked to these Vitruvian structures’.37
Dissections in continental Europe at least became performances. In
England such performances were perhaps rarer, though far from
unknown, and English gentlemen would travel abroad to sample the
great theatres of Padua, Paris and Leiden. Sawday elegantly depicts how
dissection and anatomy not only provided ‘theatre’ of their own but also
permeated Renaissance literature.38
It is in the means by which bodies might be obtained that we find a
significant link between anatomy and the criminal process,39 a link that
took two practical forms:
(1) In the absence of sufficient ‘volunteers’ willing to donate their bodies
for dissection, states across Europe sought to conscript executed
criminals’ bodies. Nowhere was this trend more marked than in the
British Isles.
(2) However, despite such conscription, supply failed to meet demand
and the medical profession itself colluded in criminal enterprises to
‘steal’ bodies.
32 See Sawday 1995. 33 Woolley 2004: 349–50. 34 Sawday 1995: 65.

35 Ibid.: Chapter 4. 36 Graphically analysed in Richardson 2000.
37 Sawday 1995: 75–6. 38 Ibid.: 159–82.
39 For a much broader examination of the symbolic and theatrical links between dissection
and the criminal justice process, see ibid.: 81–4.
Dissection became linked to crime and, at the same time, became the
crux of what we might see today as conflict between ‘public sentiment’
and science and a source of ethical controversy. Eminent doctors in
the sixteenth and seventeenth centuries dismissed fears of dissection as
the superstition of the poor,40 rather as twentieth-century doctors more
politely dismissed concerns about organ retention as hysteria.41
No peaceful burial place

Hogarth’s cartoon of a dissection at the Surgeons’ Hall in London is
accompanied by this verse:
Behold the Villain’s dire Disgrace
Not Death itself can end
He finds no peaceful Burial-place
His breathless Corpse – no Friend42
Hogarth encapsulates the connection between dissection, then the key

tool of medical science, and the criminal process. In 1506, King James IV
of Scotland granted the Edinburgh Guild of Surgeons the right to dissect
a number of executed criminals’ bodies.43 Thirty-four years later, Henry
VIII gave the Company of Barber–Surgeons the corpses of four hanged
felons.44 Elizabeth I made a similar grant to the College of Physicians in
1565.45 In subsequent decades, royal largesse increased in terms of both
the number of criminals’ bodies kindly donated by the sovereign to the
surgeons and the physicians,46 and new gifts to the Royal Society47 and a
range of other organisations with an interest in learning from dead bodies.
Still the doctors could not obtain enough bodies. The so-called ‘Murder
Act’ of 1752 was supposed to fill the gap. Enacted ‘for better preventing
the Horrid Crime of Murder’, the statute authorised judges to impose a
sentence that the convicted criminal should suffer the additional penalty
of dissection after execution as ‘a further Terror and Mark of Infamy’.48
The worst kinds of felons were denied a grave.
The legislation heightened public fears of dissection. The prospect
appalled many people who already feared both that dissection would deny
them resurrection and that a mistake might be made and they would be
cut up while still living. Dissection was accorded a ‘quasi-legal’ status, and
yet opposition to dissection, even the dissection of convicted criminals,
40 Richardson 2000: 77 41 Tallis 2004: 187–92.

42 Hogarth, Fourth Stage of Cruelty, 1751. Reproduced in Richardson 2000: 33.
43 Richardson 2000: 32. We have been unable to ascertain the exact number of corpses.
44 Ibid. 45 Moore 2006: 76. 46 Richardson 2000: 36.
47 Sawday 1995: 57. 48 Richardson 2000: 35: Sawday 1995: 54–6.
was fierce. Crowds who gathered to watch and applaud executions rioted
in attempts to rescue the body for burial.49 The executioner and the
doctors who dissected the body became connected in the public mind.
Penal dissection formed a platform for drama and literature, and the
latter in turn merged into a forum for public debate.
Body snatching
Before and after the 1752 Act, demand for corpses seemed insatiable.
Not only did medical scientists seek the material for their research,50 but
also profitable anatomy schools such as that run by the elder Hunter
brother, William, needed bodies to train students.51 Body snatching
became common.52 Part of the impetus for the ‘Murder Act’ of 1752 was
to combat a practice that struck fear into the populace and besmirched
medicine’s reputation. The Act wholly failed in this objective. ‘Grave rob-
bing’ became a trade; its artisans were nicknamed the Resurrectionists
and earned good livings from selling bodies to the anatomists. There is
evidence that doctors were more than just complicit in the trade and that
surgeons and their apprentices were themselves directly involved in tak-
ing fresh bodies from graves. The surgeon John Hunter was so engaged
as a young man,53 and when later in life he was more eminent, he used
bribery and fraud to obtain the body of the ‘Irish giant’ Charles Byrne to
exhibit in his museum.54 The culmination of the body-snatching debacle
was the resort to more direct means of obtaining bodies: simply mur-
der your chosen ‘corpse’. The Edinburgh murderers, Burke and Hare,55
are notorious to this day. Less well known are the Londoners Bishop
and Williams,56 who unlike Burke and Hare57 truly did graduate from
‘stealing’ corpses to murder.
Centuries later, it is easy to condemn body snatching as part of a Gothic
era in medicine and to revile its practitioners. Yet John Hunter, a sur-
geon who connived at grave robbing, also laid the foundations of modern
49 Sawday 1995: 60.

50 As provocatively depicted in Shelagh Stephenson’s play An Experiment with an Air Pump
(1998), in which a family in 1799 confront the boundaries of morality in the context of
body snatching and dissecting bodies for scientific research.
51 Moore 2006: 74–6. 52 Moore 2006: 84–97; Richardson 2000: 52–99.
53 Moore 2006: 74; Richardson 2000: 37–9. 54 Moore 2006: 397–429.
55 Richardson 2000: 131–41.
56 Ibid.: 195–7. Thomas Wakley, the distinguished surgeon who founded The Lancet,
estimated that the number of murders carried out to sell the body for dissection exceeded
three figures. See ibid.: 197.
57 Contrary to popular myth, Burke and Hare never ‘practised’ as Resurrectionists (mere
body snatchers) but moved straight to murder to supply corpses to the Edinburgh
Anatomy School: see ibid.: 132, 197.
medicine, especially surgery.58 And without anatomy, and thus dissec-

tion, progress could not be made. His elder brother, William Hunter,
declared, ‘[i]t is by Anatomy alone that we know the true nature, and
therefore the most proper cure of the greatest number of local diseases.’59
A number of educated people dismissed fears of eternal annihilation as
unfounded and acknowledged the necessity of dissection; only in rare
cases did they donate their own bodies for dissection. Bioethical debate
on the permissible uses of dead bodies has changed little, with religious
and cultural attitudes of respect for the dead still pitted against claims
of the good of science.60 The echoes of the trade of the Resurrectionists
taint arguments that organs might permissibly be traded ethically in the
twenty-first century.
Similarly, the criminal process has long struggled to determine how
to enforce respect for the dead, or if this should be done at all. Body
snatching, however good the end, amounted to a grave threat to public
order and a source of great public unrest. But was it a crime? The actual
‘theft’ of the body proved not to be. An ancient dictum61 (now seen as
lacking in solid legal foundation62 ) held that there was ‘no property in
a corpse’. The body snatchers were usually charged with stealing grave
clothes and/or desecrating consecrated ground. Some received sentences
of whippings for offending public mores, offending public decency in
today’s legal lexicon.63 The conduct that most people condemned and
was the cause of disquiet, and on occasion riots, was the taking and
cutting up of the body and that fell outwith the criminal law. The ‘no
property rule’ (or myth) was not caused by a cultural lack of respect for
the dead, but rather by the view that the body that had been the temple of
the soul should not be equated with any mere inanimate chattel.64 Thus,
it should not be the source of any sort of commodification. However, a
‘no property’ rule deprived the corpse, or rather its surviving family, of
the simplest means of protection and, in practice, we know that there was
a flourishing black market in cadavers. The intrinsic difficulties of fitting
the criminal law to contested concepts of what we owe the dead and to
debates around commodification of the human body endure.
The ghastly murders perpetrated to obtain bodies for sale prompted
calls for reform, for new laws that would protect the public and offer
an ethical source of bodies for medical training and research. Debate
on several versions of an Anatomy Bill took place over many years.
The Anatomy Act 1832 sought to disconnect the criminal process from
dissection and medical education. The ‘Murder Act’ was repealed so that
58 See Brazier 2008a. 59 Richardson 2000: 30–1.

60 McGuinness and Brazier 2008. 61 See Dr Handyside’s Case and Coke 1644.
62 See Skegg 1976. 63 Richardson 2000: 59. 64 Matthews 1995.
dissection was no longer a criminal penalty and a system was put in place
designed to secure access to sufficient bodies for anatomical examination.
The 1832 Act used language close to that later deployed in the Human
Tissue Act 1961. It allowed gratuitous donation (opting in to donation).
But it also permitted the person in ‘lawful possession of the dead Body’
to authorise ‘such Examination’ unless the deceased or nearest known
relative ‘shall require that the body be interred without such Examina-
tion’ (opting out of donation). As Richardson demonstrates, the effect of
that provision was that workhouse masters and the masters of the charity
hospitals felt free to donate the bodies of the poor to the medical schools.
Paupers were unlikely to have expressed their own wishes, and poverty
often prevented families from claiming the body for burial.65 The Act
in its first decades simply substituted the pauper for the criminal on the
dissecting table. For its opponents, the Act legalised body snatching, and
prompted a barrage of criminal actions with a series of riots and attacks
on anatomy schools.66
The year 1832 might formally mark the end of one era in which medical
science, drama and the criminal process went hand in hand. The impact
of the links between dissection and crime in popular imagination and lit-
erature endured. Richardson shows that the wealth of literature generated
by the anatomical Renaissance continued to flourish in the nineteenth
century, often to fuel fears of dissection rather than applaud the wonders
of science.67 The underlying problems remained to haunt the twentieth
and twenty-first centuries and are addressed again in Chapter 2.
Causes célèbres in the twentieth century:

faulty connections?
The sixteenth to nineteenth centuries were dominated by the dramas
of the battles to control medicine and prescribe medical ethics between
the competing ‘medical professions’ and the protracted and bitter war
between the professions and the people over the fate of the dead. History
lends both romance and theatricality. The twentieth century can look
both more rational and mundane. Dialogue replaced public unrest. The
emergence of critical medical ethics and the study of medical jurispru-
dence prompted intellectual debate. The increase in the number of court
cases robbed any individual hearing of some of its impact. Nonethe-
less, it is still the case that certain causes célèbres have an undue and often
unforeseen dramatic impact on how medicine, bioethics and the criminal
process connect, or fail to connect. We now examine three high-profile
65 Richardson 2000: 271. 66 Ibid.: 263–4. 67 Ibid.: 409–28.

court cases, R v. Bourne (1938),68 R v. Adams (1957)69 and R v. Arthur

(1981).70 At this stage, we are not concerned to analyse the legal rulings
in great depth but, rather, to explore their influence on the shape of the
criminal law. Each case is well known to those who study medical law, and
many whose expertise lies in medical ethics. The protagonists are very
differently perceived, both in contemporary and in modern accounts.
Aleck Bourne is still seen as a campaigning hero, Bodkin Adams as a
serial killer and Leonard Arthur, depending on which account you read,
is Dr Jekyll or Mr Hyde. The cases have obvious points of similarity.
Any law is to be found in directions to the jury so, strictly speaking, no
law is made and yet those directions have altered the course of legal and
ethical debate. In each case, the criminal process is centre stage. All three
doctors faced the drama of trial before a jury and risked loss of liberty,
whereas in many of the cases we deal with later, the process of seeking
a declaration preempts the conventional workings of the criminal court.
A number of criminal law scholars, notably McEwan,71 have deplored
the use of the civil courts to preempt the usual workings of the criminal
process and usurp the jury’s role. The effective sidestepping of the crim-
inal courts is seen as distorting the shape of the criminal law in a ‘hard’
case. We will argue that criminal causes célèbres may have a different but
equally distorting effect.
We will also contend that another factor dominates all three causes
célèbres. Strip away the compelling and tragic facts and the accretions of
history and myth, and the impact of these famous cases is to reenforce
the privilege accorded to the medical profession to shape ethics under
the banner of proper medical treatment. We do not necessarily argue that
such an outcome is a bad one. The trials share another common element;
all three became in effect a trial of the man, rather than an exploration
of the underlying ethical issues. The connection with bioethics is visible
in all three causes célèbres. As with a flickering light bulb, the connections
are often faulty.
Bourne: a reluctant ‘rebel’?72

‘I want you to arrest me.’73
It was with these words that Mr Aleck Bourne greeted the police offi-
cer who arrived at his hospital too late to prevent the termination of a
68 [1938] 3 All ER 615. 69 [1957] Crim LR 365.

70 (1981) 12 BMLR 1. 71 McEwan 2001.
72 The account of the facts leading to Mr Bourne’s prosecution is drawn from contempo-
rary sources where accessible, and from Brookes and Roth 1994 and Keown 1988.
73 Anon. 1938a: 97.
fourteen-year-old rape victim’s pregnancy. The patient had been raped

‘with great violence’.74 A leading member of the Abortion Law Reform
Association, Dr Joan Malleson, referred the girl and her mother to Mr
Bourne, a consultant obstetrician at St Mary’s Hospital London. Mr
Bourne made it clear that he would be ‘delighted’ to perform the opera-
tion and would report himself to the Attorney General. He gave the police
advance notice of his intentions and carried out the abortion on 14 June
1938. His wish to be arrested was not in the event granted. Mr Bourne
was summoned to appear at Marylebone Police Court and committed for
trial at the Old Bailey before MacNaghten J in July. Mr Bourne chose to
use the criminal process to challenge existing orthodoxy. He risked gaol
to clarify the law and vindicate his conscience. His challenge and peril
have at times been overstated. As Keown shows, there were precedents
to establish that abortion performed by a registered medical practitioner
to save the life of the mother was not unlawfully procuring a miscarriage,
contrary to Section 58 of the Offences against the Person Act 1861.75
When Parliament legislated in 192976 to close a loophole in the law to
prevent the killing of a child in labour, the killing of a child ‘capable of
being born alive’ was not unlawful if carried out for ‘the purposes only
of preserving the life of the mother’. But Mr Bourne did not claim in
his defence that he acted to save the girl’s life or even to protect her
physical health, though the judge does refer to medical evidence that the
pelvic bones are not set till a woman is eighteen and thus it is undesirable
for a girl of ‘tender’ years to go through pregnancy and labour.77 We
may assume that Macnaghten J would not have regarded youth alone as
sufficient to render abortion lawful. The crux of Mr Bourne’s case was
the dreadful effect on the girl’s mental health, were she compelled to
carry and give birth to her rapist’s child. The judge rested his summing
up on twin planks, a refusal to accept the Attorney General’s submis-
sion that a clear line could be drawn between life and health and his
consequent direction that, if a doctor considered that the continuation
of the pregnancy would make the woman a ‘physical or mental wreck’,
the jury was entitled to conclude that he terminated the pregnancy ‘for
the purpose of preserving the life of the mother’.78 The judge could
not have stressed more forcefully his view that only doctors enjoyed the
privilege of carrying out lawful abortion and his condemnation of unli-
censed practitioners. In so privileging the doctor, he followed earlier
precedent.
74 Above, n.68, at 621 per MacNaghten J. 75 Keown 1988: 52–9.

76 Infant Life (Preservation) Act 1929. 77 At 619. 78 At 621.
Keown commented that Bourne did not ‘liberate medical discretion

from an uncompromising law’,79 but simply declared and clarified the
law. He notes that there was some evidence that Aleck Bourne originally
intended a much bolder move, to argue that ‘humanitarian grounds’
justified abortion.80 Reading Keown, we might question whether Bourne
is a cause célèbre at all. Aleck Bourne himself provides support for Keown.
In a letter to the British Medical Journal, he said that he ‘did not bring the
case forward as an attempt to alter the law . . . but to obtain a . . . definition
of the present law.’81 He stresses that he was ‘concerned to establish in
the eyes of the law that mental health was just as important as physical
health, and in certain cases perhaps even more so’.82 His colleague, who
referred the patient to him, took a different view. Dr Malleson wrote
to Mr Bourne that reform would get nowhere ‘unless someone of your
standing were prepared to risk a cause célèbre and undertake the operation
in hospital’.83 Counsel for the prosecution at the committal proceedings
charged that Mr Bourne had ‘deliberately and openly defied the law for
reasons which he thought were good and sufficient.’84 Commenting on
Mr Bourne’s acquittal, the British Medical Journal commended him as
‘courageous and public spirited’.85 Many decades later Brookes and Roth
describe the case as a ‘singular challenge to the law by a medical man’.86
In assessing how far Aleck Bourne may be perceived as a rebel with
a radical effect on the criminal law and the shape of bioethics, we also
note some of the problems of any cause célèbre. The case must catch
public attention and be fairly simple to grasp. In operating on a young
girl who had been brutally raped, Mr Bourne found what the prosecutor
described as the ‘absolutely perfect case’87 for his purpose in clarifying
or challenging the law. Even the most fervent supporter of the protection
of fetal life could not fail to have sympathy for the abused girl. It is worth
noting that authors’ stances on abortion may seem to be reflected in
their presentation of the facts of the case in later commentaries on Bourne.
Thus Brookes and Roth,88 who commend the case as liberalising the law,
offer a detailed and harrowing account of the girl’s gang rape by troopers.
Keown, who seeks to downplay Bourne and oppose any liberalisation of
the law beyond risk to life, notes that the girl had been raped but gives no
further details.89 Dellapenna says that the girl was brought to Mr Bourne
‘purportedly because of a gang rape’.90 Those antipathetic to Bourne
seek to lessen the sting of the facts and play down the horror of the girl’s
79 Keown 1988: 79. 80 Ibid. 81 See Bourne 1938: 254. 82 Ibid.

83 Brookes and Roth 1994: 318. 84 Anon. 1938a: 97. 85 Anon. 1938b.
86 Brookes and Roth 1994: 315. 87 Anon. 1938a: 97.
88 Brookes and Roth 1994: 314–15. 89 Keown 1988: 49.
90 Dellapenna 2006: 529.
predicament. The gruesome nature of her rape is well substantiated by

contemporary sources.91
However, we may ask whether the very strength of the case was an
impediment to its utility in offering the chance of connecting the law to
a rational debate on medical ethics. Did its theatricality mar its impact?
Keown offers helpful comments in noting that the defence’s language
moved from claiming that the abortion was performed on ‘humanitarian’
grounds to the argument that a termination to protect health, including
mental health, was not unlawful. Had Mr Bourne argued that he ter-
minated the pregnancy simply because the girl had been raped and no
victim of rape should have to bear the child, he would have been a radical
rebel. A less compelling case of risk to mental health, for example, an
older woman whose mental health was fragile after repeated childbirths,
might not have commanded the sympathy of judge and jury. The case Mr
Bourne made in no sense contended that abortion should be a woman’s
choice. Rather, he asserted the doctor’s privilege to act in his patient’s
best interests. Writing in his autobiography about police efforts to pre-
vent the abortion, he said that he could not accept that the police could
dictate to him what he as a surgeon could or could not do in his patients’
interests.92 That Aleck Bourne was no pro-choice advocate is illustrated
by the fact that just five years later in 1943 he resigned from the Abor-
tion Law Reform Association. And yet, if we consider what he risked
and the destruction of his career had the verdict been adverse to him,
his challenge to the law looks more radical. And the judge’s directions
clearly indicated that English law did not grant the unborn the status of
the born, prioritising what MacNaghten J described as the ‘yet more pre-
cious life of the mother’.93 Despite the judge’s homage to sanctity of life,
the breadth of the exceptions in which unborn life could be destroyed
and his emphasis on the ‘great mental anguish of the girl’ if forced to
bear the child sent a clear message that English law permitted medical
terminations of pregnancy at a time when in many parts of the world
abortion was absolutely prohibited.
In assessing the impact of Bourne and how far it was a liberalising
or radical event, the language of the judgment itself must be examined
briefly. For Keown, Bourne was not an ‘example of radical judicial leg-
islation as of conservative exposition of the law’.94 Given what we say
earlier, we dispute that view of the substance of the judgment, but the
attitudes displayed by the judge and the accused reflected a deeply con-
servative approach, even allowing for the very different social context of
91 Wyles 1952: 221. 92 Bourne 1962: 99. 93 Above, n.68, at 621.

94 Keown 1988: 57.
the times. The judge emphasised Mr Bourne’s eminence as a surgeon

of the ‘highest skill’ from ‘one of our great hospitals’. Bourne (says the
judge) took no fee, but operated as ‘an act of charity’.95 He contrasts Mr
Bourne with what he characterises as bungling, avaricious and uncar-
ing female abortionists. He stresses, echoing Bourne’s own evidence, the
good character of the girl (that she was neither ‘feeble minded’ nor of
the ‘prostitute class’).96 Much of this judgment that benefitted English
women by protecting them from being forced to risk life and health in
the continuation of pregnancies also laid the ground for later criticism of
abortion laws before and after the passing of the Abortion Act 1967. It
entrenched the doctor as the gatekeeper of access to abortion. It sent the
message that ‘good women’ could be relieved of a burdensome pregnancy
more readily than harlots. And its emphasis on charity foreshadows recent
debate on Nadine Dorries’ unsuccessful attempt to require ‘independent
counselling’ for all women seeking access to abortion.97
Bodkin Adams: ‘deserved to hang 20 times over’ 98

Such were the sentiments of the policeman who had investigated deaths
attributed to Dr Adams, leading to his trial for Edith Morrell’s murder in
1957. The comments were made after Dr Adams’ own death. Dr Adams
had made a good living out of damages for libel. Yet at his trial at the
Old Bailey, the jury took just forty-four minutes to acquit him after a
trial lasting seventeen days. The trial, starting on 18 March 1957 before
Devlin J, attracted massive publicity. Media reports that a family doctor
had been soliciting bequests from vulnerable old ladies in Eastbourne,
and then bumping them off, had swirled around for months. In the
event, one charge was laid for Mrs Morrell’s murder seven years before,
although the Crown had a second charge relating to the alleged murder
of a Mrs Hullett waiting in the wings, one that was dropped after the
acquittal.
The Adams trial meets any test for drama. The journalist, Sybille
Bedford, subsequently wrote:
Outside in the street, the Old Bailey is sustaining a siege this morning. Police
vans and press vans, cameras and cameramen, detective sergeants and C.I.D.s
and hangers-on, comings and goings in closed limousines, young men in bowler
hats bent double under the weight of papers nudging their way through the crowd,
a line of special constables at every door.99
95 At 616. 96 At 619. 97 See Chapter 4, n.38.

98 Obituary, The Times, 21 July 1983. 99 Bedford 1961: 14.
Years later, after Dr Adams was in his grave, the trial judge wrote a book
on the trial entitled Easing the Passing.100 It reads like a novel, and the
judge offers at the start a list of Dramatis Personae.101 He explicated the
drama of the case as follows:
The affair was so convincing dramatically, the casting so good. Had the doctor
been black-a-vised and of sinister aspect, it would have been one of those crime
stories which made good enough theatre for an audience which cannot see it
happening to them. But Dr Adams was a family doctor. . . . He had practised in
Eastbourne for thirty-four years. . . . The fear that such a man with access to so
many bedsides was a poisoner sent shivers down the spine.102
But what, it might be asked, is the connection with bioethics? Is the
Adams trial not more a case history for those who wish to study the
criminal justice system and explore why prosecutors bungled the trial
and chose such a weak test case? The answer lies in Devlin’s famous
direction to the jury about the administration of pain-relieving drugs at
the end of life, drugs that any good doctor in 1957 might have known
could also shorten life. Devlin stressed that the law knew of no special
defence for doctors, but went on to say,
that does not mean that a doctor aiding the sick and dying has to calculate in
minutes or hours, or even perhaps days or weeks, the effect on a patient’s life of
the medicine that he administers. If the first purpose of medicine, the restoration
of health, can no longer be achieved there is still much for a doctor to do, and
he is entitled to do all that is proper and necessary to relieve pain and suffering,
even if the measures he take may incidentally shorten life.103
From this, it is argued the doctrine of double effect became embodied in
English law.104 The philosophers went on the attack from several fronts,
shooting at the very notion of double effect and charging that the judge
got it wrong even if the doctrine is philosophically coherent.
What cannot be doubted is that for fifty years and more, the Adams
so-called doctrine of double effect dominated debates on the legality of
end-of-life care. But at no point does the judge mention double effect;105
he makes no claim at all to be invoking any such doctrine. He focuses
rather on the cause of death, saying cause means nothing ‘philosophical
or technical or scientific’. The jury should look at the issue in a ‘common-
sense way’.106 Could you say that something the doctor did or did not
do in the days or hours before the death caused her death or was it
the underlying illness or injury? The judge asked the jury: do you think
100 Devlin 1985. 101 Ibid.

102 Ibid.: 25. For the facts of the case, see Chapter 5, at 138.
103 Above, n.69. 104 See the discussion in Chapter 5, at 137–44.
105 Foster, Herring, Melham and Hope 2011. 106 Above, n.69.
this elderly, frail and drug-addicted lady died because Dr Adams set out
to kill her, or because her body gave up and what the doctor did may
have alleviated her suffering, but in the end, age and disease were the
significant contributory factors to her death?
Aleck Bourne set out to challenge (or clarify) the law. His was a planned
cause célèbre. The trial was as much a trial of English law as Mr Bourne.
Law and ethics were quite deliberately ‘connected’. Dr Adams, who spent
months in Brixton on remand, would presumably have been happy never
to have starred in such a drama. So might we say that Adams forms
an accidental connection as well as a faulty one? Maybe the divide is
not as clear as that. Aleck Bourne greeted the police with a request to be
arrested. Bodkin Adams uttered the famous words at his arrest ‘[m]urder:
can you prove it was murder?’107 The prosecution made much of this,
arguing this was not the reaction of an innocent man. But part of Adams’
defence became that ‘easing the passing’ of a dying patient was not wrong,
buttressed by contesting the expert evidence that the drugs killed Mrs
Morell at all,108 by arguing that other doctors would do as he did and
that why would he kill for £250 of silver, and by the forensic dissection of
one of the nurses’ evidence.109 One key issue of ethics was buried in a sea
of argument. The failure of the experts for the Crown, and the doubts
engendered by experts for the defence, cast more than reasonable doubt
on the question whether Adams actually killed Mrs Morell. Could any
intent be proven? The jury had little doubt and acquitted the doctor. To
the astonishment of the judge and the lawyers in the court, the Attorney
General then announced that he was entering a nolle prosequi in relation
to the second charge of the murder of Mrs Hullett, meaning that the sec-
ond charge was dropped and Adams walked free. The story behind that
decision is a drama in itself, born of the then Attorney General’s desire to
become Lord Chief Justice and leading to controversy in Parliament.110
History and Devlin account Adams to be guilty of several murders. Yet
Devlin says he was not a monster,111 suggesting that Adams believed that
he was easing suffering, albeit in cases where he hoped to profit. Devlin
describes Adams as ‘a mercenary mercy killer’112 and interestingly com-
pares him to paid abortionists.113 Dr Adams, perhaps unconsciously and
for reasons of self-interest, challenged the laws prohibiting euthanasia.
The difference between Bourne and Adams remains great, and yet there
are points of contact. What links Adams to our next cause célèbre is the
sense that the adversarial system obscured the link between ethics and
the criminal process and the centrality of expert evidence. Devlin said at
107 Devlin 1985: 7. 108 Anon. 1957. 109 Above, n.69, at 369.
110 Devlin 1985: 179–97. 111 Ibid.: 199. 112 Ibid. 113 Ibid.: 200.
the trial of Dr Adams that there was no special defence for the doctor,
but, in the end, the trial turned on expert evidence.
R v. Arthur: framing bioethical debate

In October 1981, Dr Leonard Arthur, a highly respected paediatrician,
faced trial at Leicester Crown Court for the murder of a newborn infant
with Down’s syndrome in his care. The charge was subsequently reduced
to attempted murder, and, on November 5, Dr Arthur was acquitted of
all charges. Women in the public gallery cried ‘Thank God’ as the verdict
was announced.114 The Down’s Children’s Association expressed fears
that the message sent by the trial would cause more parents to reject
children with Down’s and be ‘sufficient reason to let them die’.115 It
is hard to know where to start in our examination of this third cause
célèbre. It offers a stronger, more overt connection to evolving debates on
medical ethics than the previous two case studies, triggering not only a
stream of papers but also a whole book, Philosophical Medical Ethics.116
The responses of the medical profession and the directions to the jury
from the judge add to the evidence that, in such high-profile cases, the
outcome is often an evasion of fundamental ethical issues, concealing
the true problems under the cloak of professional definitions of proper
medical treatment. At the time, the case attracted a degree of media
frenzy, with two editors of national newspapers facing proceedings for
contempt of court.117 Yet when the publicity in the press surrounding the
three trials of Drs Bourne, Adams and Arthur is reviewed, this last trial
seems to have caused less drama than the first two. The subject matter,
a doctor dedicated to the care of children charged with murdering a
baby, might seem the most dramatic of the three. We can only speculate
why this should be. First, Dr Arthur’s case raised a series of profoundly
taxing moral problems about which few people had a clear and absolute
view and years later, there is little, if any, more clarity in this arena.
Second, Dr Arthur, unlike Aleck Bourne, was not a campaigning rebel,
but a modest and private man118 perceived by many to be unfairly caught
up in the use of the criminal process to address the obligations owed by
doctors to very sick or disabled infants. Unlike the case of Bodkin Adams,
there was no glimmer of a suggestion that Leonard Arthur had any venal
motive. Third, his trial was not in the grandeur of the Old Bailey but at
114 The Times, 6 November 1981. 115 The Times, 7 November 1981.
116 Gillon 1986.
117 Attorney General v. David English and another (1982) The Times, 16 July.
118 Described by defence counsel at his trial.
Leicester Crown Court, further from the centres of power and influence
and the national media. Finally, points of similarity between Adams and
Arthur can be seen in the extraordinarily flawed management of both
prosecutions and the forensic skills of counsel for the defence.
The charge against Dr Arthur arose from his management of baby
John Pearson. The child was born at Derby hospital on 28 June 1980
and died sixty-nine hours later. A post mortem examination showed that
John died of bronchopneumonia and that the baby had a toxic level
of dihydrocodeine (a powerful painkiller) in his blood.119 An anonymous
informer contacted the anti-abortion pressure group Life alleging that Dr
Arthur killed the child, and the police were informed. When interviewed
Dr Arthur responded ‘I am fully responsible – no-one else. I do not want
to be a martyr. I do not want the nurses brought into it’.120 That initial
reaction, so different from Bourne’s challenge to arrest him and Adams’
taunting of the police, framed the image of a conscientious doctor trapped
in the wheels of the criminal law. He might have been wrong but he did
not appear to be ‘bad’. His lawyer claimed that it ‘was a consummate
irony that the criminal law points the finger at a man so dedicated, so
devoted as this doctor’.121 Dr Arthur was charged with murder and on
April 2 appeared before Derby City Magistrates and was committed for
trial. At the committal hearing, speaking through his counsel, Dr Arthur
declared that his conscience was clear.
John Pearson’s mother, it is recorded, ‘rejected the child because it
was mentally retarded’.122 After talking to both parents, Dr Arthur wrote
on the nursing notes ‘Parents do not wish to survive. Nursing care only’
and he prescribed five milligrams of dihydrocodeine to be administered
every four hours. The drug, the prosecution alleged, would suppress the
baby’s appetite so that he would not demand food and would repress his
ability to breathe independently. Initially the Crown’s case was decep-
tively simple. By prescribing an unnecessary drug and withholding food,
Dr Arthur set out to bring about the baby’s death at the parents’ request.
He starved the baby to death and prescribed a drug to ensure that there
was no demand for food. It might be said that Dr Arthur poisoned
the child. John Pearson, the prosecution argued, was a healthy baby,
save for Down’s syndrome. That simple case soon began to unravel. The
major cause of this ‘collapse’ was evidence from slides produced by the
119 For the opening case for the prosecution see The Times, 14 October 1981, and for an
account of the facts and implications of the case see Anon. 1981.
120 The Times, 14 October 1981. 121 The Times, 28 October 1981.
122 The Times, 14 October 1981.
defence that the baby was far from healthy and had serious brain and
lung damage. Professor Alan Usher, the Home Office pathologist who
appeared as a prosecution witness, was forced to concede that his asser-
tion that the baby was healthy at birth was ‘inaccurate and misleading’.
Further cross examination elicited the concession that the baby had lost
no weight in the brief three days of his life. John Pearson was not starved
to death. Conviction for murder requires proof beyond reasonable doubt
that the accused’s act or culpable omission caused the victim’s death.
Once there seemed to be a lack of reliable evidence that Dr Arthur’s
management was a significant contributory factor in bringing about the
infant’s death, the judge withdrew the charge of murder123 and the pros-
ecution proceeded with a charge of attempted murder. The destruction
of the forensic evidence on which the prosecution had so heavily relied
must have had its effect on the jury and caused some scepticism about the
new charge. The ethical issues remained exactly the same. There appears
to be no evidence that, when Dr Arthur prescribed dihydrocodeine and
instructed that nursing care only was to be given, he knew that John
Pearson had multiple abnormalities. At most, he might have considered
it possible that the baby had some further impairment as a proportion
of children born with Down’s syndrome do. Put too simply, the central
question of principle remained: did John Pearson have the same rights to
life-sustaining care as would a baby born without Down’s? Had a parent
of a healthy baby changed her mind at birth and persuaded a doctor to
‘let him die’, parent and doctor would both be convicted for murder, or
attempted murder if, say, a nurse intervened to frustrate their plan.
The defence, however, sought to contend that Dr Arthur’s manage-
ment of the baby, the prescription of dihydrocodeine and the alleged
withholding of food and treatment (1) were too remote from the death
to amount to the actus reus of attempted murder, (2) were not done with
intent that he should die but rather as a holding operation while the
baby’s condition was reviewed and in case the mother changed her mind,
and (3) amounted to acceptable medical management of John Pearson’s
condition. Four highly distinguished experts gave evidence to the effect
that prescribing the drug to make the baby more comfortable and not
instructing nurses to feed the baby and ensure he was treated should any
infection affect him fell within the bounds of acceptable medical conduct.
His peers testified that Dr Arthur had done no wrong.
In a much-quoted sentence from his directions to the jury, Farquhar-
son J said,
123 Above, n.70, at 9–10.

I imagine you will think long and hard before deciding that doctors, of the
eminence that we have heard, representing to you what medical ethics are, and
apparently have been over a period of time in that great profession, have evolved
standards which amount to committing crime.124
The judge came close to suggesting that doctors define ethics and ethics
sets the boundaries of crime as long as the accused is a doctor free of any
suspicion of a venal motive. Such a conclusion is, at least in part, unfair.
Just before this sentence, the judge reminded the jury that the medical
profession’s standards of ethics cannot of themselves ensure that an act
or omission is not a crime. Earlier he stated that there is no special law in
England that gives doctors ‘extra protection’ from the criminal law, nor is
there any licence to kill children who are ‘handicapped’.125 Yet given the
lauding of the ‘great profession’ and the weight of the expert evidence,
one wonders which message the jury heard.
The experts who testified for the defence were heavyweights. Rereading
that evidence as recounted in the directions to the jury is instructive. First,
it is virtually all postulated on the acceptable treatment of a child that was,
as Sir Douglas Black126 put it, ‘severely damaged’.127 Dr Arthur did not
know that John Pearson was so damaged. Second, it reads as lukewarm,
not wholly supportive of Dr Arthur. Dr Dunn128 said, ‘[i]f a doctor
puts such a child on a regime which will inevitably end with its death
that could be described as taking steps. I would not do it myself, but in
this extremely grey area doctors may arrive at inconsistent decisions.’129
Sir Douglas considered what was done fell ‘within acceptable paediatric
policy’.130 None of the experts gave a ringing endorsement of the way
that John Pearson’s short life was managed.
If the expert evidence did enough to establish some doubt in the minds
of the jury, the concluding paragraph of the directions where the judge
lauded Dr Arthur’s character must have made a conviction even less
likely. Farquharson said that ‘seldom in a court could one have heard
so many testaments to a man’s good character’.131 Of course, the judge
went on to says, that did not make him incapable of committing a crime,
but he ended thus:
124 At 17. 125 At 4.

126 Professor of Medicine at Manchester University, Chief Scientist at the Department of
Health and President of the Royal College of Physicians.
127 Above, n.70, at 16.
128 Consultant in Perinatal Medicine at the University of Bristol and as the judge put it
holding ‘many, many other appointments and distinctions’.
129 Above, n.70, at 15. 130 At 16. 131 At 18.
However in a case of this kind, when we are talking about medical attitudes and
treatment, his own career must stand him in good stead, as to whether he is a
man who would do what the prosecution submit he has done.132
The jury were asked: was Leonard Arthur a bad man? The man, not
the ethical issues, shaped the trial. Moreover, it may seem that mother
and child were in a sense on trial too. The judge was passionate in his
assertion that no one should blame the mother for rejecting her child.133
Describing the baby as a ‘mongol’134 and at one stage as ‘it’, the judge
accepted the bleakest prognoses of the life a child with Down’s might
expect to live. Mason and Laurie dismiss Arthur as telling us nothing
in the end about the law relating to the treatment of severely impaired
neonates,135 and they are right. A series of subsequent cases heard in
the Family Division136 did far more to give some coherence to the shape
of the criminal law relating to the care of very sick neonates than the
conventional trial process that acquitted Dr Arthur.137 The questions
not answered in the trial of Dr Arthur continue to plague us. The case
teaches us lessons about the uneasy connections between bioethics and
the criminal process.
132 Ibid. 133 At 3. 134 Ibid.

135 Mason and Laurie 2011: 480. And see Beynon 1982.
136 Mason and Laurie 2011: 481–8.
137 We note that the Attorney General declined to refer the case on point of law to the
Court of Appeal.
2 Crime, doctors and the body (politic)
In this chapter, some of the tensions between autonomy and beneficence

and the conflicts between politics and political liberalism and between
cold rationality and principle are laid bare. For we deal with the criminal
law’s role in limiting what can be done to the body and what can be
done with the body and its parts. We look at one of the features that
distinguish the role of doctors and many other health care workers from
other professionals. Our bodies are intimately a part of how we live our
lives; by entrusting doctors with contact with our bodies, we privilege
them. Most people would assume that all matters relating to what is
done to, or what they do with, their bodies were down to them – none of
anyone else’s business – as long as they do not use said bodies to harm
others. If to achieve an aim involving the body, the individual needs a
medical professional’s help, that is their (the individual’s and the doctor’s)
business and not the state’s. But although in certain contexts the criminal
process has evolved to grant the individual control of the body, in others,
the criminal law still constrains what we may do with our bodies. And, in
particular, the medical profession still plays a major role in determining
what may or may not be done with our bodies. Doctors play a part in
shaping the criminal law, but subject to hazy boundaries.
We saw in Chapter 1 that the criminal process was inextricably entan-
gled with the development of anatomy and an understanding of human
physiology. Until the Anatomy Act 1832, the human material on which
evolving medical science depended was sourced from the criminal process
in the form of executed criminals’ bodies, and later doctors themselves
turned to crime to redress the shortfall in that material. The contro-
versies generated by both practices revolved around ethical debates that
continue to this day.1 The human body, living and dead, attracts a high
level of emotional attachment. The body and the self are sometimes seen
as indistinguishable, so that what is done even to our corpses and sepa-
rated parts of the body can be perceived as something that threatens our
1 See ‘Afterword’ in Richardson 2000: 409–27.
38
Crime, doctors and the body (politic) 39
self-rule, and so, in some degree, akin to an assault. In this chapter, we

consider just some of the modern questions touching on the human body
that link bioethics, the criminal process and medicine. The criminal law’s
role in regulating the use of bodies and body parts post mortem remains
as much of a high-profile controversy as centuries ago, a phenomenon
well illustrated by the outcry generated by the discovery in 2000–2001
that pathologists had retained tens of thousands of body parts without
consent.2 But that is far from the only issue about crime and the body.
In the United Kingdom, the criminal law bans individuals from sell-
ing ‘their’ organs. Strict rules (enforced by criminal sanctions) govern
some uses of human material from the living, as well as the dead. Bodily
integrity is accorded a high value by the law and, in the medical context,
the criminal law plays a dual role. The criminal law may be seen as the
final guardian of patient autonomy, ensuring that if we are capacitous,
our wishes determine what doctors may do to our bodies.3 Yet doctors
are privileged in the sense that the law permits interventions deemed to
constitute ‘reasonable surgery’ that might otherwise be criminal assaults.
The two concepts on occasion conflict. In the context of our power to
dispose of our bodies as we wish, Price noted,
Where an individual interest is infringed this constitutes a legal/moral harm to the

person. However while no harm may accrue to an individual who has consented
to it, at least not from a liberal or rights perspective, even consented to acts may
constitute public wrongs proscribed by the criminal law.4
The extent to which autonomous choices are nonetheless public wrongs

and how this is decided are central to this chapter. We start by tracing how
the criminal law caught up with bioethical debates on patient autonomy,
acknowledging that judges are loath to invoke the criminal law save in
exceptional cases. We explore ‘reasonable surgery’. And finally, we return
to the role the criminal law plays in policing the removal, retention and
uses of body parts sourced from the living and the dead. In so doing,
we examine how far criminal prohibitions across these diverse activities
have common themes and how the criminal law relates to bioethical
debates on right and wrong. The evolution of the law to meet the chal-
lenges of modern medicine and attitudes to individual autonomy has not
been comfortable. The practical demands of law may sometimes cause
an uneasy ‘fit’ between the criminal process and bioethics, and public
sentiment plays a role that is hard to measure.
2 See below, at 55–7.

3 Although we note that the criminal law limits autonomy too. See Chapter 8, at 241.
4 Price 2010: 43 (our emphasis).
Medical ‘assaults’
As every first-year law student knows, if anyone makes physical con-
tact with another’s body without that person’s consent or other lawful
authority he or she commits the tort of battery and that same act will, in
many cases, also constitute criminal assault.5 Doctors have no immunity
from tortious or criminal liability if they impose any form of invasive
treatment, however minimally invasive, on a mentally competent adult.
It is irrelevant that the doctor’s action may have been manifestly in the
best interests of the patient and/or an intervention which most people
would agree to.6 Nor is it a defence for doctors to plead that they acted
to save the patient’s life.7 Nor can we be required to help others.8 What-
ever the good to society of enrolling us in a clinical trial that requires
no more than taking a drop of blood from a finger, no doctor can take
that drop without consent. Such examples of hypothetical compulsion
are extreme and highly unlikely in England today. Three points must be
made.
First, the principles set out in the preceding have a short history and
just over a century ago, English judges did offer doctors a privilege that
they are now in theory denied.9 Nor should we forget that forcible treat-
ment and enforced participation in research were far from uncommon
in the twentieth century, not confined to Nazi Germany or Japan, and
neither did such abuse terminate at the end of the Second World War
and the promulgation of the Nuremberg Code.10 Thus, it is clear that
the criminal law must have a role as the ultimate guardian of individuals’
rights to decide who does what with their bodies. Secondly, the criminal
law’s role in safeguarding patients from medical ‘assaults’ is often framed
as protecting patient autonomy. However, it must not be forgotten that
the roots of the law relating to assault are to be found in much cruder
rules protecting bodily integrity from violence, and often fit uneasily with
medicine or bioethics. Thirdly, although, as we will see, the ‘real life’
5 But not always – see Scott v. Shepherd (1773) 2 W.Bl 892 and see R v. Richardson (Diana)
[1999] QB 444 CA, discussed below.
6 See Devi v. West Midlands Health Authority [1980] 7 CL 44.
7 Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 at 652–3, per Lord Don-
aldson MR, CA: and see Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 866 per
Lord Goff, HL; B v. An NHS Hospital Trust [2002] EWHC 429 (Fam).
8 English law does not recognise any legal obligation to be even a minimally Good Samar-
itan: see Smith v. Littlewoods Organisation Ltd [1987] 1 All ER 710, at 729. Harris has
argued that there is an ethical duty to participate in scientific research; see Harris 2005.
9 Leigh v. Gladstone (1909) 26 TLR 139.
10 See the text accompanying n.12 in Chapter 7.
cases where doctors who are attempting to do their job ethically and
professionally risks charges of battery or assault occasioning actual
bodily harm are complex and often revolve around failures in com-
munication, there are sadly several instances of doctors abusing their
access to patients to commit sexual assaults that have no medical
‘justification’ at all.11 An evilly disposed person can use his or her status,
just as Shipman did, to commit crimes that that status makes worse.
The mere professional status of the doctor cannot confer any sort of
privilege. What is of greater concern is that reports of such crude and
incontestable assaults may colour public perceptions12 in cases where
there are genuine questions about the proper boundaries of the criminal
process. In what follows, we focus on cases that illustrate the problems
of determining those boundaries, where doctors credibly considered
that they were conducting themselves professionally.
Rhetoric not reality

We deal first with the claim that attitudes to patient autonomy have
changed little in reality: only the language has changed. In 1909 in Leigh v.
Gladstone,13 a suffragette sued the prison authorities in battery for forcibly
feeding her. The court dismissed her case, saying that prison officers
owed her a duty of care to feed her and save her from her wicked folly. In
1909, suicide remained a criminal offence and so it may be argued that the
criminal law at that time mandated a violation of autonomy to prevent the
crime of self-destruction. The Suicide Act 1961 decriminalised suicide
and since Re T in 1992,14 judgment after judgment has maintained that
patients have the absolute right to reject even lifesaving treatment.15 Yet
in practice, the courts often find reasons to doubt the patient’s capacity
or the voluntariness of the treatment refusal. Lord Donaldson’s caveat in
Re T that ‘in cases of doubt that doubt is to be resolved in favour of the
preservation of life’16 is hard at work. In R v. Collins and Ashworth Hospital
Authority ex p Brady,17 Kay J managed to find that the gaoled serial killer,
Ian Brady, lacked capacity and could lawfully be force-fed, just as Miss
Leigh had been ninety years before. So if the criminal law should police
autonomy and yet the judges (even in cases where no doctor is on trial)
11 One notorious example was Dr Clifford Ayling, who was convicted of twelve indecent
assaults on female patients; see Department of Health 2004; Ost and Biggs 2012.
12 See Griffiths and Alghrani unpublished. 13 Discussed in Zellick 1976.
14 Above, n.7.
15 And endorsed by the House of Lords in Airedale NHS Trust v. Bland, at 866 per Lord
Goff, and 889 per Lord Mustill.
16 Above, n.7, at 663. 17 [2000] Lloyd’s Rep Med 355.
seek every loophole to find doubt and prioritise saving life over claims to
autonomy, is there a serious disconnect between bioethics and law?
We suggest not, but rather that in each arena, internal principles con-
flict and that the law is forced to confront factual dilemmas in contexts
from which bioethics, in England at least, is somewhat removed. If there
is inconclusive evidence whether A may or may not want to be allowed
to die, as was the case with Miss T, and A cannot at the relevant time
speak for himself or herself, or A’s capacity is in doubt, no one, judge
or philosopher, can be sure of making the right decision about whether
to let A die. If the wrong call is made, some harm will be done; either
there will be a death that should have been avoided, or there will be a
denial of the choice A would have made and possibly the continuation
of suffering. Which wrong is greater and can the interests of A alone be
regarded? If doctors were too ready to agree that A would not want to
live, would confidence in the willingness of doctors to struggle to save
life be undermined? And if doctors faced criminal charges for making the
wrong call in a disputed case, would they be able to do their job? Courts
faced with such dilemmas must often make a decision in a very short
time, without debate or even assembling all the evidence. The hearing
may be on the phone and/or in the middle of the night.
Bodily integrity, autonomy, self-determination

There is ample literature tracing the judiciary’s slow conversion to a ring-
ing endorsement of patient autonomy.18 Coggon19 has demonstrated
that English judges confuse several different understandings of auton-
omy. Judicial language varies, with some judges preferring to speak of
‘self determination’.20 In assessing the criminal process’ role, the key
point remains that the legal interest that is violated should a doctor
carry out any form of invasive examination or treatment without con-
sent is simply bodily integrity. Developments in tort law may allow a
wider protection of autonomy per se,21 but for a crime to be commit-
ted there must be a violation of the body though (at least for the crime
and tort of battery) not necessarily accompanied by actual injury. Until
recently, the Offences Against the Person Act 1861 restricted criminal
liability to acts that resulted in direct contact with the body. Thus, inject-
ing A with a drug without A’s consent would be the tort and crime of
battery and (if the patient is harmed) the crime of assault occasioning
actual bodily harm or possibly unlawfully inflicting grievous bodily harm,
18 For an overview and an elegant analysis, see Maclean 2010. 19 Coggon 2008a.
20 See, for example, Lord Goff in Airedale NHS Trust v. Bland, at 866.
21 See Rees v. Darlington Memorial Hospital NHS Trust [2003] UKHL 52.
but misleading A to agree to take the same drug orally would not be a
criminal act because the doctor made no direct contact with the patient.
The common law (at least in relation to battery) required no intent
to harm, so surgeons who by mistake but in good faith amputated the
right leg when the patient had agreed to the amputation of the left leg
were liable in battery. If the tort of battery and criminal assault were
identical, the surgeon could in theory also face criminal charges. The
mistake would be a crime even if the surgeon was personally faultless
and the error derived from incorrect records. And what of the doctor
who procures the patient to take a drug orally without any valid con-
sent – perhaps he or she is conducting a covert drug trial? That conduct
might be perceived as more culpable than that of the unfortunate surgeon
accidentally amputating the wrong limb and yet the criminal law did not
assist the patient, even if the drug caused serious injury. There was no
unlawful touching.
Developments in the interpretation of Section 20 of the Offences
against the Person Act 1861 fill this lacuna in the law.22 Proof of bodily
contact is no longer necessary for a charge of inflicting grievous bod-
ily harm, now defined to include serious psychiatric harm and serious
biological harm.23 Intent to harm or reckless indifference to the risk of
harm must be proven. Thus, the doctor who caused very serious harm to
a patient deceived into taking a trial drug could face criminal responsi-
bility for the unethical action. The criminal law in this instance punishes
not simply the violation of the victim’s autonomy, but the infliction of an
unconsented-to and serious harm. That it should do so seems to fit well
with the rationale for the criminal law addressing serious wrongs. If the
criminal law extends to an error in acting without consent or cases where
no actual injury is caused, it might be thought to have overstepped its
proper boundaries.
The tort of battery and criminal assault – one and the same?
In the medical context, evidence of consent is crucial to determine
whether or not the doctor is liable in the tort of battery. Reported med-
ical law cases focus heavily on the question of whether the patient was
given sufficient information to give legally valid consent.24 If not, the
doctor is liable in battery and so perhaps also liable for criminal assault
(specifically, the crime of battery, or assault occasioning actual bodily
22 R v. Ireland, R v. Burstow [1998] AC 147 (HL).

23 R v. Dica [2004] 3 All ER 593 (CA).
24 Chatterton v. Gerson [1981] 1 All ER 257; Sidaway v. Governors of Bethlem Royal Hospital
[1985] AC 671. And see Maclean 2010: 154, 160.
harm if the patient is injured). But in case after case, the courts have set
the threshold of how much information is needed for consent to be valid
at the lowest possible level. Battery as a means of protecting patients’
rights to information disclosure plays a marginal role in the legal protec-
tion of patient autonomy. In rejecting the tort of battery as the means by
which to endorse patients’ right to information, the English courts are
at one with the courts in Canada.25 One English judge has gone so far
as to describe an attempt to frame a claim for a failure in information
disclosure in battery as ‘not only deplorable but insupportable in law’.26
Insofar as the law does enforce ‘informed consent’, it does so via the tort
of negligence. As long as the patient is ‘informed in broad terms about
the nature of the procedure which is intended’27 and is not deceived,28
no battery is committed. Interpreting what is meant by the nature of the
procedure is an arcane process. Writing decades ago, Feng showed that
battery would be a better vehicle if the law truly sought to vindicate max-
imal patient autonomy.29 The restricted scope of battery may be linked
to its criminal ‘twin’ and judicial fears that if doctors were rightly held
liable in battery for a failure in communication that compromised the
patient’s autonomy, they might also face criminal charges when criminal
liability was inappropriate and even unjust.30 Are battery and criminal
assault, at least in the medical context, one and the same?
Two Court of Appeal judgments illustrate the difficulties of assault in a
medical context and suggest that the tort of battery and criminal assault
may be separable. In R v. Richardson (Diana),31 a dentist was charged
with assault occasioning actual bodily harm. She had been suspended
from the dental register but continued to treat her patients, without
informing them that she was no longer licensed to practise. There was
no suggestion that her treatment did not comply with the proper stan-
dards of practice, nor that any harm to the patients was caused. The
trial judge, however, ruled that her failure to inform her patients of her
suspension constituted a fraud that invalidated their consent. And thus
her treatments, examinations, fillings and extractions were all assaults
and not lawful treatment. After this ruling, the accused changed her plea
to guilty. She appealed on the grounds that the judge’s ruling was incor-
rect. The Court of Appeal quashed her conviction. The patients were not
25 Reibl v. Hughes (1980) 114 DLR (3d) 1.

26 The Creutzfeld–Jakob Disease Litigation [1995] 54 BMLR 1 per May J (QBD).
27 Chatterton v. Gerson, at 265.
28 See Sidaway v. Royal Bethlem Hospital [1984] 1 All ER 1018, at 1026 per Lord Donaldson
MR, CA. For an example of deceit litigated in battery but involving highly culpable
misconduct, see Appleton v. Garrett [1996] PIQR P1.
29 Feng 1987. 30 See Jackson 2010: 175. 31 [1999] QB 444 CA.
misled about the nature of what would be done to them, nor as to the
identity of the accused. The Crown’s argument that the accused did mis-
lead the patients as to her identity, in that part of that identity was their
assumption she was a registered dentist, was fairly summarily dismissed.
In R v. Tabassum,32 the accused pretended to be a doctor and persuaded
three women to agree to let him touch their breasts to ‘teach them’ how
to check their breasts for cancer. His conviction for indecent assault was
upheld by the Court of Appeal. There was no true consent because his
claims to be a doctor persuaded the women that his examination had a
medical purpose. It might be said that anyone of common sense would
see these two cases as very different. In the first, the dentist is remiss
in allowing her patients to think that she is entitled to practise, but she
does no harm and has no perverse motive. In the second, seemingly for
his own purposes, a man grossly deceives his victims and may well have
caused them to suffer psychological harm. Yet both accused infringed
the patients’ autonomy.
The most pertinent point is, however, Otton LJ’s statement that,
although Richardson’s criminal conviction should be quashed, she might
well be liable in tort. He said of her conduct that it ‘was clearly reprehen-
sible and may well form the basis of a civil claim in damages. But we are
quite satisfied that it is not a basis for finding criminal liability in the field
of offences against the person’.33 Otton LJ sought to divorce the tort of
battery and criminal assault and suggest that for a criminal offence to be
committed by a health professional, some element of wrongdoing over
and above a violation of autonomy and a technical violation of bodily
integrity must be proven.
‘Proper medical treatment or care’

The criminal law now concedes that the consent of an adult and compe-
tent person is a necessary condition of lawful contact with his or her body.
Within or outwith a medical context, it is not a sufficient condition. In R v.
Brown,34 the House of Lords reaffirmed that consent alone cannot make
lawful the infliction of actual bodily harm. Consent might be enough
to make lawful minor ‘assaults’, touchings that result in minimal harm,
but not any contact with the body that causes visible injury. In Brown,
a group of men wholly consensually engaged in a series of bizarre and
painful sadomasochistic practices. In the event, none required medical
treatment for any ‘injury’. Nonetheless, the Law Lords by a majority of
three to two upheld their convictions for assault occasioning actual bodily
32 [2000] Lloyd’s Rep Med 404 CA. 33 At 450. 34 [1994] AC 212 HL.
harm contrary to Section 47 of the Offences against the Person Act 1861.
In Attorney-General’s Reference (No 6 of 1980),35 Lord Lane CJ had stated
that it was ‘not in the public interest that people should try to cause
or should cause each other actual bodily harm for no good reason’.36
Three of the Law Lords in Brown expressly endorsed Lane’s judgment.
The foundation of the public interest that prevents an autonomous choice
to agree to self-injury, or rather polices the circumstances in which we
may do so, is shaky. Contact sports, including boxing, form good enough
reasons justifying harm that would be classified as serous bodily harm.
Sexual pleasure does not. In this context, the possibility of resolving the
matter through the means of political liberalism by identifying and apply-
ing liberal values as endorsed by public reason37 is blocked, because of
the strength of moral and cultural sentiment regarding ‘acceptable’ and
‘unacceptable’ harm to the body.
In Brown, Lord Mustill expressly rejected one possible justification for
limiting the capacity to consent to self-harm based on a more clearly (and
rationally?) defined public interest. The ancient crime of mayhem (or
maim) was committed whenever the infliction of bodily harm resulted
in the loss ‘of any member of his body, or of any sense which he can
use in fighting, or by the loss of which he is generally and permanently
weakened’.38 A charge of mayhem could lie not just against a third party
but also against individuals harming themselves. The public interest may
sit uncomfortably with modern ways of thinking, but it was transpar-
ent. Citizens must not unfit themselves for military service or disable
themselves in such a way as to become charges upon the public purse.
As will be apparent, the threshold for mayhem was higher than that set
for the public interest that limits consent according to Brown. The men
convicted in Brown suffered no loss of any body part and no permanent
disability; they remained fit to fight.
As Lord Mustill pointed out in Brown, if medical treatment and surgery
in particular do not constitute a good reason for bodily harm, medicine
would risk being a largely criminal enterprise! He noted that ‘much of
the bodily invasion involved in surgery lies well above the point at which
consent could even arguably be regarded as furnishing a defence’.39 No
crime is committed because ‘proper medical treatment, for which actual
or deemed consent is a pre-requisite, is in a category of its own’.40 A
year before, in Airedale NHS Trust v Bland, Lord Mustill put it this way:
‘[i]f one person cuts off the hand of another it is no answer to say that
35 [1981] 2 All ER 1057. 36 At 1059.

37 See further the discussion in Chapter 7, at 97–8. 38 Stephen 1878: 145.
39 At 258. 40 Ibid.
the amputee consented to what was done.’41 In contrast, the surgeon

amputating a diseased hand commits no crime because ‘bodily invasions
in the course of proper medical treatment stand completely outside the
criminal law. The reason why the consent of the patient is so important is
not that it furnishes a defence in itself, but because it is usually essential
to the propriety of medical treatment’.42
That ‘proper’ medical treatment, or ‘reasonable’ surgery, constitutes
a defence to charges of causing bodily harm of any degree and even to
an intervention resulting in death is confirmed in a host of authorities.43
However, the defence’s formulation should cause us to pause for reflec-
tion and the boundaries remain unclear. Mustill’s formulations indicate
that, for the law, the crucial and prior question is beneficence. The sur-
geon who amputates the gangrenous leg acts lawfully because doing so
does a greater good to the patient and society than the harm the surgeon
causes in the course of surgery. Medicalisation legitimises otherwise pro-
hibited conduct; autonomy is secondary. The bigger question is what
constitutes proper medical treatment, thereby taking the bodily invasion
outside the criminal law. The language used by Mustill might seem to
suggest a simple answer: any procedure carried out by a registered med-
ical practitioner with appropriate specialist qualifications. It has been
questioned whether the criminal law has any ‘acceptable place in con-
trolling operations performed by qualified practitioners upon adults of
sound mind with their consent’.44 The role that Lord Denning wanted to
assign to the criminal law of some sort of moral policeman was one that
we might wish to join Williams in rejecting. Lord Denning had suggested
in Bravery v. Bravery45 that non-therapeutic vasectomy was unlawful.
Such surgery was ‘plainly injurious to the public interest’ and ‘degrading
to the man himself’.46 In the following decades, a number of advances in
medicine were cast into a legal limbo by the fear that they somehow fell
short of ‘proper medical treatment’, including living organ donation.47
Proposals by the Law Commission for a statutory definition were never
acted on. The temptation to take the easy way out and say ‘if done by
a doctor, and permitted by the patient, there is no crime’ is strong. Is it
sound?
Are there medical procedures that the criminal law should prohibit
even if agreed to by competent adults? We first confront a definitional
problem. In a case much reported in the media, a team doctor made
41 At 889. 42 Ibid. 43 See Law Commission 1995.

44 Ibid.: 8.30. 45 [1954] 3 All ER 59. 46 At 67–8.
47 See Kennedy and Grubb 2000: 1745–59. And note that in 2010, Price observed that
the ‘ethical and legal ceiling of living organ donation is uncertain’: Price 2010: 210.
a cut in a rugby player’s lip so that he bled and could thus cover up an
injury he had faked on the field. He had begged her to do so. No criminal
charges were brought, but such a cut would amount to actual bodily harm
and so, consent notwithstanding, would clearly be an offence if the cut
had been made by the team coach.48 It might be argued that the doctor
too committed an assault occasioning actual bodily harm, given that her
‘surgery’ had no therapeutic purpose and was designed to aid a fraud.
The medical treatment was either not proper or, indeed, not treatment.49
Imagine for a moment, though, that the doctor was contemporaneously
treating the player for depression and knew him to have suicidal thoughts.
He swore that if he faced suspension from the game he would kill himself.
Could the cut to the lip thus become therapeutic?
It is the difficulty of setting the limits of therapy that challenges our
understanding of what falls within ‘proper medical treatment’ and out-
side the criminal law. One example would be when a person seeks the
amputation of a healthy limb because he or she suffers from a mental
disorder that results in a fixed belief that his or her body is not right with
four healthy limbs.50 Robert Smith, a surgeon who has carried out such
voluntary amputations, argues that in such cases the treatment is proper,
meeting the patient’s mental health needs and averting potential greater
harm should the person seek to remove his or her own limb or access
unqualified assistance.51 How far can the argument go? What if X begged
a surgeon to take out his eyes? Is there a point when the public interest
in a citizen’s health should trump autonomy? Although autonomy and
freedom are central liberal values, the values accepted in a liberal polity
are endorsed by public reason and this endorsement is unlikely to exist
if autonomy is recognised as absolute in circumstances where there is
a strong conflicting public interest.52 Should this public interest mean
that the criminal law should prohibit individuals from agreeing to certain
risks? Two examples will be briefly alluded to:
(1) Many people seek ever more extreme ‘cosmetic’ surgery.53 Oper-
ations to insert implants in the breasts and surgery to change the
shape of the nose entail more than minimal invasions of the body
and surgery, and anaesthesia carries significant risk. Yet much ‘cos-
metic’ surgery now seems to be accepted practice, without the need
to argue that in each particular case the benefit to the patient’s
48 The Times, 26 August 2009.

49 To the best of our knowledge, no criminal charges were brought against the doctor. She
was referred to the GMC and received a formal warning about her conduct.
50 See Elliott 2009. 51 Smith 2012.
52 See the discussion on political liberalism in the final section of Chapter 8.
53 Elliott 2009: 178–81.
well-being justifies the harm. Is the test: does this operation fall
within the boundaries of reasonable and responsible practice? What
if extreme surgery is sought by a patient whose underlying health is
far from robust, so that the risks are substantial? This patient will
agree to very serious risks to health to achieve the image of choice.
Many surgeons would refuse to operate, but some might be prepared
to use the cloak of some supposed benefit to mental health to jus-
tify the risks and protect a lucrative business.54 Must proper medical
treatment be endorsed by reasonable and responsible medical opin-
ion? So were Dr X to agree to carry out surgery with consent that
the majority of his peers would regard as contrary to sound clinical
judgment and the best interests of the patient, might that constitute
a criminal assault? Logically, if the men convicted in Brown could
not consent to ‘harms’ in the pursuit of sexual pleasure, it is hard
to argue that a person in search of ‘beauty’ can consent to interven-
tions that fall well outside any objective definition of ‘proper medical
treatment’.
(2) Millions of men and women, including several thousands in the UK,
undergo circumcision cutting away part of the genitalia. Parliament
has expressly criminalised what is sometimes described as female
circumcision. Male circumcision, even of infants, is ‘assumed’ to be
lawful.
We deal with ‘female circumcision’ first. In certain cultures, it is custom-
ary for young girls to undergo different degrees of genital cutting, ranging
from the removal of the tip of the clitoris (sunna), to the excision of the
whole clitoris and, in the most extreme case, the excision of large parts of
the labia majora and infibulation, sewing up the vagina and leaving only a
small hole to allow the egress of menstrual blood.55 Any such procedure
involves at the least actual bodily harm and most entail serious harm.
Nor is the harm simply the immediate pain and mutilation of the body.
The procedure limits the woman’s ability to enjoy sexual pleasure and
creates dangers for future childbirth. The Female Genital Mutilation Act
200356 makes it a criminal offence punishable by up to fourteen years in
prison for anyone to carry out any such procedure on any female, adult
or minor. Section 1(1) provides that is an offence if any person ‘excises,
infibulates or otherwise mutilates the whole or any part of a girl’s labia
majora, labia minor or clitoris’. Section 6(1) oddly then defines girl as
including woman of any age. It is the prohibition as it relates to adult
women that we address here.
54 Ibid.: 181. 55 Sheldon and Wilkinson 1998.

56 Which repealed and replaced the Prohibition of Female Circumcision Act 1985.
The 2003 Act offers a limited ‘doctors’ defence’. No offence is com-

mitted if an ‘approved person’ (a doctor or a midwife) carries out a
surgical operation necessary for the woman’s physical or mental health.
Such a defence covers procedures that may be needed to assist labour, to
correct anatomical abnormality or disease. What would the mental health
‘defence’ allow? It might be that a woman seeks some correction of an
anatomical abnormality that creates no risk to her physical health but
causes her great distress. Some women seek cosmetic surgery to enhance
their self-image of the vulval area and increase their sexual attraction.
How far will the claim, made in the context of ‘voluntary’ amputations
and extreme ‘cosmetic’ surgery, that some wider conception of well-being
or mental health can justify serious physical harm operate as a defence
under the 2003 Act? Section 1(5) limits the doctor’s discretion, provid-
ing that, in determining if an operation is necessary for the mental health
of the girl, ‘it is immaterial whether she or any other person believes
that the operation is necessary as a matter of custom or ritual’. A doctor
begged by a woman to operate to conform to her community norms must
say no. A doctor asked to ensure that a woman’s labia conform to some
notion of ‘beauty’ might go ahead. The prohibition may be seen as less
a ban on certain kinds of surgery per se than a ban on ‘badly motivated’
interventions.
We do not defend female genital mutilation. The 2003 Act might be
seen as an exceptional case addressing a procedure that is not only dan-
gerous but seen as demeaning to women, and likely to be performed on
children or adults whose autonomy is impaired. The procedure exempli-
fies the questions raised by Beyleveld and Brownsword about the law’s
role in protecting human dignity.57 Maybe no ‘harm’ is done to the rare
individual woman who consents to the ritual intervention, but harms may
be done to others and to the perception of women in society. It is hard to
see a bona fide case where one might contend that the responsible doctor
would, if reluctantly, agree to operate. But is it impossible? Should an
adult woman seek the procedure because she will be unmarriageable and
ostracised when she returns home, and it is clear that if the doctor does
not agree she will be subject to the attentions of an unqualified practi-
tioner under non-sterile conditions, is it beyond doubt that the ethical
imperative remains to refuse assistance? Sheldon and Wilkinson58 argue
that there is no sound ethical justification for conceding the legitimacy of
certain forms of cosmetic surgery and the prohibition of any form of rit-
ual genetic modification on an adult woman. The outright ban on ritual
female genital mutilation is explicable only in terms of a judgement that
57 Beyleveld and Brownsword 2007: 15–9. 58 Sheldon and Wilkinson 1998.

no woman would freely consent to such an intervention and/or simply

the enforcement of a cultural norm. One caveat might be offered to any
analogy with cosmetic surgery. Ritual female genital mutilation differs
in degree, but can include a level of risk and excisions (and infibula-
tion) that no woman seeking cosmetic improvement would be likely to
contemplate.
The Female Genital Mutilation Act prompts other questions. Female
circumcision is usually carried out by older women in the community
with no qualification as any sort of health professional. As such, the Act
might be seen as largely declaratory, as for an unqualified person to carry
out ‘surgery’ amounting to actual bodily harm is well beyond the bounds
of proper medical treatment. This might tempt us once again to the
Mustill view that, express prohibitions aside, the test of proper treatment
should be whether it was done by a properly qualified person. Fears that
some doctors might exceed the limits of what should be proper, e.g., in
the context of profitable cosmetic work, could be left to the GMC to
address.
What of male circumcision? Most circumcisions of infant and older
boys are carried out by traditional practitioners, not medically qualified.
Yet the English courts, unlike at least one German court in Cologne,59
regard male circumcision of infants authorised by persons with parental
responsibility as lawful and not a crime.60 Can we glibly say that male
circumcision is simply radically different to female genital mutilation?
Fox and Thomson are clear that we cannot.61 Is it that the removal of the
foreskin does not reach the threshold of actual bodily harm? Given the
risks of such a procedure,62 that argument is shaky. Is it that the courts
still accede to the view that circumcision has health benefits for a man?
If so (and this is much disputed), then the procedure might constitute
proper medical treatment if carried out by a doctor, but most ritual
circumcisions are not performed by doctors. The case for circumcision on
health grounds is a red herring as long as so many circumcisions are not
carried out by doctors. To date, the law allows the non-consensual and
irreversible modification of an infant male body carried out by lay people
59 The judge ruled that infant circumcision, even carried out by a medical practitioner with
the consent of both parents, constituted unlawful actual bodily harm to the child as it
was permanent and irreversible. Representatives of the Jewish and Muslim communities
were outraged, regarding the ruling as a breach of religious freedom: see The Guardian,
28 June 2012.
60 See Re J (child’s religious upbringing and circumcision) [2000] 1 FCR 307. Note that both
parents must usually agree to the procedure.
61 Fox and Thomson 2005.
62 In admittedly rare cases, the infant may suffer fatal bleeding; see ‘Nigerian cleared in
circumcision case’ The Irish Times, 8 October 2005.
yet bans any form of ritual modification of the female genitalia, even in
its most limited form and done by a doctor. Can that stance be justified?
The answer seems to be that male circumcision is seen as sufficiently
minimal to be justified by strong religious and cultural benefits. Medical
politics and cultural standards of acceptability operate to normalise a
procedure for one sex when, in the case of the other sex, it is considered
a public wrong sufficient to warrant criminalisation. We do not dare to
tread in this debate and seek simply to illustrate two key points: (1) The
boundaries of the criminal law defining proper treatment are hazy at
best. (2) The fundamental question of what restrictions the criminal law
places on what we can do to our bodies and the bodies of our children
is not confined to ‘conventional’ understandings of medical law, but
ranges well beyond what doctors may do.63 The lack of clarity is no mere
academic quibble, for if male circumcision were to be deemed a criminal
assault then should disaster ensue and a child died, the circumciser could
face trial for unlawful act manslaughter even if he had conducted the
procedure with all due care.
Not wholly or solely ours

An analysis of ‘medical assaults’ illustrates two other points. First, there
are constant and possibly irresoluble problems in fitting laws that origi-
nated far back in legal history, designed to control violence and promote
public order, to the context of regulating the doctor–patient relationship
and determining the proper boundaries of the criminal law. The very lan-
guage may be seen as unhelpful; assault and battery in ordinary parlance
carry connotations of violence and bad character.64 Secondly, our brief
excursion into the criminal law’s role in protecting bodily integrity shows
that in English law at least, our bodies are not wholly ours to do with as
we wish, even given the aid of a compliant doctor. We now examine the
criminal law and control of those component parts of the body in life and
death.
Is my body mine?
Whilst we breathe, the criminal law acts as a backstop to prevent unau-
thorised incursions on our bodies, be they for our or others’ benefit. If
X is the only person who could give blood to save a dying relative, he
or she cannot be forced to do so. To the layperson, it would look as
if the law holds that his blood is ‘his/hers’. Such a view that body parts
63 Fox and Thomson 2012: 256. 64 See Maclean 2004: 399.

‘belonged’ to the individual was strongly expressed after it became known

that pathologists had retained organs from the dead without the consent
of the family or any advance authorisation from the deceased. Many
(but by no means all) of the cases that prompted outrage related to chil-
dren and some parents declared that doctors had ‘stolen our children’s
organs’.65 English law at the time seemed to offer no criminal redress.66
The Human Tissue Act 2004 (HTA) vastly increased the scope of the
criminal law in policing the retention and use of parts taken from the liv-
ing and the removal, retention and use of parts taken from the dead. But
once again the criminal law still stops far short of any sort of ownership
model. Our parts, our corpses, are still not ours to do with as we wish.
The criminal law both protects our interests in our bodies and confines
what we can choose to do with them.
In the preceding section, we saw that judges struggle to adapt ancient
principles of law originating in the need to restrain violence to the context
of modern medicine and noted that the criminal law, although ubiqui-
tous, is often a silent player in the regulation of medicine. In moving to
examine the criminal process and bodies, we find that although the law
also has strong historical roots, the call for modern-day criminal penal-
ties arose from dramatic ‘scandals’ and the criminal law now in place
is largely shaped by statute and not case law. It might be hoped that
laws especially designed to address medicine would better fit both with
the realities of medical practice and bioethical debate. That hope may
prove to be mistaken. We begin by outlining the two key ‘scandals’ that
prompted legislation: ‘kidney selling’ in 1989 and organ retention at the
turn of the century.
Kidneys for sale

In 1989, three doctors appeared before the GMC on charges of serious
professional misconduct. Evidence presented to the GMC established
that four poor Turkish citizens were paid to come to London where each
had a kidney removed which was then transplanted into a wealthy private
patient, but the proven allegations that the kidneys were bought were
only part of the story. At least one of the ‘victims’ claimed that he did
not realise that his kidney was being removed and believed that he was
undergoing a procedure relating to obtaining a job. This claim was later
shown to be untrue,67 but quite apart from the issue of buying organs,
there were several substantive concerns about the way in which consent
65 See Retained Organs Commission 2004. Also see Richardson 2000: 415–16.
66 Brazier and Cave 2011: 519, 535. 67 See Harris 1998: 162.
to the surgery was obtained and the vulnerability of the ‘vendors’. All the
doctors were found guilty of professional misconduct and one was struck
off the medical register. No criminal proceedings ensued in England, but
it was suggested that removing a kidney and paying the ‘patient’ could not
constitute ‘proper medical treatment’ and thus was a serious assault even
if the men had given valid consent. Such an argument further illustrates
the difficulty in the formulation of ‘proper medical treatment’. By 1989,
living kidney donations on an altruistic basis had become part of accepted
practice and promised great benefits to patients in renal failure.68 Any
argument that removing a healthy person’s kidney was an unjustifiable
harm to him rather than treatment was to be avoided. The argument
had to be either that the altruistic donor benefitted psychologically from
the benefit to the recipient in a way that the vendor would not, or that
selling human organs was so morally wrong that the treatment could not
be deemed ‘proper’. The courts escaped having to grasp such a moral
hot potato because Parliament intervened, enacting the Human Organ
Transplants Act 1989 at record speed and making it a criminal offence
to make or receive payment for a human organ from a living or deceased
person, and imposing strict conditions on any living donation. Inter alia,
any donation to a genetically unrelated recipient had to be approved by
the Unrelated Live Transplant Authority. The 1989 Act has since been
repealed and is replaced by the HTA, discussed more fully later, but the
principle that one may not sell any of one’s own organs for transplant or
sell any organ from a deceased relative remains intact, bolstered by other
legislation criminalising the sale of gametes69 and renting wombs.70 The
difficulty lies in pinning down just what the central justification is for
such a ban, enforced by criminal penalties.
The 1989 ‘kidneys for sale’ scandal had several facets. It may be that
the spectacle of impoverished men brought to a foreign country and paid
a comparative pittance compared to the wealth of the recipients outraged
public sensitivities. Real concerns about the genuineness of the consent
exacerbated the gut feeling that this was wrong. Was there sufficient
justification for using the sledgehammer of the criminal law to address
these concerns? If the law will now allow a doctor to carry out dangerous
cosmetic surgery so that we may look yet more beautiful, can it logically
be permissible to prevent us selling a kidney to buy more Chanel dresses?
Although there is no exploitation here as there was in the ‘kidneys for
sale’ example, this may not matter, because the notion of selling one’s
68 See Dworkin 1970; Law Commission 1995: 8.32.

69 See the Human Fertilisation and Embryology Act 1990, s.12(e).
70 Surrogacy Arrangements Act 1985.
body parts in order to keep up with the latest designer trends is morally
and culturally unacceptable. But self-mutilation to achieve fashionable
beauty does not violate cultural norms. Thus, absent any certain and
consistent justification, whether the criminal law is responding to public
wrongs or moral and cultural norms is unclear.
Organ retention
In the course of a public inquiry into paediatric cardiac surgery at a Bris-
tol hospital, it emerged that after post mortem examinations pathologists
often retained organs and tissue for a multitude of purposes without any
consent from the deceased’s family. Such was the outrage expressed by
parents of children who were alerted that after surgery and their child’s
death, his or her heart had been retained and not returned for burial or
cremation, that the main Bristol Inquiry partly interrupted itself to inves-
tigate the retention of organs and tissue at Bristol hospitals and published
an Interim Report in 2000.71 That report revealed that after post mortem
examinations on children who died in the course of heart surgery, body
parts had been systematically retained, and in most cases the parents were
unaware that their child’s body was not intact when returned to them.
Retained organs were used for ‘audit, medical education and research or
had simply been stored’. The Interim Report found that although the
law (then to be found in the Human Tissue Act 1961, the legislation
governing coroners and antique case law on the disposal of dead bod-
ies) was complex and obscure, there had been breaches of the Human
Tissue Act and the Coroners’ Rules. In neither case did the relevant
legislation provide for criminal penalties or civil redress. Giving evidence
to the Bristol Interim Inquiry, Professor Robert Anderson noted that
there were several collections of children’s hearts elsewhere and one of
the largest was at Alder Hey Children’s Hospital in Liverpool. A further
Inquiry was then established into organ retention at Alder Hey, chaired
by Michael Redfern QC. The Redfern Report catalogued a long series
of cases where, without the knowledge or consent of parents, children’s
organs (often multiple organs) were retained after postmortems.72 The
Report is graphic and highly emotional. It says of one child – ‘His parents
buried him as a shell’.73 The media covered the Inquiry intensively and
the Report garnered immense publicity. The then Secretary of State said
71 The Inquiry into the Management and Care of Children Receiving Complex Heart
Surgery at the Bristol Royal Infirmary 2000 (hereafter Interim Report).
72 Royal Liverpool Children’s Inquiry 2001 (hereafter Redfern Report).
73 Brazier 2002: 553.
in the House of Commons that what had been done was ‘unforgivable’
and outside Parliament described the Report as the most shocking that
he had ever read.74 Further inquiries demonstrated that organ retention
without consent was a near-universal practice and not confined to chil-
dren’s bodies. At Alder Hey, however, the Redfern Report identified the
extremes of a common practice and several other breaches of the law
and ethics on the part of Professor Dick Van Velzen. His conduct was
investigated by the CPS, but ultimately no charges were brought.
As the evidence of widespread organ retention mounted, families
sought the return of organs stored in hospitals and universities and televi-
sion reports of second, third and even fourth funerals became common.
The ‘scandal’ became a public drama. The anger of families escalated
and pathologists came under attack. The government set up a special
health authority in England, the NHS Retained Organs Commission
(chaired by the first named author).75 The Commission was instructed
to manage the process by which NHS trusts provided information to
families, to oversee the process of organ return, to act as advocate for
families and to advise on a new regulatory framework for organ and tissue
retention. Meetings organised by the Commission attracted thousands
of families. The pressure on the government for new legislation grew, as
did the demand that the law should be clear that informed and explicit
consent should be required for any autopsy not authorised by a coroner
and for any removal, retention and use of organs. Similarly, according
to the report, consent should be required for any retention and use of
organs once a coroner had concluded his investigation. An effective sys-
tem of regulation should oversee organ retention and breaches of the law
should be criminal offences.76
Such apparently simple proposals did not attract universal approval.
First, strong arguments were advanced by some bioethicists77 that it was
ludicrous to consider organ retention as a wrong against the deceased, as
the dead have no interests. And insofar as organ retention might be seen
to ‘harm’ bereaved relatives, any such harm must be balanced against
the benefit to medicine and thus to society of medical education and
research. In brief, consent for retention should not always be required by
law. Secondly, doctors and pathologists in particular objected strongly to
the introduction of criminal penalties. The HTA provides a comprehen-
sive framework for the regulation of any removal, retention and uses of
human body parts from the living or the dead, however small, whether
for transplantation, education or research or other purposes. And the
74 The Times, 29 January 2001. 75 Retained Organs Commission 2004.

76 See Department of Health 2002. 77 Notably Harris 2002.
criminal law plays a central role. Its origins in the outcry generated by
the revelations at Alder Hey and Bristol led Mason and Laurie to com-
ment that the Act ‘was born under the wrong star’.78 In the context of any
sensible evaluation of the criminal process’ role in the control of human
bodies and their parts, a succession of ‘baleful stars’ have (mis)guided
the law. Legislation from the Anatomy Act 1832 to this day has been
reactive and driven by the exigencies of hard cases and sentiment.
Appropriate consent
The HTA79 requires ‘appropriate consent’80 for any post mortem exam-
ination not authorised by a coroner and the removal, retention and use
of any ‘relevant material’ taken from the body of the deceased for any
scheduled purpose under that Act, including anatomical examination,
determining the cause of death, public display, research, transplantation,
audit, education, performance assessment, public health monitoring or
quality assurance. In the case of an adult, appropriate consent must be
given either by the deceased before his or her death or by a nominated
representative or qualifying relative. Section 5(1) of the Act makes it a
criminal offence punishable by up to three years imprisonment to under-
take any such activity without appropriate consent unless the accused
reasonably believed that with the activity had received such consent.
Removal of any parts of the living body continues to be governed by the
common law. Removing even a sliver of skin without consent remains
an assault. The 2004 Act makes it a criminal offence to retain or use
material from the living body for a limited number of purposes, prin-
cipally for research or transplantation.81 Retention of material from the
living does not require consent for the same range of purposes for which
it is mandatory in the case of the dead. In particular, lawfully removed
material from the living may be retained for educational purposes and
public health monitoring. Moreover, consent is not needed for mate-
rial retained from the living for research providing that the material has
been anonymised and the research has been approved by an accredited
research ethics committee.82
78 Mason and Laurie 2011: 548.

79 The Act is a nightmare to read; for an excellent and comprehensive account, see Price
2005.
80 See ss.1–3 and Schedule 1 Parts 1 and 23. 81 See s.1(10)(f ) and Schedule 1 Part 1.
82 See ss.1(7), (8) and (9) and see The Human Tissue Act 2004 (Ethical Approval,
Exceptions from Licensing and Supply of Information about Transplants Regulations
SI 2006/1261).
At first glance, the families so outraged by organ retention obtained all

that they might wish for and more. For relevant material is not confined
to organs but includes any material that consists of or includes cells of
the human body, except embryos outside the human body or hair and
nails from a living body.83 The integrity of the dead body in a medical
context is now protected almost as fully as our living bodies are. Just
as removing even a sliver of skin from us without consent is an assault,
so shaving a sliver of skin from a corpse without consent violates the
2004 Act. The Act extends in theory to retention of material from the
living, although there was little if any concern expressed in the public
arena about material retained after surgery. The extension of the consent
regimes to material from the living in the original Human Tissue Bill
would have entailed the need for consent for such material for all the
purposes for which it is now required when retained post mortem. If
the Bill had not been amended, should a surgeon with consent remove a
cyst, and retain that cyst (or even a small sample from the cyst) for teach-
ing purposes or audit without appropriate consent, the surgeon would
commit a crime. Doctors and scientists argued that if informed consent
had to be obtained for every scrap of surgical tissue retained, under the
threat of possible criminal liability, medicine would be damaged and that
only a tiny minority of patients cared at all what happened to tissue or
even whole diseased organs removed in surgery.84 The public outcry had
focussed on post mortem material and might be explained as centred on
the insult to the dead and the offence to grieving families.85 The argu-
ment to dilute the consent requirements as far as material from the living
was concerned succeeded and the Act, as we have seen, imposes a regime
substantially less rigorous than that applying to post mortem material.
That discrepancy prompts several questions in relation to the criminal
offences created in Section 5 of the Act.
A pathologist who retains diseased cells from a dead body without
consent commits a crime. A surgeon who retains the whole of a diseased
uterus from a living patient without consent, for teaching purposes or as
part of an anonymised and approved research trial, does not. Retention
from the dead is thus, in theory, classified as a serious wrong, yet most
retentions from the living are not. The rationale is hard to elucidate.
Several arguments might be advanced. First, living patients benefitting
from the protection granted by laws on assault already have their bod-
ily integrity protected. The surgeon cannot remove the uterus without
the patient’s consent and at that stage she can, if she wishes, state any
83 S 53. 84 See Furness and Sullivan 2004; Liddell and Hall 2005.
85 See Brazier 2002.
objections to the future retention or use of the organ removed from her.
The dead cannot speak. Does the Act expressly extend the law to pro-
tecting the integrity of the corpse, equating the dead and the living?
The muddled common law as interpreted in jurisdictions outside Eng-
land recognised a specific offence of the desecration of a corpse.86 But
it is doubtful that even the most passionate of protesters against organ
retention would regard retaining material from the dead without consent
as exactly analogous to non-consensually removing an organ from the
living. Is the HTA then based on according a value to respect for the
integrity of the dead, not equal to, but different from, the value accorded
to the living? How the dead should be laid to rest forms a central tenet of
many religions and cultures and how we treat the dead is a major part of
our humanity. Such an argument based on a value attached to the corpse
itself runs straight into the opposition of many bioethicists, who maintain
that attributing any value to the corpse itself is just nonsense. The dead
cannot be harmed. One of us has argued elsewhere that the harm in
failing to respect the wishes of the deceased is in part to the living.87 For
those for whom it is a key part of their values that after death, their body
be disposed of in a specified manner, are harmed in their lifetimes by
fears that those values will be ignored after death. She is well aware that
there is no evidence that Parliament when passing the HTA took such a
view.
The strongest and most obvious case for the differential treatment of
post mortem and living tissue seems to rest on harm to the bereaved
family. One of the ways that we come to terms with sudden or traumatic
death is in the rituals, religious or secular, within which we dispose of the
body. In certain religions, the burial or cremation of the body intact is a
religious imperative and families will feel great guilt if it is not fulfilled.
For many other families, the importance of the body remaining whole is
not driven by religion but by powerful emotion, and ‘failure’ may have
significant adverse consequences for their mental health. Again, this case
attracts opposition bordering on contempt. Harris88 argues that even if
any such harm is conceded, it is outweighed by the more tangible harm
that ensues if organs are not more readily available for transplant or doc-
tors lack human material for teaching or research. The criminalisation of
non-consensual organ retention is, for Harris, an unprincipled response
to an emotional orgy. He would contend not only that any material from
the dead should be allowed to be used for research, but also that the
86 Skegg 1992. And see AB v. Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB).
87 McGuinness and Brazier 2008. 88 Harris 2002.
state should be able to take any viable organs for transplant (or research)
without consent.
A brief reflection on the possible grounding for the requirements for
appropriate consent reveals that a mixture of factors drove the formu-
lation of the basic rules and the emphasis on explicit consent for post
mortem tissue, with a lighter regime for tissue from the living. What
drove the demands that those rules be policed by the criminal law? Why
were civil redress and professional discipline not sufficient to do the job?
First, the history of the Human Tissue Act 1961 and its record as a tooth-
less tiger played a major part in public debate. Secondly, the increasing
use of the criminal law as a regulatory tool may be observed in many
areas of medicine. Two other factors should be considered:
(1) In all accounts of organ retention and the reaction of families, a
theme that emerged again and again was that families considered
that they had been deceived, patronised and treated without respect.
Although some families’ complaint was that in no circumstances
would they have permitted the retention of their relative’s heart or
brain, many were angry that they had been ‘lied to’ and ignored.89
Onora O’Neill, writing about autonomy in the context of informed
consent, stresses the role consent plays in protecting the individual
from coercion and deception.90 The control of coercion and decep-
tion falls naturally within the scope of the criminal process. A doctor
who post 2001 told a parent that he or she wished to retain ‘some
tissue’ and retained a whole heart, or a scientist who sourced a brain
from the local mortuary when he or she knew or should have known
that the deceased was an Orthodox Jew, would seem rightly to have
broken the rules to an extent that should impose criminal respon-
sibility. The surgeon who mistakenly fails to obtain consent for the
retention of an excised cyst looks less like a criminal. But the law is
always to some extent a blunt instrument and the fears that doctors
expressed in debates on the HTA that every error might land doc-
tor and pathologists in particular in the dock are unlikely to be well
founded. The CPS will apply their usual two-stage test to ensure suf-
ficient evidence that an offence has been committed and that it is in
the public interest to prosecute. No prosecution under Section 5 can
be instituted without the DPP’s consent. A doctor convicted under
the Act would be unlikely to face prison, unless there was evidence
of gross moral culpability. The criminal process might be seen as the
final resort, there to ensure that the worst cases are treated appropri-
ately seriously. It plays a symbolic and declaratory role, a role that
89 Royal Liverpool Children’s Inquiry 2001. 90 O’Neill 2002.

is more important just because the fundamental ethical principles

about control of tissue are hotly debated. The criminal provisions of
Section 5 of the Act stamp society’s approval of the stance that parts
of the human body are protected after death as well as in life, and
when separated from the body as well as when attached.
(2) The simplest explanation for the criminal process’ presence as the
ultimate guardian of control over body parts might be again the
notion that we ‘own’ our bodies and their component parts and have a
proprietary claim on the bodies of our dead. It is beyond the scope
of this work to delve into the argument that the law should recognise
property in the body. We seek to show that although the argument
that non-consensual taking of organs or tissue is criminalised as ‘theft’
cannot run, glimmers of a property analysis permeate the criminal
law. And as we have seen above in the context of medical assaults and
proper medical treatment, the criminal law in this context is muddled
and unclear.
Organ trafficking
Sections 32 and 33 of the HTA send mixed messages. They reaffirm
and extend the ban on a market in organs hurriedly imposed by the
Human Organ Transplants Act 1989. Section 32 is convoluted, making
it a criminal offence to give or receive ‘a reward’ for the supply or the
offer to supply any relevant bodily material from the living or the dead
that is or is intended to be removed from the human body and is intended
to be used for transplantation. Gametes and embryos are exempted from
Section 32,91 as is ‘material which is the subject of property because of
the application of human skill’. In sum, it is a crime to buy or sell any
human material for transplant. But trade in human material for other
purposes is beyond the reach of Section 32 and a lively market in human
material exists.92 Violation of Section 32 can attract a maximum prison
sentence of three years in gaol. Section 33 and regulations made under
that section impose significant restrictions on living donations which
make it a criminal offence to carry out a live donor transplant without
the approval of the Human Tissue Authority (HTAuth).
Section 33 could, if it stood alone, be seen as a simple exercise in harm
prevention and risk reduction. All living donations entail some risk of
physical harm to the donor and in the case of liver segment or lung lobe
91 But payments are banned under the Human Fertilisation and Embryology Act 1990
s.12(e).
92 Price 2010: 10–13, 40–2.
donation, that risk is significant. Such donations often take place within
the family and fears that pressure may be brought to bear on donors,
thus impairing their autonomy, could allow us to explain Section 33 as
designed to ensure that surgeons do not carry out procedures that could
harm donors without adequate checks that the donors have freely chosen
to donate and that they are fully aware of the risks of surgery. If Section
33 is breached, the criminal responsibility lies only with those involved
in removing or transplanting the organ. However, Section 33 does not
stand alone but is inextricably related to Section 32. The only condition
on HTAuth approval set out in the HTA is that the HTAuth is satisfied
that there is no breach of Section 32, that no reward has been offered
or given. Other conditions are set in regulations and by the HTAuth
itself. The presence of the check that there should be no reward sends
the message that the primary purpose of Section 33 is to ensure there
can be no covert breach of the ban on sales.93
Several books and countless papers have been written on the ethics of
markets in organs for transplant.94 Valiant attempts have been made to
propose models of a regulated market that would minimise any risk of
tangible harm to donors or recipients.95 The arguments against lifting the
ban on payments take two distinct forms. First, it is argued that paying
organ providers may (inter alia) result in poor and vulnerable ‘donors’
being induced into a choice that is less than maximally autonomous,
that their health may be impaired, and that payments will jeopardise
the recipients’ safety as, beguiled by the lure of money, the ‘donors’
may be less than frank about their medical history. All those charges are
rejected by the proponents of markets, who offer strategies by which such
identifiable risks could be addressed. The second argument is that paying
someone to provide bodily material to assist another, or paying a family
to agree to a cadaver donation, is simply wrong. It is degrading to the
human condition to treat the human body as an object for commercial
gain. We do not enter into that debate, but rather seek to elucidate the
basis for the criminal prohibitions in Section 32, for were they based on
the identifiable risks of a market, the possibility opens up that suitable
regulation could result in a lifting of the ban under strict conditions.
However, the source of the ban seems rather to lie in an endorsement of
the belief that buying and selling organs for transplant is unethical and
so no model of regulation and no evidence of possible practical benefits
93 In debates on the Human Organs Transplant Act 1989 which first imposed restrictions
on live donations, it is clear from the Parliamentary debates that the primary purpose
of those restrictions was to ensure all donation were altruistic and not ‘rewarded’. See
Kennedy and Grubb 2000: 1767.
94 See Brazier and Harris 2011. 95 Erin and Harris 2003.
of an organ market could be used to alter the law. Trading in organs is

deemed ‘criminal’.
The subheading in the HTA that precedes Section 32 is simply Traf-
ficking. That very word sets the scene, drawing an analogy in the mind
between paying for organs and trafficking in drugs or human beings. The
notion of organ trafficking links payments to X to agree to provide a
kidney under safe and controlled conditions with the horrific accounts of
prisoners killed and their organs sold in Kosovo.96 Trafficking is a word
almost always used in the context of conduct such as trading in drugs
or prostitution that few of us would have difficulty in labelling criminal.
The European Parliament has suggested that trading in organs for trans-
plant is to be equated with trafficking in people and is, fundamentally, a
violation of human rights.97 If this is the basis for a ban on sales enforced
by the criminal law, several of the arguments used to seek some sort of
market fall at the first hurdle. The benefit to the many people awaiting
a transplant cuts little ice. Lifting the seat belt rules and encouraging
cyclists to ride helmetless would equally increase the supply of organs.
The evidence that there are black markets across the globe where ‘donors’
run real risks and from which transplant tourists may return with serious
health problems makes little difference. We do not change our criminal
law simply because certain activities categorised as serious wrongs here
are not so classified elsewhere. Rightly or wrongly, Section 32 is founded
on a fundamental ethical objection to payment for organs.98
Note that under Section 32, an offence is committed as much by
the individual who seeks to cash in on an organ as by any potential
purchaser or any doctor involved in the transaction. The only prosecution
brought so far in England was of a man who sought to sell his kidney
to pay off gambling debts. He was convicted and received a suspended
prison sentence. The judge was condemnatory, declaring that there is
‘much public disquiet surrounding the sale of body parts and there is
understandable revulsion at such practices’.99 The media had a field
day. Some months later, the convicted man committed suicide.100 This
sad tale might be seen as endorsing a strong public sentiment that the
integrity of the self was violated by the attempted sale, echoing the outcry
when the ‘kidneys for sale’ scandal broke in 1989. The focus in this case
was not on the need to protect the vulnerable, but the demonising of
the potential vendor. It was suggested at the trial that the accused was
96 The Times, 8 October 2011. 97 Price 2010: 17.

98 See Nuffield Council on Bioethics 2011. The report attempts to argue that some forms
of reward short of a market may be ethical.
99 ‘Kidney sale man spared jail’, Birmingham Evening Mail, 11 May 2007.
100 The Times, 26 September 2007.
engaged in a scam and had no intention of surrendering a kidney. No

charge of fraud was laid against him. Rather, as was the case in the
earlier scandal in 1989, other allegations made his conduct look more
disreputable.
The criminalisation of organ sales in English law seems either to be
based on a moral judgment founded on a focus on the evil of money in
this context, or simply on revulsion. Strong moral sentiments get in the
way of attempts to reach a resolution grounded in more objective public
reason, through the application of political liberalism. The argument that
the power of moral sentiment about selling organs plays a significant role
here in shaping the legal and societal response is supported when it is
considered that other sorts of inducement are allowed.101 Pairing allows
A to give a kidney to a stranger B whose own spouse C than gives a
kidney to A’s spouse D. This is an arrangement set up when A and C
are not good tissue matches for their own spouses.102 The prospect of a
successful transplant for a spouse is a strong inducement to donate and
it is doubtful whether the donations by A and C, however commendable,
can be judged wholly altruistic.
Another factor that must be noted in this context is the influence of
European law and bioethical codes. Article 21 of the European Con-
vention on Human Rights and Biomedicine declares: ‘[t]he human body
and its parts shall not, as such, give rise to financial gain’. And the
maintenance of the ban on organ sales remains central to the several ini-
tiatives relating to the regulation of organ and tissue emanating from both
European Union and the Council of Europe. It might be surmised that
opposition to organ sales in Europe has as much of a cultural basis as a
settled ethical foundation. The limits of the ban must also be considered.
As we noted above, only material for transplant is caught by the ban on
sales. Tissue for research is widely bought and sold and initial proposals
in the Human Tissue Bill to extend the ban on sales beyond material
for transplant met vigorous opposition as being likely to undermine the
whole framework of research.103 The basis, then, of criminalising sales
for transplant would not seem to lie in anything special or sacred about
human body parts as such. A heart lawfully retained under the Act by a
university, for educational purposes or research, could lawfully be sold
on to a commercial enterprise if it proved surplus to need. Thousands
of pounds and more can be from made trading hard-to-source human
tissue.104 What we cannot do is sell ‘our own’ kidney or skin or even cells
for transplant. The wrong addressed by Section 32 starts to look less like
101 See Quigley 2011. 102 Brazier and Cave 2011: 507–8.
103 Price, 2010: 41. 104 Ibid.
a wrong based on a judgement that the commodification of component

parts of the body, dead or living, is unethical, and more to be founded on
the principles discussed in the first part of this chapter that certain uses
of the body are wrong. Just as we may not authorise actual bodily harm
to ourselves, so we may not give up an organ or any cellular material for
transplant for reward. The criminal law limits how we can make choices
about our bodies, ruling that the interests of society trump autonomy.
The ideal that the organ donor acts for the good of others without reward
is buttressed by the criminal law. Or a more cynical conclusion is that
the political imperative which should lead to a liberal resolution of an
issue upon which conflicting moral views exist (such as on autonomy
and human dignity) is masked by moral sentiment and cultural norms
surrounding the body and its parts.
3 From ‘theatre’ to the dock – via the mortuary
We dramatically entitle this chapter ‘From ‘theatre’ to the dock – via

the mortuary’, for here we consider the problematic role of the criminal
process when medical ‘treatment’ has, or is alleged to have, resulted in
the patient’s death. An alternative title might have been, ‘How much does
death matter?’ We develop this question further in Chapter 5 through a
detailed analysis of the way in which the criminal law deals with end-
of-life cases, which might popularly be styled debates on assisted dying.
Here, however, our attention is focussed more widely on the matter of
whether, when a patient’s death occurs in the course of medical practice,
this is a wrong that should concern the criminal law.
Doctors’ engagement with life and death is, as is their engagement
with our bodies, one of the factors that distinguish them from most
other professionals.1 Death is part of medical practice; and what we are
concerned with in this chapter is cases where the doctor is seen as causing
or bringing about death in the course of bona fide professional practice.
This may be either because negligently substandard care played a part
in the death, or because the doctor’s deliberate and considered actions
are alleged to violate the criminal law by assisting suicide, actively ending
the patient’s life or withdrawing treatment. Death raises the stakes: if
the criminal process intervenes, the doctor faces a charge of homicide,
be it involuntary manslaughter, assisting suicide or murder. And yet, in
the kinds of cases we address, the doctor in the dock would rarely be
judged as in the same league of moral culpability as the usual array of
criminals on trial at the Old Bailey and Crown courts across the realm.2
As we shall see, in the context of both doctors accused of manslaughter
by gross negligence and doctors who might face criminal charges for
1 This is not to argue that there are no analogous cases. The army, police and firefighters
also face decisions that touch on life and death. For example, in May 2012 four firefighters
were acquitted on charges of manslaughter. The decision to prosecute them met with
outrage. See ‘Treated like common criminals. Fire chief slams decision to prosecute’,
available at http://www.dailymail.co.uk/news/article-2152312.
2 See Archard 2012.
66
From ‘theatre’ to the dock – via the mortuary 67
helping a patient to die, ‘medical deaths’ prove an uneasy fit with the
criminal law. The charges that might be brought are general offences.
The doctor has, in theory, no more special protection against a charge
of homicide in the course of professional practice than we have. But it is
not just that legal academics do not run the risk of killing their students;
in striving to reconcile justice and moral responsibility in medical cases,
the judges have had to perform a series of intellectual somersaults which,
to quote Lord Mustill in Airedale NHS Trust v. Bland, had well before
the challenge of Bland itself resulted in a legal structure ‘both morally
and intellectually misshapen.’3 In 2012, the Commission on Assisted
Dying4 established by the former Lord Chancellor, Lord Falconer, made
extensive recommendations for legal reform to allow a limited system
of lawful access to assisted suicide. We note these recommendations
further in Chapter 5,5 but doubt that the chances of Parliament restoring
moral and intellectual shape to the law are great for several reasons.
Opponents regarded the Commission as far from impartial and consider
its recommendations to be neither morally nor intellectually coherent.6
The relative modesty of these proposals has not mollified opposition to
any formal dilution of laws prohibiting active assistance to die. Reform
to permit assisted dying cannot be seen as either morally or intellectually
coherent by opponents of assisted dying, and those who wish to see the
law reformed cannot see how maintaining the status quo or hardening
the approach taken by the law in practice is morally or intellectually
coherent.
Death (by design or error) not only raises the possibility of a ‘good’ man
or woman facing a charge of homicide, but also is likely to excite media
frenzy with the spectre of another Shipman looming, and on occasion,
media coverage blurs the lines between the doctor charged with a grievous
error,7 the doctor who compassionately helps a patient to die, and the
serial killer who happens to be a doctor or nurse. Thus, individual cases
that reach the courts attract huge publicity and any legislative attempt
to clarify or alter the law plays out in the theatre of public opinion. But
3 Airedale NHS Trust v. Bland [1983] 1 All ER 821(HL), at 887.

4 Commission on Assisted Dying 2012. 5 See Chapter 5, nn.152 and 235.
6 See, for example, ‘Lord Falconer’s commission – help in reading what lies between
the lines in their press release’, available at http://www.carenotkilling.org.uk/articles/
reading-between-lines/. The BMA declined the Commission’s invitation to give evi-
dence in 2011 because it considered that the Commission’s purpose was biased towards
legal reform to permit some form of assisted dying. See http://www.bma.org.uk/ethics/
end life issues/.
7 See the tendentious headline ‘Doctor on Killing Rap’ reporting a charge of gross negli-
gence manslaughter where a patient died after a very serious error in the ITU. Sunday
Mirror, 17 February 2008.
most crucially, the need to fit ‘medical deaths’ into a criminal justice
process that was designed for very different sorts of wrongs means that
we cannot avoid the intractable problem of the different perceptions of
human life in modern society, and the thorny question of what, if any,
value now attaches to sanctity of life – what those three words really
mean. The very utterance of the words can generate a battle royal, with
bishops and philosophers lined up to cast mutual accusations of bad
faith and callousness. Caught in the middle, legislators may prefer to
allow the judges to struggle on case by case, however much the judges
regret the collateral damage done to principle. What we shall see is that
in England, judges often affirm the importance of sanctity of life and
either neatly sidestep the implications of such an assertion, or find that
other compelling principles outweigh sanctity of life. It is often taken
as given that sanctity of life is a crucial theme within both bioethics
and the criminal process, whether the writer supports or derides the
concept. The very term is to be found in the title of Glanville Williams’
seminal book The Sanctity of Life and the Criminal Law, a book that
continues to generate controversy. Sanctity of life might thus be expected
to be a principal theme connecting bioethics and the criminal process
throughout this book. However, we argue in the second part of this
chapter that English criminal law, although affirming the intrinsic value
of human life, evades the philosophical and theological debate. Life is
important and must be protected. Debates on sanctity do little to achieve
that aim.
In our assertion that death raises the stakes in terms of doctors’ vulner-
ability to criminal liability, do we exaggerate? We showed in the previous
chapter that doctors making a misjudgement in nonfatal cases in theory
also risk serious criminal charges including causing grievous bodily harm
if, for example, they carried out surgery without valid consent, or with
consent performed a procedure outwith the bounds of proper medical
treatment. Yet in such cases, de facto, a set of general principles defin-
ing the boundaries of lawful medical treatment seems to be emerging
and actual prosecutions are virtually unknown. In relation to compe-
tent adults, the doctor must respect the patient’s choices. Patients decide
what may not be done to them. Autonomy trumps beneficence, and the
state no longer, save in the context of mental illness or a public health
emergency,8 prescribes that mentally competent citizens must submit to
medicine for their own good, or the good of others. Patients do not,
in principle, enjoy the same freedom to dictate what must be done to
them. Bodily integrity does not extend to a freedom to do what we wish
8 See Coggon 2012a.

with our bodies, and proper medical treatment acts as the gatekeeper to
what we may demand. In many, though not all instances, it is doctors
who define what constitutes proper medical treatment, with beneficence
a central facet of what is ‘proper’.
Can this dual approach extend to cases in which death results? The first
part of the approach is the same. The right to say no, the autonomy to
refuse, extends to life-sustaining interventions. But a plea of proper med-
ical treatment will not of itself answer charges of helping to bring about
death, however much desired by the patient and deemed appropriate by
the doctor. Neither the courts9 nor the medical profession can adapt the
fundamental prohibition on intentional killing, and both are forced into
legal fiction and reliance on dubious medical evidence when it seems
that the doctor has acted in a way that is professionally responsible and
well motivated but transgresses the criminal law. The moral questions of
assisted dying resist answers that suffice to allow a change in the criminal
law in England. There is little agreement on how much death matters or
why death matters.
In the context of death, two other significant developments mark out
debates that touch on death from the issues arising out of non-fatal
‘treatment’. We shall see why it so crucial to any account of the criminal
law, medicine and bioethics to look at the whole of the criminal process
and not just the ‘law in books’. First, in cases relating both to ‘medical
manslaughter’ and to assisted suicide, the principal actor has become
the CPS, with the CPS’ practice in relation to charging doctors with
manslaughter and the DPP’s policy on assisting suicide10 playing the
major role in defining the doctor’s vulnerability to criminal responsibility.
A specialist section within the CPS, the Special Crimes and Counter
Terrorist Division (SCCTD), deals with both kinds of ‘medical deaths’,
be they potential cases of ‘medical manslaughter’ or assisted suicide,
and the rigours of the criminal law are tempered by practice that allows
more room for consideration of motivation and the special needs of the
individual case. Secondly, the DPP’s policy makes a potentially radical
change of direction in the context of assisted death, in that a factor that
may weigh in favour of prosecution is that the suspect acted in his or her
capacity as a health care professional. The traditional notion that medical
professionals are privileged to do what we, as lay people, may not is in
this instance turned on its head.11
9 E.g., R (on the application of Nicklinson) v. Ministry of Justice [2012] EWHC 2381
(Admin). See Chapter 5, n.16.
10 CPS 2010a.
11 However, see Chapter 5 at 137–44, which suggests that this medical privilege may in
fact remain.
In Part II of this book, we consider in further depth cases in which the

criminal process plays an obvious and significant role in areas of moral
controversy: abortion, end-of-life ‘care’ and the instructive case of the
conjoined twins. In some of these cases, a doctor faced prosecution for
acting in a manner that he believed to be ethically right but on which
the law held otherwise. Dr Nigel Cox was convicted of the attempted
murder of his patient, who suffered intolerable agony and begged him
to end her life.12 In others, doctors courted prosecution in an effort
to bring about legal change, as Aleck Bourne did when he reported
himself for carrying out an abortion of a fourteen-year-old rape victim.13
However, in many of the cases in Part II, no doctor actually ever stood
in the dock, because the question of what the criminal law allowed and
the very shape of the criminal law was addressed preemptively, often
by an application for a declaration that what was proposed was lawful.
So, for example, in the well-known cases of Tony Bland14 and later the
Manchester conjoined twins,15 doctors sought assurances from the courts
that what was proposed was not criminal before, in the first case, ceasing
feeding and hydrating Tony Bland, and, in the second, carrying out the
surgery that ended Mary Attard’s life but saved her sister. We will see that
procedure affects outcome and that, in such instances, the facts of the
cases themselves offer evidence of the uneasy relationship between the
criminal law and bioethics and are the stuff of which drama is made. We
attempt to begin to reflect on how far, if at all, we can discern common
criteria that help us determine what kind of professional (mal)practice or
(mis)conduct should engage the criminal law and where we can perceive
both conflict and common ground between the criminal process and
bioethics.
The first part of this chapter focuses on less dramatic examples than
Bland and the conjoined twins, and deals with the prosecution of doctors
whose substandard practice kills or harms their patients. The central
question becomes: When should a ‘bad’ doctor end up in the dock?16
The later parts of the chapter look at the prosecution of doctors who act
in a way that contravenes the law but, some would argue, is not unethical.
What links the two parts is, first, troublesome issues raised by death and
second, the connections, or lack thereof, between moral culpability and
criminal liability when doctors find themselves in the dock. Few dissent
from the view that in the context of substandard care harming a patient,
12 R v. Cox (1992) 12 BMLR 38. 13 R v. Bourne [1938] 3 All ER 615.

14 Above, n.3.
15 Re A (Children)(Conjoined Twins: Surgical Separation)[2001] Fam. 147 (CA).
16 For an overview of the doctor as criminal, see Griffiths and Alghrani unpublished.
the position whereby the doctor can only be charged with manslaughter
if the patient dies is illogical. The chance of proof of a fatal outcome
should not determine the doctor’s criminal responsibility. There may be
instances of harm as ‘great as death’, for example, where a patient is left
tetraplegic, but there is no criminal redress.17 That of itself, however,
raises the question, more often confined to debates on the criminal law
relating to assisted dying, of just what is the value of life, or to put it
another way once again, how much does death matter?
Serious wrongs
Addressing criminal liability for negligence, Ashworth comments that ‘it
must be borne in mind that criminal liability is the law’s most con-
demnatory form, and in principle it should be reserved for serious
wrongs’.18 Yet, elsewhere, he notes that the notion that criminal law
is in general ‘only concerned with serious wrongs must be abandoned
as one considers the broad canvas of criminal liability.’19 Given our
focus here on homicide, arguably ‘the most serious offence in the crim-
inal calendar’,20 we can avoid the general debate on the ever-expanding
role of the criminal law in regulating such matters as parking and lit-
tering. In the context of doctors arrested on suspicion of gross neg-
ligence manslaughter (hereafter GNM), Merry has written eloquently
about the impact on an otherwise law-abiding citizen finding himself or
herself in a police station undergoing fingerprinting and interrogation.21
The criminal process has an impact on the potential defendant from the
moment it is initiated, and we should seek to have the maximum clar-
ity, defining just when medical (mal)practice falls foul of the criminal
law.
We now explore a number of the contexts in which the extent to which
the doctor facing prosecution is ‘bad’ or ‘bad enough’ to be a criminal is
the centre of debate. This forces us to consider just what meanings the
simple word ‘bad’ may carry. It is a word that is used in many different
senses. Should we say that colleague X is a bad teacher, we might be
understood as suggesting X is not good at the job; X is a poor teacher.
Were we to add that X was under investigation by the police, the inference
would be that X had somehow abused his or her position, perhaps by
taking sexual advantage of a student or stealing the petty cash. The notion
that X’s inadequacies as a teacher might engage the criminal law would
17 Consider the Jamie Merrett case (see the discussion later in this chapter at 81–2).
18 Ashworth 2009: 187. 19 Ibid.: 1–2 (emphasis in original).
20 Ibid.: 237. 21 Merry 2007: 68–9.
be dismissed as ludicrous, even though we might concede that such a

teacher has ‘wronged’ her students.22 The wrong is not serious enough
to attract criminal sanctions.23
The doctor whose poor practice harms a patient will normally only
face criminal prosecution in England if the patient dies, but in other
jurisdictions, medical negligence may result in prosecution simply for
causing harm to the patient.24 What is it that does and should make
the wrong caused by poor practice serious enough to be a crime? Other
instances of criminal liability on the part of doctors prompt a different
question: not if the wrong is sufficiently serious, but whether it is a wrong
at all. We return to these troubled cases after we have examined a case
where wrong has been done and the patient has been harmed by medical
negligence, where the issue is at what level the wrong is serious enough
to be the criminal law’s business.25
What makes wrongs ‘serious’?

At one level (the state of current English law), the answer to the ques-
tion of what makes a medical error serious enough for a doctor to risk
criminal liability is blindingly obvious. In most cases, the error must con-
stitute gross negligence and result in the patient’s death. Then a charge
of manslaughter may lie. Should there be gross negligence, or even reck-
lessness, but the patient survives, albeit with serious disabilities, there
will usually be no crime under English law. What makes negligence gross
is far from straightforward. However, the door is not completely closed
on criminal liability for nonfatal harm. Where the doctor is caring for
a patient who falls within the remit of the Mental Health Act 1983
(MHA), or the Mental Capacity Act 2005 (MCA), or is a child under
sixteen, a charge of ‘wilful neglect’ may lie without need of proof of death
or even serious injury.26 Moreover, although no prosecution of a doctor
has ever been brought in England in either context as yet, it may be
(1) that a reckless error causing serious harm could give rise to liabil-
ity under section 20 of the Offences Against the Person Act 186127 or
(2) that the Health and Safety at Work Act allows the prosecution of indi-
viduals (and not just employing Trusts) who cause harm in the course
of their employment.28 We do not wish to set out a litany of possible
22 On wrongs, see Feinberg 1984: Chapter 3. 23 Ibid.: 215.

24 Spencer and Brajeux 2010; Kazarian, Griffiths and Brazier 2011.
25 See Chapter 7, at 188–9.
26 See Alghrani, Brazier, Farrell, Griffiths and Allen 2011.
27 Note the prosecution of Dr Patel in Australia, discussed in Dobinson 2013.
28 Quick 2007: 40–3.
error-based crimes, applauding the notion of using the criminal process

to regulate medicine. We note the possibilities for a wider use of the crim-
inal process to extend to non-fatal harm to help us evaluate the ethics
and utility of the criminal law in the context of unintentional harm in
medicine.
‘Medical manslaughter’ 29
The doctor who makes a fatal error risks prosecution for GNM just as
does the teacher whose gross negligence results in a child’s death on a
school adventure outing,30 or the electrician whose faulty wiring results
in a fatal house fire.31 Although concern about the impact of prosecut-
ing doctors for manslaughter has led to the coining of the term ‘medical
manslaughter’, it is not a term of art and the law that holds doctors
to account for fatal errors applies universally. Yet ‘medical manslaugh-
ter’ has generated concerns that do not seem to be raised to the same
degree32 outside the context of health care. In 2006, Ferner and McDow-
ell argued that rates of prosecution had risen and would rise dramatically,
and that the CPS had an appetite for exacting retribution against unlucky
doctors.33 Others argued that the vague nature of the test to determine
when negligence becomes gross is unjust, and that making liability depen-
dent on the patient’s death is an unacceptable instance of ‘moral luck’.34
Taken together, the central charge is that the way the criminal process
engages with medical error may, rather than deterring poor practice,
endanger patient safety and treats doctors who seek to promote good
care, but make one terrible error, unfairly. The argument is seductive.
The language used by the judge sentencing two very junior doctors,
Drs Prentice and Sullman, after they caused the death of a patient by
erroneously injecting vincristine into his spine, jars. He told them they
‘were far from being bad men’ but rather ‘good men who contrary to
your normal behaviour on this one occasion were guilty of momentary
recklessness’.35 Convicting a good man seems counterintuitive, but such
a risk is not limited to doctors, and the core questions become whether
29 For a fuller account of the relevant case law, see Brazier and Alghrani 2009.
30 See the case of Paul Ellis, The Times, 24 September 2003 (discussed in Brazier and Allen
2007: 26).
31 See R v. Prentice, R v. Adomako, R v. Holloway [1993] 4 All ER 935, CA (hereafter
Prentice). In this consolidated appeal, Mr Holloway was the electrician and all the other
appellants were doctors.
32 Though note the furore resulting from the prosecution of four firefighters in 2012,
above, n.1.
33 Ferner and McDowell 2006; and see Quick 2006.
34 Brazier and Allen 2007: 22–7. 35 See Merry and McCall Smith 2001: 18–9.
negligence should ever suffice to ground criminal liability and, if so, is

there any case to treat doctors differently?
Ferner and McDowell came close to answering the second question
in the sense that they contended that doctors were treated differently
in facing an increased risk of ending up in the dock, suggesting that
doctors fare worse than others. Merry and McCall Smith36 issued a
note of caution to the effect that using the law to punish errors rather
than violations is counterproductive to good medical care, and, therefore,
we should be wary of prosecuting doctors for error. Doctors should be
treated with due regard to the tasks they perform, with the welfare of
patients sometimes justifying a more lenient response even to serious
and fatal medical errors.37
In an empirical study, Griffiths and Sanders38 (basing their study on
a trawl of 75 cases from the CPS files for 2004–9) have shown that the
charge that doctors are treated differently and badly by the CPS is not
supported by the evidence. There is evidence of a significant increase in
the number of fatal medical errors investigated by the police and referred
to the CPS, but there were several reasons to doubt that prosecutions were
increasing. Rather than lowering the threshold to launch a prosecution
against a doctor, the files indicate that the CPS requires a high level of
evidence both that the negligence was bad enough to be gross and that it
is likely to be able to prove beyond reasonable doubt that the error caused
the patient’s death. Although the seminal case of Adomako39 stated that
for an error to be gross there is no requirement to show subjective fault,
the CPS appears to seek to identify some degree of subjective fault, what
has been described as some sort of badness,40 before putting a case of
‘medical manslaughter’ to a jury. If doctors are treated differently by the
criminal process, rather than just by the letter of the law, it may be that
they are treated more kindly.41 Although if Ferner and McDowell were
right and the CPS was targeting doctors unfairly, there would be grave
cause for concern, Griffiths and Sanders conclude that the contrary may
be the case:
the concerns that our research have uncovered are equally worrying: numer-
ous cases of gross neglect or recklessness that are not prosecuted because the
inherent difficulties in GNM are exacerbated by the medical context and further
exacerbated by prosecutors’ reluctance to prosecute without – to put it crudely –
‘badness’ on the part of the suspect.42
36 Ibid. 37 See McCall Smith 1993a. 38 Griffiths and Sanders 2013.

39 R v. Adomako [1995] 1 AC 171, HL. 40 Rowley v. DPP (2003) EWHC Admin 693.
41 And see Quick 2013. 42 Griffiths and Sanders 2013: 156.
Responsibility for medical error

We cannot address here the voluminous literature debating the rights
and wrongs of criminal responsibility for negligence; all we attempt is
to survey the arguments for negligence as sufficient to ground criminal
liability in the context of medical error and principles of bioethics. Much
of the argument focusses on the extent to which legal accountability is an
effective means of deterring bad practice or on whether, to the contrary,
it embeds a blame culture that deters openness and thus the ability to
learn lessons from errors and ‘near misses’. Prominent in the latter camp
in the specific context of health care are Merry and McCall Smith.43
Their central concern is not criminal responsibility per se, but the threat
of civil litigation against doctors and the cumulative effect of a blame
culture. They perceive the tort system and an unsophisticated approach
to blame ‘as a barrier to reducing the incidence of medical injuries’.
Blame, they contend, ‘promotes an adversarial response which in turn
feeds on blame’.44 They offer an elegant typology of error and maintain
that, for the most part, legal liability for medical injury is ineffective in
deterring error. Nor are they alone in this view, as review after review
of medical errors and disasters has concluded that the law does little to
deter poor practice and may, to the contrary, hinder measures to make
medicine safer. Merry and McCall Smith distinguish sharply between
errors and violations. The former are, it is argued, not morally culpable,
but the latter (defined as deliberate wrongdoing, including deliberately
unjustifiable risk taking), rightly attract blame and appropriate legal sanc-
tion. More recently, Merry has said that ‘[i]n legal terms, violations may
be thought of as equating to recklessness, and errors to negligence’.45
Commenting briefly on criminal responsibility for medical injury, Merry
and McCall Smith stress that, in their view, criminal liability requires
‘a morally blameworthy state of mind’ that will rarely if ever exist in
the absence of recklessness. Criminal conviction of persons whose moral
culpability is low or nonexistent is ‘objectionable’.46
In a work seeking to relate the criminal process and bioethics, we do not
attempt to resolve debates on deterrence, but focus rather on what Merry
and McCall Smith argue about moral culpability and negligence. Doctors
are adjured to ‘do no harm’, but their ethical responsibilities go beyond
that crude injunction to impose an obligation of beneficence. Thus, they
must at least seek to avoid error. Does falling into error engage moral
culpability, or given that mistakes are an inevitable component of human
43 Merry and McCall Smith 2001. 44 Ibid.: 248. 45 See Merry 2007: 89.
46 Merry and McCall Smith 2001: 247–8.
behaviour, should we agree with Merry and McCall Smith that most
errors should not attract moral blame and so normally should attract no
legal sanction?
Ashworth is a leading proponent of the case for criminal responsibil-
ity for negligent harm, and the position he takes is of special interest in
the context of criminal responsibility and medical error. He bases his
argument not preeminently on any case for deterrence, but on the con-
tention that ‘negligent harm doers deserve criminal conviction because
and insofar as they are sufficiently culpable’.47 Negligent errors are the
business of the criminal process because in certain circumstances they
can be moral wrongs, thus linking his perception of the criminal law’s role
to an ethical and not just a pragmatic analysis. Ashworth sets a number
of conditions48 that must be met before a negligent error should become
a crime, including evidence that the defendant had the requisite physical
and mental capacity to avoid causing harm. His test is thus in part objec-
tive and in part subjective. No one will be held criminally responsible for
harm that he or she was incapable of protecting the victim against. In
the context of medical practice, might Ashworth’s capacity test extend
to a number of factors that can be discerned in some of the problematic
cases that have come before the courts?49 So might the doctor’s level of
experience be considered and thus the junior doctor undertaking a pro-
cedure beyond his competence be exonerated? Should the law consider
how far doctors undertaking risky treatments had any real choice about
their actions? And might we factor in the extent to which poor systems
caused the harm, rather than autonomous choices by the doctor at the
end of the line? Ashworth emphasises another point pertinent to medi-
cal manslaughter cases: In considering culpability, we should review the
whole history of the relevant error and not simply the final link in the
causal chain.
The gap between Merry and McCall Smith and Ashworth is less than
it appears to be. For the latter, although he endorses the view that neg-
ligence can engage moral culpability, the bar is set quite high. Junior
doctors who inject vincristine into the spine by the wrong, fatal route
will be entitled to have their individual capacity to avoid that error taken
into account, alongside the extent to which they were able to tell their
seniors that they could not deal with this level of practice and the fail-
ure of the system to protect them from error and their patients from
harm. Drs Sullman and Prentice would fall outside the Ashworth tests, as
much as their errors fall short of violations for Merry and McCall Smith.
Dr Ubani, who administered a fatal dose of diamorphine in the middle
47 Ashworth 2009: 188. 48 Ibid.: 187–8. 49 Brazier and Alghrani 2009: 63–5.
of the night to David Gray when he was working a locum for an ‘out
of hours’ agency, would be morally culpable on both tests. He was well
aware that he was exhausted after flying into the United Kingdom from
a double shift in Germany and that he was unfamiliar with general prac-
tice. The many flaws in the systems50 that brought Dr Ubani to David
Gray’s deathbed do not cancel his personal moral responsibility.
Gross negligence, recklessness and manslaughter 51

In England and Wales, as we have noted, a doctor will normally only be
criminally responsible for fatal errors and only if gross negligence can be
proved. Merry and McCall Smith opine that ‘negligence at that level is
likely to be indistinguishable from recklessness’52 and thus a violation.
That is not the letter of the law in England. Although there was a time in
the 1980s when it seemed that ‘gross negligence manslaughter had been
absorbed into and replaced by reckless manslaughter’,53 in 1993, the
Court of Appeal in R v Prentice and then in 1995, the House of Lords in
R v Adomako reaffirmed that gross negligence (objectively determined)
was enough to ground a conviction for involuntary manslaughter. Yet the
test of what is gross remains elusive, and, in the words of the judgments,
some element of subjective fault seems to remain. The Court of Appeal
in Prentice set out the well-known four-part test:54
(1) Did the doctor show indifference to an obvious risk of injury to his
patient?
(2) Was he (or she) aware of the risk but decided for no good reason to
run the risk?
(3) Were efforts to avoid a recognised risk so grossly negligent as to deserve
punishment?55
(4) Was there a degree of inattention or failure to have due regard to
risks going beyond mere inadvertence?
An affirmative answer to at least one of these questions is needed before
the doctor can be convicted of manslaughter. Questions 1 and 2 would
both seem to engage a degree of recklessness. Question 1 demands indif-
ference – a lack of regard for the patient’s safety. Question 2 suggests
that the accused took risks that had no justification. Both fall into the
category of what Merry and McCall Smith style violations. Question 3
is circular and invites subjectivity on the part of the jury.56 Question 4
50 Gooderham 2011. 51 On which see Quick 2006; Quick 2007.

52 Merry and McCall Smith 2001: 248. 53 Ashworth 2009: 276.
54 Prentice, at 943–4. 55 Our emphasis.
56 And is, as we have seen, central to CPS decision making.
seems the only part of the test that engages an objective measure of
error. Applying the tests, the Court of Appeal quashed the convictions
of the two junior doctors, Drs Prentice and Sullman, and of a fourth
defendant, an electrician, Mr Holloway, whose faulty rewiring of a house
led to a fatal fire. The third doctor on trial, Dr Adomako, failed in his
appeal. He had been the anaesthetist for a minor eye operation and he
failed to notice for over four minutes that the tube carrying oxygen to
the patient had become disconnected. He had practised as a locum in
the United Kingdom for 15 years, moving from job to job, and his com-
mand of English remained poor. Experts described his standard of care
as abysmal. Despite his many shortcomings as a doctor, there is minimal
evidence of recklessness. Dr Adomako appealed to the House of Lords
and failed again, but the Law Lords failed to offer any more concrete test
for what constitutes gross negligence, saying only that the
jury will have to consider whether the extent to which the defendant’s conduct
departed from the proper standard of care incumbent upon him . . . was such that
it should be judged criminal.57
Not much more can be discerned from later decisions of the courts.58
English law as it stands sets an objective test of grossness, but one that
fails wholly to escape subjectivity and entrusts the jury with the onerous
responsibility to determine just how bad the accused’s conduct must be
to be gross. That pivotal role assigned to the jury may explain in part
why the CPS is reluctant to prosecute doctors without evidence of some
subjective fault. The law might rightly be clear that doctors have no call
for preferential treatment, but the jury may be unhappy at branding a
doctor with an otherwise impeccable record, who has done his or her
best, as criminal. Should doctors face criminal proceedings for non-
deliberate wrongdoing at all? It is hard to make a case that any sort of
blanket immunity should be offered to doctors or health professionals
more widely. The nature of their work may indicate that in some respects
health professionals are more vulnerable to criminal redress for making
mistakes and that that may have an adverse effect on medicine.59 But
nothing convincingly makes a case that doctors are so special that the
law should be different for them. To the contrary, there is an argument
that at least when the gross negligence involves any sort of indifference to
patient welfare, the moral case for holding doctors to account is stronger
given their profession and code of medical ethics.
57 At 187 (our emphasis).

58 But see R v. Misra and Srivistava [2004] EWCA Crim 2375, discussed in Brazier and
Alghrani 2009.
59 See Archard 2012; Brazier and Alghrani 2009: 66–7.
Moral luck and a game of chance

If a case can be made that in certain circumstances gross medical error
(and certainly recklessness) should engage the criminal process because it
involves morally blameworthy conduct, one feature of the current English
law disconnects law and ethics. For the morally blameworthy conduct will
normally only land the doctor (or any other defendant) in the dock when
it results in death. Doctors may make the most grave of errors, acting
with wilful disregard for a patient’s safety, and face no charge because
they are lucky and the patient lives. The patient may be less lucky and
survive with terrible disabilities.
More than forty years ago, Smith attacked GNM as a game of chance.60
He used the example of a father who leaves colourless weed killer in
a lemonade bottle accessible to his young son. If the child drinks the
poison, the father may face prosecution for manslaughter, yet his moral
culpability and his dangerousness as a father is no less whether the child
survives or dies or, indeed, never drinks the lethal liquid. Smith contends
that criminal responsibility that turns on the chance of death is ‘a very
crude form of retribution, the degree of punishment being based not on
the moral culpability but on the harm caused’.61 We should either abolish
GNM or have offences of gross negligence causing bodily harm. Smith,
a criminal law minimalist, preferred the former. Is the game of chance
that is medical manslaughter as odious as Smith suggests? How should
we address the question of moral luck?
‘Luck’ in the context of medical (mal)practice is not confined to crim-
inal responsibility for error. Dr Nigel Cox was a beneficiary of luck when
he could not be proved to have killed his patient and could only be con-
victed of attempted murder, giving the judge the discretion to impose
a suspended sentence.62 Had he been convicted of murder, a life sen-
tence would have been mandatory. He was lucky that the outcome he
sought could not be proved to have ensued from his criminal act. But
Dr Cox is different from his colleague who is accused of GNM, for his
act was a crime regardless of whether or not he caused death, whereas
the doctor who acts in a grossly negligent manner commits no crime at
all if death does not result. For Dr Cox, ‘luck’ determines the severity of
his punishment. For the grossly negligent doctor, ‘luck’ determines his
criminality. As Duff points out, ‘outcome luck’ permeates the criminal
law.63 He offers several examples of how causing death ratchets up the
level of offence and punishment for a range of driving offences. He argues
that in the context of non-intentional endangerment offences, it may be
60 Smith 1971. 61 Ibid.: 73. 62 R v. Cox (1992) 12 BMLR 38. 63 Duff 2008.
appropriate to impose a heavier sanction if the defendant’s behaviour

actually causes death, but the increase in severity should be modest.64 A
state of affairs where a gross error is beyond the reach of the criminal law
if the victim survives and is a crime that attracts a maximum sentence of
life imprisonment if the victim dies is scarcely modest.
Perhaps it is specious to dismiss causing death as simply a product
of ‘luck’, a harm that happens to occur. In R v Misra and Srivastava,
the Court of Appeal made it clear that before GNM could be estab-
lished, it must be shown that the defendant failed to act to avert a risk to
life. The accused must have been aware that his or her conduct endan-
gered another’s life; foresight of injury or damage to health alone was
not enough. It might be argued that risk to life engages a special level of
responsibility. Article 2 of the European Convention on Human Rights
(ECHR) prioritises the protection of life and the jurisprudence of the
European Court of Human Rights imposes significant responsibilities on
states to protect life65 and investigate deaths.66 The form of the invol-
untary manslaughter offence may be seen as evidence that the common
law affords to life per se a value that exceeds that of health and bodily
integrity. Life has intrinsic and not solely instrumental value, thus linking
debates on moral luck and manslaughter with the more overtly ethical
controversies raging around assisted dying.
Harm short of death

In terms of moral principle, doctors who endanger or harm patients
and exhibit disregard for their welfare, or who are reckless as to the
consequences of their actions or inaction, incur a grave degree of moral
culpability enhanced by the very fact of their profession.67 The case for
criminalising error is more disputable and is bedevilled by contradictory
evidence on any practical effect in terms of promotion of patient safety.
In the context of bioethical principles, the focus should rest on the moral
culpability of the actor. Let us take first doctors who act with indifference
to their patients’ welfare; they fail to respond to nurses’ calls to attend a
patient with suppurating bed sores, or do nothing when well aware that
a frail and elderly patient is not eating and is lying in his or her own
64 Ibid.: 76.
65 Savage v. South Essex Partnership NHS Foundation Trust [2008] UKHL 74.
66 Avsar v. Turkey [2001] EHRR 1014.
67 See the discussion on the high level of responsibility expected of medical professionals
in Chapter 7, at 207–9.
excrement.68 Or a surgeon removes the wrong kidney after due warning

from a junior colleague, or an anaesthetist leaves the theatre to have a
cup of tea. In none of these cases can it be proved that the blameworthy
conduct caused the patients’ deaths, or prompt action by other staff
averted the risk of death. The doctor’s good fortune does not reduce
moral culpability. Should such a doctor be working with patients who
are mentally ill or mentally incapacitated, he or she may face criminal
proceedings.69 Section 127 of the MHA makes it an offence to ‘ill treat or
wilfully neglect’ a patient receiving care under that Act, and Section 44
of the MCA70 criminalises wilful neglect of any patients lacking mental
capacity.71 The prosecution must advance evidence of an appreciation
by the defendant that he or she was either inexcusably ill-treating the
patient in his or her care, or indifferent to the patient’s welfare.72 There
is no requirement to prove that death or indeed any physical harm was
caused by the wilful neglect. The essence of the crime is the breach of
the professional’s obligation of beneficence to the patient. Thus, there is
a strong case that the wilful neglect of a patient by health professionals
or managers within the NHS, or perhaps any health care setting, should
be a criminal offence.73
Griffiths and Sanders advance a more limited proposal to reduce the
element of moral luck. Their findings relating to the sheer difficulty in
proving causation to prosecute manslaughter lead them to favour an
offence of ‘medical neglect endangering life’.74 Such an offence would
allow some of the cases where the CPS identifies gross negligence and
some degree of badness, but cannot proceed to prosecute because they
judge that proof of causation cannot be established. Additionally, the
offence would embrace those cases where a patient’s life is put at risk
but nonetheless the patient survives with terrible injuries. They give the
poignant example of Jamie Merrett. He was dependent on a ventilator
and required twenty-four-hour nursing care, but retained full mental
competency. An agency nurse switched off the ventilator, not realising
the potential consequences of her act. Alerted to her error, she sought
to resuscitate Mr Merrett, but lacked the skills to do so, and he was
resuscitated twenty-one minutes later by paramedics. He survived but
68 For real-life examples of such callous indifference to patients’ welfare, see Mid Stafford-
shire NHS Foundation Trust Inquiry 2010.
69 Such prosecutions are fairly regularly brought against unqualified care assistants but are
rarely used against doctors or nurses. See Allen 2013.
70 Where an anaesthetised patient is so neglected, in theory at least, a prosecution could
lie under the MCA.
71 And see the Children and Young Persons Act 1933 s.1(1).
72 R v. Newington (1990) Crim LR 593; Allen 2013.
73 See Alghrani, Brazier, Farrell et al. 2011. 74 Griffiths and Sanders 2013: 150.
suffered devastating brain damage. The unfortunate nurse had received

no training in caring for patients such as Jamie Merrett. Neither she nor
the agency which employed her could be prosecuted under the current
law. We venture to suggest that, had Mr Merrett died, the nurse would
have faced charges of GNM and her agency could have been prosecuted
for corporate manslaughter.75
Extending a crime of wilful neglect to protect all NHS patients or intro-
ducing a crime of medical neglect endangering life will require legislation,
legislation likely to provoke concern in the medical profession. We are not
arguing for a punitive campaign against doctors, but simply for connect-
ing moral culpability to conduct, not outcomes. So finally, in this part of
the chapter, we note that in instances of reckless injury, Section 20 of the
Offences Against the Person Act 1861 might be used here (as a similar
offence has been used in Australia).76 Section 20 establishes a crime of
unlawfully and maliciously wounding or inflicting grievous bodily harm.
No intent to harm need be proved, nor need any assault be proven, so the
patient’s consent to the surgery will not negate liability. Recklessness is
defined as the conscious taking of an unnecessary risk.77 A surgeon who
pressed ahead with surgery aware that he or she was affected by alcohol
or was incompetent takes such a risk, as does the surgeon who ignores
a warning that he or she is removing the wrong kidney. Section 20 has
been used to hold HIV-positive lovers accountable for transmitting HIV
to unwary partners.78 In its focus on the prohibition of conduct that pays
no regard to others’ safety and causes serious injury, Section 20 could
reconnect bioethics and the criminal law in imposing responsibility for
the most egregious failures in medical care. And the criminal law would
signal that causing serious harm and suffering, and not death alone, were
wrongs that engage the criminal law.
Serious but not ‘wrong’

We have looked at the role the criminal process plays in England in
holding doctors to account for harm caused to a patient by poor practice
and examined the complex questions that arise in considering when poor
practice is sufficiently morally culpable to deserve criminal punishment.
There is no dispute that what the doctor did or failed to do was a wrong;
the issue is whether the wrong was so serious as to merit criminal redress.
Now, we consider cases where the doctor acts with intention, taking steps
that no one would contest were other than serious, but with respect to
which there is substantial debate about whether they are wrong. When
75 Wells 2013. 76 Dobinson 2013. 77 Ashworth 2009: 301.

78 R v. Dica [2004] EWCA Crim 1103.
a gross error results in a patient’s death, there are arguably two wrongs.
The patient’s life is taken, and the future and all that the patient would
choose to do with it is robbed from him or her. In cases that are often
discussed under the umbrella term of assisted dying, the patient’s choice
is, as the future holds no promise for him or her, to ask the doctor (or
a lay assistor) to help in gaining release from a life that has become a
burden.
The basic ethical controversy is stark and plunges us into the debate
on sanctity of life. If life itself is an absolute value that society should
protect above all others, death matters to a degree to which other kinds
of harm may not. Negligently causing death is qualitatively different to
causing serious injury and a doctor cannot be permitted to help patients
realise a choice to free themselves of life. It is not theirs to give away
and so proponents of sanctity of life, or as Keown79 prefers, ‘inviolability
of life’, regard physician-assisted dying and any form of medical or lay
intervention to hasten death as morally blameworthy. But if it is not
life itself but the quality of that life as perceived by the person living it
that has value, assisting patients to die as they choose is under certain
conditions a morally laudable act, manifesting both respect for autonomy
and beneficence.
The debate is much more complex than that and involves a broad
spectrum of views. At one extreme, a doctor should not only refrain from
any act that may accelerate death but should continue all possible means
of prolonging life while any chance of survival persists. At the other,
should the individual choose to seek assistance to end his or her life
and the doctor be content to assist, the autonomous request of the first
party and the concurrence of the doctor suffice to make the assistance in
dying morally justifiable. English law adopts neither extreme, and neither
extreme end of the spectrum garners substantial support. In theory and
in practice, the law currently charts an uneasy middle way. As we shall
see in Chapter 5, the middle way has its perils for doctors, in that a wrong
step to either side of the legal tightrope may, in theory, land them in the
dock.
Escaping from sanctity of life?

As the doctor caring for the dying perches on a legal tightrope, so we find
ourselves on a perilous perch, and one we wished to avoid, the endless
battle about sanctity of life. We cannot avoid it, but argue that sanctity of
79 For a succinct statement of this central tenet of Keown’s philosophy, see Jackson and
Keown 2012: 89–92.
life is a misnomer as a description of how the criminal process in England

does and should approach the value of lives. Glanville Williams80 sought
to undermine what he saw as a pernicious religious dogma that helped
to entrench sanctity of life as central to all debates on medical treatment
and the preservation of life. He argued that not all intentional killings
of human beings are wrong and that it followed that some such killings
should not constitute murder or any other criminal offence. Much of his
book focusses on abortion, infanticide and contraception (248 pages out
of 350 in all), whereas two fairly brief chapters deal with suicide (which
at the time of his writing remained a crime) and euthanasia, but his
message is clear. Legal prohibitions on killing, he argued, rest largely on
pragmatic considerations of social necessity. Society would fall apart if
men could murder each other with impunity. However, he went on to say
that ‘there are forms of murder or near murder, the prohibition of which
is rather the expression of a philosophical attitude than the outcome of
social necessity. These are abortion, infanticide and suicide.’81 His final
chapter on euthanasia makes it clear that he would add voluntary and, in
some cases, involuntary euthanasia to that list. In 1957, Williams placed
himself firmly in the camp of those who contend that a human life has
no value simply by virtue of being human. Prohibitions on killing that do
not derive from social necessity and public security derived, in Williams’
view, from ethico-religious objections. Over half a century later, Williams
still attracts both secular worship and odium. Keown and Jones published
a swingeing critique in 2008.82
Central to Williams’ thesis is his claim that the criminal law and its
understanding of sanctity of life (which in 1957 still banned suicide
and in England formally still bars assisted suicide and euthanasia) arose
solely from theological dogma, and largely from the teachings of the
Roman Catholic Church.83 As such, it had no place in a modern secular
society. Writing in 2012 in a book devoted to a debate on euthanasia
with Keown,84 Jackson echoes Williams in arguing that, to the extent
that sanctity of life rests on the ‘idea that God alone should have the
power to decide the moment of an individual’s death’,85 it can have no
place in a secular society. Believers may choose to live their lives and
die their deaths by that tenet, but they cannot restrict the choices open
to others. In sum, a doctrine of sanctity of life, whatever the criminal
law’s origins in Judaeo-Christian tradition, cannot on its own support
80 Williams 1957. 81 Ibid.: x. 82 Keown and Jones 2008.

83 Keown and Jones make a powerful case to demonstrate that Williams both failed to
understand Roman Catholic doctrine and misrepresented the Church’s position in a
number of respects. Ibid.
84 Jackson and Keown 2012. 85 Ibid.: 37.
a blanket criminal prohibition on assisted dying. It is unsurprising that

those who wish to maintain a prohibition on any form of assisted dying
or medicalised killings prefer to do away with the word ‘sanctity’ and
speak instead of inviolability of life, stressing that the argument that
human life itself has value has a long legal and philosophical tradition
unfettered to religious dogma. Proponents and opponents of assisted
dying deploy a wealth of other arguments. One side argues (inter alia)
that covert euthanasia takes place anyway, that compassion for pain and
suffering demand that society allows help to die, that assistance in death
is part and parcel of patient autonomy and that judicial convolutions
about the line between killing and letting die make a farce of the law.86
The other responds that legalising any form of assisted dying will lead
to a slither down the slope to involuntary euthanasia, that palliative care
can battle pain and suffering and that experience of legalised euthanasia
abroad offers evidence of serious abuses.87 Both sides seek to advance
practical evidence to advance their case. But there is a sense in which the
practical arguments are sideshows. Let us imagine that the pro-assisted-
dying camp could be assured that no doctor was covertly ending patients’
lives and that palliative care could meet all needs. Or, vice versa, the
anti camp could be convinced that the Dutch and Oregon laws worked
perfectly and no patient was helped to die save by informed choice. Would
the debate on sanctity/inviolability of life be stilled overnight? We doubt
it, for it is a philosophical attitude, or rather attitudes, that divide opinion.
Jackson argues that ‘in principle’ objections to any form of legalisation
of assisted dying, at least those based on faith, cannot be overcome by
any scheme that addresses the practical dangers, which she describes as
‘regulatory objections’.88 If one believes that life is the gift of God, to be
ended only at His will, proving that legalised assisted dying will not lead
to involuntary euthanasia or families coercing elderly relatives to request
assisted dying is irrelevant. Jackson respects the views of those who hold
such beliefs, but contends that they have no more right to enforce their
beliefs on society as a whole than those who contend that homosexual
relations are sinful and should therefore be criminal.89
But is the ‘in principle’ divide as broad as it might appear and does the
law as it stands now affirm anything close to an absolute value of sanc-
tity of life? Keown, one of the most formidable opponents of any form
of decriminalisation of assisted dying, disavows the very term sanctity of
life in favour of inviolability of life. ‘Sanctity’, Keown says, has ‘distract-
ing religious overtones’.90 Inviolability of life, he argues, is rooted in the
86 Ibid.: 34–6 (per Jackson). 87 Ibid.: 118–36 (per Keown).

88 Ibid.: 6. 89 Ibid.: 6–7. 90 Ibid.: 89.
common law and fundamental to any understanding of human rights.

Keown neatly sidesteps Jackson’s charge that religious belief cannot be
the grounds for criminal prohibition of any help to die. Keown for his
part attacks the very language of ‘assisted dying’, saying that the key
question is simply ‘[s]hould the law allow doctors intentionally to kill
their patients’?91 Yet in so formulating the question, Keown has lim-
ited the contours of debate and rejected more comprehensive notions
of sanctity of life. For example, in Re C (a minor) (medical treatment),92
Orthodox Jewish parents sought to prevent doctors from withdrawing life
support from their terminally ill sixteen-month-old daughter. Their faith
prescribed that nothing be done that even indirectly shortened life and
that all feasible measures should be taken to prolong life. The President
of the Family Division ruled in the doctors’ favour, finding that allowing
C to die was in the child’s best interests and that ‘whilst the sanctity of life
is vitally important, it is not the paramount consideration’.93 Such a judi-
cial pronouncement that on its face downgrades sanctity or inviolability
of life to one consideration among others is commonplace in judgments
from the English courts on withholding or withdrawing life-sustaining
treatment. However, Keown does not perceive cases on facts akin to Re
C as undermining ‘inviolability of life’ but rather ‘vitalism’,94 which he
dismisses:
To say that human life is a basic good is not, however, to say that it is the highest
good and should be preserved at all costs. That would be ‘vitalism’ and morally
indefensible.95
He does not elaborate on why a view of life as the highest good is so
indefensible, but rather uses the contrast with ‘vitalism’ to keep the focus
on intentional killing. Keown presents a host of practical ‘regulatory
objections’ to any form of decriminalising assisted dying. Our concern
here is rather with his claims that there is, independent of any faith-based
doctrine, a ‘right not to be intentionally killed’ even at one’s own request
and in circumstances of unbearable suffering, and that those who support
‘euthanasia on request’ must and do also support euthanasia without
request.
A number of proponents of assisted dying happily concur with Keown
on the latter point and argue that ‘humans’ who lack the capacity to value
their own lives are not ‘persons’ and thus, in extreme cases, both nonvol-
untary and involuntary euthanasia may be morally permissible.96 This
91 Ibid.: 83. 92 [1998] 1 FLR 384. 93 At 390.

94 ‘[T]he principle that one should preserve life at all costs’. Keown 2006: 109.
95 Jackson and Keown 2012: 90 (emphasis in original).
96 Harris 1985: 64–85.
debate is well portrayed in an earlier work edited by Keown, in which

Finnis, another formidable opponent of any move to legalised euthana-
sia, debated with Harris, one of the foremost advocates of personhood.97
Their exchange reenforces Jackson’s argument that ‘in principle’ objec-
tions to any form of legalising euthanasia can never be the subject of any
degree of compromise. The anti camp attaches value to human life and
the pro camp does not. How can the criminal law navigate such a chasm?
First, in the preceding sentence, we have taken the debate to its extreme
and distorted the question somewhat. Those, who like Jackson, are in
favour of legal reform to permit some carefully constructed scheme to
allow active help to die abhor the suggestion that they do not value
human life and argue that what they seek to do is enhance human lives.
Nor is it the case that those opposed to reform on principled grounds
derived from sanctity (or inviolability) of life ethics regard every case of
‘intentional killing’ as morally equivalent to the sort of murder where
a gangster kills in a revenge attack, or a woman murders her husband
for the life insurance. There may be some ‘killings’ that even the most
fervent campaigner against laws formally allowing assisted dying would
consider, if not morally defensible, at least acts that should not engage
the criminal process, or that if they do should result not in punishment
but a compassionate response from the courts. Jackson challenges those
opposed to any form of decriminalisation of assisted dying with Rachels’
compelling thought experiment.98 The choice on offer is to die painlessly
at eighty having been given a lethal injection or to survive a few more days
in intolerable agony. It is this challenge that is often met by the response
that good palliative care will ensure that the thought experiment remains
fictitious. The factual basis for claims about the efficacy of palliative care
is disputed but is in a sense irrelevant, as to maintain an absolute ethic
of inviolability of life, the answer would need to be that the dying man
must reject the lethal injection and that anyone who administers such
an injection or in any other way brings about the earlier death commits
a serious wrong meriting criminal sanction. However, constructing the
exceptional case will not suffice to persuade most ‘in principle’ objectors
to agree that the law should allow some intentional killings or assistance
to die. The prohibition on any such killings will be seen as necessary to
maintain the principle and uphold the value of life of itself. The excep-
tional case where the act, even though ‘wrong’, is exceptionally justifiable
can be dealt with by tempering the law with mercy. Ilora Finlay, a com-
mitted opponent of assisted dying, has written that ‘[t]he current law
97 See Keown 1995.

98 Jackson and Keown 2012: 30; and see Rachels 1986: 107.
prohibits assisted suicide, but allows flexibility in its interpretation – it

is a law with a stern face and a kind heart.’99 Opponents of intentional
mercy killings and assistance in suicide seem to perceive the criminal
process as crucially symbolic, so that even were it to be conceded that a
particular hard case was not a wholly bad act, and was committed by a
person who was not a ‘bad’ character, an absolute prohibition remains
necessary to affirm the intrinsic value of human life. But punishment in
all cases is not essential.
When the assistor is a close relative or carer and there seems to be
no venal motive, there would appear to be broad agreement that if the
criminal justice system is engaged, its function is not to punish. In the
case of a relative who might be charged with murder, this end will often
be achieved by virtue of the ‘device’ of a finding that the accused’s state
of mind allows a plea of diminished responsibility. If a doctor is charged
with murder, this approach is unlikely to be available.100 In his Code for
Crown Prosecutors and assisted suicide policy, the DPP indicates that
a factor in favour of prosecution will be that the suspect acted in his
capacity as a health professional.101 A patient known only as ‘Martin’
unsuccessfully challenged the Policy as violating his rights given that no
member of his family is prepared to assist him to die. He argued he
should be able to access a physician’s help.102 As we noted earlier, in
its recommendations for legislation, the Commission on Assisted Dying
has rejected the DPP’s policy to facilitate demedicalisation of assisted
dying in favour of a return to the more conventional arguments made for
limited and regulated physician-assisted dying.103
Unsurprisingly, neither the DPP’s Policy nor the Commission’s pro-
posals cut any ice with the ‘in principle’ objectors. We see two strong
factors driving the ‘in principle’ objectors: an apparently intractable
objection to any formal alteration in the law, however minimal or cir-
cumscribed, and a strong objection to anything that suggests that ‘inten-
tional killing’, however compassionate and/or based on an autonomous
choice, should be sanctioned as part of ‘proper medical treatment’.104
Hence the emphasis in much of their argument that good medical prac-
tice can obviate any objective need for ‘intentional killing’. Changing
the law at all might first reduce the deterrent effect of current laws and
99 Available at http://www.epolitix.com/latestnews/article-detail/newsarticle/baroness-
finlay-of-llandaff-older-people-should-not-be-seen-as-a-societal-burden/.
100 Ost 2007: 108. 101 CPS 2010a, para 43.
102 R (on the application of AM) v. DPP [2012] EWHC 2381 (Admin). He has leave to
appeal.
103 See Chapter 5, n.235.
104 But note the arguments advanced by Coggon that end of life issues should no longer
be debated within the framework of medical law: see Coggon 2010.
encourage doctors and others to be more ready to act to help end lives.
This, it is argued, is what has happened in other jurisdictions, but the
evidence is ambiguous and weak.105 Secondly, and more importantly,
laws formally sanctioning assisted dying would have a profound sym-
bolic effect that of itself would diminish the value attached to human
life. For the committed ‘in principle’ objector, intentional killing must
formally remain homicide, however horrific a given case may be. Life
is, in their view, a value that outweighs the relief of suffering, at least if
actively hastening death is the only means to relieve suffering. The answer
to Keown’s question whether doctors should be allowed intentionally to
kill their patients must remain no. Yet it is this bar on intentional killing
within a justice system that in practice regards sanctity of life as just
one of the considerations to be weighed in end of life care decisions
that creates the set of conundrums and frank legal ‘nonsenses’ noted in
Chapter 5.
We struggled to find language that might bridge the gaps between the
different philosophical attitudes that form opinion about the permissibil-
ity of physician-assisted dying, whether the provision of active assistance
to hasten death, or compassionate withdrawal of measures to prolong life.
‘Respect’ for life does not do the job, for the chasm reopens about what
it is we should respect. Everyone would sign up to the language and it
would mean little. We suggest instead reverence for life (RfL). We adopted
‘reverence’ with concerns that it both shared the religious overtones of
sanctity and amounted to little more than a euphonious phrase. We were
alerted106 to the origins of the selfsame phrase in Schweitzer’s work.107
As will be apparent, we do not use the phrase to reflect in full Schweitzer’s
central ethic, although we do share his emphasis on the intrinsic value of
all life. But why not stay with ‘sanctity’ or its purportedly less theological
offspring ‘inviolability’? The latter is a more absolute command allow-
ing no exception. Sanctity signals that every human life has value and
counters the notion that too many societies have that some human lives
are worth less than others, or even worthless. Dworkin argues that ‘there
is a secular as well as a religious interpretation of the idea that human
life is sacred’:108 it has intrinsic value. The invocation of sanctity of life
in much of the jurisprudence of the English courts affirms a powerful
symbol that each human life has equal value, that the very young, the
very old, the very ill and the terribly disabled have value for what they
are, and not what they can or cannot do. The criminal process is rightly
105 Lewis 2007; Rietjens, van der Maas, Onwuteaka-Phillipsen, van Delden and van der
Heide 2009.
106 Many thanks to Sheelagh McGuinness. 107 Barsam 2008; Schweitzer 1966.
108 Dworkin 1993: 195.
involved to police that value, both because of the evidence of centuries

that humans have all too easily slid into complacency about the need
to protect those who cannot protect themselves and because, absent a
right to life, all other rights are meaningless. Montgomery makes the
case that society ‘cannot treat individual deaths as solely a matter for the
deceased.’109 Sanctity does not have to result in an absolute prohibition
on all measures that shorten life span, or even all intentional killings.
Indeed, in countless judgments,110 the courts have affirmed and then
qualified a legal principle of sanctity of life, often to be mocked by aca-
demic commentators. Maybe the judges have got it right? Dworkin has
argued that sanctity of life does not necessarily exclude either any form
of withdrawal of treatment in the knowledge that death will ensue, or
all cases of active euthanasia. We argue that the intrinsic value of being
human creates a strong presumption that ending any life (by design or
lack of care) diminishes not just the person whose life is ended (even if
at his behest), but the value accorded to all human life. It is, as Dworkin
again says, potentially a ‘wasted investment’ in something infinitely pre-
cious. To quote John Donne, ‘never send to know for whom the bell tolls.
It tolls for thee’.111 Any killing is thus the business of the criminal law, as
it has the potential to harm not just the deceased, but all of us. In A Local
Authority v E (by her litigation friend, the Official Solicitor) and others,112
Jackson J put it thus:
All human life is of value and our law contains the strong presumption that all
steps will be taken to preserve it, unless the circumstances are exceptional.113
If Dworkin was content with sanctity, should we concur and focus not
on language but substance, or simply speak of a presumption for life?
Our aim, which we share with Dworkin, is not to try to answer all the
questions, but to offer a framework in which the role of the criminal pro-
cess can be located that avoids the tit-for-tat arguments that often revolve
around sanctity of life. Different language may help to liberate us from
stalemate, and, even though we concede that ‘reverence’ has religious
overtones, it lacks the connotations of ‘holiness’ inherent in sanctity, and
the rather exclusive connections that link sanctity to Christianity. We
suggest that the plethora of English judgments that touch on end of life
rest on a strong presumption in favour of RfL, by which we mean the
109 Montgomery 2011: 655. 110 See Chapter 5.

111 John Donne Meditations XVII; cited and discussed by Montgomery 2011: 644 and
665.
112 [2012] EWHC 1639 (COP). 113 At para 119.
intrinsic value of human life itself. But the presumption is not and should
not be irrebuttable.
A presumption of RfL derives as easily from Williams’ concept of social
necessity as from religious doctrines of life as given by God. The liberal
value of respect for all persons, the ethos of communitarianism,114 and
the humanist belief that human life has an inherent value, for instance,
suggest that RfL is a universal value across a multicultural society, a value
that connects varying moral and political normativities. The fragility
of human virtue must cause reflection about how swiftly one group of
‘nonpersons’ may be extended to another group, and how easily others
may conclude that ‘X really wants to die’ and/or there is nothing to be
done to help X. It would be disingenuous to pretend that a presumption
of RfL does not have religious roots in history and in theological notions
of the sacred. Nor should it be overlooked that for many of those who
regard life as an intrinsic value, that worldview is influenced by faith, but
not exclusively driven by faith. Secular values do not exclude a judgement
that life has value, and a value that is not the exclusive property of the
individual living that life.
In nearly all legal contexts, a strong (but not irrebuttable) presumption
in favour of RfL has informed the jurisprudence of the English courts,
only stopping short of any ruling that might formally permit active assis-
tance to die, a step that the judges see as beyond their remit.115 In
applying that presumption generally to dilemmas at the end of life, the
‘in principle’ questions become: What is the role of the criminal pro-
cess in giving force to that presumption and when can that presumption
be rebutted? Not all acts that might arguably show lack of reverence
necessarily engage the criminal law. So suicide without assistance might
be seen in certain cases as undermining RfL, what Dworkin would see
as a wasted investment. However, decriminalising suicide need not be
regarded as any sort of political statement that suicide is no concern of
anyone but the individual; it could simply be that no purpose is served
by criminalisation. Punishment would not be seen by the most fervent
proponent of sanctity of life to be appropriate because deterrence is non-
sense in this context. When it comes to third-party assistance, the law
has to engage in determining within what parameters the presumption is
rebutted. And that question generates a tough call identified by O’Neill.
In lawyers’ language, the strength of the presumption must be assessed.
114 Communitarianism . . . assumes that human beings are social animals, not under any
circumstances isolated individuals, and whose lives are lived out within deeply pene-
trating social, political, and cultural institutions and practices. Callahan 2003: 288.
115 Above, n.9.
O’Neill purports to address some of the ‘regulatory objections’, focussing

on the flaws that she sees in arguments based both on autonomy and
compassion.116 She makes this point: ‘legislation has to be framed to
be safe for all citizens, not tailored to hard cases, while risking the lives
of others’. She argues that practical issues and the fragility of auton-
omy and compassion as foundations for legalising assisted suicide mean
that although there may be an ‘idealised’ world where such laws ‘might,
if ethically acceptable, not be risky’, this is not the world in which we
live today. The question for us becomes where to place the ‘hard cases’.
Those in favour of legal reform to permit some form of regulated assisted
dying will argue that the very nature of the hard cases demands that in
developing the presumption of RfL the force of such cases be acknowl-
edged, thus resulting in a weaker presumption, more readily rebutted.
Those who share O’Neill’s concerns will want a stronger presumption,
demanding that before the law is changed, rigorous regulatory controls
are in place to ensure that hard cases do not undermine the intrinsic
value of each life. The difficulty of this led some lawyers to suggest that
the balance is best achieved by retaining the current blanket prohibition
but allowing for hard cases on a case-by-case approach.117 Given that
the authors of this work take somewhat different views on how the law
should be reformed in the context of assisted dying, this ‘compromise’
is superficially seductive. However, on reflection we can agree that it is
more of a ‘cop out’ than a compromise and so, in Chapter 5, we delve
deeper into how English law does and should resolve ethical dilemmas at
the end of life.
116 O’Neill, Onora 2011. Autonomy and Assisted Suicide (first presented at a symposium
on the ethics of assisted suicide at the Royal Society of Medicine and reproduced with
Baroness O’Neill’s permission at a seminar on assisted dying organised by the AHRC
in 2011).
117 McCall Smith 1999.
Part II
Judges on the stage: case studies

4 Protecting life before birth?
The question of the role that the criminal law plays in the management
of pregnancy connects bioethics and the criminal process, but does so in
unending and fruitless conflict. The rights and wrongs of abortion may
be seen by much of the public as the classic drama in ethical debate,
played out in the courts of several jurisdictions, in the media, and in real
‘theatre’ such as the television film Vera Drake. In fact as much as in
fiction, characters stand out: the obstetrician Aleck Bourne who courted
prosecution,1 the young law students Linda Coffee and Sarah Wedding-
ton who drove Roe v. Wade2 to the US Supreme Court3 and the tenacious
Dr Henry Morgentaler in Canada.4 Depending on the author’s stance on
abortion, the dramatis personae are valiant champions or devils. In these
cases, the courts become ‘theatre’, linking the role of the criminal law and
philosophical controversy. The link often seized on is, again, the sanctity
of life. Does the fetus5 have an independent claim to legal protection,
to be treated akin to its born sibling and protected from destruction?
Is life in utero sacred? Is the fetus legally and/or morally a person or,
in a legal context, does it enjoy legal personality before live birth? Both
extremes in the debate agree on the battleground. It is a battle with no
end. For one side abortion is killing a baby, and, for the other, early abor-
tion is simply removing a collection of cells. The impasse in any attempt
at reasonable debate on the nature of life before birth has two conse-
quences. In the USA, it has prompted violent protest, even murder.6 In
the UK, the inability of either side to ‘win’ the argument about the nature
of the fetus has led to skirmishes taking place whereby those failing to
1 R v. Bourne [1939] 1 KB 687. Discussed above at 26–30. 2 410 US 113, (1973).

3 See the demonic portrayal of both in Dellapenna 2006: 678–83.
4 See Richer 2008.
5 We use the term fetus in this chapter to refer to the embryo/fetus at any stage in gestation.
6 In January 2010, Scott Roeder was found guilty of first degree murder in Kansas for killing
gynaecologist Dr George Tiller, who carried out late abortions. Roeder was allowed to
argue that the doctor’s actions constituted killing babies. Dr Tiller had been the subject
of many prior threats and attacks.
95
96 Part II: Judges on the stage: case studies
attain their desired end, say the prohibition or restriction of abortion

altogether, focus on apparently peripheral matters such as protecting the
woman’s autonomy via requirements for counselling.7 Those who wish
to see unrestricted access to termination of pregnancy chip diligently
away at obstacles, such as the requirement that two doctors certify that
there are lawful grounds to terminate the pregnancy.8 The courts in many
English-speaking jurisdictions struggle to accommodate controversy and
legislatures, for the most part, fail to resolve the battle. Outcomes vary.
So in the UK in practice, if not in law, the criminal process has ceded
control of the termination of pregnancy to doctors,9 whereas in Canada
any attempt to control access to abortion in the wake of R v. Morgen-
taler,10 discussed below, has been abandoned. Abortion in Canada has
effectively, if accidentally, been decriminalised.
We have no hope that we can resolve debates on the sanctity of life
and the unborn. We touch on those debates briefly at the end of this
chapter, making a modest proposal for a pragmatic way forward. First,
we explore other factors that impact on the limits of the criminal process
in this context and related debates in bioethics, and suggest that there
are a number of arguments that properly touch on the criminal law’s
engagement with abortion that are not linked to the debate on the nature
of the fetus.
Not a unique dilemma?

In Chapter 2, we looked at how far the criminal law intrudes on the
non-pregnant individual’s right to control her own body and to define
what may constitute harm to her, so that, within limits, we can elect for
forms of cosmetic surgery that most of our colleagues would perceive
as unpalatable self-harm. The law allows a ‘defence’ of proper medical
treatment to make lawful conduct that would otherwise be criminal. We
can enjoy our cosmetic ‘mutilation’ as long as a qualified surgeon will
undertake it for us, and we do not seek that mutilation for unacceptable
cultural reasons. A marriage of individuals’ rights to control their bodies
and medical privilege keeps the criminal process more or less at bay, sug-
gesting that a combination of political liberalism and medicalisation has
a powerful effect. However, the criminal process is not wholly excluded
from any role in policing what we may agree to have done to our bodies.
7 See, e.g., ‘Abortion providers alarmed over counselling plans’, The Guardian, 28 June
2011.
8 See House of Commons Science and Technology Committee 2007.
9 See Sheldon 1997; Sheldon 1998.
10 [1988] SCR 30 (Canada); and see Richer 2008.
Protecting life before birth? 97
The law continues to have the final say in whether certain ‘treatments’
fall outside the bounds of proper treatment, sometimes on what we con-
tend are political grounds – grounds unlinked to any notion of political
liberalism or any other coherent theory, but rather resulting from reaction
to public sentiment and/or cultural norms. Given the apparent demise
of the offence of mayhem, we may usually do what we wish to ourselves
and prohibit any non-consensual interventions by others, but even the
non-pregnant person is limited in what others may lawfully do to her.
In Chapter 3, the most transparent limit of claims to control our bodies
and the privilege attached to ‘proper medical treatment’ were exposed.
Neither we nor our doctors (even acting together) can decriminalise any
act by the doctor to bring about, or help to bring about, the intentional
ending of our lives. We may end our own lives, but doctors who help
us act at their peril, although the doctor can do nothing to us if we
decline treatment that clinical judgement indicates is ‘proper treatment’.
We retain a right to refuse interventions even if they are life-sustaining
and the blurred boundaries between acts and omissions mean that, in
reality, the criminal law in England allows some forms of active steps to
terminate life – as in the example of B v. An NHS Hospital Trust,11 where
it was held that Ms B had a right to have the ventilator keeping her alive
switched off.
Pregnancy and (as we will see in Chapter 6) conjoined twins apart, the
shape of the criminal law in England endorses a broad, but not unfettered,
role for autonomy, especially when autonomy and beneficence coincide.
The presence of the fetus within the pregnant body prompts, at least,
reconsideration of the claims of the woman in whose body it is located.
If laws were to concede that the fetus enjoys the same claims to legal
personality as the born child, not only would any deliberate termination
of the pregnancy be questionable, but any conduct by the woman that
harmed this ‘other person’ would be, arguably, akin to harm to the born
child.12 If the criminal law were to equate fetus and child, her conduct
could constitute ‘wilful neglect’.13 Just this question has been raised in
the courts in cases where it is sought to compel the woman to submit
to some form of obstetric intervention in the fetus’ interests. Certain
US states have criminalised drug and alcohol use by pregnant women.
The polar opposite approach is to contend that the fetus is simply part
of the mother, little different from her arm or her leg. English law has
rejected both extremes. The fetus at no stage in gestation acquires legal
11 [2002] EWHC 429 (Fam).

12 For a full analysis of ‘maternal crimes’, see Cave 2004.
13 Children and Young Persons Act 1933 s.1(1).
personality, but it is ‘not a nothing’,14 and the argument in the Court

of Appeal in Attorney General’s Reference (No 3 of 1994)15 that woman
and fetus should be seen as biologically one was firmly rejected by the
House of Lords.16 It may not be unfair to say that English law fudges the
fetus’ status; but that fudge does not eliminate the potential for conflict
between the woman’s claims to control her body and the inescapable fact
that the exercise of such claims may harm the entity within her, whatever
it is perceived to be.
It may be useful to note here that arguments for law to permit the
pregnant woman to retain the same claims over her body as the non-
pregnant person do not depend on finding that the fetus’ life is not sacred
or that it has no moral status. Thomson’s classic paper assumes that we
treat the fetus as a being with the same status as the woman.17 She turns
the question ‘Can you act to destroy the fetus?’ on its head, and asks ‘Can
the law compel a woman to maintain the life of this other person for nine
months at some degree of cost to her in all cases?’ Deploying her example
of waking to find yourself plugged in as life support for a world-famous
violinist, Thomson asks how far the woman can be required to be a
Good Samaritan? If we might unplug the violinist (who is without doubt a
person), can a woman not seek to have the fetus ‘unplugged’? This line of
argument, although not directly feeding into judicial rulings on abortion,
may be seen as underlying case law in England18 and Canada19 rejecting
attempts to force competent pregnant women to accept ‘treatment’ to
minimise harm to the other within them. If there is no general duty to
rescue others,20 the woman will not be compelled to rescue the fetus.
The pregnant woman’s claims to control her body are not dependent on
denying any claim that the fetus has intrinsic moral status.
In any jurisdiction that still criminalises abortion, Thomson’s case has
not been fully met. Obstacles are placed in the way of women who wish
to end their pregnancies and cease maintaining fetal life. Such laws signal
that the fetus has a status and claims that make it qualitatively different
from the other parts of the woman’s body. They may be and are seen
14 St George’s Healthcare NHS Trust v. S [1998] 3 All ER 673, at 688.

15 [1996] 2 All ER 10 CA. Lord Taylor CJ declared that an ‘intention to cause serious
bodily injury to the foetus is an intention to cause serious bodily injury to a part of the
mother just as an intention to injure her arm or leg would so be viewed’, at 18.
16 [1997] 3 All ER 936 HL; see Fovargue and Miola 1998.
17 Thomson 1971, but see a powerful rebuttal in Finnis 1977.
18 See inter alia, St George’s Healthcare NHS Trust v. S; Re MB (an adult: medical treatment)
[1997] 2 FCR 541, CA.
19 Winnipeg Child and Family Services (Northwest Area) v. G(DF) [1997] 3 SCR 925
(Canada).
20 See Chapter 8, at 233.
as intimating that the criminal law, when it prohibits abortion, resolves

sanctity-of-life debates at least partly in the fetus’ favour. Many other
factors need to be considered in elucidating the driving factors in laws
relating to the unborn, and these factors may take us some way away
from the central debates on the ethics of fetal status.
‘Proper medical treatment’

Writing an account of his acquittal of a charge of unlawfully procuring
a miscarriage after he terminated the pregnancy of a girl who had been
raped, Aleck Bourne lambasted the notion that the police could dictate
to him what he, as a surgeon, could do in his patient’s best interests.21 He
encapsulated a crucial factor in the evolution of laws restricting abortion:
the medical profession’s role and influence. In directing the jury,22 the
judge at Bourne’s trial stressed that termination of a pregnancy by a
doctor ‘in the performance of his duty as a member of a profession
devoted to the alleviation of suffering’ was, in his view, very different to
the selfsame act carried out by an unqualified abortionist. Abortions to
protect the life or the physical or mental health of the woman were not
crimes contrary to Section 58 of the Offences against the Person Act 1861
because, in such cases, the procuring of the miscarriage was not unlawful.
MacNaghten J went further in suggesting that a doctor may have a duty to
preserve ‘the yet more precious life of the mother’.23 A doctor who failed
to intervene, with the result that the woman died of pregnancy-related
complications, might face a charge of manslaughter.24 Abortion in the
wake of Bourne was confirmed as medicalised. At one point, the judge
likened termination to protect health as akin to surgery for cancer.25 The
Abortion Act 1967 followed the same model, providing that termination
to protect the woman’s health, more broadly defined than in Bourne, was
lawful. Leaving aside the fetal disability ground, might one argue that
the Act, in light of its subsequent interpretation, places termination in
the same category as some of the interventions discussed in Chapter 2,
where procedures that would be unlawful if performed by nonphysicians
are lawful within the cloak of ‘proper medical treatment’?
In practice, in England, doctors have thus become the gatekeepers
for access to abortion. Such a role, whereby de facto medicalisation
switches on a green light to permit lawful abortion, is vigorously criticised
by those who argue that the pregnant woman alone should determine
21 Bourne 1962: 99 and see above at 26–30.

22 Above, n.1 and Chapter 1, at 27; Brazier 2012. 23 At 614.
24 At 618–19. 25 At 620.
whether her pregnancy should continue.26 And the ready acquiescence

of many doctors to requests for abortion, paradoxically, provokes an
outbreak of unity in the warring parties in the sanctity-of-life debate.
For those maintaining the sanctity of unborn life, at best, only the most
extreme medical necessity could justify killing the fetus – necessity on a
par with the kind of scenario that might justify our killing another person
who threatened our very life.27 For those who maintain that the fetus
has no moral status, why should a doctor have the right to determine
when a woman is entitled to be free of her pregnancy? The only role for
the doctor should be to provide that end safely and effectively without
any interference or fear of legal redress. Consideration of the legality of
abortion as related to a notion of ‘proper medical treatment’ prompts
the question of why it might be so regarded, giving rise to two rather
different interpretations of ‘proper medical treatment’: (1) We might
see abortion as medical treatment because the ending of the pregnancy
is necessary (or even simply desirable) to protect the woman’s health.
Health might be broadly defined, as we saw is often the case in the
context of such matters as elective amputation. (2) Termination might
be considered to be medical treatment simply because the procedure to
end the pregnancy requires a medical or surgical intervention. The more
complex the intervention, the stronger the case may be for classifying
abortion as ‘medical treatment’, so late-term abortions might fall more
readily into this category than medical abortions in the first trimester.
This is important because pro-choice groups might argue that doctors
should have no say in whether the woman may end her pregnancy; their
role is simply to provide the means. But, in the context of other forms of
health care, the Court of Appeal has made it clear that patients cannot
demand the treatment of their choice.28 For a woman to be able to require
that a doctor provide the ‘treatment’ needed to terminate the pregnancy,
either she must be able to assert a right to abortion where there is no
such legal right to other medical ‘treatments’, or the role of the doctor
must be seen as less central. Either the doctor is demoted to technician
or developments in medicine render his role in early abortions otiose.
The development of early medical abortion (EMA) highlights an inter-
esting issue. Such abortions remain under medical control at present,
but it is not impossible to envisage that women might be able to access
the drug without direct medical involvement (as they can the ‘morning
after pill’) and so self-abort. Thus, in some cases, abortion could be
26 See, for example, Bridgeman 1998; Sheldon 1998.

27 See A B and C v. Ireland [2010] ECHR 2032; McGuinness 2011.
28 R (on the application of Burke) v. General Medical Council [2005] EWCA Civ 1003.
demedicalised. In England, such an abortion would still be criminalised,

because it remains an offence contrary to Section 59 of the Offences
against the Person Act for a pregnant woman to procure an abortion
upon herself. Nor is the 1967 Act of any help to the woman; the Act
only provides a defence for terminations sanctioned by two doctors. The
criminalisation of self-abortion when there is no parallel criminalisation
of self-harm signals again that the law attributes a status to the fetus
distinct from the claims of the woman.
The question of self-abortion arose in a controversial case in Queens-
land, Australia. Tegan Leache was charged with procuring her own abor-
tion after empty packets of RU486 were found at her home. Her boyfriend
was alleged to have arranged to smuggle the drugs in from Ukraine. Strict
restrictions on the use of RU486 were then in place in Queensland. Ms
Leache was put on trial in October 2010. The jury took less than an hour
to acquit her. One expert for the defence cast doubt on whether the drugs
caused the abortion or whether Ms Leache had suffered a spontaneous
miscarriage. The judge, in his directions, suggested that to convict, the
jury must be satisfied that the drugs were noxious to Ms Leache’s health
and not just to the fetus. The most startling feature of the case was that
anti-abortion campaigners joined pro-choice groups in condemning the
prosecution. A spokesman for Cherish Life, a Queensland pro-life group,
condemned the prosecution as victimisation of Ms Leache and ‘strange
and bizarre’. They argued that to be ‘pro life is to be pro woman’.29 The
notion of arresting and charging a woman who felt compelled to try to
end her own pregnancy may seem resonant of earlier, more unforgiving
times. Yet if one maintains that the fetus shares the same moral status as
a baby, the simple fact that it is the mother who ends its life should be
irrelevant. In opposing Tegan Leache’s trial, pro-life groups were either
acknowledging that fetuses do not equal babies and that prohibitions on
abortion are as much about protecting women as protecting fetuses, or
simply seeking not to antagonise public opinion by backing a very hard
case.30
Protecting women: the power of the profession

An expressed wish to protect women is a theme of both pro-choice and
pro-life groups, deployed by one group to seek to decriminalise abortion
and by the other to oppose lifting criminal prohibitions on abortion. In
assessing a view of abortion as proper medical treatment and justified
29 ‘Abortion trial “strange, bizarre”’, The Australian, July 21 2010.

30 See Petersen 2011.
by some sort of necessity, consideration must be given to the bitterly

disputed history of the law’s engagement with abortion. The extent to
which the common law in England31 and the USA32 prohibited abortion
out of regard for fetal life lies at the heart of the dispute. Few disagree that
until well into the twentieth century, abortion was a procedure that car-
ried significant risks to the woman herself. To effect an abortion, highly
dangerous herbs and concoctions were ‘prescribed’ and/or unsterilised
instruments inserted into the uterus. No wonder that many early prece-
dents concerning the legality of abortion derive from prosecutions for the
unlawful act manslaughter of the woman, with the question being ‘was
the abortion an unlawful act?’33 The risks might be exacerbated if the
abortion was carried out by an unqualified practitioner, but remained
substantial even in the hands of a qualified doctor until the advent of
aseptic surgery, much greater technical skills and, ultimately, effective
and safer abortion drugs. Competent midwives probably offered as safe
a service as any doctor. It also seems that for the most part, until the nine-
teenth century, doctors rarely became involved in earlier terminations of
pregnancy, carrying out such procedures in the main to save the life of a
woman unable to deliver the child and likely to die unless the fetus was
destroyed.34 Historical prohibitions on abortion which permitted lawful
abortion only in extreme cases where the risk to the woman was imme-
diate and great might well be seen as motivated by the need to protect
women as much as to prevent the fetus’ killing. Indeed, autonomy played
little if any role at this time, and beneficence might be seen as a principal
factor in the evolution of the common law. Abortion was a highly danger-
ous process permissible only in cases of dire necessity and by a qualified
practitioner. Women would be protected even against themselves. The
history of criminal abortion from Lord Ellenborough’s Act of 1803 to
Bourne confirms a powerful link between prevailing themes of benefi-
cent paternalism in medical ethics and the gradual extension of access to
lawful abortion in England.
Developments in obstetrics minimised the need for brutal late abor-
tions via the advent of safe Caesarean surgery and brought about the abil-
ity to end pregnancies safely. The scene was set for classifying abortion in
certain cases as proper medical treatment and sanctioning ‘therapeutic’
abortion. Thus, the medical profession in the nineteenth century sought
to exclude non-medical abortionists by backing more stringent laws pro-
hibiting and punishing unlawful abortions.35 In the twentieth century,
31 See Keown 1988. 32 Dellapenna 2006. 33 Brazier 2012; Gavigan 1984.

34 Brazier 2012. 35 Keown 1988: 27–38.
many doctors took a broader view of what constituted therapeutic abor-

tion and found the constraints of Bourne irksome. Most importantly,
doctors sought clarity about the legality of an abortion before the event,
rather than waiting and hoping that no prosecution would follow.36 The
argument was often put in terms of law reform that would allow greater
account to be taken of the woman’s health and wider welfare. The pro-
tection of women’s health seemed to be at the heart of calls for new laws
in England. The profession was divided on several proposals to extend
the permissibility of medical terminations of pregnancy, if united on the
need for medical judgement – not simply on how to effect a safe termina-
tion, but also on when termination was justified. Both the Abortion Act
1967 and its subsequent evolution in practice, which more or less allows
abortion on request, can be accommodated within a narrative that allows
the prima facie criminal offence to be justified by a ‘defence’ of proper
medical treatment carried out to promote a broad notion of women’s
health and well-being, embracing the view that being forced to continue
a pregnancy and bear a child unwillingly poses a threat to health.37
This uneasy compromise is condemned by pro-choice and pro-life
groups. Pro-choice groups would argue that no cloak of paternalistic
protection of women is needed to justify women’s rights to control over
their own bodies. No plea of often spurious medical necessity should
be called for. Terminating a pregnancy should be wholly decriminalised.
Any measures needed to ensure that the termination is in no way injuri-
ous to the woman’s health should be a matter for health law and not the
criminal law. The plea that abortion was necessary in some cases to pro-
tect health and the extension of health grounds to include mental health
opened the doors to liberalisation of the law but is no longer needed in
a rights-based pro-choice case. Today, the protection of women’s health
is, paradoxically, more likely to be invoked by those who wish to main-
tain or strengthen criminal prohibitions on access to abortion. In Eng-
land, Nadine Dorries MP unsuccessfully sought to follow precedents
from the USA imposing a requirement that women receive independent
counselling before undergoing abortions at any non-NHS provider. She
argued that paid providers might have a financial motive to be less than
objective in any pre-abortion counselling and fail to advise the woman on
36 Brookes and Roth 1994: 314.

37 And note that by virtue of the Abortion Act s.1(1)(a), the abortion may be justified by
reference to the impact of another child on the health of the woman’s existing children:
a unique example of derivative medicalisation. Note too, in the context of the fetal
disability ground in s.1(1)(d), that it is doctors who de facto define the threshold of
both substantive risk and serious disability.
risks of abortion and, particularly, risks to mental health.38 The logic of

her argument, if unrelated to the fetus’ protection, would be that patients
seeking any private medical treatment should receive independent coun-
selling prior to treatment. But it rested on one of the most bitterly fought
battles in the abortion debate today. Anti-abortion campaigners argue
that there is medical evidence that abortion increases the risk to the
woman of depression and more serious mental health problems. That
evidence has been countered in a number of studies,39 but the claim
endures and campaigners against any relaxation of abortion laws con-
tinue to emphasise that they seek to protect women as much as uphold
the fetus’ right to life. Thus, when it was announced that abortion clinics
would be allowed to advertise on radio and television in the UK, anti-
abortion campaigners protested that such a move would put vulnerable
women at risk of succumbing to a rushed, unwise decision to seek an
abortion.40
Questions of safety and the protection of women reached the English
courts in British Pregnancy Advisory Service v. Secretary of State for
Health.41 The case turned, at one level, on a matter of statutory inter-
pretation. In the UK, any ‘treatment for the termination of pregnancy’
must be carried out in a place approved by the Secretary of State.42 The
BPAS argued that a woman could and should lawfully be allowed to
complete the second stage of an EMA in the privacy of her own home.
EMA requires that a woman attend an approved hospital or clinic to be
assessed as clinically suitable and legally eligible for a medical abortion
using mifepristone, the abortion pill. In the first stage of an EMA, an
initial oral dose is administered and the woman is allowed to leave the
clinic. She must return to the approved place within about forty-eight
hours to complete the EMA, with the administration of a second drug
delivered orally or vaginally. The BPAS argued that clinics should be
allowed to prescribe the second drug to the woman to take at home. She
would not then need to return to the clinic, and would avoid more time
off work and the risk of miscarrying on the journey home. The BPAS’
attempts to persuade the English Health Secretary to amend regulations
on the legality of EMA failed. In its application for a declaration, the
BPAS argued that the Minister had no power to require that this second
stage of an EMA took place in an approved clinic. He could require
38 See ‘Nadine Dorries’ abortion proposals heavily defeated in Commons’, The Guardian,
7 September 2011.
39 House of Commons Science and Technology Committee 2007.
40 ‘TV clinics WILL screen pro-abortion adverts amid storm of controversy’ Daily Mail,
22 August 2012.
41 [2011] EWHC 235 Admin. 42 S.1(3) of the Abortion Act 1967.
that ‘treatment for the termination of pregnancy’ was carried out in such
a place, but the prescription of the second stage drug in the approved
place met that condition; he could not insist that all of the second stage
took place in the approved clinic. Much of the judgment rejecting the
application rests on a detailed exercise in statutory interpretation, with
the judge seeking to avoid moral and religious controversy. The Minister
declined to enter into the safety debate in the legal proceedings. Two
pertinent points arise. First, the judge endorsed the authority of Min-
isters and Parliament to make decisions about relaxing conditions that
constrain access to abortion; in so doing, he highlighted that abortion
remains, in at least some sense, ‘different’. A woman seeking some other
form of gynaecological intervention could not be constrained by law to
accept conditions on that treatment and remain in hospital against her
will. Second, the judge noted that were he to have interpreted the Act
to allow the second stage of an EMA to take place at home, that ruling
would also have applied to later medical abortions where the evidence of
safety and effectiveness is more dubious.
Protection of morals and society

But how far were and are prohibitions on abortion related to a more
hazy notion of morality and the role of women, as distinguished from
any health risks of the procedure or the status of the fetus? In R v. Rus-
sell, Lord Tenterden declared abortion to be ‘against the law of God,
injurious to the woman and prejudicial to the state’.43 Thomas Perci-
val, although criticising the severe penalties for a woman who aborted
a child, especially the death penalty, proclaimed that just as a woman
could not ‘be privileged to injure her own bowels’ so she might not harm
the fetus not just because so to do was a crime against God, but because
bearing children was ‘the exclusive means of preserving the race and
multiplying the enjoyment of mankind.’44 Percival’s comment is notable,
first, for its message that, for this nineteenth-century ethicist and doc-
tor, self-harm was unlawful and, second, for his concurrence with Lord
Tenterden that abortion should be prohibited for the good of the State
as much as because of God’s will. However, at a time when many chil-
dren died in infancy, the intentional destruction of what might have been
a healthy child may more readily be seen as harm to society. Gavigan
considers another factor in the evolution of more stringent laws to
43 (1832) 1 Moo CC 356.

44 Percival, Thomas 1803. Medical Ethics. Manchester: S Russell, p. 79, as discussed in
Keown 1988: 24.
criminalise abortion in the eighteenth and nineteenth centuries: the links

between abortion and infanticide and the use of both to hide sexual
promiscuity.45 An Act of 1623 deemed concealment of an infant’s death
by ‘lewd women’ seeking to escape the shame of a ‘bastard’ child to be
murder. Such a draconian approach might be seen to encourage abortion
before live birth, but the Act condemned only the single woman and, even
when actual infanticide could be proven, judges might take a merciful
view of the married woman, directing that she may have been in a ‘tempo-
rary phrenzy’.46 Unchaste women were sinful and unwed pregnancy was
shameful in itself. We do not argue that sexual morality and the control
of women were the exclusive factors driving the statutory criminalisation
of abortion; indeed, some of those who have deployed history to forward
women’s rights to abortion in the modern day have overstated the case.47
Dellapenna effectively demolishes any such claim and shows that in the
courts’ judgments, the medical profession’s views, and the views of some
nineteenth-century feminists, the protection of the child in the womb was
a powerful driver to make and keep abortion as a crime.48 But neither
does he show that the fetus’ sanctity of life was, or is, the only factor
driving the criminalisation of abortion. In the eighteenth and nineteenth
centuries, a host of contradictory factors emerge in abortion debates,
making it harder to pinpoint any single harm that prohibitions on abor-
tion sought to prevent. It was the combinations of the risks of abortion,
the changing views of the profession, religious doctrine and attitudes to
sexual morality that held sway in determining that abortion was a wrong
that engaged the criminal law. In R v. Morgentaler (discussed below), in
which the Supreme Court of Canada effectively decriminalised abortion,
Justice Beetz made a telling remark that earlier amendments to Canadian
law to allow abortion in certain cases ‘by defining criminal conduct more
narrowly’ reflected the contemporary view that abortion is ‘not always
socially undesirable behaviour ’.49
Protecting future children

The fetus can be injured outside the context of a planned abortion. The
conduct of a third party or the pregnant woman herself may harm the
embryo so that it is born with injuries, or may kill it in utero. Let us deal
with third parties first. If an attack on a pregnant woman both injures
her and kills the fetus she carries, a serious wrong has been done to her
even if her own bodily injuries are minor. The assailant could rightfully
45 Gavigan 1984. 46 Ibid.: 27. 47 See Means 1968; Means 1971.

48 Dellapenna 2006: 263–8 and Chapter 8. 49 At 86.
be prosecuted for assault on the woman. Many people, whether they

support the decriminalisation of abortion or not, would argue that two
wrongs have been committed: against the woman and against the fetus.
The feticide may be seen as distinct from the crime committed against
the woman. However, at any rate, until the fetus is capable of being born
alive and so within the protection of the Infant Life (Preservation) Act
1929, fetal killing is not of itself a crime. In Vo v. France,50 the European
Court of Human Rights refused to find that French law breached the
Article 2 right to life in its failure to deem the grossly negligent killing
of a fetus twenty to twenty-four weeks old to be unintentional homicide.
English and ECHR jurisprudence adheres to the principle that the fetus
has no independent personality in law. Mason and Laurie51 are among
those who argue (1) that judicial reluctance to condemn fetal killing in
any circumstances is driven by fear that to do so would undermine the
woman’s capacity to terminate her pregnancy lawfully when she chooses
not to continue with it and (2) that ‘nonconsensual’ feticide could and
should be seen as an offence distinct from the crime against the woman.
The story gets stranger. Assume that the attack on the woman does not
kill the fetus but injures it. The pregnancy continues and a child is born
alive who later dies of her prenatal injury. In such an event, the House of
Lords confirmed in Attorney General’s Reference (No 3 of 1984) that the
assailant could be convicted of homicide.52 The accused had stabbed his
pregnant girlfriend and one blow penetrated the uterus and injured the
fetus. The child was born prematurely and died after 120 days. The Law
Lords ruled that her death was the result of unlawful act manslaughter,
in that the man committed an unlawful and dangerous act likely to kill
and, in the event, killing the child. The House of Lords affirmed the
ancient ‘born alive’ rule that whilst killing the fetus immediately in the
womb cannot be homicide, injuring the fetus in such a way as to cause
the death of a child later born alive renders the perpetrator liable to
criminal penalties. Had the man intended to kill or cause serious harm
to the child, he could have been accused of murder.53 Lord Mustill went
further, suggesting that had the child survived but with serious injuries,
the accused could have faced charges of causing grievous bodily harm.54
In effect, the decision appears to indicate that the law recognised that
fetuses can be harmed, but protects them only on the chance of their
surviving an in utero attack.
What if the woman herself injures the fetus in utero? She might do so in
many ways, by excessive alcohol consumption resulting in the child being
50 (2005) 10 EHRR 12. 51 Mason and Laurie 2011: 372.

52 [1997] 3 All ER 936, HL. 53 At 939, per Lord Mustill. 54 At 942.
born with fetal alcohol syndrome, or by taking illegal drugs so that her
baby is born addicted. The Congenital Disabilities (Civil Liability) Act
1976 expressly protects her from tortious liability to her child. Nothing
in the judgment in Attorney General’s Reference (No 3 of 1994) exempts
her from criminal liability.55 So it may be that a pregnant woman who
unlawfully takes cocaine and whose baby is born and dies later of the
effect of the drug could face prosecution for unlawful act manslaughter –
albeit that she might have been able to terminate the pregnancy lawfully
at any time prior to the birth. The woman whose excessive consumption
of alcohol causes her baby to be born with fetal alcohol syndrome could
be charged with gross negligence manslaughter.
The law may look to be an ‘ass’, in that a ‘creature’, i.e., the fetus, can
be intentionally destroyed, but not subjected to a lesser or delayed harm.
The apparent illogicality may have two explanations. First, the English
courts seek to avoid direct engagement with most instances of mater-
nal/fetal conflict. Nonetheless, second, the law does assert an interest in
future children’s welfare. Lord Hope argued that ‘for the foetus life lies
in the future’,56 and Mason and Laurie describe the fetus as ‘a person-
in-waiting’.57 The law allows the pregnant woman within set limits to
prevent that ‘person in waiting’ from reaching its destination. The third
party less logically escapes criminal redress for a similar but unregulated
extinguishing of that potential. But neither may act to harm the future
child who is going to be born. Is the law, in effect, avoiding the moral
quagmire of the nature of fetal life, but asserting that society has an inter-
est in the individual welfare of future citizens both for their own sake and
for the well-being of the community that will share some of the cost of
the child born grievously injured? A claim to be allowed not to become a
mother does not encompass a liberty to injure a child who will be brought
into being. We do not argue that a woman whose conduct in pregnancy
results in the live birth of a disabled infant should face criminal convic-
tion. We see all sorts of arguments in practice as to why such a use of the
criminal law would be counterproductive. The risk of criminal liability
would provide a perverse incentive to abort. Defining gross negligence
on the part of a pregnant woman would be a nightmare. But we note that
Robertson, the prominent liberal philosopher, has refused to rule out
criminal sanctions to deter maternal behaviour that injured a fetus and
resulted in the birth of a disabled child.58 We simply make the point that
the criminal law’s role in protecting the health of future children who will
be born needs to be differentiated from its role in protecting fetal life in
55 Brazier 1997; Brazier 1999; Fovargue and Miola 1999. 56 At 957.

57 Mason and Laurie 2011: 372. 58 Robertson 1994: 186.
utero, and is independent of any principle relating to the moral status of

the fetus.
Decriminalising abortion: a case study from Canada59

In England and many other common law jurisdictions, abortion remains
a criminal offence, but the law sets out grounds defining circumstances
in which, on medical grounds, a termination of pregnancy may lawfully
be carried out by a doctor – a legal resolution which we argue reflects
political liberalism.60 The criminal process restricts but does not prohibit
abortion. Until 1988, Canadian law adhered to this pattern whereby
de facto medicalisation legalised certain abortions. Section 251(1) of
the Criminal Code made it an offence punishable by life imprisonment
for anyone to procure the miscarriage of a female person. Note that
Section 251(2) made it a criminal offence for a woman to permit such
an act. Section 251(4) provided that the offence was not committed if
the abortion was carried out by a qualified doctor, in a hospital, and
having first been approved by a therapeutic abortion committee of at
least three doctors and certified to be on the grounds that continuing
pregnancy would endanger the woman’s life or health. In 1998, in the
seminal case of R v. Morgentaler, the Canadian Supreme Court ruled that
Section 251 was incompatible with Section 7 of the Canadian Charter
of Rights. Section 251 was thus struck down,61 leaving Canada with
no criminal law restrictions on abortion. The Supreme Court did not
rule that any criminal law restrictions on abortion would be unlawful,
and it recognised that the state might have a legitimate interest in the
protection of the fetus, but it held that the limitations on abortion in
Section 251 were disproportionate. Despite several attempts to introduce
new laws,62 Canada remains to this day one of the few countries that
impose no criminal restrictions on access to abortion. Yet it would appear
that decriminalisation has resulted in greater barriers to access to abortion
and that legal battles over abortion have escalated, not decreased. Those
battles often highlight the questions posed above about how far abortion
should be classified as a medical procedure. Many of the legal disputes
‘star’ Dr Morgentaler, one of the accused in the Supreme Court battle
of 1988. In 2008, he was appointed to the Order of Canada for his
59 For an excellent overview of the case law and related legislative proposals, see Richer
2008.
61 S.251 (now s.287) remains in the Code but having been struck down has no legal effect:
see Richer 2008: 2.
62 Richer 2008.
contribution to women’s health care. His appointment generated as much

controversy as did the case that bears his name twenty years earlier.63
In Morgentaler, Dr Morgentaler and two fellow doctors were charged
with carrying out abortions contrary to Section 251 by carrying out
abortions at a Toronto clinic without having obtained a certificate from
a therapeutic abortion committee, as required by Section 251(4). All
the doctors challenged Section 251, contending that a woman had an
unfettered right to choose whether an abortion was appropriate for her,
and all were acquitted at the first trial. The Crown appealed. The Court
of Appeal allowed the appeal and ordered a new trial and so the mat-
ter reached the Canadian Supreme Court. At issue was whether Section
251 contravened the protection afforded in Section 7 of the Charter to
‘life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of justice’. The majority
of the court found that it did, albeit on three separate grounds. We do
not explore the judgments in depth here, but simply seek to trace how
decriminalisation came about in Canada. Chief Justice Dickson and Jus-
tice Lamer found that the requirements of Section 251(4) that resulted in
long delays, serious stress and possible medical complications interfered
with the woman’s security of her person. There were too few accred-
ited hospitals and the need for approval from a three-doctor committee
contributed to significant delays. Dickson CJ said that
At the most basic physical and emotional level, every pregnant woman is told
by the section that she cannot submit to a generally safe medical procedure that
might be of clear benefit to her unless she meets criteria unrelated to her own
priorities and aspirations. Not only does the removal of decision making power
threaten the woman in a physical sense: the indecision of not knowing whether an
abortion will be granted inflicts emotional stress. Section 251 clearly interferes
with a woman’s bodily integrity in both a physical and emotional sense. Forcing
a woman by threat of criminal sanction to carry a foetus to term unless she meets
certain criteria unrelated to her own priorities and aspirations is a profound
interference with a woman’s body and thus a violation of security of the person.64
Beetz and Estey JJ agreed with the Chief Justice that Section 251 violated
a woman’s security of the person, focussing on the need for protection
from state interference when life or health was at risk and defining security
of the person as including a right of access to medical treatment. The
long delays resulting from Section 251(4), the lack of approved hospitals
and quotas set by hospitals for the number of therapeutic abortions they
would perform resulted in a breach of Section 7. Wilson J took a more
radical stance. Section 251(4) violated the woman’s right to liberty as well
63 Ibid. 64 At 56–7.
as security. A right to liberty guaranteed ‘a degree of personal autonomy

over personal decisions intimately affecting their private lives’.65 The
impact of Section 251 was that a woman was treated as a means to an end:
‘the passive recipient of a decision made by others as to whether her body
is to be used to nurture new life’.66 Additionally, the section also breached
Section 2 and the woman’s freedom of conscience. She contended that in
a free and democratic society, freedom of conscience ‘should be broadly
construed to extend to conscientiously held beliefs, whether grounded
in religion or secular morality’.67 For legislation to make it an offence
for a woman to choose abortion was ‘not only to endorse but also to
enforce on pain of further loss of liberty through actual imprisonment,
one conscientiously-held view at the expense of another’.68 All the judges
in the majority found that that the breach of Section 7 was not saved by
Section 1 of the Charter, which allows reasonable limits on any right
or freedom within the Charter as prescribed by law and ‘demonstrably
justified in a free and democratic society’.
None of the judges ruled that any attempt to restrict access to abor-
tion would violate the Charter, nor did they argue that the state had no
interest in the fetus’ welfare. All left open the issues of the state’s interest
in protecting prenatal life from viability, and the Court sought to avoid
any conclusion on fetal status or fetal rights. The majority’s reasoning
resonated with that of Thomson69 in ruling that disproportionate restric-
tions on abortion should be considered a violation of the woman’s rights
even if the fetus might be accorded some degree of moral status. The
judges rejected the submission of counsel for Dr Morgentaler that abor-
tion laws should only be designed to protect the woman’s health, but their
strong and broad defence of the woman’s right to security (and in the
case of Wilson J, liberty) made it difficult to see what kind of restriction
imposed by the criminal law might pass muster. Following Morgentaler,
the Canadian government sought to introduce a Bill to impose much less
restrictive conditions on access to abortion than those to be found in the
struck-down Section 251(4). The opinion of just one doctor (rather than
the therapeutic abortion committee of three) would be required to cer-
tify that the health or life of the woman was likely to be threatened. The
Bill passed in the House of Commons but was defeated on a tied vote
in the Senate.70 A number of Private Members’ Bills have since sought
to recriminalize abortion, but all have failed.71 The criminal process has
withdrawn from the abortion drama and it might have been expected
that this would result in women having unrestricted access to abortion to
65 At 171. 66 At 173. 67 At 176. 68 At 179.

69 Thomson 1971; see above at 98. 70 Richer 2008: 4–5. 71 Ibid.
vindicate their right to security of the person. Yet this has not happened
and, in the event, it has been suggested that access is ‘limited and increas-
ingly unequal . . . even though most legal barriers to such services have
been removed’.72 Provinces have sought to restrict access outwith the
criminal law and have, in some cases, made little provision for abortion
services, and a substantial number of doctors decline to offer abortion
services.73
Canada’s constitution offers interesting insights into the more gen-
eral question of how abortion ‘fits’ within the criminal process and how
the latter connects with bioethics. First, if abortion is to be subject to
criminal sanctions, the criminal law falls within the Federal domain,
but should it be seen simply as a matter of health law, then it is the
provinces that (subject to some limited exceptions) have jurisdiction.
Provinces cannot recriminalise abortion. Secondly, the Canada Health
Act requires provinces to ensure access to ‘medically necessary health ser-
vices’ in order to receive federal funding. In the wake of the first Supreme
Court judgment in Morgentaler, the provinces sought to impose their own
restrictions on access to abortion and battled with the Federal govern-
ment about whether abortion must be classified as a medically necessary
service. We offer a few examples of the post-Morgentaler battles.74 The
provinces of Nova Scotia and New Brunswick both sought to prevent Dr
Morgentaler from setting up freestanding abortion clinics and to restrict
access to abortion to approved hospitals. In Nova Scotia, Dr Morgen-
taler was put on trial again after carrying out fourteen abortions at his
unapproved clinic. His acquittal was upheld by the Nova Scotia Court
of Appeal and the Canadian Supreme Court.75 The legislation’s objec-
tive was found to be ‘to prohibit abortions outside hospitals as socially
undesirable conduct’ and was thus a matter of crime which was outside
the jurisdiction of the province. Dr Morgentaler successfully challenged
a law in New Brunswick that would have deemed abortion outside an
approved hospital to be professional misconduct.76 The many later cases
touch on the boundaries of health and criminal law and on attempts by
provinces to regulate abortion via restrictions on public funding.77
The jurisprudence on abortion on Canada would fill a book on its
own. The key issues for us are as follows. If abortion is classified as a
matter of health law alone, then why should any form of regulation over
and above that applying to other forms of medical intervention posing a
similar risk to the patient’s health apply? The state might seek to ensure
72 Palley 2006. 73 Richer 2008. 74 For a full account see ibid.

75 R v. Morgentaler [1993] 3 SCR 463 (Canada).
76 Morgentaler v. New Brunswick [1994] 117 DLR (4th) 793 (Canada).
77 Richer 2008: 15–20.
that certain abortions, especially surgical or late-term abortions, should

only be carried out in suitable premises and by suitably qualified prac-
titioners; but the conditions should be no more onerous than those that
might apply to analogous gynaecological interventions. The presence of
the fetus might be seen as largely irrelevant. Even abortion in the final
trimester could only be more intensively regulated on the grounds of risk
to the woman. Assigning a greater status to the fetus on the basis of via-
bility would be to trespass into the criminal law’s domain. Health law, as
a gatekeeper to abortion, simply asks: is this intervention ‘proper medical
treatment’ sufficient to authorise what would otherwise be an assault on
the woman? But if abortion is ‘just another treatment’, the argument that
it must be provided on demand might run into difficulty. Why should
abortion be given any higher priority than fertility treatment or surgery
for varicose veins? The difference is, of course, that delay in terminating
a pregnancy adds to the risk of that ‘treatment’ and so, to be ‘proper’,
abortion treatment needs to be timely. The question may then arise about
whether a health law label means that one can distinguish between abor-
tions where there is significant evidence that pregnancy is a risk to health,
and others where the woman chooses not to continue the pregnancy on
grounds unrelated to any genuine assessment of health needs – taking us
back, in some ways, to the position established by Bourne. The Canadian
courts struggled with these questions and seemed to rely on an underly-
ing assumption that ‘enforced pregnancy’ itself imposes a health risk in
the broadest sense and, thus, violates the woman’s security of her person.
The law uses artifice to permit women choice in theory. The dichotomy
between the different majority judgments in Morgentaler remains unre-
solved (that is, whether access to abortion under the Charter of Rights
may be seen as a matter of liberty and conscience as much as of security
of the person), and so no right to abortion on demand appears to emerge
from decriminalisation. Rather, the ethical debate moved to new battle-
fields and, in practice, access seems harder for many Canadian women
who wish to choose not to continue a pregnancy.
The withdrawal of the criminal process from the stage has thus done
little to abate controversy about abortion. It may be that as the Supreme
Court has, in theory, left it open for the Federal Parliament to introduce
new laws that strike some sort of balance between the woman’s rights
and the protection of the fetus, what we observe is simply a long interval
while the next Act is written. With the passing of the years that seems
unlikely. We suggest elsewhere that the drama of the criminal process has
both intensified bioethical debate and, on occasion, distorted it.78 Might
we speculate that, in Canada, the withdrawal of criminal sanctions, by
78 See above at 25–37.

diluting the drama, has weakened public support for the pro-choice
lobby? The offending Section 251 criminalised not only the person car-
rying out the abortion but also any woman who consented to abortion.
There may be those who would argue that a woman should not be pros-
ecuted for having an abortion, but would be less enthusiastic about cam-
paigning for abortion on demand. As we noted in the case of Tegan
Roche in Queensland, Australia, many campaigners who would wish to
accord the fetus moral status and restrict access to abortion are uncom-
fortable with prosecuting the woman herself. Such a reaction may be
seen as illogical because, if one believes that the fetus has the same moral
status as the born child, there should be no more reluctance to prosecute
the woman who connived at the killing of the fetus than the woman who
does the same with her infant. Any question of the impact on her health
or emotional well-being would go to mitigation, not liability.
The story of abortion’s decriminalisation in Canada is as complex
as the history of the criminalisation of abortion and equally evades the
question of fetal status. By allowing for the possibility that legislation
could place restrictions on abortion to protect fetal interests, the Supreme
Court, like the English Court of Appeal, rejected the notion that the fetus
is a ‘nothing’.79 But in its judgment in 1988 and subsequent findings in
later years, the Supreme Court has done little to define just what in legal
terms the fetus might be. Perhaps in a liberal democracy, this is a task
that cannot be successfully achieved.
Muddling through in England

No one could pretend that English law does a better job in defining the
legal nature of the fetus. The law protecting life before birth in England
lacks philosophical coherence and pleases neither pro-choice nor pro-life
lobbies. A student seeking an answer to the questions ‘Does the criminal
law in England offer a rational account of fetal claims to the protection of
the law?’ and/or ‘Do pregnant women enjoy unfettered autonomy?’ will
find contradictory answers. Unlike Canada, abortion remains a crimi-
nal offence and Sections 58 and 59 of the Offences against the Person
Act 1861 might be seen to indicate that the fetus, from implantation at
least,80 is an entity whose continued existence is to be protected. Being
simply biologically human counts. Does the presence of penal laws pro-
hibiting the killing of fetuses indicate that the law reflects an inviolability
of fetal life ethic? Yet English judges have ruled that the fetus has no
79 St George’s Health Care NHS Trust v. S [1998] 3 WLR 936.

80 R (on the application of Smeaton) v. Secretary of State for Health [2002] 2 FLR 146.
legal personality until live birth and, for centuries, the courts have ruled
that whatever the wrong of killing a fetus may or may not be, it is not
murder.81 It is not equivalent to killing us. Do fetuses thus have no claim
to legal status because they are not persons?
It is well established in English law that a mentally competent preg-
nant woman cannot be compelled to submit to any obstetric intervention
against her will.82 The fetus’ lack of legal personality prevents the asser-
tion of any claim on its behalf against the pregnant woman before the child
is born alive.83 The fetus cannot be made a ward of court,84 nor does its
protection justify intervention to ‘defend’ it.85 In theory at least, a preg-
nant woman is as free to choose not to submit to treatment necessary for
the fetus’ survival as she is to refuse life-saving treatment for herself. The
fetus seems not to matter. Yet in St George’s Healthcare NHS Trust v. S,
where the Court of Appeal affirmed the pregnant woman’s autonomy,86
Judge LJ declared, ‘[w]hatever the fetus is, it is not a nothing.’87 He sug-
gested that the fetus was an entity with a claim to moral status, but that
a distinction needed to be made between moral and criminal responsi-
bility; ‘pregnancy increases the personal responsibilities of a woman it
does not diminish her entitlement whether or not to undergo medical
treatment’.88 Judge LJ expressly acknowledged a disconnect between law
and bioethics, pragmatically justified by the unique circumstance of nat-
ural pregnancy, where the fetus’ welfare cannot be protected without a
violation of the woman’s autonomy. He did not endorse any argument of
the sort derided by Harris and Gillon, that the nature of the fetus alters
as it travels down the birth canal.89 Rather, courts acknowledge the prac-
tical impact of ‘legal geography’.90 Were the law to take a different route
then either the criminal process might come to regulate the whole of
pregnancy so that, for example, missing antenatal appointments could
constitute child neglect, or some variant of gradualism would need to be
expressly adopted. English law evades the question of exactly what moral
status should be assigned to the fetus at any stage of gestation, implic-
itly asking instead whether the use of the criminal process to regulate
pregnancy can justify draconian restrictions on the liberty and autonomy
of pregnant women, and giving a negative answer. Given the irresoluble
dispute about the moral claims of the fetus, the woman’s autonomy to
do what she will with her own body is not displaced; she has no duty to
‘rescue’ the fetus.
81 Cokes Institutes 3, c7; Brazier 2012; Gavigan 1984. 82 Above, n.14.

83 Paton v. BPAS [1978] 2 All ER 987; C v. S [1987] 1 All ER 1230, CA.
84 Re F (in utero) [1989] 2 All ER 193, CA. 85 See Eekelaar and Dingwall 1984.
86 Above, n.14. 87 At 688. 88 At 692. 89 See Alghrani and Brazier 2011: 55–6.
90 See Scott 2004.
Maternal autonomy seems to trump fetal welfare and yet the criminal
law continues to restrict the woman’s liberty to free herself of the fetus
or, as those in the pro-life lobby would put it, to kill the fetus. Women
may do as they choose in pregnancy regardless of the consequential harm
to the fetus, but they cannot choose to be free of the pregnancy. Just as
at present the law sets the limit of autonomy at the end of life with a
ban on intentional killing so, in theory, the 1861 Act continues to ban
the intentional killing of the fetus. In practice, however, in providing
four grounds on which abortion is not unlawful within the 1861 Act, the
Abortion Act 1967 allows access to abortion but places the responsibility
for judging the balance of interests between the woman and the fetus in
doctors’ hands. Abortion is medicalised and lawful if two doctors judge
it to be proper medical treatment. The moral basis for three of the four
grounds for permitting abortion in the 1967 Act was that abortion should
be permissible when the woman’s health was at risk. Much of the Act
built on the foundations of Bourne, endorsing and broadening the concept
that the ‘necessity’ of protecting a woman’s health justified the killing of
the fetus. MacNaghten J called unborn life ‘sacred’, but regarded its
destruction as permissible to protect the mother’s health.91 The fetus
mattered but nowhere near as much as the woman. Threat to health,
physical or mental, was so broadly defined that perhaps one should say
it was not necessity that legalised the abortion, but that beneficence
towards the mother was enough to trump any claim on behalf of the
fetus.
In terms of principle, the major change in the law from Bourne in the
1967 Act was the introduction of the ground for termination founded on
fetal disability.92 The Act provided a process by which the legality of any
abortion could be settled in advance rather than each doctor acting at his
or her peril and, most importantly, it symbolically endorsed the position
that abortion could be acceptable medical treatment. The 1967 Act did
not endorse the pregnant woman’s autonomy, or dismiss the fetus as an
entity of no moral or legal relevance.
Practice diverges markedly from theory. Section 1(1)(a) of the 1967
Act (often referred to as the ‘social ground’) allows termination before
twenty-four weeks when continuing the pregnancy poses greater risks to
the woman or her existing children than termination. Most, but not all,
doctors interpret Section 1(1)(a) to allow abortion on request in the first
trimester. By continuing to criminalise abortion, the law seems to declare
that the fetus has some intrinsic value sufficient to limit women’s freedom
91 At 620. 92 See McGuinness 2013.

to control their own bodies. By allowing the 1967 Act to be policed by

doctors, coupled with the reality that the criminal process has effectively
withdrawn from the fray, the message might seem to be sent that, what-
ever Judge LJ said, fetuses are ‘nothings’. As doctors and not pregnant
women are the formal gatekeepers of abortion, the law rides roughshod
over women’s rights over their own bodies. Neither side of the debate
on abortion’s legitimacy can be content. The fetus is unprotected and
yet women’s autonomy is constrained. What a mess, any self-respecting
bioethicist might declare. One answer might be that the time has come
to remove the cloak of medicalisation that has provided the means to
decriminalise most abortions in England. Sheldon has long argued that
the time has come to cease to regard abortion as an ‘essentially medical
matter’,93 and the House of Commons Science and Technology Com-
mittee recommended that the requirement for two doctors’ approval be
reduced to one to cut delays and facilitate early abortions.94 But does any
legal requirement for medical ‘approval’ continue to signify that abortion
remains a medical matter lawful only on grounds of the woman’s health
and not a choice that she can make freely? A ‘one doctor’ rule simply
dilutes the effect of medicalisation and evades the thorny question of
what claims, if any, the fetus has to limit the woman’s autonomy. The
law seeks to distance itself from the ethical wars on fetal status. Could
it do any better and still avoid the bitter and violent confrontations not
uncommon in the USA?
Furthermore, if science should offer a means of gestation that no longer
required that a woman carry the fetus within her body, current thinking
about the legal claims of the fetus would be thrown into disarray. In
ectogenesis, the fetus gestated in an artificial womb would force a decision
on legal status independent of any claims of the egg donor/prospective
mother related to her bodily integrity.95 Proponents of personhood might
rejoice that the law can no longer duck the question of fetal status. Those
who argue that the law should protect fetal life may join them in glee at
escaping the convolutions of the current law and opening up a debate on
the nature of the fetus untrammelled by its location inside another person.
Others may be cautious in that, although logically, granting protection
to the fetus ex utero should not affect the delicate compromise relating
to the fetus in utero, public opinion may be swayed to concede greater
weight to all claims on behalf of all fetuses. The development of imaging
technology that shows the fetus in the womb so closely resembling a
93 Sheldon 1997. 94 House of Commons Science and Technology Committee 2007.

95 See Alghrani and Brazier 2011.
baby has been shown to affect public attitudes on abortion, albeit adding
nothing to rational debate.96
Abortion and sanctity of life

Could English law on abortion be reconnected to bioethical debates,
tidying up what looks like a moral mess which both sides in the debates
on fetal status agree is rationally incoherent? A fetus seems to be ‘some-
thing’, but just what it is is wholly unclear. There is little hope of reaching
a rational consensus. We have shown that many different concerns have
driven both the imposition of criminal laws restricting access to abortion,
and the gradual relaxation of such laws. Debates about the legal protec-
tion due to the fetus before birth are not exclusively about the sanctity
of life. If the fetus were truly a ‘nothing’ and there was nothing wrong
with killing it, laws might still seek to protect the woman, a child to be,
and society’s interests in reproduction; but none of the relevant prohibi-
tions would necessarily derive from a principle that the fetus qua fetus
has moral or legal status. Can/should the central bioethical question of
whether there is any independent wrong committed in killing or injuring
the fetus in utero be wholly evaded, as English judges and lawmakers
have sought to do? In England, and many other jurisdictions, the crim-
inal law allows fetuses to be killed in circumstances where the killing of
the baby moments after birth would be homicide. So we return to the
question raised in Chapters 3 and 5, whether all killing is wrong.
The question of the rights and wrongs of killing fetuses is more com-
plicated than the issues raised in Chapters 3 and 5. In the context of
fetal life, the issue is not simply whether there are ever circumstances in
which it is justifiable to end that life, but also the more basic question: is
it the sort of life that injunctions against killing are or should be designed
to protect? The continued use of the criminal law to constrain access to
abortion reflects a concept that the human fetus is different in terms of
moral status to the fetus carried by a pedigree cat pregnant by misadven-
ture. Few would argue that there is any moral objection to (humanely)
ending the unintended gestation in the cat. Proponents of personhood
argue that the only difference in the human case rests in the pregnant
woman’s right to make her own autonomous choices about continuing
the pregnancy. The fetus has no independent claim to society’s protec-
tion at any stage in gestation. It is not a person.97 At the opposite end of
the spectrum lie those who argue that, from conception, the fetus enjoys
96 Kirklin 2004. 97 Harris 1985: 18–25.

the same right to life as we do. It is no wonder that Dworkin contended

that between these two polar opposites no rational debate is possible:
Self-respecting people who give opposite answers to the question of whether a

fetus is a person can no more compromise . . . than people can compromise about
slavery or apartheid or rape . . . . So long as the argument is put in these polarized
terms, the two sides cannot reason together, because they have nothing to reason,
or be reasonable, about.98
Yet the law in England is criticised for its efforts to navigate a way between
the extremes: for an inconsistent attitude to prenatal life. Those who
hope for a better rational and agreed-upon approach to these questions
should revisit the debate on the sanctity of life between the late Glanville
Williams and Keown and Jones.99 The vigour of their debate is even
stronger when they address fetal life.100
The polarised positions on fetal status allow little room for compro-
mise. Orthodox Roman Catholic doctrine relating to the sanctity attached
to innocent human life would mean that the law would accord full moral
status to the fetus at any stage in gestation. As we should never inten-
tionally take an innocent human being’s life, all abortions would be crim-
inal, allowing only treatment of the mother necessary to save her life,
an unintended and secondary effect of which might be the fetus’ death.
The impact of pregnancy on the woman’s health would not justify the
destruction of the fetus. A woman with a serious heart condition which
meant that she might not survive the rigours of childbearing would not be
able to end the pregnancy because killing the fetus would be the primary
intention of any medical intervention. Such an interpretation of sanc-
tity of fetal life is not shared by all other Christian denominations, and
both Judaism and Islam allow a more liberal approach to early abortion
and, in relation to later abortions, permit the termination of pregnancy
to protect the woman’s life and health. Such religious traditions accord
value to fetal life, but allow other factors and, in particular, the woman’s
health to take precedence.
As the English courts make clear in many contexts today, whatever its
origins in Christian doctrine, the law must meet the needs of a diverse
and largely secular society. Thus, just as Keown does in his opposition to
any form of assisted dying, Keown and Jones seek to escape the language
of sanctity, arguing instead for a secular ethic of the inviolability of life
centred on ‘the philosophical argument that it is always wrong inten-
tionally to kill human embryos because doing so breaches the right to
98 Dworkin 1993: 10. 99 See Chapter 3, at 84–7.

100 Keown and Jones 2008.
life . . . which is enjoyed by all innocent human beings’.101 However, as we

argued in Chapter 3, the change in language results in a stronger and less
flexible notion than sanctity.102 ‘Inviolability’ admits of no exceptions.
Williams’ secular version of how and when the criminal law should pro-
tect human life sought to ‘free’ the law from religious tradition, and we
agree that arguments such as Keown and Jones’ obscure the connection
between objections to abortion and religious views in order to convince
others who do not follow their faith.103
For Williams, the criminalisation of abortion (and infanticide of seri-
ously impaired infants) was ‘the expression of a philosophical attitude’.104
Because religious notions of the sanctity of life should not play a role in
the criminal law, Williams allows a range of utilitarian considerations to
justify fetal killing, including eugenic grounds.105 But he went further
than this, and his ‘radical’ and ‘simple’ solution106 (advanced nearly a
decade before the Abortion Act 1967) was for the law to permit abortions
until the twenty-eighth week of pregnancy. His choice of this point in fetal
development is instructive and appears to have been based on pragmatic
grounds; he observed that illegal abortions did not tend to take place after
this stage and that ascribing legal protection to the fetus at this stage of
development would be in keeping with the views of the ‘plain man.’107
Thus, a penal law based on his stance would permit abortions carried
out by medical professionals for any reason until the seventh month of
pregnancy.108 Williams argued that until ‘viability’, abortion was not only
not wrong but, in the case of ‘defectives’ (his word) and perhaps women
who could not support another child, abortion was a positive ‘good’, and
his argument sailed close to suggesting a duty to abort.
Williams (the lawyer) preceded bioethicists such as Harris109 in con-
temptuously rejecting any notion that fetal life has intrinsic value. The
surprise in Williams’ argument may be that he did not advocate the legal-
isation of late-term abortions. His reasons are instructive: ‘[t]he humane,
ethical, and parental feeling of the plain man leads him to wish to extend
the protection of the criminal law not only to the newly born child but
to the viable child before birth. The protection need not, however, be
extended beyond viability.’110 Yet he argued that infanticide was justi-
fiable in certain cases. His reasons for suggesting that fetal viability be
the point from which protection is offered rest on utilitarian considera-
tions: that this is the most socially satisfactory solution. In 1958, Williams
simply judged that late-term abortions would be too unpalatable to the
community. He acknowledged that in practice the criminal law cannot
101 Ibid.: 96. 102 See 89. 103 See Williams 1994: 73.
104 Williams 1957: 12. 105 Ibid.: 212. 106 Ibid.: 211 and 212. 107 Ibid.: 209.
108 Ibid.: 210–1. 109 Harris 1998: 43–65. 110 Williams 1957: 209.
veer too far from public sentiment. His major thrust was to undermine
any argument that fetuses have any value per se. Williams sought to
embody in the law a doctrine that, of itself, human life was not valuable;
what was valuable was what humans could do with such life, and pre-
serving certain lives might itself be seen as wrong. He did not argue for
laws that endorse the woman’s right to choose, but rather for laws that
allow the ‘best children’ to be born.111
Williams’ attack on traditional doctrines of the sanctity of life and the
vitriolic counterattack by Keown and Jones show that there is a chasm as
deep as that which separates the Pope and philosophers such as Harris
today. Bridging the gap is often made harder by the inability to agree
on factual evidence. Keown and Jones accuse Williams of exaggerating
the evidence of illegal abortions and their ill effects, and arguments rage
today about the number of abortions sought for ‘trivial reasons’ and how
far abortions post twenty-four weeks are carried out for ‘minor defects’.
Might it be that both extremes use only those versions of the ‘facts’ that
suit their case and remain unaffected in their driving vision of what is
special about human life? Possibly unconsciously, the protagonists write
the script that suits them?112
Framing laws that accommodate the extremes of the fetal status argu-
ment becomes impossible, but Dworkin points out that few ‘ordinary
people’ belong to opposite ends of the spectrum; there are not many who
say that being human of itself carries no weight and there are few who
believe that the newly created embryo has the same moral status as a
born human and that, thus, a woman should be compelled to risk her life
in pregnancy or carry to term a child conceived by rape. Rather,
The real argument is a very different one: we disagree so deeply because we

all take so seriously a value that unites us as human beings – the sanctity or
inviolability of every stage of every human life. Our sharp divisions signal the
complexity of the value and the markedly different ways [of interpreting] its
meaning.113
Earlier, he says
if we suppose that people who condemn abortion as morally wrong . . . share a

profound conviction that it is intrinsically wrong deliberately to end a human life
[then it] is perfectly consistent to hold that view . . . and yet believe that a decision
whether to end human life in early pregnancy must nevertheless be left to the
pregnant woman, the person whose conscience is most directly connected to the
choice and who has the greatest stake in it.114
111 Keown and Jones 2008: 109. 112 See Chapter 7, at 214.
113 Dworkin 1993: 238. 114 Ibid.: 14–5.
He proposes a view of the abortion debate close to that later articulated

by the Canadian Supreme Court in Morgentaler, notably Wilson J. If
Dworkin is correct, this suggests that some of those who adopt a pro-life
position and would be uncomfortable about abortion on demand (or even
abortion per se) do so because they follow a moderated version of the
sanctity of life in thinking about life before birth, what we style reverence
for life in Chapter 3, rather than believing that the fetus is a person in
the same sense as the born infant. It also indicates an acceptance that, in
a liberal society, whilst their own pro-life moral values are strongly held,
it is not for them to demand that the government impose these moral
values on others. In fact, this is part of the broader, essential task that
individual citizens and lawmakers in democratic societies which adopt
political liberalism115 must undertake because of their recognition of
pluralist moralities.
Does a notion of reverence for life do any useful work in our under-
standing of how the law should address fetal status? We suggested in
Chapter 3 that the law should start from a strong, but not irrebuttable,
presumption in favour of preserving life. Life before birth poses addi-
tional problems. There is little disagreement in the context of assisted
dying that the individual who is to be helped to die has herself intrinsic
value and, crucially, the fetus, unlike the dying adult, is dependent on
the body of another to survive. In a liberal society with so many different
views of the fetus’ value and the possible changing value of that entity
as gestation proceeds, there are problems in the criminal law enforcing
one version of those values in a context where the continuation of the
pregnancy has such unparalleled impact on another, the value of whose
life we would all agree on. That means that any presumption in favour of
fetal life is weaker and more susceptible to rebuttal.
We do not pretend that reverence for fetal life has a common starting
point, or that it connects neatly to bioethical principle. We ask those who
adhere to a traditional doctrine of the sanctity of life to allow for rebuttal
and the permissibility of abortions they would rather not permit. We ask
those who are pro-choice in abortion to acknowledge a value in the fetus
that may be seen to impede access to abortion in certain cases. Are we
seeking an easy way out or even attempting a dishonest compromise?
Note Coggon’s warning, ‘[i]f we seek to advance honest debate, rather
than use rhetorical techniques to disguise tacit premises, we need to be
wary of terms such as “middle way” and their implications.’116 However,
115 See the discussions in Chapters 7 and 8 at 192–9 and 253–4, where we draw connec-
tions between bioethics and criminal law through political liberalism.
116 Coggon 2008c: 212.
we seek some understanding of any common ground that exists between

the extreme poles of the debate on fetal status in the context of the crim-
inal process’ role. The meaning of reverence for fetal life to the individ-
ual citizen may vary considerably, resulting in very different judgements
about the morality of abortion. But given that plurality of views, the crim-
inal process, which engages only with serious wrongs, needs a starting
point to begin to define wrong.
Reverence for fetal life might entail first that, absent conflicting inter-
ests, the criminal law should protect the fetus, and so in those cases where
a third party kills the fetus in utero, as was the tragic fate of Mme Vo
and her fetus, the criminal law should provide for an offence of unlawful
feticide prior to twenty-four weeks gestation, when the unlawful killing
of the fetus in England will constitute the crime of child destruction.117
Secondly, the debate ceases to turn on whether you do believe that at the
relevant stage in gestation the fetus has the same status as we do, and
starts from the premise that society has interests in the intrinsic value of
the fetus that indicate that it should be protected unless some counter-
vailing claim is stronger. Its location within a pregnant woman and the
fact that only she can maintain it, and does so at a cost to herself, mean
that her interests must be weighed in the balance. Easy cases are easy to
identify. There are many women who choose to continue with pregnan-
cies that pose grave threats to their physical or mental health and some
who carry on with pregnancies resulting from rape. In a liberal society,
it does not follow that the intrinsic value accorded the fetus mandates
that the criminal law should force the pregnancy’s continuation. Then
the cases become less easy, however, when the question is not the value
of fetal life as such, but is reframed to ask when (if ever) is it legitimate
to require a woman to continue her pregnancy?
117 Infant Life (Preservation) Act 1929.

5 Medical (and non-medical) ending of life
End-of-life cases present tragic theatre; consider the dramatic spectre of

the ‘shell’ of a no longer sentient teenager hovering somewhere between
life and death following the Hillsborough football stadium disaster.1 Doc-
tors in end-of-life cases are commonly ascribed the role of villain,2 or
angel of mercy.3 Against a backdrop of sensational media coverage,4
bioethical dilemmas in such cases raise difficult questions with which
the criminal law and legal and bioethical commentators and theorists
grapple. The criminal law’s response to these questions causes conflict
between legal principles as stated and as applied in practice, in order to
ensure that the criminal law manifests a strong presumption in favour of
life (‘reverence for life’)5 which falls short of any principle of ‘inviolability
of life’, save for the apparently absolute prohibition of intentional killing.
This chapter addresses the repercussions of this conflict: the distortion
of criminal law principles and the law’s avoidance of hard questions.
Our initial focus is on motivation. Exploring and critiquing the doctor’s
motivation in end-of-life cases has resulted in much ink being spilled in
philosophical, bioethical and legal discourses. In the eyes of the criminal
law, the doctor’s motivation is (or at least should be) irrelevant; it does not
matter if he or she is a bad person if he or she does a bad act. Yet there is
a difference between the strict legal position and the law in practice; from
start to finish in the criminal process, the doctor’s motivation in ending
a patient’s life is far from irrelevant. We also consider the criminal law
concept of intention, the defence available to doctors in a case where the
patient’s death is hastened and the lack of clarity surrounding the central
premise of this defence. Another matter for attention is the discord that
1 Airedale NHS Trust v. Bland [1993] 1 All ER 821.

2 Note the description of Anthony Bland’s doctor as a murderer and the attempt to bring
a private prosecution for murder against him. See Howe 2006: 244.
3 A label ascribed to Dr David Moor. See ‘This man is on his way to court to face a murder
charge’, The Independent, 11 September 1998. And see the discussion in Chapter 1, at
30–33, on the trial of Bodkin Adams.
4 See Brassington 2011. 5 See Chapter 3, at 89–92.
124
Medical (and non-medical) ending of life 125
exists between the application of a defence for doctors in the criminal

law and the reality of medical practice in treatment at the end of life. The
judiciary may have modified and manipulated the concept of intention to
avoid a conflict with law and bioethics, but how convincing is the result?
We explore the different treatment of doctors and laypersons in assisted
dying cases6 and, finally, consider whether the distortion of criminal law
and ethics in seminal cases of withdrawing treatment was a necessary evil
to reach the correct outcome. We also consider the implications of the
resolution of these cases outwith the criminal process.
Criminal responsibility and the (ir)relevance

of motivation
Notably absent from criminal law responsibility ‘is consideration of the
different moral contexts and motivations that give rise to [killings in
different cases]’.7 Whilst intention plays a significant role in criminal
responsibility, motivation is irrelevant. Thus, a distinction can be drawn
between responsibility within the criminal law and bioethics.8 Respon-
sibility in ethics is both internal and external. According to Forst, ‘An
ethically autonomous person answers ethical questions – “what is good
for me?” – for herself with others, but she herself is responsible for
such answers.’9 Thus, internally, a person who is ethically responsible is
accountable to whichever moral and ethical values he or she chooses to
follow in order to abide by a concept of the good life. The motivation
behind such a person’s behaviour is, therefore, highly relevant.10 In con-
trast, the criminal law ‘regulates only the external behaviour of persons,
abstracting from their motives’.11
Norrie provides one explanation for the usual irrelevance of motivation
to criminal responsibility, arguing that between the late seventeenth and
early nineteenth centuries, criminal lawyers were faced with the task of
shaping criminal responsibility in a way that recognised citizens’ liberty
within the confines of a capitalist social and political order. He contends
6 We employ ‘assisted dying’ as an umbrella term including assisted suicide (a suicide

carried out through the assistance of another where the final act is carried out by the
person who wishes to die), voluntary active euthanasia (where a doctor administers
lethal treatment to a patient at his or her request), hereafter VAE, and mercy killings
(the term we use in the cases where a layperson takes another’s life to bring an end to
that other person’s suffering).
7 Norrie 1998: 122.
8 See the discussion in Chapter 7 at 199–209 for a theoretical analysis of the concept of
responsibility.
9 Forst 2005: 232. 10 See, e.g., Beauchamp and Childress 2009: 166.
11 Forst 2005: 236 (our emphasis).
that legal formalism provided the solution; criminal lawyers choose to

draw a clear divide between intention and motive because whilst inten-
tion was a more universal subjectivity, motive ‘could contextualise the
subject in his or her social and political environment’ and consequently
‘represented a threat to legal control and was therefore excised from legal
subjectivity. . . . Motive could open the door to broad moral arguments of
excuse and justification.’12 This is apt in the context of the medical end-
ing of life, where moral and political concerns are abundant. However,
perhaps because of this, the exclusion of motive from the law in books
has not removed consideration of the doctor’s reasons for ending life
from the law performed and interpreted in practice through the criminal
process.
Killing with compassion: motive’s role in attenuating the

strict legal response to assisted dying cases
Whatever disadvantages attach to a system of unwritten law . . . its elasticity
enables those who administer it to adapt it to the varying conditions of society,
and to the requirements and habits of the age . . . so as to avoid the inconsistencies
and injustice which arise when the law is no longer in harmony with the wants
and usages and interests of the generation to which it is immediately applied.13
There are many ways in which the criminal process’ response to

assisted dying could take account of motivation in practice, such as (1) the
exercise of prosecutorial discretion regarding whether to charge an indi-
vidual with an offence;14 (2) the utilisation of defences of excuse or jus-
tification in assisted dying cases; (3) a policy of non-prosecution; (4) the
jury’s decision making and verdict; (5) the judge’s decision as to an appro-
priate sentence following conviction; (6) the creation of a new, lesser
offence of mercy killing.15 The last possibility will not be our focus here,
and we will not say much on the second option either, because one of
the authors has considered elsewhere whether necessity could be utilised
in cases of euthanasia.16 We explore the defence that may be available to
12 Norrie 1998: 120–1.
13 Wason v. Walter (1868), L.R 4 QB 73, 93, per Cockburn CJ.
14 On which, see Otlowski 1997: 147.
15 Huxtable 2012: 66–7. See the Law Commission’s recommendation regarding a public
consultation on whether there should be an offence/partial defence of ‘mercy killing’.
Law Commission 2006: 155.
16 Ost 2007. Note also the recent unsuccessful case brought by the late Tony Nicklinson,
who was in locked-in syndrome and thus could not take any steps to end his life as he
wished. He communicated through a computer controlled by blinking and considered
his life intolerable. His counsel sought a declaration that if a doctor had ended his life,
s/he should have been able to rely on the defence of necessity. See R (on the application
doctors who hasten their patients’ deaths in the next section because this
defence is not, on the face of it, based on motivation, but on intention.
In this section, we first consider the way in which the DPP’s prosecution
policy on assisted suicide,17 although not a policy of non-prosecution,
takes compassion into account. The remainder of our focus will then be
on the jury’s power to assuage the strict application of the law and the
part that the judge can play in taking motivation into account.
According to Horder, ending life in order to relieve suffering counts
as a mitigating motive, providing a reason to commit a criminal wrong
notwithstanding the prohibition placed on the behaviour:
Mitigating reasons to do the thing prohibited might shake our faith in the author-
ity of legal definitions, such as the definition of murder. They might do this
precisely because such reasons conflict with the reason(s) not to do the thing
prohibited on which the authoritative definition is based . . . .18
One such reason for acting is taken into account by the DPP’s prosecution
policy on assisted suicide.19 Adherence to the policy, which in effect gives
ex ante guidance as to the likelihood of prosecution, softens the strict legal
response that criminalises assisted suicide,20 provided that the CPS offi-
cials investigating a case are satisfied that prosecution is not in the public
interest. It cannot offer any guarantee of non-prosecution and it does
not authoritatively permit assisted suicide.21 The decision to prosecute
is reached by considering a number of factors, one of which is that the
suspect was ‘wholly motivated by compassion’22 – a mitigating reason for
assistance. Indeed, the ‘critical element is the motive behind the suspect’s
act’.23 This has led Mullock to contend that ‘the Policy has precisely the
effect of sanctioning compassionately motivated assisted suicide, with
compassion as the key determining factor which potentially places an act
which remains criminal beyond the reach of the criminal courts’.24
The existence of this policy illustrates how the criminal law’s
boundaries in cases of ethical controversy can be moved behind the
scenes, through prosecutorial policy, rather than in the open theatre of
of Nicklinson) v. Ministry of Justice [2012] EWHC 2381 (Admin). Leave to appeal was
refused.
17 CPS 2010a. 18 Horder 2000: 174.
19 CPS 2010a. Following the House of Lords’ judgment in R (on the application of Purdy)
v. DPP [2009] UKHL 45, the DPP was obliged to produce an offence-specific policy
regarding the approach to prosecution for the offence of assisting suicide under s.2(1)
of the Suicide Act 1961.
20 Ibid.
21 For the uncertainty this poses, see Commission on Assisted Dying 2012: 92.
22 CPS 2010a: para 45.
23 Ibid., para 44. For careful analysis of the policy, see Mullock 2010.
24 Mullock 2010: 445.
Parliament25 and the courts. As Norrie has observed, ‘in the case of
assisted suicide, it is motive, which plays no part in the legal definition of
the crime of assisting a suicide, which animates the discretionary decision
not to prosecute’.26 This involves assessment of the suspect’s character
(beneficent or malicious), as also evidenced by a public interest fac-
tor tending in favour of prosecution: that the suspect was, for example,
‘motivated by the prospect that he or she or a person closely connected
to him or her stood to gain in some way from the death of the victim’.27
Thus, notwithstanding the contemporary focus on capacities in order to
attribute responsibility within the criminal law,28 the fact that a wholly
compassionate motivation is a factor against prosecution in the policy
supports Lacey’s contention that character responsibility, the favoured
formulation of responsibility in mid-eighteenth-century criminal law, is
still evident in the contemporary criminal process.29 A theory of respon-
sibility revolving around character involves assessing conduct by way of
judging character and reputation. Under such a theory, the community’s
‘shared understandings of good and bad character’ are fundamental to
the evaluation of whether the individual has acted criminally by violating
important, collectively accepted standards.30 If an apparent mercy killer
seems only to have been well motivated, good character enables him or
her to escape criminal liability.
Leaving aside the DPP’s policy on assisted dying, the clearest example
of a case where the strict legal position was attenuated by both the prose-
cution and the judge is R v. Cox.31 Dr Cox, a consultant rheumatologist,
administered a lethal injection of potassium chloride to his elderly patient,
Mrs Boyes, who was in agonising pain. She suffered from incurable
rheumatoid arthritis and had repeatedly requested that her life be ended.
The drug is not known for its therapeutic purposes. The patient died
almost immediately after the injection and a nurse brought the doctor’s
actions to the attention of the authorities. Because it was not absolutely
clear that the patient’s condition itself had not caused her death (Mrs
Boyes’ body had been cremated), Dr Cox was charged with attempted
murder. The matter of his intention was, thus, crucial.32 Whilst the
prosecution alleged that Dr Cox’s primary intent was to bring about
25 In a recent vote following a lengthy debate, MPs in the House of Commons unanimously
endorsed the policy, although an amendment to the motion asking the Government to
consult on whether the policy should be put on a statutory basis was defeated. See
Hansard, HC Deb, 27 Mar 2012: columns 1363–1440.
26 Norrie 2011: 140. See also Mullock 2010: 454. 27 CPS 2010a: para 43.
28 See the discussion in Chapter 7, at 206–7. 29 Lacey 2001b: 257 and 263–6.
30 Ibid.: 257. 31 R v. Cox (1992) 12 BMLR 38.
32 The mens rea for attempted murder is an intention to kill.
the patient’s death, the two medical practitioners who gave evidence on
behalf of the defence confirmed that the patient felt relief from her pain
after the injection for the short time before she died. In his direction to
the jury, Ognall J emphasised that whilst pain relief may have occurred
in the few minutes before the patient died, it did not necessarily follow
that the relief of pain was Dr Cox’s primary intent. The Cox case was
a dramatic one inside the courtroom, generating much emotion. Some
of the members of the jury wept openly when their guilty verdict was
delivered.33
Arguably the first indication that the strictness of the law could (and
would) be tempered was the prosecutorial decision to charge Dr Cox
with attempted murder rather than murder. This decision assisted the
prosecution’s case, as Ognall J later explained:
The prosecution took the view that a jury, however conscientious and fearless,
would probably shrink from the inevitable consequences of convicting a defen-
dant doctor of murder.34
Tur has argued that charging attempted murder possibly ‘did a disservice
to the accused because it is easier even in so “sad and testing” a case for
a jury to convict of attempt rather than the full crime knowing that there
is no mandatory sentence for the former’.35 However, given the clear evi-
dence that Dr Cox used a drug known to cause death but not commonly
accepted to relieve suffering, prosecutors arguably had no choice but to
prosecute. This and the other evidence supplied by those working with
Dr Cox in the hospital may be what differentiates Cox from other cases
that have not led to prosecution.36 Nonetheless, the prosecution would
have been aware of the likelihood of a nominal sentence upon conviction.
The fact that the judge would not be working with a mandatory sen-
tence on conviction because of the prosecution’s decision may well have
made a difference to the jury when they reached their verdict. In fact,
Ognall J highlighted the relevance of motivation to sentencing in his
direction to the jury,37 which must have given rise to the implication that
although they should not consider motivation, he could impose a lenient
punishment if they convicted. Moreover, it is rare in a case of attempted
murder for a judge to allude to the accused’s ‘unblemished reputation’
33 Biggs 2001: 65. 34 Ognall 1994: 167. 35 Tur 2002: 86.

36 See generally Goss 2000: 569–70; Huxtable 2007: 67–8 and 108.
37 ‘Could there be any doubt in anybody’s mind that if [ending Mrs Boyes’s life] was
Dr Cox’s primary purpose, he was prompted only by his personal distress, the distress
of Mrs Boyes’s family and her own frequently expressed wish to have her journey
through this veil of tears brought to an end. All that, of course, is highly relevant to any
consequences which follow from a verdict of guilty’. Above, n.31.
and ‘exemplary character’ when directing the jury as did Ognall J and,
indeed, prosecution counsel.38 Ognall J imposed a suspended sentence
of one year’s imprisonment, later reduced to twelve months probation
on appeal. The penalty imposed was so minimal as to amount to no
real punishment at all.39 Besides his own concern to take into account
the doctor’s motivation when deciding on his sentence, in all likelihood
the judge would have noticed the feelings of jury members when their
verdict was delivered. In Cox, the prosecution, jury and judge acted har-
moniously to ‘exonerate’ the defendant following his conviction. Cox
indicates a moral fit between the legal and professional ethical regulatory
responses in practice, because both ended up in the same place; what Dr
Cox did was a violation of law and regulatory ethics, but he was treated
sympathetically in terms of both his legal punishment and his profes-
sional disciplinary sanction (a reprimand by the GMC). This moral fit
produced a lenient outcome for Dr Cox, although one not reflected in
Ognall J’s admonishment that ‘[w]hat you did, was not only criminal, it
was a total betrayal of your unequivocal duty as a physician.’40
The decision to charge Dr Cox with attempted murder not only bene-
fitted the defendant by allowing account to be taken of motivation at the
sentencing stage, but as we noted, also worked in the Crown’s favour.
However, the more recent Gilderdale case is a good example of a case
where the prosecution arguably got it wrong in terms of the charge pur-
sued. In 2008, Kay Gilderdale administered morphine to her thirty-one-
year-old daughter, Lynn, who suffered from myalgic encephalomyelitis.
Lynn was paralysed and unable to swallow. She had attempted suicide
in the past. Mrs Gilderdale was charged with attempted murder rather
than murder because toxicology tests did not establish whether Lynn’s
death was the result of the morphine that she herself had injected, or
the drugs her mother had administered. The attempted murder charge
was pursued despite Mrs Gilderdale’s guilty plea to aiding and abetting
suicide41 because the DPP considered that the evidence suggested that
she went further than assisting and directly took her daughter’s life.42
Mrs Gilderdale was found not guilty by a jury who reached a unani-
mous verdict after less than two hours deliberation. She was released
38 Ibid.; ‘Doctor’s dilemma of pain or death’, The Independent, 21 September 1992. There
are echoes here of the judge’s praise of the defendant’s character in R v. Arthur. See
Chapter 1 at 36.
39 Although cf. Otlowski 1997: 145.
40 ‘Death case doctor tells of harrowing year on remand’, The Independent, 22 September
1992.
41 As the offence under the Suicide Act 1961 was worded then, prior to the more simplified
wording introduced by the Coroners and Justice Act 2009.
42 See ‘Kay Gilderdale: a devoted mother’, The Guardian, 25 January 2010.
with a one-year conditional discharge. There is arguably no better case

to illustrate the impact of the fact that through the jury system, ‘the
governed have a voice not only in the making of the laws which govern
them but in their application.’43 The significance that the jury attached
to Kay Gilderdale’s motivation led, in part, to their verdict of not guilty.
According to one newspaper report, they ‘had been visibly moved by the
account of two parents struggling to come to terms with the realisation
that their daughter had lost the will to fight a debilitating condition’.44
Moreover, the trial judge’s criticism of the attempted murder charge,
sympathy towards Kay Gilderdale and description of the jury’s verdict as
reflecting decency and humanity were notable.45
Comparing Gilderdale with another case relating to a mother causing
the death of her (adult disabled) son further suggests that an appraisal
of the defendants’ characters and motives played a role in the juries’
responses to their actions, perhaps explaining apparently inconsistent
legal outcomes. In 2008, Frances Inglis administered a lethal dose of
heroin to her brain-damaged son Thomas to end what she described as
his ‘living hell’.46 Following a head injury, Thomas could only communi-
cate by blinking and squeezing with his hands. This was not his mother’s
first attempt to end his life – she had been arrested previously following an
attempt to cause his death by a lethal injection. Her subsequent second
attempt was successful because she barricaded herself into his bedroom
at the nursing home where he was being cared for and where she was
denied access to him following her previous actions. She gained access
through posing as his aunt. Mrs Inglis admitted that she had caused his
death but denied that what she had done amounted to murder because
of her compassionate motivation. The jury found her guilty of murder in
a majority verdict of ten to two following more than six hours of delib-
eration. The judge sentenced her to life imprisonment with a minimum
term of nine years.47
In Norrie’s view, it was the impression of her character and motive that
Frances Inglis conveyed that led to her conviction: ‘[i]t is likely that she
came across as a person too caught up in her own emotional concerns to
act fully in terms of what was right for her son . . . ’.48 Such an impression
43 Devlin 1979: 176.

44 ‘Devoted mother Kay Gilderdale should never have been prosecuted, says judge’, The
Times, 26 January 2010.
45 See ‘Why was Kay Gilderdale in court charged with attempted murder?’ The Daily
Telegraph, 26 January 2010; ‘Mother cleared of ME daughter’s attempted murder’,
BBC News Report, 25 January 2010.
46 R v. Inglis [2010] EWCA Crim 2637, [2011] 1 WLR 1110, 1117.
47 Subsequently reduced to five years by the Court of Appeal.
48 Norrie 2011: 150–1.
of Mrs Inglis can only have been reinforced by her son Alex’s testimony
during her trial that ‘[s]he was constantly frantic and crying and just in
a crazy state. You couldn’t speak to her’.49 Police officers found notes
she had written at her home asking how anyone could know that her
son was not suffering, and she stated in court that when she had written
these, ‘I was sort of off my head really’.50 Moreover, in giving judgment
in Mrs Inglis’ appeal against her sentence, Lord Judge CJ referred to
‘her compulsive objective’ to kill her son.51 Mrs Inglis was portrayed by
both herself and others as obsessed with ending her son’s life and unable
to think rationally. In contrast, Kay Gilderdale’s actions were presented
by the defence as reluctant assistance in the face of her daughter’s deter-
mined wish to die, carried out because of her devotion to her. Notably, she
responded to her daughter’s desperate request for help, whereas Thomas
Inglis did not have capacity to consent.52 Despite the prosecution coun-
sel’s warning that ‘[i]t is not for you to judge the motives or the morals
of Kay Gilderdale’,53 the jury’s empathy and support for Mrs Gilderdale
was further suggested by the gathering of several jury members outside
court to see her leave with her family at the end of the trial.54
It is not unreasonable to consider that it was motive and character
that in part led to different results in two cases which, on the face
of it, may appear similar according to the black and white legal posi-
tion. Is this wrong or right? If we accept that they are like cases,55
then according to the principle of justice it seems wrong that the jury
convicts in one case and acquits in the other based on a law that is
not supposed to take account of character and motivation.56 Let us
imagine a case where a mother calmly and rationally ends the life of
her severely brain-damaged adult child in circumstances where there
is clear documented evidence that this is what her son would have
wanted were he competent. According to strict law, there is no dif-
ference between this case and Inglis. However, we suggest that a jury
would find it more difficult to reach a verdict of guilty in our hypothet-
ical case because the motivational and character aspects are more akin
to Gilderdale. Notwithstanding this, it may come down to the strength
of the prosecution’s evidence, the circumstances of the case, and the
49 ‘Frances Inglis killed son “with love in her heart”’, BBC News, 20 January 2010.
50 ‘Mother gets life for heroin death’, BBC News, 20 January 2010.
51 Above, n.46, at 1122. 52 See Huxtable 2012: 65.
53 ‘Mother “tried to ease pain of ME daughter”, court told’, The Telegraph, 23 January
2010.
54 ‘Mercy killing mother cleared of murder after helping seriously ill daughter die’, The
Guardian, 25 January 2010.
55 Huxtable 2012: 65. 56 See also Otlowski 1997: 149.
charge that is brought. If it is clear that the mother’s action ended her
son’s life and he was incapable of any involvement in this action, a not
guilty verdict would be a clearer example of jury nullification57 than in
Gilderdale. It was easier for the jury to reach the verdict they did in the
light of the fact that Mrs Gilderdale had already pleaded guilty to assisted
suicide. Arguably, they were not disregarding the law, but finding that
the ambiguity surrounding the extent of Mrs Gilderdale’s involvement
meant that assisted suicide was the more appropriate criminal label. In
our hypothetical case, it would take a brave jury to disregard the criminal
law by taking into account matters that are not supposed to have any
place in that law when the elements of the offence of murder are made
out and no other offence is presented to them.
The examples considered in this section suggest the existence of an
unwritten law that enables account to be taken of the defendant’s moti-
vation through the criminal process.58 This unwritten law operates differ-
ently depending upon the identity of the defendant (doctor or layperson),
a matter we explore later in this chapter. What is also noteworthy is that
this unwritten law has not just appeared in recent times. Williams high-
lighted the reluctance of prosecuting authorities to bring proceedings
against doctors, the jury’s reluctance to convict and the likelihood of a
lesser penalty being imposed on conviction back in the 1950s.59 This ten-
dency to allow motivation in through the backdoor by the manipulation
of the concept of intent in the specific context of the medical hastening
of death requires exploration.
Intention, causation, the doctrine of double effect and the

murky waters of the ‘doctor’s defence’60
Intention
[T]he courts have striven to reflect the distinction between doctors and other
actors by adapting the boundaries of the concept of intention . . . judges seem to
have shifted between narrower and broader meanings of intention in order to
distinguish between those with ‘worthy’ and those with ‘unworthy’ motives.61
57 Jury nullification occurs where the jury disregards the evidence or the judge’s direction
and acquits a defendant for reasons of conscience.
58 Note that there is one written law that allows for consideration of a merciful motive: the
defendant’s belief that the murder was an ‘act of mercy’ can be considered by the judge
as a mitigating factor when deciding the minimum term in relation to the mandatory
life sentence for murder under the Criminal Justice Act 2003, s.269, Sch 21, [11(f)].
59 Williams 1957: 292. See also Otlowski 1997: 148.
60 A term we believe to have been coined by Smith: see Smith 2000.
61 Ashworth 1996: 185 and 182.
There is a clear connection between intention and responsibility in

both moral philosophy and criminal law discourse. Duff explains:
I am not liable to moral blame for every harm which I in fact cause: it must also
be shown that I was morally (and not just causally) responsible for that harm or
evil; that it can properly be attributed to me as my action – as something which I
culpably did. . . . I am most culpable, because most fully responsible as an agent,
for harm which I bring about with intent. . . . The underlying assumption here is
that criminal liability should, in principle, be ascribed in accordance with moral
responsibility.62
Why should this be the case? Duff’s answer is that it is because ‘I make
myself responsible for an effect by intending it; by taking it upon myself
to bring that effect about I make myself answerable for it.’63
This understanding of culpable responsibility for intended acts is seem-
ingly played out in the criminal law although, as in moral philosophy, it
is recognised that one is not always blameworthy or criminally liable
for intended actions.64 Intention is a fundamental element of some of
the more serious offences and is one of the main ‘general principles of
liability’.65 It is the internal fault element of an offence, the actus reus
being the external, conduct element.66 Although Lacey has noted the
argument that it is inaccurate to see intention as a central mens rea term,
because for the majority of offences proof of recklessness or negligence
will suffice, criminal law doctrine and theory are redolent with the notion
that intention is a principal concept.67 Yet ‘[d]espite (or perhaps partly
because of) the central role which the concept of intention plays in the
criminal law, we still lack a clear or agreed account of its meaning.’68 Sig-
nificantly, Lacey has suggested that the reason there is disagreement as
to the meaning and application of intention is the influence of moral and
political issues relating to whether it is appropriate to convict a particular
defendant for a particular offence.69
In the specific context of murder, the required guilty mind is intention
to kill or cause grievous bodily harm. There is an added flexibility, in that
the jury is also entitled to infer intention if the defendant foresees death
or grievous bodily harm as a virtually certain consequence of his or her
actions.70 That the jury is not obliged to find intention in such cases but
can do so if they consider this to be appropriate allows ambiguity, opening
up a hole which can be filled by moral concerns in deciding whether the
62 Duff 1990: 102–3 (emphasis in original). 63 Duff 1982: 12.

64 Consider, e.g., the existence of the defence of self-defence and see Uniacke 1984: 215.
65 Lacey, Wells and Quick 2003: 41. 66 Ibid.: 40. 67 Lacey 1993: 622–3.
68 Duff 1990: 15. 69 Lacey 1993: 626.
70 R v. Woollin [1999] 1 AC 82. See Ashworth 2009: 244–6.
internal fault element of the offence has been made out.71 The flexibility
of the concept has enabled judges to manipulate its boundaries so that the
mens rea requirement for murder is not satisfied in cases where doctors
hasten their patients’ deaths by administering what is perceived to be
proper medical treatment to relieve suffering.72
Causation
In order for a defendant to be criminally liable for a series of actions,
these actions must have caused the consequences which amount to an
offence.73 Whilst the general principle is that it must be established
that ‘but for’ the defendant’s actions the consequences would not have
occurred, case law suggests that if the defendant’s actions were a sig-
nificant (more than minimal) cause then this can be sufficient.74 For
murder, the actus reus requirement is that the defendant’s actions caused
the victim’s death. Therefore, if a doctor administers medication to a
patient and thereby hastens the patient’s death even by a matter of hours
or minutes, on the face of it, the doctor has committed the actus reus of
murder. This logical conclusion has on occasion been avoided in order
to resist the criminalisation of a doctor’s actions.75
Double effect and its application in the medical setting

The doctrine of double effect (DDE), originally developed by Aquinas,
has a longstanding history in Catholic moral theology and philosophical
literature.76 The doctrine ‘states, in the context of actions that have
both good and bad effects, that: doing an action that has a bad effect is
permissible if (a) the action is good in itself, (b) the intention is solely to
produce the good effect, (c) the good effect is not achieved through the
bad effect, and (d) there is sufficient reason to permit the bad effect’.77
Much (but certainly not all) hinges on differentiating between intention
and foresight; the bad effect may be permissible if it is foreseen but not
intended. Beyond this commonly agreed element, numerous variants of
the DDE exist.78
71 See also Norrie 1998: 122. 72 See below, at 137–44.

73 See generally Ashworth 2009: 101–5.
74 See R v. Cato (1976) 62 Cr App R 41 and Ashworth 2009: 103–5.
75 See below, at 137–44. 76 Foster et al. 2011: 57; Gillon 1986: 134.
77 Gillon 1986: 135. See also Beauchamp and Childress 2009: 162–3; Uniacke 1984:
192–3; Williams 2001: 45.
78 See further Foster et al. 2011: 57 and 58–61.
The DDE has been related to the principle of nonmaleficence in

bioethics.79 According to Wenkel, ‘the doctrine of double effect can be
applied to medical situations wherein one attempts to fulfil the Hippo-
cratic commitment to do no harm while knowing that harm will come as
a secondary or unintended effect of care’.80 Where a physician is faced
with a patient who begs for the alleviation of his severe pain and suffer-
ing, the DDE has commonly been thought to prohibit the physician from
administering a dose of medication that causes death if the intention is
to bring the patient’s suffering to an end through death. If, however,
the physician administers a dose of medication that carries a real risk of
hastening death but with the intention solely to relieve suffering through
giving this medication, and if without it, the patient’s suffering would
continue, the DDE would permit this action.81 Significantly, this relies
on the assumption that we accept that ending the patient’s life to relieve
suffering is a bad effect. It is hard to accept the relevance of the DDE to
a situation where the administration of drugs to relieve suffering also has
the effect of hastening the patient’s death if one does not perceive ending
the patient’s life to be a bad consequence but rather considers it a good,
beneficent effect.82
The primary practical difficulty with the operation of the DDE is
that as external observers, we cannot know for certain what the actor’s
primary intention was.83 Gillon comments that ‘we none the less try
to do so because it makes a difference to our moral evaluation of his
action’.84 Although this explains our reason for applying the doctrine, it
fails to change the fact that an application of the doctrine may not actually
reflect the true facts as they are known (only) by the actor. Our moral
and legal (if the doctrine is applied in law) evaluation of an action may be
flawed because we have wrongly ascertained the real primary intention.
However, in the context of the criminal law, this is not a unique risk;
ascertaining the defendant’s intention is one which consistently falls to
the jury to decide.85
The DDE will inevitably pose a fundamental difficulty to those
who struggle to see a moral difference between intended and foreseen
consequences,86 especially when drawing this distinction could lead to
79 See Beauchamp and Childress 2009: 162–3 for an application of the DDE in the case
of four different therapeutic abortions.
80 Wenkel 2006: 292. 81 Beauchamp and Childress 2009: 162.
82 See also Price 2009: 146–7. 83 See, e.g., Ost 2007: 104–5; Price 1997: 337.
84 Gillon 1986: 134. 85 Foster et al. 2011: 69.
86 See, e.g., Harris 1995: 38; McLean 2007: 108. One of the authors explored the matter
of intended side effects in the context of the DDE previously. See Ost 2007: 101–2.
potentially dangerous reasoning. Considering an application of the DDE

to the conjoined twins case,87 Foster et al. observe that
To cut through the vessels that provide the major blood supply to Mary and to
claim that her death as a result of this is merely “foreseen” requires a good deal
of justification. If we develop such reasoning, we could justify taking the heart
from the living donor for transplant and claim that we have not killed the donor,
we have merely foreseen that his death will result.88
The concern is that whenever there is one significantly good consequence

(the survival of one conjoined twin or a person in need of a life-saving
heart transplant), other effects can be reduced to being merely foreseen
even if seriously bad (the death of the other conjoined twin or the living
donor) through an application of the DDE. It is arguable that this risk is
not likely to materialise, however, for as long as the DDE is commonly
championed by proponents of the sanctity of life.89 And it is notewor-
thy that the application of the doctrine to justify separating conjoined
twins is far from uncontroversial; it is seemingly rejected as much as it is
supported.90 The likelihood of such dangerous reasoning is also reduced
by the final element of the doctrine: whether or not there is sufficient
reason to permit the bad effect will require ‘difficult, sensitive moral
appraisal’.91 The DDE is contested and controversial in the philosophi-
cal literature. What we note here in particular is that the DDE is complex
and there is a danger of reducing it to its most well-known element (the
distinction between intention and foresight),92 resulting in an incomplete
application of the doctrine.
The slipperiness of the central premise(s) of the ‘doctor’s defence’:

does the DDE have a place in the criminal law?
Actual citation of the DDE is rare in criminal law cases,93 probably
because few cases involving the hastening of a patient’s death by a doctor
come before the courts. It is evident that, when the criminal law is faced
with such cases, a defence is sought to avoid a doctor being held criminally
87 On which see the case study in the next chapter. 88 Foster et al. 2011: 60.
89 Such as John Keown. See Keown 2002: 41–2. See also Kuhse 1987: 90 and Chapter 3
at 83–9.
90 For an example of an argument against the applicability of the DDE, see Wenkel 2006:
298–9 and for an argument in favour, see Howard 2009. Both sides are considered in
Suziedelis 2001.
91 Uniacke 1984: 200–1 and see 193.
92 See our consideration of Ognall J’s direction to the jury in the Cox case in the next
subsection.
93 For other non-criminal cases in which it appears to been discussed, see Chapter 6, n.47.
responsible for administering pain-alleviating drugs that hasten death.

What also becomes clear following an analysis of the three primary cases,
R v. Adams,94 R v. Cox and R v. Moor,95 is that the DDE’s place in the
criminal law is far from certain and that the elements of the ‘doctor’s
defence’ which appear in these cases shift and blur. Three elements are
discernible: causation, primary purpose and proper treatment.
In 1957, as we saw in Chapter 1, the Old Bailey competed for audi-
ences with the real theatres in Drury Lane in hosting the dramatic case
of GP John Bodkin Adams. Adams was a specimen prosecution. The
drama unfolded not only outside and in the courtroom, but also in the
popular and populist narratives of the case that the judge Devlin J and
legal journalist Sybille Bedford subsequently wrote.96 The prosecution’s
case was that Dr Adams had killed his patient Mrs Morrell in order to
inherit a Rolls Royce in her will.97 The defence’s case was that Dr Adams
had administered right and proper treatment (large doses of heroin and
morphine) to bring Mrs Morrell comfort and if this had incidentally
shortened her life, this did not provide grounds for a murder conviction.
The judge’s much quoted direction to the jury has been taken to nod
in the direction of the DDE:
If the first purpose of medicine – the restoration of health – can no longer be

achieved, there is still much for a doctor to do, and he is entitled to do all that
is proper and necessary to relieve pain and suffering, even if measures he takes
may incidentally shorten life.98
Foster et al. have challenged the view that it was Devlin J’s direction to
the jury in Adams that established the DDE’s place in English law. In
their view, his ‘direction is opaque: it is hard to read into it anything
as complex as the doctrine of double-effect’.99 We concur, although it
goes against the tide of academic opinion not to see this direction as
being the origins of judicial application of the doctrine in English law.100
Undoubtedly, this is because it is possible to read manifestations of one
aspect of the doctrine into the most famous extract from the direction
(that the doctor’s purpose or intention is to relieve pain and suffering).
However, reading the DDE into his direction is mistaken, given what
Devlin J continued to say:
94 R v. Adams [1957] Crim LR 365. 95 [2000] Crim LR 31.

96 Bedford 1961. Devlin 1985. 97 Devlin 1985: Chapter 12.
98 Above, n.94, at 375. 99 Foster et al. 2011: 62.
100 See, e.g., Biggs 2001: 55; Huxtable 2007: 87–8; McGee 2005: 369; Pattinson 2011:
539; Warnock and Macdonald 2008: 96; Williams 2007: 36; Young 2007: 101, n.38.
One of the authors has also expressed a view to this effect previously which she now
no longer holds. See Ost 2007: 100.
what I have said to you rests simply upon this: no act is murder which does not
cause death . . . proper medical treatment that is administered and that has an
incidental effect of determining the exact moment of death, or may have, is not
the cause of death in any sensible use of the term.101
This emphasis on causation, coupled with the use of the word ‘sim-
ply’, suggests that this is a defence moulded from the legal theory of
causation,102 available to the doctor when the treatment in question is
proper. Causation remains an integral element that the prosecution must
prove in a case of murder; it is a question of fact for the jury.103 Yet as Tur
observes, Devlin J’s direction offers ‘an implicit invitation to the jury to
deploy the notion of “cause” functionally for the attribution of responsi-
bility and guilt and not analytically as a finding of fact’.104 Notwithstand-
ing Devlin J’s view that ‘[i]f . . . a doctor had done something . . . and
death occurs . . . on the Monday instead of the Tuesday, no one with
common sense would say the doctor caused her death’,105 it seems illog-
ical to argue that the administration of drugs in a dosage known to cause
death such as occurred in Adams cannot be a contributory cause of the
patient’s death.106 Because common sense should dictate that what Dr
Adams did was a contributory cause of his patient’s death, this suggests
that what went on behind the scenes is a moral judgement concerning
the doctor’s behaviour. Thus, Devlin J’s direction reflected a desire to
avoid finding legal causation if this meant that the doctor was guilty of
murder.107 This is limited by the reference to ‘proper medical treatment’,
which suggests that this desire will only be present if what the doctor does
is in accordance with good medical practice.108
There is a somewhat obscure reflection of the circumstances in which
the DDE may apply in Devlin J’s direction (that is, when an action
has both a good and bad effect), and his direction raises the issue of
the doctor’s purpose.109 However, if the defence presented in Adams is
framed around causation and the doctor’s actions are not considered
to cause the patient’s death, then the DDE would not apply anyway
101 As quoted in Williams 1957: 289 (our emphasis).

102 Ibid.: 289; Otlowski 1997: 173, n.194. 103 See, e.g., Smith 2000: 41.
104 Tur 2002: 78.
105 Bedford 1961: 192. See also Lord Goff in Bland: ‘ . . . where the doctor’s treatment of
his patient is lawful, the patient’s death will be regarded in law as exclusively caused by
the injury or disease to which his condition is attributable’ (at 867, our emphasis).
106 See also Arlidge 2000: 35; Otlowski 1997: 182.
107 Skegg 1988: 167. See also Tur 2002: 82 and Devlin’s reference to the criminal law
being concerned with the ‘guilty cause’ in Devlin 1962: 95 (our emphasis).
108 See also Devlin 1962: 95; Huxtable 2007: 103; Otlowski 1997: 173, n.195.
109 ‘ . . . he is entitled to do all that is proper and necessary to relieve pain and suffering’.
Above, n.94 (our emphasis).
because he is not causing a harm, at least according to Devlin’s notion of

a ‘commonsense cause’.110
Moving on thirty-five years, a hazy reflection of an aspect of the DDE
can be seen in Ognall J’s direction to the jury at Dr Cox’s trial. He
directed them not to find the doctor guilty provided they were satisfied
that his primary purpose when administering the potassium chloride was
to relieve his patient’s pain and suffering rather than to cause death:
If . . . it was, or may have been, his primary purpose in acting as he did to alleviate
her pain and suffering, then he is not guilty . . . even though he recognised that
in fulfilling that primary purpose, he might or even would hasten the moment of
her death.111
Taken as a whole, Ognall J’s direction to the jury reflects certain premises
of the doctrine. He noted that in order to be found not guilty, Dr Cox’s
primary intention must have been to produce the good effect. He advised
the jury that the good effect must not have been achieved through the
bad effect,112 and in highlighting the doctor’s duty, he saw that there
could be sufficient reason to warrant the causing of the bad effect:
It was plainly Dr Cox’s duty to do all that was medically possible to alleviate
her pain and suffering even if the course adopted carried with it an obvious risk
that as a side effect – note my emphasis . . . of that treatment, her death would be
rendered likely, or even certain.113
Reading the report without knowing which words Ognall J orally placed
emphasis on makes it difficult to be certain what he was highlighting in
his direction to the jury. Given the placing of his notification of emphasis,
the most likely candidates are the words ‘obvious’ and ‘side effect’. Both
of these words are significant in conveying that this was a case in which
the DDE might operate (the doctor’s action had a good and bad effect).
However, Ognall J made no explicit reference to the doctrine or its other
elements, and consideration of whether the relief of suffering was a good
in itself was, at most, implicit in his direction. As with Devlin J’s direction
in Adams, his direction cannot be said to amount to a legal application
of the DDE. Yet writing after the trial, Ognall J stated that ‘the primary
purpose or double effect test . . . is our criminal law on this subject at the
moment’.114 So it would appear that he considered the test he laid out
to reflect the DDE.
In Ognall J’s view, his direction ‘was entirely in accord, word for word,
with the classic direction to that effect first enunciated by Mr Justice
Devlin’.115 We respectfully disagree, because the two directions focus on
110 Devlin 1985: 171. 111 Above, n.31. 112 Ibid. 113 Ibid.
114 Ognall 1994: 172. 115 Ibid.: 166.
different central factors. Rather than causation, Ognall J’s principal con-
cern is primary purpose. Although his direction covers causation, it does
so simply as a question of fact.116 He does not suggest that, according
to ‘common sense’, when doctors administer appropriate drugs with a
death-hastening effect at the end of life with the intention to relieve suf-
fering, their actions should not be considered to have caused the patient’s
death.
Finally, we consider R v. Moor. Dr Moor was charged with murder,
having administered a massive dose of diamorphine to an elderly patient,
George Liddell. Mr Liddell suffered from cancer of the bowel and had
undergone an operation to have a section removed. Although the health
team at the hospital considered him to have recovered sufficiently to
be cared for at home and did not consider him to be terminally ill,
those who cared for him at his daughter’s home disagreed because of
his appearance and his considerable pain. Dr Moor, his GP, concluded
that Mr Liddell’s pain was due to some of the cancer not having been
removed. He prescribed oral morphine and then diamorphine, admin-
istered through a syringe driver. Before Mr Liddell’s death, Dr Moor
increased the dosage of diamorphine and then on the morning he died,
administered a bolus injection of a significant amount of diamorphine
and largactyl. Mr Liddell died shortly after this injection.117 Dr Moor’s
own involvement with the media led to his prosecution. He revealed to
journalists that he had caused a number of patients’ deaths via the same
method in order to alleviate their pain, leading to an investigation by the
regional health authority. At his trial, both the prosecution and defence
agreed that Mr Liddell was not terminally ill, but he was also suffer-
ing from a serious heart condition and that gave him the appearance of
being terminally ill. The jury acquitted Dr Moor, primarily on the basis
of medical evidence.118 The prosecution was unable to prove that the
injection caused the death, and the jury were directed to acquit him if
they were not satisfied that the injection of diamorphine had been of a
lethal dosage.
The judge, Hooper J, asked the jury to consider a series of questions
which he directed should lead them to a finding of not guilty if at any point
they answered them in the negative. The matter of causation formed the
content of one of the first of these:
116 ‘Proof of murder, members of the jury, would require proof that the doctor’s conduct
actually caused her death.’ Above, n.31.
117 These are the facts as presented in Arlidge 2000: 31–2 and Goss 2000: 568.
118 Although the prosecution’s toxicological evidence seemed damning in suggesting a
much higher dosage of diamorphine than Dr Moor had admitted to injecting, the
defence successfully challenged this evidence and the prosecution’s case was thereby
significantly weakened. Arlidge 2000: 32–3.
Has the prosecution satisfied you so that you are sure that the defendant caused
the death of George Liddell[?] . . . A person causes the death of another if his
act . . . contributed significantly to the death. It does not have to be the sole or
principal cause of death.119
If they answered yes, he asked them whether ‘the prosecution [has] sat-
isfied you so that you are sure that Dr Moor’s purpose in giving the
intramuscular injection was not to give treatment which he believed in
the circumstances (as he understood them) to be proper treatment to
relieve George Liddell’s pain and suffering?’120 If the jury’s answer was
again yes, they were to consider whether
the prosecution [has] satisfied you so that you are sure that the defendant when he
gave the intramuscular injection intended to kill George Liddell. . . . If Dr Moor
thought or may have thought that it was only highly probable that death would
follow the injection, then the prosecution would not have proved that he intended
to kill and he would be not guilty.121
If their answer to this final question was yes, then Hooper J directed the
jury to find Dr Moor guilty.
Consider the elements of the Moor direction. First, it presents a doc-
tor’s defence which comes into play after the jury has found causation as
a question of fact. Unlike Devlin’s direction, it does not turn causation
into a question of value; it does not suggest to the jury that if they wish
not to find causation because they do not consider the doctor criminally
responsible then they do not have to. Secondly, it frames the defence
around primary intention and virtually certain foreseen side effects and,
to this extent, bears resemblance to part of the DDE. Thirdly, Hooper
J places emphasis on the treatment the doctor administered as being
‘proper’. This was not a feature of Ognall J’s direction, but was part
of Devlin J’s.122 Proper treatment could simply be interpreted as treat-
ment that alleviates pain; however, this is only part of the matter. For
a doctor could administer a drug that has pain-alleviating effects but is
entirely improper on the basis of good, responsible medical practice. If
this aspect of the defence is applied in future cases, this does not bode
well for doctors who administer death-hastening high doses of analgesics
to relieve pain, as we will discuss in the following subsection. Hooper
J appears to make the assessment of proper treatment subjective rather
119 These are the questions as cited in Arlidge 2000: 39. We have omitted the first question
here, which related to whether the prosecution had satisfied the jury that Dr Moor had
injected a certain amount of diamorphine.
120 Ibid. 121 Ibid.
122 Devlin J also reminded the jury that this was part of the defence’s case. See above,
n.94, at 376.
than objective, given that he states, ‘treatment which [Dr Moor] believed in
the circumstances (as he understood them) to be proper treatment’.123
However, this seems to be because of the particular facts of Moor and the
doctor’s mistaken diagnosis of the patient’s condition. Hooper J’s origi-
nal direction had involved the making of an objective assessment.124 In
contrast, there is nothing in Devlin’s direction to suggest he was referring
to a subjective as opposed to an objective assessment of proper medical
treatment. This leads us to speculate that it is an objective judgement
as to whether the treatment administered was proper that the doctor’s
defence espouses, which raises the issue of medical politics and the power
vested in the medical profession to shape the criminal law’s response to
medical end of life cases.125
Adams, Cox and Moor place emphasis on certain elements of the DDE.
Young has claimed that it is what is perceived by some to be a central
premise of the doctrine (‘potentially lethal drugs . . . may be administered
provided only that they will relieve serious suffering and there is no
equally efficacious alternative with fewer side effects’).126 But perhaps
because the DDE has not been explicitly considered in these end-of-life
cases and is only partially reflected in a small number of cases, there
is no discernibly consistent clarification of the DDE across the legal
judgments. When the doctrine has appeared in the law, ‘its complexities
have generally been overlooked. Often the judges have failed to appreciate
that there is no single “doctrine of double-effect”.’127 Because it is not
by any means a complete or clear version of DDE that the judiciary is
applying in cases where doctors administer lethal doses of drugs, this
raises the question of the nature of the ‘doctor’s defence’ actually being
applied. Is it based on causation (Devlin), or primary intent (Ognall’s
and Hooper) and the notion of proper treatment (Devlin and Hooper)?
The slipperiness of the doctor’s defence reveals something signifi-
cant concerning the role this defence plays. Why have a special, blurred
defence available to doctors charged with murder who administer life-
shortening, pain-alleviating drugs but not to others? Drawing upon pre-
vious work of one of the authors,128 we argue that the application of
the doctor’s defence in these end-of-life cases operates to conceal a judi-
cial perception that the perceived morally good motivation behind the
physician’s actions means we should be very slow to infer the necessary
intent that would make his actions legally culpable. In other words, a
123 Arlidge 2000: 39 (our emphasis).

124 Arlidge 2000: 38–9; Huxtable 2007: 103, n.6. 125 See Chapter 8, at 249.
126 Young 2007: 101. See also Smith 2000: 44.
127 Foster et al. 2011: 56 and see 66. 128 Ost 2007: 103.
defence based on intention and/or proper treatment and/or causation,

bearing some resemblance to aspects of the DDE, is utilised as a curtain
behind which moral judgements can operate to influence the conclu-
sion as to the physician’s intention and legal culpability. The underlying
moral judgement may be that the motivation is morally commendable, or
that by causing death, the doctor was utilising the only remaining means
available to perform his or her duty to relieve a patient’s suffering.129 If
sympathetic to the doctor, the judge can offer a narrative that empha-
sises whichever of the elements of the defence provide the greatest line
of defence. This provides an explanation for the haziness that we have
explored and might also explain Devlin J and Ognall J urging the jury to
apply ‘common sense’130 to reach the correct verdict.131
Is the power of this narrative camouflage reflected by the fact that the
criminal law continues to recognise and apply a doctor’s defence focusing
on intention and foresight, notwithstanding the House of Lords’ deci-
sion in R v. Woollin?132 Woollin confirmed that if death or serious bodily
harm was foreseen by the defendant as a virtually certain consequence
of her actions, the jury is entitled to find the necessary intent for murder.
The consequences for a defence which differentiates between intended
and foreseen consequences are highlighted by Norrie. In observing the
distinction drawn between primary and secondary purpose in Cox, he
noted that ‘This analysis . . . is challenged by the approach to intention
in Woollin, where any secondary purpose that has consequences that are
foreseen as virtually certain to occur is promoted to the same position
and status as a primary purpose.’133 However, such a secondary purpose
does not appear to be elevated to exactly the same status as a primary
purpose. Oblique intent in Woollin does not place a foreseen consequence
on the same level as a primary intention because the jury has the dis-
cretion not to find intent on the basis of such a secondary purpose.134
‘[A] permissive principle of evidence rather than a rule of substantive
law’135 enables juries to factor in moral and social considerations when
faced with a case where death or serious bodily harm is foreseen as
a virtual certainty.136 This supports Norrie’s contention that although
legal concepts such as ‘intention’ and ‘foresight’ may appear to be
morally neutral factual terms, in practice, they relate to inherently moral
issues.137
129 See also Norrie 2006: 499–500.

130 See above, n.94 and n.31. (Ognall J told the jury that, above all, ‘you must hold fast to
the touchstone of common sense . . . ’.)
131 See also Tur 2002: 78. 132 [1999] 1 AC 82.
133 Norrie 2011: 146. See also Otlowski 1997: 182; Price 1997: 325.
134 See also Foster et al. 2011: 65. 135 Ashworth 2009: 245.
136 See also Norrie 1999: 537; Williams 2001: 43. 137 Norrie 1999: 542.
Does the DDE reflect medical practice at the end of life?

Notwithstanding the place that the DDE has in medical ethics and prac-
tice, there is an increasing body of literature which contends that it is
irrelevant in the context of palliative care. It seems that doctors do not
use opioids with the intention of hastening death and their use is unlikely
to have this effect.138 Indeed,
the development of palliative care as a speciality has facilitated the refinement
of pain management in both choice and delivery of effective medication. It is
now very possible in most cases for pain, even when severe, to be well controlled
by the sustained administration of analgesia which just controls the patient’s
symptoms. . . . The need for sudden, potentially life-threatening high-dose med-
ication has largely been eliminated.139
Sykes and Thorns report a gradual increase in opioid doses as death

approaches that does not have the causal effect of shortening life.140 This
may have a significant impact on the availability of the doctor’s defence
in the form(s) it appeared in the cases discussed above, as it is likely to be
more difficult to satisfy the jury that the doctor administered proper treat-
ment if the administration of high dosages of analgesics is not in accor-
dance with good medical practice. For it can hardly be ‘proper’ treatment
if this is the case,141 unless the issue of proper treatment is ascertained
purely on a subjective basis, as appeared to be the case in Moor.
Implications for the criminal law and bioethics

One argument is that it should not matter if the doctor’s defence being
applied at law does not reflect the DDE, as understood in philosophy and
bioethics, because the DDE is not necessary in most cases of palliative
care. Thus, any incompatibility between criminal law and bioethics on
the issue of what a doctor is permitted to do to relieve suffering at the
end of life is largely irrelevant, especially if the criminal process and
professional regulators respond to doctors intentionally hastening death
for compassionate reasons in the same way, as Cox illustrates. That is,
they both appear to construct an intention to end life as wrongful but
deserving of minimal sanction. However, compatibility between criminal
law and bioethics is more likely if the defence being applied in what
are deemed to be appropriate cases reflects medical ethics and practice
138 George and Regnard 2007; Huxtable 2007: 89–91; Sykes and Thorns 2003; Wilks
2007: 171; Williams 2001: 46.
139 Warnock and Macdonald 2008: 97. 140 Sykes and Thorns 2003.
141 This would seem to fail the Bolam test, as modified by Bolitho (Bolam v. Friern Hos-
pital Management Committee [1957] 2 All ER 118; Bolitho v. City and Hackney Health
Authority [1997] 4 All ER 771). See also Saini 1999: 116.
at the end of life. Moreover, the criminal law’s response to such cases
would have greater legitimacy if it more honestly reflected what actually
occurred in terms of the doctor’s intention.
There are a number of options. First, rather than manipulating the con-
cept of intention in the criminal law through the inappropriate application
of a doctor’s defence based on causation and/or primary intention and
proper treatment, it is possible to construct an narrative that differently
interprets intention in the context of these cases and, more broadly, VAE.
Intention can be interpreted in two different ways; Kelman argues that
the courts and commentators unconsciously choose between viewing the
actor’s intention broadly or narrowly.142 Interpreting intent broadly, one
would perceive that the actor’s intention was to commit ‘some broader
category of act’,143 his or her behaviour being an instance of this. And, as
tends to happen in bioethical debate, one would look at all the surround-
ing circumstances. A narrow view of intent would involve looking at the
‘precise physical acts consummating the harm’ and one would consider
the actor to have intended ‘precisely what he did’.144 Thus, a broad view
of intent would be that the doctor intended to end suffering, and thus,
taking into account the surrounding circumstances, intended to commit
the broader category of an act which relieves suffering.145 The narrow
view of the doctor’s intent is that he or she intended to kill. Adopting
a broad view of intention might be preferable to applying the doctor’s
defence, because it would enable consideration of the surrounding cir-
cumstances and would not require doctors to deny that they intended to
cause death.
Adopting a broad view of intention would enable account to be taken of
subjectivity and the human element of compassion, thus reflecting virtue
ethics, giving regard to the ‘emotional element of human experience’.146
The danger of considering such human experiences is that ‘introduc-
ing human values or attitudes into the judicial process would conflict
with the idea of judgment sustained by rational and objective argumen-
tation, not feelings and emotions’.147 However, adopting the perspec-
tive of Lacey’s ‘reductive sceptic’, these elements can already be taken
into account through the application of the narrative camouflage of the
doctor’s defence, obscuring ‘retrospective rationalisations of substantive
value judgments’.148 The benefit of adopting a broader view of intention
is that these elements and value judgements become more explicit and
any role they play in judicial reasoning will have to be defended.
142 Kelman 1981: 620–30. 143 Ibid.: 667. 144 Ibid.: 624 and 667.
145 See also Ost 2007: 105. 146 Gardiner 2003: 297. 147 Smith 2011: 521.
148 Lacey 1993: 622.
Alternatively, the ambiguity caused by varying constructions of inten-

tion could be abandoned and the doctor’s defence could be framed
around medical ethics. Tur has suggested that the defence should be
‘based on professional ethics’, centring on the doctor’s professional duty
to relieve suffering. Its application would thereby recognise the differ-
ent ethical duties doctors follow in contrast to laypeople,149 and their
different level of responsibility.150 This is attractive because it reflects
the popular moral judgement that a doctor should not be criminally
accountable in these cases. Because it does not manipulate the concept
of intention, it is more honest. The major problem with Tur’s suggestion
is that according to empirical research, it should not be necessary in the
vast majority of cases to relieve suffering by administering a lethal dosage
of medication. So basing the defence on the doctor’s duty to relieve suf-
fering does not seem to pass muster, unless it is accepted that there may
be a very small minority of cases in which a patient’s suffering cannot
be alleviated without a life-threatening dose of medication or unless the
professional duty is revised so that it is considered acceptable to relieve
suffering by ending life. If the criminal process should reflect medical
ethics and practice at the end of life, then broadly viewing the doctor’s
intention as the relief of suffering is problematic for the same reason;
the hastening of death should not occur when doctors relieve suffering
according to good medical practice. Thus the narrative camouflage used
to evade the proscription of any intentional ‘mercy’ killing is exposed as
a sham.
In the light of this, both criminal law and bioethics need to revisit the
question of whether it can ever be legitimate to administer lethal doses
of drugs in rare cases where the patient’s suffering can only be alleviated
by death. There must surely be other rare cases like Cox where a lethal
dose of medication is the only remaining means of alleviating suffering;
can this be construed to be a legitimate action? Whatever the answer,
the criminal law and bioethics should strive for harmony and honesty
in their responses to this situation. If the answer is yes, then the law
should recognise that the doctor’s intention is to end life but, nonethe-
less, a defence could exist because ending life is the means to achieve
the principal intention of alleviating suffering (that is, the broader view
of intention). The relief of suffering is the physician’s ultimate purpose.
Whilst she intends death, death is her instrumental intention, not her
ultimate purpose. This would lead to a more honest reflection of the
(rebuttable) presumption in favour of reverence for life,151 which would
avoid conflict between criminal law principles as they appear on paper
149 Tur 2002: 90–1. 150 See Chapter 7, at 207–9. 151 See Chapter 3, at 90–92.
and as they are (mis)applied in practice. To work in harmony with this,

the doctor’s duty to relieve suffering in medical ethics and practice would
need to be extended to include ending life where this is the only remain-
ing means to relieve suffering.152 This would still involve a manipulation
of the concept of intention in order to exonerate a medical professional
who acts in good faith but behaves in what should be a criminally liable
fashion. Ashworth has criticised the courts for this because ‘in doing so,
they have placed sensitivity to the moral issues above the goal of consis-
tency in criminal law concepts’.153 But given the special circumstances
of the ‘doctor cases’, the primary concern should be that there is consis-
tency within these cases. It is currently an application of an inconsistent
defence that is exonerating doctors, and a more consistent approach is
possible. Moreover, unlike the doctor’s defence in its current form, a
more honest and realistic narrative that enables judges to apply common
meanings ascribed to the doctors’ behaviour should better ensure that
the public accept the legitimacy of the criminal law.154
The criminal law’s differentiation between doctors and

relatives: a ‘benign conspiracy’?155
Assisted dying does not occur only when doctors end a life to relieve
suffering. The identity of the assistor has an impact on the criminal
process’ response.156 The harshness of the strict law on intention is cir-
cumvented in different ways depending on the identity of the individual
in the dock.157 Doctors who carry out VAE may be given favourable
treatment over laypersons who carry out mercy killings through an initial
decision by law enforcement officials not to bring their case before the
criminal law. The fate of parents such as Kay Gilderdale or Frances Inglis
tends to lie, in contrast, in the hands of juries once the (more common)
decision to prosecute has been made.
This discrepancy in the criminal law’s response is carried through to the
defences available to relatives in mercy killing cases. Diminished respon-
sibility reduces the charge from murder to manslaughter if the defendant
was suffering from an abnormality of mental functioning arising from
152 In recommending that legislation be enacted permitting medicalised assisted suicide in

the case of terminally ill individuals, the Commission on Assisted Dying state that codes
of practice would need to be developed ‘to guide appropriate professional conduct’ by
professional bodies such as the GMC. Commission on Assisted Dying 2012: 33.
153 Ashworth 1996: 185.
154 See generally Lacey 1993. As we observe in Chapter 7 at 215, narratives are more likely
to be accepted if they appear truthful.
155 Law Commission 2004: 17. 156 Norrie 2011: 152.
157 Ibid.: 154; Huxtable 2007: 67–8 and 108.
a recognised medical condition which substantially impaired the defen-

dant’s ability to do one or more of the following: understand the nature
of her/his conduct; form a rational judgement; exercise self-control. The
abnormality of mental functioning must have been a significant con-
tributory factor in causing him/her to act.158 The defence is frequently
relied upon by relatives,159 giving rise to the charge that it is fairly easy
to bring ‘mentally normal’ mercy killers within the scope of diminished
responsibility.160 According to the Law Commission, a ‘“benign conspir-
acy” between psychiatrists, defence, prosecution and the court to bring
[relatives] within diminished responsibility’161 avoids a murder convic-
tion. Diminished responsibility does not tend to operate in cases of med-
ically assisted dying. Lacey has noted the existence of ‘assumptions and
prejudices which shape the interpretation of the responsibility require-
ment for different classes of defendant’.162 The assumption underlying
the availability of the defence to relatives but not doctors is that the
former must have been under such emotional pressure that they were
likely to succumb to depression or some other form of mental illness.
Doctors are perceived as being more rational and objective. As a defence
based on an abnormality of the mind seems harder to apply to doctors,
a desire to avoid criminalising their actions has to be put into practice
through non-prosecution or the operation of the doctor’s defence. This
is arguably a better result for doctors than being labelled as mentally
abnormal; however, if they are prosecuted and the doctor’s defence is
not available, the likely result is a conviction for murder or attempted
murder, as Cox demonstrates.
The DPP’s prosecution policy on assisted suicide also suggests that a
more demanding level of responsibility can work against doctors. Accord-
ing to the policy, cases of assisted suicide are more likely to result in
prosecution where the assistor is a health care professional rather than
a relative.163 This factor was inserted into the final policy following its
identification as a factor that should tend in favour of prosecution by
34% of 537 respondents to the consultation that followed the publica-
tion of the interim policy.164 The CPS gave no explanation as to why this
should be a factor in favour of prosecution.165 One reason might be the
public’s trust in the medical profession. Ensuring that the prohibition
158 S.2(1) of the Homicide Act 1957, as reformulated by s.52 of the Coroners and Justice
Act 2009.
159 Ost 2007: 105–9. For a recent example, see ‘“Mercy Killing” pensioner freed over
wife’s death’, The Independent, 27 January 2011.
160 Huxtable 2007: 39–41. 161 Law Commission 2004: 17. 162 Lacey 2001a: 356.
163 CPS 2010a, para 43. 164 CPS 2009; CPS 2010b.
165 CPS 2010b ibid.: paras 3.3, 3.5 and 3.7.
on physician-assisted dying is maintained through a policy which makes

prosecution of doctors more likely ‘allow[s] physicians to maintain the
fiction that they always promote life and never act as agents of death,
out of concern that patients otherwise would not trust them’.166 How-
ever, there is no evidence to suggest that this would be the case, and
this factor tending in favour of prosecution may ‘cause practical and
symbolic damage to the doctor–patient relationship’.167 This issue has
been brought to the fore by the case of ‘Martin’. At forty-three, he is
in locked-in syndrome following a massive stroke. In his view, his life
is intolerable and undignified, but none of his family members are pre-
pared to assist him to die. In 2012, he challenged the DPP’s policy,
arguing that it failed to have regard to someone in his position. He asked
that the policy be amended so that professionals would not be prose-
cuted or face disciplinary action if they helped him end his life. He was
unsuccessful, but has been given leave to appeal against the High Court’s
decision.168
The cases in the run-up to the DPP’s policy and thereafter are those
in which relatives have facilitated a loved one’s assisted suicide abroad
(RFASA cases), utilising Dignitas’ services.169 Recognition of the rela-
tives’ compassionate motivation has resulted in no prosecutions occur-
ring in such cases.170 This absence of prosecutions is due, in part, to
the fact that the relatives’ involvement in the assisted suicide is ‘towards
the less culpable end of the spectrum’171 of acts constituting assistance.
RFASA cases involve doctors too, because Dignitas requires access to
the patient’s medical records. In theory, providing information regarding
the patient’s condition to Dignitas could fulfil the actus reus requirement
of an act capable of assisting or encouraging a suicide under section 2 of
the Suicide Act 1961, and mens rea will be made out if the doctor intends
to assist or encourage the suicide.172 Groups representing doctors are
concerned about this,173 but despite the stated public interest factor in
favour of prosecuting if the assistor is a health care professional, no doc-
tors who have provided medical records to Dignitas in RFASA cases
166 Hall 2002: 500. 167 Heywood 2010: 440.

168 R (on the application of AM) v. DPP [2012] EWHC 2381 (Admin).
169 See Ost 2010b: 505–8; CPS 2008.
170 Commission on Assisted Dying 2012: 23. 171 CPS 2008.
172 See Huxtable and Forbes 2009.
173 See ‘Healthcare professionals are at greater risk of prosecution for assisting suicide
following new DPP guidelines says MPS’, 26 February 2010. Available at http://
www.medicalprotection.org/uk/press-release/Healthcare-professionals-at-greater-
risk-of-prosecution-for-assisting-suicide-following-new-DPP-guidelines-says-mps.
have been prosecuted. And doctors may feel obliged to assist because a
refusal to accede to a patient’s request for medical reports could breach
their ethical and legal duty to her patient.174 Moreover, there are cases
in which a doctor has gone further than this. In 2006, Dr Michael Irwin
accompanied Dave Richards, who suffered from Huntington’s disease,
to Switzerland for his assisted suicide and later accompanied Raymond
Cutkelvin to Dignitas and contributed towards the costs of his assisted
death in 2007. He has offered guidance to other individuals who have
had assisted deaths at Dignitas.175 Dr Irwin’s non-prosecution176 sug-
gests that despite the distinction drawn between relatives and doctors in
the DPP’s policy, the fact that the facilitator is a doctor (albeit retired and
having been struck off the register in Dr Irwin’s case) is not automatically
going to result in prosecution. Notably, then, the resolution of the ethical
questions touching on assisted suicide takes place off stage in the offices
of the DPP.177
Otlowski has argued that
there are certain fundamental problems with the present legal position which
tolerates serious inconsistencies between legal principles and the law in
practice . . . because the administration of the law depends to such a large extent
on intangible considerations of sympathy, there is no guaranteed consistency of
application, thus raising serious questions regarding justice and equality before
the law.178
Medical and lay cases are treated differently in accordance with assump-
tions that influence the construction of a relative’s or doctor’s responsi-
bility in order to reach the ‘right’ result. As such, although it is a measure
of justice that like cases are treated alike, a ‘benign conspiracy’ between
the CPS, the opposing sides in the cases and the courts operates, treating
medical and nonmedical cases of assisted dying differently. It might be
argued that treating these cases differently can ensure that justice is done
(or tempered by mercy) by allowing, for example, the defence most likely
to exonerate the defendant. The problem with this approach is that the
assumptions underlying the construction of relatives’ and medical assis-
tors’ responsibility remain unchallenged. A similar ‘benign conspiracy’
174 See also Mullock 2010: 467; MPS op. cit.; Commission on Assisted Dying 2012: 96.
175 Montgomery 2011: 659–62.
176 See CPS, ‘The suicide of Mr Raymond Cutkelvin – decision on prosecution’, 25
June 2010, para 48. Available at http://www.cps.gov.uk/news/articles/the suicide of
mr raymond cutkelvin decision on prosecution/index.html.
177 Although we note that the doctor may face a fitness to practise investigation. See
Commission on Assisted Dying 2012: 95.
178 Otlowski 1997: 148.
exists amongst the judiciary in the final category of the medical ending
of life, ‘another area where every attempt has been made to interpret the
law in such a way as to avoid doctors incurring criminal liability’.179
(Evading) the criminal law’s role in cases of withdrawing

life-sustaining treatment
Professional dilemmas such as that involving the withdrawal of treatment
from Anthony Bland present dramatic conflicts in the popular imagina-
tion, sometimes as a spectacle of macabre medical ending of life, but
at other times as the manifestation of medical compassion. In commen-
tary on the legal resolution of the tragic fate of Bland, Terri Schiavo180
and other patients in (P)VS,181 one ‘story’ recounts that doctors end the
lives of VS patients despite there being cases where such patients have
‘recovered’.182 Another applauds the decision to let VS patients die with
some dignity.183 A third factor is at play. Objections to doctors ‘end-
ing life’ exist alongside contrasting perceptions of modern medicine and
technology having kept alive bodies of those in the VS whose conscious
minds are dead, creating a modern-day version of the ‘undead’.184 Given
the absence in England of any statutory framework governing the end
of life, the courts have become the theatre to resolve these bioethical
controversies.
We focus on cases brought in the civil courts (the Family Division
or the Court of Protection), such as B v. An NHS Hospital Trust185
(hereafter Ms B.) and Airedale NHS Trust v. Bland, and the interpretation
of the criminal law in these cases. To begin with the withdrawal of life-
sustaining treatment from a competent patient, the Ms B. case involved
a patient who had suffered an intramedullary cervical spine cavernoma
which caused her to become tetraplegic. She was entirely dependent
upon an artificial ventilator and cared for in an Intensive Care Unit.
179 Ibid.: 152.

180 Schindler v. Schiavo 780 So 2d 176, 177 (Fla Dist Ct App), 2001); In re Guardianship
of Schiavo. 789 so 2d 348 (Fla, 2001).
181 Persistent/permanent vegetative state. For an explanation of the condition, see Jennett
2002. More recently, the condition has been referred to simply as the vegetative state.
182 See, e.g., ‘40% of coma patients in a “vegetative state” may be misdiagnosed, says a
new report’, The Times, 9 December 2007. See also Biggs 2002: 95–6.
183 See the contrasting views of members of the international public in ‘Terri Schiavo
death: your reaction’, BBC News, 5 April 2005, available at http://news.bbc.co.uk/1/
hi/talking point/4398269.stm.
184 ‘ . . . the material system in PVS is neither a person nor a corpse, but “undead” . . . ’
Protevi 2005: 11 and 12.
185 [2002] EWHC 429 (Fam).
The medical team had continued invasive treatment against her wishes,
and she argued that this amounted to an unlawful trespass and criminal
assault. She sought to prevent continued ventilation and to be ‘allowed’
to die. For many months, doctors questioned the validity of a ‘living
will’ previously executed by Ms B and contended that she lacked mental
capacity. Ultimately, psychiatrists found her to be competent, and she
demanded that the ventilator be switched off, refusing the option of
transfer to a spinal rehabilitation unit and a bed in a hospice. Much of the
case revolved around the persistent challenge to Ms B.’s mental capacity,
but Butler Sloss P concluded that Ms B. did possess the necessary mental
competence to request treatment withdrawal and that from the point
at which this competency had been held to exist by the psychiatrist,
the Trust had acted unlawfully in providing ventilation against Ms B.’s
wishes. The judge emphasised the subjective character of the gravely
disabled person’s experience of his or her condition and treatment, as to
do otherwise would be to adopt a ‘benevolent paternalism’ which fails to
give due respect to individual autonomy.186
The criminal law played an unseen role in this case, in that treating
Ms B. against her wishes constituted a criminal assault from the point
at which she was deemed competent. The underlying construction of
withdrawing ventilation as an omission was crucial.187 This enabled a
distinction to be drawn between (i) complying with the patient’s wishes
that life-sustaining treatment be withdrawn, allowing her to have the
death she desired (lawful behaviour), and (ii) a doctor acceding to a
patient’s request for assistance in her suicide (criminal behaviour).188
Therefore, the criminal law’s grasp was evaded through the power of
negative patient autonomy. Such significance was attached to Ms B.’s
autonomy in law and ethics that the criminality of the doctors was an issue
not in terms of withdrawing life-sustaining treatment, but in terms of not
withdrawing treatment. Criminal law thus protects negative autonomy
(the right to be left alone) but does not allow the exercise of positive
autonomy (a request for ‘active’ assistance in death) to result in VAE
being treated differently from murder. Therefore, it is the way in which
the criminal law responds differently to negative and positive autonomy
that leads to the inconsistency in its treatment of doctors in Ms B. and
the assisted dying cases.189
186 Ibid.: para 94. 187 Savell 2011: 63. 188 Ibid.
189 See also Biggs 2003: 296–97; Savell 2011: 72–3. On the criminal law’s restrictions on
the exercise of positive autonomy regarding our bodies, see Chapter 2, at 45–55 and
63–5.
The interpretation of their role (or lack of role) in Ms B.’s death did not
sit comfortably with Ms B.’s doctors, one of whom considered that she
was being asked to kill her patient.190 Their perception of their respon-
sibility for and causal role in her death was different from that con-
structed under the law.191 This can be further explored through Miller,
Troug and Brock’s recent categorisation of the distinctions drawn in
law and ethics between ‘active’ assistance to end life and withdrawing
life-sustaining treatment as ‘moral fictions’. They explain these as ‘moti-
vated false beliefs that erroneously categorize withdrawing life-sustaining
treatment in order to bring accepted end-of-life practices in line with
the prevailing moral norm that doctors must never kill patients’.192 As
a matter of common sense, withdrawing ventilation from Ms B. must
have been the proximate cause of her death, rather than her autonomous
wish to die. This wish could only remain a wish without the interven-
tion of her medical team. Nor is it true that the proximate cause of
Ms B.’s death was tetraplegia, because if ventilation had continued she
would have survived for a longer period. In short, ‘[t]he withdrawal of
the ventilator [was what resulted in Ms B.’s] dying at the time and in
the manner that [she did].’193 The claim in law and medical ethics that
doctors in such cases allow their patients to die rather than cause their
deaths is a fiction. This exists, in the view of Miller et al., to ‘uphold the
traditional norm of medical ethics that doctors must not kill or intend
their patient’s death, and [is] needed to square medical practice with
the prevailing law’.194 The medical team caring for Ms B. glimpsed
behind this moral fiction and were disturbed by the reality of their role
in Ms B.’s death. Butler Sloss P chose to maintain the moral fiction,
and consequently the criminal law appeared a peripheral player in the
case.
There is no denying the central relevance of the criminal law in Bland.
A primary reason that a High Court declaration was sought that it was
lawful to withdraw life-sustaining treatment in the form of artificial feed-
ing from a PVS patient was to ascertain whether the doctors would face
prosecution if they withdrew Anthony Bland’s treatment. The patient had
sustained anoxic brain damage because of crushing at the Hillsborough
Disaster in 1989, which had led to him entering the VS. It was ultimately
190 See Savell 2011: 66.

191 Ibid.: 64–6. See also General Medical Council [GMC] 2010: para 33.
192 Miller, Troug and Brock 2010: 453.
193 Ibid.: 456. For an opposing view on causation, see McGee 2005: 383, n.72. We are not
arguing here that Ms B.’s tetraplegia was causally irrelevant. See Coggon 2008b: 578.
194 Miller et al. 2010: 459.
held by the House of Lords that withdrawing treatment was an omission

rather than an act. The medical team were not under a duty to continue to
treat the patient because it was no longer in his best interests to continue
to receive treatment: it served no useful purpose, given his prognosis.
The civil law’s jurisdiction was utilised to make a declaration regarding
questions of criminal law. Despite the granting of the declaration that the
doctors would not be acting unlawfully, there was no promise that they
would not be pursued under criminal law but, rather, that the declaration
would inhibit prosecution.195 Bland is not a criminal law case, but the
judges interpreted the criminal law. It was not the major player that it
should have been because of judicial manipulation of key legal concepts
and principles; the judges primarily classified the withdrawal of treatment
as an omission rather than a commission in order to avoid the conclusion
that it would be an act undertaken with the intention of causing death.196
In doing so, they recognised that the intention was to end the patient’s life
because, although the case involved a special duty and thus an omission
could be criminally culpable, the duty to treat no longer existed, because
it was decided that continued treatment was futile.
Critique of the fundamental basis for the judgment in Bland – the
application of the act and omission distinction, the classification of with-
drawing the provision of the patient’s food through the nasogastric tube
as an omission and the artificial construction of futility of treatment rather
than futility of life – abounds.197 For in such cases, the judiciary engages
in a charade: the construal of acts as omissions and the medicalisation
of the event by focusing on futility of treatment means that the criminal
law’s grasp can be evaded. Essentially, the Law Lords in Bland knew what
the outcome should be and manipulated the criminal law and ethics to
achieve this outcome, as the Court of Appeal would subsequently repeat
in the case of the conjoined twins.198 Miola refers to the ‘leaps of logic
that were not always strictly credible’.199 To use Glenys Williams’ words,
the Law Lords ‘cunningly avoided’ the imposition of criminal liability
upon the doctors.200 Why? Williams’ analysis leads her to conclude that
‘[a]lthough on the one hand the law should not condone inequality of
treatment between categories of persons; on the other hand, if we per-
mit and expect doctors to carry out life and death functions which no
one else is allowed to perform, then they should be given correspond-
ing protection when a patient dies following the proper carrying out of
195 See Bridgeman 1995: 128–9. 196 Ibid.: 155.

197 See, e.g., Huxtable 2007: 124; Keown 2002: Chapter 19; Price 2009: 151.
198 See Chapter 6. 199 Miola 2007: 154. 200 Williams 2008: 78.
those functions.’201 She contends that even if the distinction is a moral

falsehood, it serves an important pragmatic purpose:
Where doctors are concerned . . . classifying treatment withdrawal as an omission

conveys the notion that it is acceptable to withdraw treatment, but more than this,
it also seemingly complies with society’s expectations where doctors’ potential
liability for causing their patients’ death comes into question . . . our intuition tells
us that doctors are not criminals ( . . . barring some exceptions) in the normal
sense of that word.202
Williams’ argument is supported by Miller and colleagues’ analysis of

‘moral fictions’.203 Again, we have a situation where the moral fiction that
doctors do not end their patients’ lives operates so that medical practice
conforms to the criminal law. McLean has critiqued Williams’ approach,
arguing that ‘it is not obvious that the distinction does in fact point to
good and bad people’. McLean rightly notes that some doctors who
withdraw treatment may do so with ‘bad’ intentions and some may do so
with ‘good’ intentions.204 However, the point of Williams’ analysis is not
to suggest that the distinction points to a truth that doctors who withdraw
treatment are morally good people when others whose omissions cause
death are morally bad. Rather, her point is that as a society, generally
speaking, we are reluctant to criminalise the behaviour of those who have
accepted a higher level of responsibility in terms of the health, lives and
deaths of others.205 The acts and omissions distinction is being used as
a tool to enable this stance to be reflected in criminal law. We doubt that
Williams would disagree that doctors who withdraw treatment can have
good and bad intentions (indeed, the proviso ‘barring some exceptions’
in the quotation above suggests that this is the case), and that they do
should not defeat the strength of her argument.
Is there an alternative way of reaching the ‘right’ result (no criminal
culpability on the doctors’ part) rather than relying on the act/omission
distinction? Tadros has suggested that it would be more appropriate to
base a finding of no criminal liability on a justification defence.206 Such
a defence would take into account motivation: the doctors must have
withdrawn treatment for ‘the right reasons’ such as ‘to prevent the con-
tinuing suffering of the family, or because there is no hope of future
201 Williams 2007: 59. 202 Williams 2008: 89. 203 Above, n.192.
204 McLean 2007: 98 (emphasis in original). 205 Williams 2008: 91.
206 Tadros 2005: 210. See also Ashworth 1989: 437. Price too refers to the notion of
justification, albeit in moral rather than legal terms: Price 2009: 156.
improvement’.207 Whilst this defence avoids the fabrication of the omis-

sion categorisation, the difficulty is finding a particular defence to apply.
For instance, it would go against the tide of existing case law to allow
necessity as a defence to murder, as Tadros himself notes.208 Although
this should not discount consideration of the suitability of this defence
to the situation, it does explain why a defence based on justification is
unlikely to replace reliance on the act/omission distinction to exculpate
doctors.
The Law Lords in Bland used civil law procedures to decide criminal
law matters.209 Effectively, in the words of Lord Mustill, the judiciary
was ‘embarked on a kind of proleptic criminal trial, without charge, jury
or verdict’.210 This approach did not convince Bridgeman:
The judgments in Bland show conflicting views and much uncertainty as to the
civil courts’ power to make a declaration as to criminal liability arising from a
proposed course of action and the effect of a declaration, if granted.211
Bridgeman called for proper resolution of the question of whether doctors

withdrawing life-sustaining treatment fall within the parameters of the
offence of murder. Without such resolution, we expect doctors to run
the risk of prosecution because a declaration under civil law that such
behaviour is lawful does not authoritatively set aside criminal liability.212
Indeed, Lord Mustill considered ‘it a great pity that the Attorney-General
did not appear in these proceedings between private parties to represent
the interests of the state in the maintenance of its citizens’ lives and in
the due enforcement of the criminal law . . . ’.213
207 Tadros, op. cit. It is apt here to note s.4(5) of the Mental Capacity Act 2005, according
to which the doctor determining whether to initiate or cease life-sustaining treatment
must not ‘be motivated by a desire to bring about [the patient’s] death’. S.4(5) was
inserted at the behest of MPs who saw the Act as a vehicle for allowing euthanasia
in by the back door. Its meaning has not been tested. It is, in fact, meaningless and
a further instance of English law seeking to avoid hard questions about the ethics of
end-of-life care. Assuming that desire means ‘want’ then, to comply with this section,
the doctor must not want the patient to die; but what else is the purpose of withholding
treatment? Is it that the doctor should simply prefer that there was another option, a
magic potion that would restore the patient to health and not just prolong existence?
And of course, the only person who truly knows the motivation that causes a doctor
to withdraw treatment is the doctor. Consider the nefarious medical professional who
withdraws treatment, having presented the motivation as being to act in the patient’s
best interests when, in fact, the real motivation is to relieve the doctor of the burden and
inconvenience of caring for that patient. Provided continuing treatment is considered
not to be in the patient’s best interests, and absent any proof of a desire to bring about
the patient’s death, it seems that s.4(5) will have little bite. See also Coggon 2007a.
208 Ibid.: 209. See also Ost 2007; Dennis 2009: 47. Note the Nicklinson case (see above,
n.16).
209 See also Huxtable 2007: 124. 210 At 888. 211 Bridgeman 1995: 132.
212 Ibid.: 126 and 129. 213 At 889.
However, it was not so much a role-abdication on the Attorney Gen-

eral’s part which meant that the criminal law was inadequately consid-
ered, as the way in which the case was framed. There are two possible
reasons that the civil courts were a preferable venue to decide a case
raising a fundamental question for the criminal law of homicide. First, in
ascertaining whether it was unlawful for doctors to behave in a way that
would end the patient’s life through the civil courts, Bland could be nar-
ratively framed as a special case that could be tackled on the basis of the
doctor–patient relationship and the doctor’s duty of care. Instead of leav-
ing the doctor to face the dock, professional standards could be utilised
to ascertain prospectively the lawfulness of withdrawing life-sustaining
treatment, rather than applying the law of homicide after the event, as
would occur if the withdrawer were someone other than a doctor.214
Again, we see medical and nonmedical instances being treated differ-
ently and doctors being treated as ‘special’.215 By presenting Bland as
a special medical case, it was possible to differentiate what the doctors
proposed to do from cases where individuals were held to be criminally
liable for deaths that were the result of a failure to act that amounted to a
breach of duty for the reasons Williams outlines.216 Whether the doctors
would be causing Anthony Bland’s death was irrelevant because, via the
conclusion that there was no duty to treat, withdrawing treatment was
deemed lawful medical practice.217 Provided that what the doctors pro-
posed was in accord with good medical practice, this was not a matter for
the criminal law.218 A lawful solution to a bioethical dilemma could thus
be found without having to take on the harder conundrums of criminal
law.
A second reason for avoiding framing Bland as a criminal law case
relates to the theatre surrounding the case.219 If the criminal law aspects
of the case were downplayed by its being decided in accordance with
principles applying to medical ‘treatment’, the decisions of the courts
involved might attract less controversy than if it had been played out
in the criminal process. If doctors’ proposed life-ending behaviour was
perceived as part of normal medical practice sanctioned by the courts it
would attract less negative media attention. Minimising press coverage
was one of the reasons that the Official Solicitor advised that the Trust
seek a declaratory judgment from the High Court rather than leaving
214 Bridgeman 1995: 126–8. 215 See also Otlowski 1997: 161.
216 Such as R v. Stone, R v. Dobinson [1977] QB 354. See also Bridgeman 1995: 124.
217 Price 2009: 160. 218 See generally Skegg 1988: 163; Otlowski 1997: 154.
219 For an interesting discussion of the media coverage of the case and protests, see Howe
2006.
the matter for the criminal law.220 And, unsurprisingly, for the neurol-
ogist responsible for Anthony Bland’s treatment and care, ‘the idea of
months suspended from work, press attention, a trial for murder, and a
General Medical Council hearing was not an attractive option’.221 The
task of ‘legitimising’ withdrawal of life-sustaining treatment falls so often
to judges on an application for a declaration because doctors are unwill-
ing to sail the choppy waters between Scylla and Charybdis. When the
sanction for making a wrong call could be prosecution for homicide in
one event, or assault in the other, who would not seek a civil judicial
cloak?
Charades and prosceniums:222 it’s all an act,

but to what end?
It was nobly said in another place . . . “that the law is best applied, when it is
subservient to the honesty of the case.”223
What the audience see in the criminal law’s response to medical end-of-
life cases is a fiction; flawed reasoning lies behind orchestrated narrative
framing and ‘widespread connivance to defeat the application of the crim-
inal law’.224 The doctor’s defence and the act and omission distinction
are prosceniums giving the illusion of careful legal reasoning that divides
the good from the bad and the permissible from the prohibited. But the
presentation of the medical ending of life they convey is a charade. Far
from the law being subservient to the honesty of the case, the honesty of
the case is subservient to a distorted law.
In cases where doctors have hastened their patients’ deaths though the
administration of a lethal dose of medication, we see a manipulation of
fundamental criminal law concepts in order to reach the right results
when the doctor’s actions are considered morally acceptable. The ambi-
guity surrounding the concept of intention is taken advantage of and, as
Cox illustrates, motivation is let in through the back door in the treat-
ment of doctors who are convicted: the sentence passed by the judge is
indicative of an underlying perception that they are morally excusable.
The doctor’s defence is a moral façade and its haziness only supports
the argument that the judges are engaged in a ‘pick and mix’ opera-
tion to allow the doctor to be exculpated when it is considered morally
appropriate. It is ironic that the application of the defence resulted in the
acquittal of Dr Adams, a defendant seemingly more like Shipman than
220 Ibid.: 242. 221 Ibid.: 241.

222 The stage curtains in theatres and the ornamental frameworks from which they hang.
223 Master v. Miller (1791) 4 TR 320, 335, per Buller J. 224 Otlowski 1997: 150.
a doctor providing a merciful death for reasons of compassion.225 And

its unavailability resulted in the conviction of Dr Cox who, according
to all the parties involved in case, acted with a beneficent motivation.
Furthermore, there are problems posed by the application of a doctor’s
defence that is perceived to reflect the DDE because the DDE is appar-
ently irrelevant in end-of-life medical practice. If the law is to change,
judges or lawmakers need to ensure that what is proposed ‘fits’ mod-
ern healthcare practice. We are not arguing that a special defence should
not be available for doctors. The medical ending of life is a special case
and the availability of a defence reflects common understandings that
this behaviour should not attract the label of criminality. McGee, for
example, forcefully endorses the argument that the criminal law should
privilege the doctor by classifying end-of-life care as ‘proper medical
treatment’ and largely allowing doctors to determine what is ‘proper’.226
What we argue is that the basis of any defence needs spelling out,227 and
that a defence that reflects a broader view of intention would be more
honest. This would maintain the differing approaches taken to medical
and nonmedical cases which we have criticised. However, our criticism
centres on the failure to explore the assumptions that provide the basis
for constructions of doctors’ responsibility.
The withdrawal of life-sustaining treatment is being framed as primar-
ily a civil rather than a criminal law matter and thus effectively evades
the criminal law’s grasp. Where the judges apply the criminal law, they
perform a charade which presents the withdrawal of treatment as an omis-
sion and medicalises the situation in order to ensure the ‘right’ result, or
at least the result that will attract less controversy and avoid more taxing
criminal law questions. It is thus hard to evaluate whether the criminal
process is a just and appropriate forum for resolving bioethical dilemmas
of withdrawing life-sustaining treatment because the criminal law issues
are neatly sidestepped by the courts.
What is the purpose of this fiction and orchestrated narrative framing?
To protect doctors? To attain the legal result that society seeks? McCall
Smith has referred to ‘a zone of indeterminate application’ in offences
‘in which the criminality of acts can only be ascertained in the context
of an understanding of the community attitudes’.228 Everything points
towards such a zone operating to avoid findings of criminality that do not
correspond with society’s attitudes and moral norms in end-of-life cases.
There is a need for more honesty in such cases and clearer connections
between criminal law and medical ethics. So why can the criminal law
225 Devlin 1985: 197–210. 226 McGee 2011.

227 See also Saini 1999: 109. 228 McCall Smith 1999: 197.
not simply be more honest? Is it because ‘[o]penly to provide a defence

for an intentional killing of a patient would be to tackle a matter which
should be left to the legislature’,229 or that if the criminal law were to take
a less evasive approach towards end-of-life cases, internal inconsistencies
would become more apparent?
Judges struggle with the dilemmas raised by the medical and nonmed-
ical ending of life. The ‘theatre’ surrounding these cases plays a primary
role in making both the judges’ and the CPS’ roles more difficult. First,
there is the significance of the life and death issues these cases present,
and their inevitable drama. The starring role that the judges perform
means that their judgments will be scrutinised and dissected. Academic
lawyers and bioethicists are necessarily critical. They introduce their own
interpretations of the law in their narratives of cases,230 in the same way
that the drama critic castigates actors for what amounts in her eyes to
an unconvincing performance, or a production for its questionable inter-
pretation of a play. It would take a brave judge on this stage to challenge
and disregard previous interpretations of the concept of intention, the
doctor’s defence or the act/omission distinction and to convince critics
that it is right to look beyond fiction and expose the truth. And if the
judge gets it wrong in his directions to the jury, the repercussions for
the accused could be grave indeed. The ‘theatre’ surrounding end-of-life
cases can also lead those who play a directing role to steer away from the
criminal process for fear that emphasising its relevance will attract more
controversy and negative publicity, as occurred in Bland.
Secondly, recent developments culminating in the publication of the
prosecution policy on assisting suicide have meant that the role of the
DPP and CPS in this theatre has moved from that of a (crucial) fringe
player to a prominent leading role, exposing their reasoning and decisions
to more critique. This has led to criticisms that the DPP has stepped
beyond his official role:
the effect of being forced to issue guidelines . . . means that the DPP has to decide
on the extent of the law, and to whom it applies. The change . . . comes after no
coherent public debate, and is driven by a response to individual cases rather than
by a wider strategic consideration of the aims of the policy that society wishes to
adopt.231
This shift to a more prominent role for the CPS was mandated by the
House of Lords in Purdy, but we do not lay the blame at the feet of the
judiciary for the centrality of the role they now share with the CPS. Why
229 Skegg 1988: 179. 230 See Chapter 7, at 213.

231 Commission on Assisted Dying 2012: 285.
is the legislature not concerned about, and apparently supportive of,232

what essentially amounts to a policy of non-prosecution for a statutory
offence provided certain criteria are satisfied? No doubt because this
neatly avoids the main political parties having to tackle the hot potato of
assisted dying, whilst keeping pro- and anti-assisted-dying campaigners
happy to a degree. When it comes to end-of-life cases, parliament and the
government continue to be gripped by stage fright.233 As with abortion, it
is left to individual members of parliament to propose law reform,234 and
their performances are almost inevitably less powerful than they would
be if they were supported by one of the main political parties. Acting
outside the limits posed by parliamentary and governmental political
caution, the Commission on Assisted Dying has recommended that
the policy be replaced with a legislative framework for assisted dying
permitting doctors to assist a terminally ill individual’s suicide provided
certain criteria are met.235 But there is still no escape from controversy,
with allegations of partisanship on the Commission’s part being made by
those opposed to any legal reform.236
The criminal law in books reveals but slight connections to bioethical
debate. The criminal process in practice offers a closer ‘fit’, albeit riddled
with contradictions. We consider how much this matters in Part III. The
answer may simply be that real life (and death) does not fit neatly into
any theory. The tragic case of the conjoined twins highlights this brutal
reality.
232 See above, n.25.

233 By way of two examples here, when the Bland case was in the public eye, following
questions about whether there would be any legal clarification on the withdrawal of
treatment, the Home Office’s responded that the Government ‘had no plans to change
the law’. See Howe 2006: 241. And in 2006, the Liberal Democrats dropped plans to
push for legal reform on assisted dying because, it was claimed, they feared a backlash
from the religious right. See ‘Party dropped euthanasia policy to appease religious,
MEP claims’, The Guardian, 20 September 2006. We are not suggesting here that
Parliament is not prepared to debate the issue. See above, n.24.
234 E.g., Lord Falconer’s unsuccessful attempt to decriminalise RFASA cases by amending
the Coroner’s and Justice Bill 2009. His amendment was defeated (194 peers against
and 141 in favour).
235 Such as the need for the involvement of two doctors, the existence of a settled wish
to die, a two-week waiting period (reduced to six days in exceptional cases), Com-
mission on Assisted Dying 2012: 25–34. The Commission has recommended that the
policy only continue to operate in cases falling outside of their proposed framework for
legalised assisted dying (at 33).
236 See, e.g., http://www.carenotkilling.org.uk/press-releases/falconer-report-biased/.
6 Which twin lives?
Our final study focuses on a single decision of the English Court of

Appeal, Re A (Minors)(conjoined twins: surgical separation).1 In that trou-
bling case, many issues addressed in this work make another appearance.
The Court was asked to rule whether surgery to separate conjoined twins
was lawful when an inevitable consequence of the operation was that the
weaker twin, who depended on her sister’s heart to circulate the blood in
her body, would die within minutes of separation. Ward LJ spoke of the
tragedy of the case, the ‘seemingly irreconcilable conflicts of moral and
ethical values’, and noted that the fate of the twins had received ‘intense
coverage in the media’.2 At the heart of the legal argument lay a decep-
tively simple question: if doctors operated and killed the weaker infant,
were they guilty of murder? Medicine and bioethics came together in the
‘theatre’ of the courtroom, the courtroom becoming for the time of the
hearing akin to theatre as much as judgment seat.3
However, whilst he acknowledged the presence of moral and ethical
issues in the case, Ward LJ distanced himself and the court from moral
or ethical debate, saying, ‘[i]t is, however, important to stress the obvi-
ous. This court is a court of law, not of morals, and our task has been
to find and our duty is then to apply the relevant principles of law to
the situation before us – a situation that is quite unique.’4 The judge
asserted a disconnection between law and morals, yet adjudicated on a
dispute that engaged ethics and morals. He misled himself. The Court
of Appeal in Re A was, like it or not, a court of morals. But in its moral
reasoning, bioethics played a role subsidiary to that of older and more
generalised notions of morals and moral philosophy, and even theology.5
Re A tests the limits of the criminal law and its capacity to govern intri-
cate dilemmas of modern medicine and bioethics. McEwan’s verdict was
1 [2001] Fam 147. 2 At 155.

3 See the language and imagery in Hewson 2001; Harris 2001: 221. 4 At 155.
5 The Roman Catholic Archbishop of Westminster and the Pro-Life Alliance were permit-
ted to make submissions to the court. No secular bioethicist was so honoured.
163
severe, accusing the Court of Appeal of leaving the criminal law in ‘total
disarray’ in its search for the ‘morally soft option’.6
In this chapter, we analyse the criminal law reasoning in Re A as
concisely as we can without doing violence to the complex argument
therein and show that it was the criminal law, not family law,7 that was
at centre stage in the litigation. And we attempt to identify how far the
legal argument reflects bioethical debate.
Jodie and Mary (Gracie and Rosie)

Gracie and Rosie Attard were born in August 2000 at St Mary’s Hospital
in Manchester. Their parents came from Gozo and received treatment in
Manchester as part of an arrangement between the NHS and the Maltese
government. Facilities to care for the complex needs of Mrs Attard in
the latter part of her pregnancy and for the twins when born were not
available in Malta. During the court proceedings and for some months
afterwards, the family’s identity was protected by an order from Johnson J
that nothing must be published that could identify the twins, their parents
or the professionals caring for them. The girls were assigned pseudonyms.
Gracie was known as Jodie and Rosie as Mary. For the remainder of
this chapter, we refer to the twins as Jodie and Mary. The girls were
ischiopagus conjoined twins joined at the lower abdomen. Each child
had her own brain, heart, lungs and other vital organs, but Mary’s lungs
and heart were insufficient to support her life independently and it was
only the common artery that she shared with Jodie that enabled Mary to
survive at all. Mary also had a ‘very poorly developed “primitive” brain’.8
Had she been born a singleton she would have died within minutes
of birth, and it would not have been possible to resuscitate her. Mary
survived because of the oxygenated blood pumped in and out of her by
Jodie’s heart. Jodie’s heart and lungs could not sustain Mary indefinitely
and the prognosis was that in six months or so Jodie’s heart might fail,
resulting in the death of both twins, or Mary might die, necessitating an
emergency separation to attempt to save Jodie. Such emergency surgery
had a much lower chance of saving Jodie (a mortality rate estimated at
60%) than elective surgery (a mortality rate estimated at 6%). Doctors
caring for the twins proposed that an elective separation should be carried
out. Although Jodie had some health problems and some anatomical
abnormalities, doctors judged that she should be able to lead a relatively
normal life. Once the common artery shared by Jodie and Mary was cut,
Mary would die. The twins’ parents refused to consent to surgery that
6 McEwan 2001: 246. 7 On which see Freeman 2001. 8 At 161.

Which twin lives? 165
would kill one of their daughters. Devout Roman Catholics, they affirmed
their faith in God; they were ‘quite happy for God’s will to decide what
happens to our two young daughters’.9 Nor were the parents convinced
that surgery was in Jodie’s best interests, fearing that she might survive
with a level of disability that would mean she could not be adequately
cared for in Malta. They feared they might have to leave her in foster
care in England.
Faced with parental objections and concerned about the potential lia-
bility of staff carrying out surgery that would result in Mary’s death, the
hospital applied for a declaration that the elective separation was lawful
and in the children’s best interests, notwithstanding the parents’ refusal to
consent to such surgery. Johnson J granted the declaration, managing to
find that separation was in the best interests of both girls and that surgery
did not amount to the murder of Mary: the cause of her death would
be the interruption of the blood supply from Jodie. On analogy with
cases where courts had authorised the withdrawal of artificial food and
hydration, the disconnection of Mary from her sister was not regarded as
a positive act but as an omission. Given that Mary’s best interests were
that her life should not be prolonged, that ‘omission’ was lawful. Hey
presto, surgeons were not killing Mary. The parents appealed, arguing
that the judge erred in his judgment that the surgery was in either twin’s
best interests and in finding that the surgery was in any event lawful. The
Court of Appeal largely rejected the judge’s reasoning, disagreed among
themselves, yet upheld the grant of the declaration. A further appeal to
the House of Lords never materialised.10 The parents decided not to
fight on and the operation took place. Inevitably, Mary died, but Jodie
did well and returned with her parents to Gozo. The happy outcome
that one child is growing up in good health and in her family’s care may
feel ‘right’, but cannot in law justify what was done and the outcome for
Mary.
The heart of the matter: the criminal process

In giving the first judgment in the Court of Appeal, Ward LJ noted that
the appeal raised issues of medical law, family law, criminal law and fun-
damental human rights. For many commentators and the media, the key
issue was: should surgery go ahead against the wishes of loving parents?
That cannot be right in terms of legal argument, for if the surgery that
resulted in Mary’s death constituted murder, parental consent was irrele-
vant. Once a child is born alive, the parents cannot authorise terminating
9 At 172. 10 Hewson 2001: 290–1.

that life, however much they and others may judge that a peaceful death
is in the baby’s interests.11 Many of the judgments in Re A are devoted to
family and medical law. We do not address these issues,12 but focus on the
arguments that killing Mary was not a crime. Bioethical arguments are
reflected in the judgments somewhat faintly, and arguments that might
have dominated ethical debate were this real case of the conjoined twins
merely a ‘thought experiment’ are fairly summarily dismissed. In what
we say, we sound ultracritical of the appeal court judges, yet we are not.
The task set them was an impossible endeavour.
Necessity and ‘self-defence’: a utilitarian

calculus disguised
In one form or another, all three judges concurred that exceptionally
the killing of Mary was justified by a legal defence of ‘necessity’. As
Brooke LJ summed up the argument, given the doctors’ conflict of duties
to Jodie and Mary and the greater harm to Jodie that would ensue if
surgery did not take place, the act to be done was needed to avoid
irreparable evil, no more was done than was reasonably necessary and
the evil inflicted was not disproportionate to the evil avoided.13 In giving
the fullest analysis of necessity and the criminal law, Brooke LJ faced a
formidable set of obstacles. The common law has for the most part set its
face against any plea that, outside the context of self-defence, necessity
to preserve X justifies the killing of Y. Brooke LJ cited Hobbes’ Leviathan
that ‘no LAW can oblige a man to abandon his own preservation’, only
to confirm that such extensions of the doctrine of necessity have been
‘authoritatively disapproved as propositions of English law’.14 So in R v.
Dudley and Stephens,15 the shipmates who killed and ate a cabin boy
after eighteen days in an open boat and facing starvation were convicted
of his murder. To allow a defence of killing an innocent man would
depart from morality and the boundaries of necessity would be too hard
to set. Many arguments may be advanced to seek to distinguish Re A
from Dudley and Stephens. In the latter, those who were to live judged
the necessity of killing the boy to save their own lives. Glanville Williams
famously commented that it was no more necessary to kill the cabin boy
than one of the three grown men. In Re A it was the doctors, not Jodie,
who chose to sacrifice Mary, and Mary had no long-term prospect of a
life independent of her sister; she was ‘self designated for a very early
death’.16 We will return to that point. But as well as the seminal decision
11 As Brooke LJ acknowledged at 213. 12 See Freeman 2001. 13 At 240.

14 At 211–2. 15 (1884) 14 QBD 273. 16At 239.
in Dudley and Stephens, Brooke LJ had to confront a veritable barrage of

authority that neither necessity (public or private) nor duress can justify
homicide. McEwan charges that the Court of Appeal had to ‘throw away
years of legal precedent’.17 We would perhaps charge rather that they
evaded years of legal precedent in a desperate attempt to allow what all
the judges saw as the lesser evil.
Given the fragility of the arguments for necessity, it is unsurprising
that Ward LJ sought to bolster his findings by resorting to the classic
context in which the common law has always held that it is justifiable
for A to kill B, self-defence or legitimate defence of others.18 He argued
that the harsh reality was that Mary was killing Jodie. She was in no
sense an unlawful aggressor but, as Ward LJ noted, self-defence does
not require that the individual posing the threat be acting unlawfully.
Using the example of a six-year-old boy shooting indiscriminately in the
playground, he concluded that regardless of the innocence or otherwise of
the child, killing him to save his playmates would not be unlawful. Thus,
‘a plea of quasi self-defence, modified to meet the quite exceptional
circumstances nature has inflicted on the twins, makes intervention by
the doctors lawful’.19 Yet again, the judge sought to confine his reasoning
to the exceptional case, a case to be decided on its very particular facts.20
Others have, with elegance and authority, dissected all three judgments
much more fully than we do here. We focus on three ‘hooks’ on which
the Court of Appeal strove to hang its conclusion that killing Mary was
not murder: that the doctors faced a conflict of duty; that Mary was
‘designated for death’, and that the case was ‘unique’.
Conflict of duty
Ward LJ expressed this conflict most clearly. He said of the doctors that
they ‘are under a duty to Mary not to operate because it will kill Mary,
but they are also under a duty to Jodie to operate because not to do so
will kill her. It is important to stress that it makes no difference whether
the killing is by act or omission.’21 Taken at face value, that claim should
mean that if her parents and doctors took no steps to preserve Jodie they
could have faced prosecution for manslaughter at least. Yet earlier, the
Lord Justice declared that had the doctors chosen not to intervene and
accepted the parents’ refusal to agree to separation, they would not have
been at risk of prosecution.22 Would it follow that the parents committed
no legal wrong in failing in their duty to Jodie, or simply that the CPS
17 McEwan 2001: 247. 18 At 203. 19 Ibid.

20 That is, the sacrificial separation of conjoined twins. 21 At 201. 22 At 173.
should elect not to prosecute? Any conflict of duty seems either to be

limited to a duty to weigh up carefully the obligations owed to each girl
or empty in content. Its importance in rhetoric becomes to justify in this
case and this case only, ‘choosing the lesser of two evils’.
Designated for death

That Mary would die within a short period of time and that she, unlike
Jodie, could not survive in the long term whatever the court’s decision
was a major factor for all three judges. Ward LJ adopted the language
of a Rabbinical ruling in a similar case that arose in Philadelphia in
1977. Mary was ‘designated for death’.23 Walker LJ used her hopeless
prognosis to conclude that the surgery would not in law be the cause
of her death but rather ‘she would die because tragically her body, on
its own, is not and never has been viable’.24 Try though they did to
close the gap in reasoning and policy, the judges found themselves in an
intractable dilemma. We are all so designated;25 what divides us is only
how soon we shall die. The fact that X has little time on the clock is not a
justification for hastening X’s death. Normally we do not know the span
of time left to us. We dare to assume that if it were provable that Brazier
would die in any case of heart disease in three days time and X needs a
kidney today, it would not be lawful to hasten her death to ensure that
the kidney is in prime condition, even with her consent. Supported by
Jodie, doctors considered that Mary could survive for six months and
more. Mary’s tragedy was that, unlike her sister, she had no chance of
independent survival. The choice of evils, and that her death was held
to be the lesser evil, derived from the extreme nature of her body’s and
brain’s deformities. Try though the Court of Appeal does to evade this
conclusion, Mary was sacrificed because her life has a lesser value than
her sister’s.
‘A very unique case’?

Ward LJ began and ended his judgment describing the case as ‘quite
unique’26 and ‘very unique’.27 Brooke LJ stressed the rarity of sacrificial
separation.28 Using different words, the appeal judges all sought to say
that Re A is precedent for nothing save an exact repeat of the cruel
fate that nature imposed on the Attard twins. Brooke LJ in particular
was anxious to stress that in his careful construction of the defence of
23 At 197. 24 At 259. 25 Harris 2001: 230–2. 26 At 155.

27 At 205. 28 At 206–8.
necessity, in the face of so much authority to the contrary, there is no

room for concern that others will be ‘too ready to avail themselves of
exceptions to the law which they might suppose to apply to their cases, at
the risk of other people’s lives’.29 It is this quest to avoid a slippery slope
that drove the judges to necessity, however warped, and led them to reject
other arguments. The court remained concerned to convince others that
this constrained judgment of necessity did not mark ‘an absolute divorce
from law and morality’, as Lord Coleridge had feared in Dudley and
Stephens.30
The rejected ‘defences’

In reflection on Re A over a decade later, the arguments that the Court of
Appeal rejected are of as much interest as those applied and are instruc-
tive about the relationship between criminal law and bioethics and the
principal defence endorsed (necessity).
Immunity and double effect

Ward LJ raised, only to dismiss, the notion that bona fide medical treat-
ment cannot be unlawful. He noted that ‘whatever immunity doctors
do enjoy, they have no complete immunity’.31 Had the Court openly
declared that, having satisfied themselves that the doctors had addressed
all the relevant medical considerations and acted with no evil intent
towards Mary, the surgery was lawful, there would doubtless have been
an outcry. The courts would have been accused of abdicating any role
in the protection of human life. And if anyone should have been granted
such a broad discretion to determine which, if either, twin lived, many
would agree with Harris that the children’s parents had the better claim.32
But the judgment, although apparently dismissing any immunity claim,
does privilege the doctors. Note again that Ward LJ states that had the
doctors accepted the parents’ decision to refuse consent, they would have
done no legal wrong.
The DDE gets a larger role in the judgments, but fails to take a starring
part (at least in terms of any explicit application).33 Could the act that
produced the ‘bad effect’ (surgery causing Mary’s death) be justified by
the good intention to preserve Jodie’s life? Could the surgery be seen as
akin to a doctor administering painkilling drugs with the intent of reliev-
ing pain in the knowledge that those drugs might hasten death, but doing
29 At 240. 30 At 239. 31 At 191. 32 Harris 2001: 236.

33 For discussion of the DDE, see Chapter 5, at 135–7.
so because that was the only way to relieve a patient’s agony?34 Counsel
for the Trust and Jodie contended that the DDE could be applicable,
although they revealed differing interpretations of the doctrine. Coun-
sel for the Trust claimed that Mary’s death would be an unintended
side effect rather than the surgeons’ primary purpose. Counsel for Jodie
argued that whilst the intention to cause Mary’s death would be present, it
was not culpable and the surgeons would not be blameworthy for causing
her death.35 Had the judges further mauled the DDE while attempting to
maintain a barrier to judicial legalisation of active assistance in dying, the
law’s coherence might well have imploded. Ward LJ concluded that the
DDE could not be applicable because it did not apply when the effects
were caused to two different patients and because surgery was not in
Mary’s best interests.36 Brooke LJ agreed that it was in no way possible
to argue that the surgery would be carried out in Mary’s best interests.37
However, according to Uniacke, it is incorrect to construe the DDE as
being inapplicable if the effects are caused to different people.38 Walker
LJ suggested a different conclusion as to the DDE’s applicability: ‘double
effect cannot be relevant to conduct directed towards Mary unless the
mere fact of restoring her separate bodily integrity, even at the moment
of death, can be seen as a good end in itself and as something which
ought to be achieved in the best interests of Mary as well as Jodie’.39 Sig-
nificantly, in Walker LJ’s view, the surgery was in Mary’s best interests
and his conclusion is indicative of a covert application of the DDE:
The proposed operation . . . would involve the positive act of invasive surgery
and Mary’s death would be foreseen as an inevitable consequence of an opera-
tion which is intended, and is necessary, to save Jodie’s life. But Mary’s death
would not be the purpose or intention of the surgery, and she would die because
tragically her body, on its own, is not and never has been viable.40
Yet he did not explicitly state that the surgeons would avoid criminal
liability by way of the DDE; there is no ringing endorsement of its rele-
vance in his judgment, although Uniacke argues that his justification of
the surgery is based on double effect.41
This implicit application of the DDE could be challenged, however,
if Mary’s death is the means to achieving the good end of saving Jodie’s
life, because it would not then be permitted under the doctrine. For
example, ‘I cannot argue . . . that I did not intend to kill someone but
merely to remove her heart in order to use it as a transplant to save
another person’s life’.42 Uniacke explains what must be decided in order
34 See Chapter 5, at 135, for a statement of the doctrine’s elements.

35 See Brooke LJ’s judgment, at 217. 36 At 199. 37 At 218.
38 See Uniacke 2001: 219. See also Foster et al. 2011: 60.
39 At 251. 40 At 259. 41 Uniacke 2001: 217. 42 Ibid., 219.
to ascertain whether killing Mary was the intended means of saving

Jodie:
Whether Mary’s death was genuinely incidental, as opposed to intended as a

means of saving Jodie’s life, depends on whether there is a defensible distinction
between the clamping of the twins’ shared artery (which was necessary in the
circumstances to save Jodie) and killing Mary.43
The clamping of the artery is intended as a means to an end (Jodie’s

survival). Thus, the crucial question is whether the clamping of the shared
artery and killing Mary are one and the same act. Arguably they are
not, because it was the separation of the twins by way of clamping the
artery that was necessary to save Jodie, rather than causing Mary’s death.
Indeed, the doctors would have considered their actions successful if the
seemingly impossible had occurred and Mary had not died.44 However,
there is some circularity here; to separate the twins it was necessary to
clamp the artery, which is, effectively, the killing of Mary. This does
seem to suggest that clamping the artery and killing Mary are one and
the same act. Yet this is not the only way to describe the act. Foster et
al. draw attention to the significance of how we describe action when
ascertaining whether something is an intended effect. They utilise the
example of a headhunter who cuts off an individual’s head to add it to his
or her collection and observe that ‘ . . . in our world, the removal of the
head is a killing’.45 Thus, if the headhunter attempted to argue that he or
she did not intend to kill, this would not be accepted by others. Contrast
this to the more likely description of the clamping of the shared artery
between Jodie and Mary as an act taken to save Jodie’s life; we are less
likely to describe this action as the intentional killing of Mary because it
has such a beneficial consequence for Jodie, even though the clamping
of the artery is the same as the beheading in terms of what it causes
for Mary. Nonetheless, if we would describe the headhunter’s actions
as intentional killing, could we still choose an alternative description for
the surgeons’ actions in Re A? And if so, is this simply covertly granting
doctors immunity?
What the above discussion indicates is that whether the DDE would
justify the surgery to separate is not clear.46 As in the end-of-life cases
discussed in the previous chapter, judicial understanding of the DDE
is hazy. Although all three judges noted judicial endorsement of the
DDE,47 two rejected it on the basis of an apparent misunderstanding of
43 Ibid. (emphasis in original). 44 See generally Ashworth 1996: 180.

45 Foster et al. 2011: 67. 46 See also Suziedelis 2001; Uniacke 2001: 219.
47 In the earlier cases of Re J [1991] Fam 33, 46 per Lord Donaldson; Airedale NHS Trust
v. Bland [1993] AC 789, 867, per Lord Goff.
its (in)applicability and Walker LJ chose to pay lip service to it rather

than to make a case for its relevance with real conviction and support.
Perhaps what is most telling here is his comment that ‘the doctrine (or
dilemma) of double effect . . . has been debated by moral philosophers,
as well as lawyers, for millennia’.48 In a case posing intricate difficulties
for judges applying established principles of criminal law principles, it
may have been thought that an in-depth examination of the DDE and its
relevance would add to the intensity of the maelstrom rather than offer
any definitive resolution.
‘Monstrous births’
For Harris49 and bioethicists who share his stance on personhood, Mary
and Jodie’s case, although agonising for their parents and those who cared
for them, was not ethically challenging. The judgment failed to address
crucial differences between humans and persons. As neither twin was a
person, either choosing to separate them to save Jodie or allowing both
to die was ethically defensible. Neither child had as yet a claim to live.
The courts had no business to interfere with the girls’ parents’ choices.
English law does not endorse a full-blown doctrine of personhood, but in
the case of Mary Attard, there was an argument that ancient dicta could
be invoked to find that she was not ‘a reasonable creature in being’.50
Glanville Williams had argued over half a century ago that there was
‘some kind of legal argument that a “monster” is not protected even under
the existing law’.51 Williams endorsed the killing of severely deformed
infants, but noted the difficulty of the notion of the monster, given the
emphasis in the literature on appearance and our ancestors’ fears of
witchcraft and the belief that monsters were the result of the coupling of
a woman and a non-human animal. Nonetheless, Williams opined that it
is probable that ‘a creature that is clearly a monster in the old-fashioned
sense could lawfully be put to a merciful death’.52 He touched briefly on
the classification of conjoined twins, saying
Locked (‘Siamese’) twins present a special case, though they are treated in med-
ical works [in 1957] as a species of monster. Here the recent medical practice is
to attempt a severance, notwithstanding the risks involved. Either the twins are
successfully unlocked or they die.53
Williams did not foresee the dilemma in Re A where one twin could sur-
vive if the other were sacrificed. Brooke LJ surmised from the quotation
48 At 251. 49 Harris 2001; and see Davis 2011. 50 Coke 1644: Chap. 7, 47.
51 Williams 1957, cited by Brooke LJ at 213. 52 Williams 1957: 33. 53 At 33–4.
that Williams ‘was of the view that “Siamese” twins are capable of being
murdered’.54 We beg to differ. Consider this statement:
The proposal [from the Euth Society of America of involuntary euthanasia in the
case of ‘hopelessly defective infants’] . . . does not create a sense of insecurity in
society, because infants cannot, like adults, feel anticipatory dread of being done
to death if their condition should worsen. Moreover, the proposal receives some
support on eugenic grounds, and more importantly on humanitarian grounds –
both on account of the parents, to whom the child will be a burden all their lives,
and on account of the handicapped child itself. (It is not, however, proposed
that any child should be destroyed against the wishes of the parents.) Finally,
the legalization of euthanasia for handicapped children would bring the law into
closer relation to its practical administration, because juries do not regard parental
killing as murder.55
And even if Williams would have conceded that twins each capable of
independent life and each with a more or less functioning brain were
both ‘reasonable creatures in being’, what might he have made of Mary
with her multiple deformities and ‘primitive’ brain? Given the emotive
language and atavistic derivations of the exceptions to the law of homicide
for so-called monstrous births, it is scarcely surprising that Brooke LJ
rejected any suggestion that Mary was a monster who could be killed
without the need for justification. Imagine the outcry had the Court
declared that Mary the ‘monster’ could be ‘put down’. How would such
a creature be defined?56 Brooke LJ tests his rejection of ‘monstrosity’ by
the example of the intruder breaking into the hospital and stabbing Mary
to death. He concluded that it could not be said that his actions were not
homicide. And yet he did not wholly rule out the notion that there could
be an ‘extreme case of which this is not an example’ where, for some
reason, a creature born of human parentage would not be a ‘reasonable
creature in being’.57 In Mary’s case he went further, taking the debate
into more modern language and asserting Mary’s right to life, granting
her equal status with her sister and declaring that ‘it is wholly illegitimate
to introduce considerations that relate to the quality, or potential quality
of, each sister’s life’.58 A literal interpretation of his assertion of Mary’s
‘right to life’, endorsed by his brethren,59 would lead to a conclusion that
the Court of Appeal shared the Archbishop of Westminster’s view that
human life is sacred and inviolable.
The appeal court rejected any overt arguments that some lives do
not engage the law’s protection or that some lives are worth more than
54 At 213. 55 Williams 1957: 311–2. 56 See Davis 2011.

57 At 213. 58 Ibid.
59 Ward LJ spoke of Mary’s life having its own ‘ineliminable’ value and dignity, at 188.
And see Walker LJ at 258.
others. In doing so, they followed a tradition of endorsement of the

sanctity of life, swiftly followed by reasons that in the particular case the
doctrine does not stand in the way of ending the life in question. In Re
A, the dichotomy between the right-to-life language in certain parts of
the judgments and self-contradiction elsewhere in the same judgments is
stark. Ward LJ reconciled his stance on Mary’s right to life with killing
her by saying ‘she sucks the lifeblood out of Jodie’60 and ‘Mary may have
a right to life, but she has little right to be alive’.61 Whilst this latter
statement appears to be oxymoronic, Ward LJ is suggesting that the right
that we all possess not to be killed is not absolute; rather, it is a right not to
be killed unjustly/without legitimate reason.62 In his view, the legitimate
reason is the threat to Jodie’s life that Mary posed. Walker LJ said of Mary
she is ‘alive as a distinct personality, but is not viable as a separate human
being’.63 For all the judges, despite the rhetoric that it is illegitimate to
weigh the quality of the twins’ lives, the crux of the matter is that (if
for different reasons) all conclude that the potential quality/quantity of
Jodie’s independent life outweighs Mary’s continued existence.
Philosophical literature on personhood makes no appearance in the
drama. The legal hook on which the substance of the argument might
have hung was the ‘monstrous birth’; perhaps sheer repugnance of the
language led to its rejection. Ward LJ was adamant that ‘the notions
expressed in earlier times that Siamese twins were “monsters” [are]
totally unacceptable, indeed repugnant to the dignity of these children
in the light of current medical knowledge and social sensibility. I dep-
recate any idea of “monstrous birth”.’64 Ten pages later, he speaks of
Mary ‘sucking the lifeblood out of Jodie’, invoking monstrous imagery.65
Hewson notes that Mary ‘emerges from this forensic denunciation as
akin to Dracula’.66 Brooke LJ, who so clearly articulated the legal case
for rejecting the let out of the monstrous birth, ended his judgment thus:
the ‘proposed operation would give these children’s bodies the integrity
which nature denied them’.67 At face value, he seems to conclude better
dead and whole than linked in an ‘inhuman’ fashion to your sister.68
Stillborn or a tumour?
Were other means available to avoid mauling the criminal law and accept
that either Mary had no legal claim to life or that her claim was the
60 Ibid. 61 At 197. 62 See Uniacke 2001: 210. 63 At 248.

64 At 182. 65 See Ford 2007: 36–7. 66 Hewson 2001: 294. 67 At 240.
68 ‘The consequence of Robert Walker’s view would be to regard the “physical integrity”
of this baby as more important than her life.’ Michalowski 2002: 380.
lesser? The first possibility may be seen as unpalatable as labelling Mary

a ‘monster’; that Mary should be classified as a tumour on her sister’s
body and so might be removed as would any other growth endangering
Jodie’s life. Walker LJ accepted that there may be cases of incomplete
(heteropagus) twinning where the incomplete twin could be ‘regarded as
no more than a parasitic attachment’. Mary, he said, was nowhere ‘near
that category’.69
To qualify for the protection of the law of homicide, a child must be
born alive. Mason has argued Mary was stillborn.70 Whether or not a
child is ‘live born’ is dependent on an ability to breathe independently, as
stated in extracts from earlier judgments cited by Ward LJ: ‘ . . . whether
it existed as a live child, breathing and living by reason of breathing
through its own lungs alone . . . ’71 and ‘breathing and living by reason of its
breathing through its own lungs alone, without deriving any of its living or
power of living by or through any connection with its mother’.72 Mary was
incapable of taking breath; she was breathing only by virtue of the fact
that she was attached to Jodie and her sister’s lungs were enabling her to
breathe. Her lungs were ‘useless’.73 Ward LJ quoted the evidence given
by the Consultant Neonatologist: Mary had ‘no functioning lung tissue’;
she could ‘not shift air at all in and out of the chest’.74 If the twins had
been born separate, the medical opinion was unanimous that she would
not have survived long, even if she had been born alive.75 Is it arguable
that Mary was not, at law, a ‘person in being’? Ward LJ emphatically
stated that
Mary has been born in the sense that she has an existence quite independent
from her mother. The fact that Mary is dependent upon Jodie . . . should not lead
the law to fly in the face of the clinical judgment that each child is alive and
that each child is separate both for the purposes of the civil law and the criminal
law.76
Walker LJ rejected any notion that Mary was stillborn, citing the defini-
tion of stillborn in Section 41 of the Births and Deaths Registration Act
1953 of a child born after the twenty-fourth week of pregnancy ‘which did
not at any time after being completely expelled from its mother breathe
or show any sign of life’. Notwithstanding that the conclusion that Mary
was born alive rests on shaky ground, Davis has argued that it is an
appropriate conclusion in conjoined twins cases. This is because requir-
ing that conjoined twins breathe independently of each other in order
69 At 248. 70 Mason 2001.

71 R v. Handley (1874) 13 Cox CC 79, 81, per Brett J (our emphasis).
72 Rance v. Mid-Downs Health Authority [1991] 1 QB 587, 621, per Brooke J (our emphasis).
73 At 212, per Brooke LJ. 74 At 162. 75 At 181. 76 At 182.
to be born alive would pose problems in cases where it is not clear which
vital organs belong to which twin. She also argues that a requirement
of completely independent breathing would have implications for ‘some
infants, who are unable to live by virtue of their own organs immediately
after birth, [and] can survive with the help of ventilators, dialysis, or
other life support until their organs are able to function without these
artificial aids’.77
What is notable about the interpretation of the born alive rule that the
judges rejected is that if they had applied this interpretation, the sepa-
ration would not have involved homicide because Mary would not have
constituted a person in being. Thus, it would not have been necessary
to justify the separation by manipulating criminal law principles such
as self-defence and necessity. The designation of Mary as a non-person
would, however, have played badly to much of the audience and, as Davis
shows, have ramifications far beyond Re A itself.
Withdrawing life support

The decision in Bland78 allowed the courts to sanction measures to end
a patient’s life that in reality constitute actions that kill the patient. The
judges in Bland performed intellectual somersaults to enable them to
classify the disconnection of tubes providing nutrition and hydration to
Tony Bland as an omission to treat and not a positive act, holding that
the removal of the tube was carried out by doctors in the course of med-
ical treatment. If, however uncomfortably, withdrawal of life support is
not an act, the issue becomes whether doctors have a duty to continue
life support to a patient in the VS. Once it is determined (again with
some degree of judicial twisting and turning) that maintaining life sup-
port is not in the patient’s best interests, it is lawful to withdraw life
support.
So the ‘elastic nature of omission gave the court ample opportunity
in Re A to justify the operation to separate the twins’.79 That opportu-
nity was seized by Johnson J at first instance. He acknowledged that
he was first ‘attracted by the thought suggested by one of the doc-
tors that Jodie was to be regarded as a life support machine and that
the operation proposed was equivalent to switching off a mechanical
aid’.80 Thus if prolonging Mary’s life was not in her best interests,81 then
just as a ventilator could be switched off, so could Mary’s ‘human’ life
77 Davis 2011: 438. 78 See Chapter 5, at 154–5. 79 McEwan 2001: 251.

80 As reported by Ward LJ, at 175. 81 Johnson J judged that it was not.
support. But Johnson J changed his mind, coming to prefer the view
that what would end Mary’s life was the ‘interruption of the supply of
blood which she receives from Jodie’.82 Jodie was akin to the apparatus
that fed and hydrated Tony Bland. Disconnecting Mary from Jodie was
not a positive act. Withdrawing Mary’s blood supply was lawful given
that prolonging her life ‘would be seriously to her disadvantage’.83 And
so the ‘human life support’ could be disconnected. Ward and Brooke
LJJ firmly rejected any proposition that that separation surgery was no
more than withdrawing artificial life support and in Mary’s best inter-
ests. Describing how the common artery would be clamped and severed,
Ward LJ said it was ‘utterly fanciful to classify this invasive treatment as
an omission in contra-distinction to an act’.84 The surgery would violate
Mary’s bodily integrity and so constitute an assault upon her. Jodie’s
blood could not be seen as medical treatment. Mary was provided with
very little treatment: the question whether it was in her best interests
not to provide treatment was the wrong one. Rather, Ward LJ said, you
must ask whether an operation with the certain consequence that Mary
will die is in her best interests, and ‘there is only one answer to that
question. It is: [n]o’.85 Ward’s certainty is somewhat surprising. Walker
LJ did not agree on the issue of best interests.86 Is there really much of
a distinction between Tony Bland and ‘Mary’ Attard? The Law Lords
in Bland authorised doctors to remove the feeding tube although in the
event they first simply ceased to provide ‘food’ by refraining from refilling
the tube.87 The artery carrying blood to Mary was neatly cut. Both acts
impacted on the patient’s body. Continuing to ‘treat’ Tony Bland was
seen as not being in his best interests because his continued existence
had no value to him. The surgery, however, was said not to be in Mary’s
interests because it would ‘bring her life to an end before it has run its
natural span’88 whereas, without invasive treatment, Tony Bland would
have died soon after his terrible injuries at Hillsborough. The distinc-
tion is thin. Had Mary been delivered outside a hospital with advanced
neonatal care, she would have died at birth. The notion of disconnecting
Mary from Jodie, her ‘life support’, proved to be a step too far, but is not
radically different to removing a tube.
The judges in Re A faced a dilemma where there is no right answer.
Bioethical questions abounded in the case, but possible answers were of
little help. There were as many competing views as angels perched on
the top of a pin. Some simply did not ‘fit’ the criminal law without doing
82 At 175. 83 Ibid. 84 At 189 and see Brooke LJ at 215. 85 At 190.

86 At 289. 87 Howe 2006: 246. 88 At 289.
violence to the laws on homicide well beyond this extraordinary case.

Others were simply unpalatable for public consumption. In choosing
what they judged to be the lesser of two evils, the judgments reflect the
limits of rational solutions in law or ethics to some of the challenges that
nature and medicine present.
Part III
Bioethics and the criminal law:

connecting performances?
7 Drawing connections
Moral philosophy, (political) liberalism,

responsibility and the theatre of interpretation
In this final part, we focus on what can be learnt from the story emerging
from Parts I and II. We consider whether the criminal law is or can be
an appropriate forum for resolving bioethical medical conflict by under-
taking an analysis of whether bioethics and criminal law are compatible.
If not, this provides an explanation for why judges often struggle with
bioethics in the theatre of criminal law, as evidenced through the picture
of the criminal process and medicine drawn earlier. If, conversely, they
are, this indicates that incompatibilities or serious disconnects between
bioethics and criminal law are not the real or the total explanation for the
tension evident in the case studies, and that we need to look elsewhere.
One factor bears reiteration: whether the criminal process is engaged
in the indictment of a doctor or a pre-emptive application to the courts
for a declaration to clarify the law, the trial in either domain does not
usually address ‘bad people’. The issues arising, albeit often framed in
terms of the most serious criminal offences such as homicide or causing
grievous bodily harm, bear scant resemblance to the everyday business
of the criminal courts. In our context, the criminal law is being applied to
professionals who perform a socially beneficial role and whose behaviour
is ethically regulated by what Miola terms the ‘formal’ and ‘semi-formal’1
medical ethics to be found in professional guidance and whose practice
is subject to the scrutiny of critical medical ethics.2
Perhaps the most obvious connection between bioethics and the crimi-
nal law is moral philosophy. Thus, we explore the way in which bioethics
is related to moral philosophy before turning to explore the criminal
law’s relationship with morality. Bioethics is grounded in moral philoso-
phy, although it involves the application of moral principles and theories
within the specific settings of medicine and science, which house their
own particular ethical dilemmas. And moral philosophy has played an
important role in shaping aspects of criminal law and theory, albeit it is
one of a number of influences on this law and theory. Yet whilst moral
1 Miola 2004: 253. 2 See below, n.18.
181
182 Part III: Bioethics and the criminal law: connecting performances?
philosophy often remains abstract, bioethics and the criminal law operate
in a morally pluralistic society, impacting on citizens’ concrete, everyday
lives, and more specifically, in the case of bioethics, on doctors, patients,
scientists and researchers. Thus, it is inevitable that the two disciplines
will be influenced by the political norms within society. For example,
the liberalism of the 1960s gave rise to revisions in the criminal law on
homosexuality that better took into account the divergent moral views
on homosexuality at that time than did a criminal law that prohibited
acts of homosexuality whether occurring in public or private. It has been
argued that since its inception, bioethics has been about compromise,
about adopting consensus philosophy, because it concerns matters of
public concern over which there are deeply divergent moral opinions.3
Given that liberalism remains the predominant system of political nor-
mativity in Anglo-American and other Western societies, it is no surprise
that it has had an impact on bioethics and the criminal law, illustrated
by the move away from the paternalism demonstrated in cases such as
Leigh v. Gladstone4 to the emphasis now placed on the patient’s claim to
bodily integrity. However, what exactly that impact is requires consid-
eration, because it presents a further significant connection between the
disciplines. We contend that both bioethics and criminal law are based
upon a common normative code and that it is possible to trace the rules
within this code back to political liberalism, the venture of locating a
set of core defining values that can be accepted in a morally pluralistic
society. Linked to liberalism is the notion that we next turn to, that of
responsibility, an idea that features prominently in bioethics and crim-
inal law. Whilst much has been written on responsibility, no one has
yet explored how the concept links criminal law and bioethics and the
values it reflects in this regard. Although both fields require a rational
moral agent, a physician’s moral responsibility in bioethics is much more
demanding than that which is required for an individual to be responsi-
ble under criminal law. This has largely to do with the differing functions
that the criminal law and bioethics serve.
Besides normative connections such as those noted thus far, narrative
construction also links bioethics and the criminal law. Thus, finally, we
analyse the role that interpretation and theatre play in shaping and relat-
ing the narratives within bioethics and criminal law. What we hope to
demonstrate in this and the following chapter is that bioethics and crimi-
nal law can connect in a number of ways, whether through their relation-
ship with moral philosophy and liberalism, through important principles
which can be found in both, or through prominent concepts such as
3 Moreno 2005. 4 See Chapter 2, at 41.

Drawing connections 183
responsibility and interpretation. What we find is that these connections

are like the lighthouse’s beam – sometimes ascertainable and brightly
luminous, sometimes simply not present. This leads us towards our con-
clusion that although in some instances, it may be possible to make the
connections between bioethics and the criminal law more enduring, we
have to accept that sometimes the fields are appropriately disconnected.
Bioethics, moral philosophy and law

The general subject of ethics has been described as ‘the critical scrutiny of
moral thought and practice’.5 The specific discipline of bioethics was pre-
ceded by medical ethics, the longstanding history and origins of which
have been traced by numerous authors.6 The disciplines have existed
alongside each other since bioethics first came onto the scene in the
United States, initially in response to the atrocities committed in the
name of medicine and science during the Second World War7 and then
secondly, in the 1960s and 1970s, as a reaction to medical paternal-
ism. During this second birth, bioethics developed ‘as a way of viewing
the traditional ethics associated with medicine’ and to better reflect the
growth of a rights-based culture.8 Since this time, the ethical literature
around medicine has tended to be framed as either bioethical or focused
more specifically on medical ethics. Yet in 2001, Ashcroft noted ‘a shift in
emphasis from “medical ethics” to “bioethics”’ within both academic and
professional discourses, ‘as the issues . . . have moved from being inter-
nal concerns of the professions to matters of public, political debate’. In
particular, he highlighted ‘a growing emphasis on the process of bioeth-
ical decision making. Professionals and academics increasingly look for
ways to resolve bioethical debates by involving members of the public in
debates, not always successfully.’9 Ashcroft utilised the public inquiry at
Bristol Royal Infirmary as an example of such public involvement.10
A crucial difference between the two disciplines is that medical ethics
is focused on applied professional ethics, whereas bioethics has a broader
scope which incorporates biological science. The vast scope of bioethics
has been noted to include medicine, nursing, health care, law, regula-
tion, philosophy, philosophical ethics and social phenomena.11 A further
5 Campbell, Gillet and Jones 2005: 2.

6 See, e.g., Jonsen 2000; Miola 2007: Chapter 2.
7 On which see Annas 2004: 659–60. 8 Jonsen 1998: vii; Tauber 2005: 4.
9 Ashcroft 2001.
10 Kennedy 2001. And see the public inquiry into the retention of organs without parental
consent at Alder Hey: Royal Liverpool Children’s Inquiry 2001.
11 Häyry and Takala 2003a; Häyry and Takala 2003b. See also Miola 2007: 1 and 7.
difference is that alluded to by Ashcroft: bioethics is about the inclusion

of laypersons in the setting of ethical standards for medicine. In the 1970s
there was a perceived imperative to do this, to move away from traditional
medical ethics, because the medical experimentation documented in the
1945 Nuremberg trials was no longer a macabre Nazi phenomenon of the
past; the several-decades-long Tuskegee syphilis experiment, revealed to
the American public in 1972,12 suggested that even outside the context
of an extreme political ideology, physicians and scientists were failing to
set adequate standards for themselves.13
Interestingly, Powers has claimed that the emergence of bioethics had
much to do with law and the relationship between law, politics and
morality:
Bioethics as a discipline emerged in the process of shaping and responding to

the decisions of courts on matters of informed consent, abortion, end-of-life
choices, and other matters. Bioethics from its beginnings raised questions of
political morality, or the moral relation between the state and the individual.14
This suggests that what can be perceived as essentially private matters

relating to health and medicine needed to be resolved by law because they
were also matters of significant public and political concern. As a knock-
on effect of this, one of the roles for bioethics was to explore the extent of
the state’s power to restrict individual freedom in the context of science
and health care. Although focused on the connections between the fields
of bioethics, law and politics, this explanation also seems to imply that
developments in science and medicine were an important causal factor
in the emergence of bioethics. Arguably, the matters Powers identifies
became more ethically problematic in the light of such developments.
Indeed, for Jonsen, the birth of bioethics was primarily to do with the
public’s concern about dramatic scientific and medical progress, such as
the occurrence of the first heart transplant in 1967: ‘[b]ioethics did not
begin with a Big Bang . . . it was a slow accumulation of concerns about
the ambiguity of scientific progress that turned the old medical ethics
into the new paths of bioethics’.15 He also highlights the connections of
bioethics to law through recommendations from bioethics committees
that have led to legal regulations, legislation and court decisions in cases
involving bioethical issues.16 Bioethics perhaps gained credence from
12 ‘Syphilis victims in U.S. study went untreated for 40 years; syphilis victims got no
therapy’, New York Times 26 July 1972.
13 See generally Jonsen 1993. 14 Powers 2005: 306. See also Schneider 1994: 16.
15 Annas 2004: 659; Jonsen 1993: 2. 16 Jonsen 1998: 342.
judicial acknowledgement of bioethical arguments.17 Notably, however,

in terms of judicial consideration of ethics, we often find that judges pre-
fer to cite the ‘formal’ and ‘semi-formal’18 medical ethics to be found in
professional guidance rather than to engage in critical medical ethics19
or a bioethical enquiry. Thus, Lord Goff made much of the BMA’s
guidance in Airedale NHS Trust v. Bland,20 and the ethics of confiden-
tiality in the doctor–patient relationship was addressed largely through
the GMC’s Guidance in W v. Egdell.21 However, there are examples of
judicial engagement with a more analytical, critical approach, such as
Butler Sloss P’s endorsement of respect for the gravely disabled patient’s
subjective experience of her condition and rejection of benevolent pater-
nalism in B v. An NHS Hospital Trust22 and Hoffmann LJ’s more criti-
cal ethical approach in the Court of Appeal judgment in Airedale NHS
Trust v. Bland.23
Looking back over the relationship between bioethics and law, Wolf
has contended that there are few issues which bioethics has attempted
to have an effect upon without the utilisation of law.24 What is also sig-
nificant is that bioethics gained societal acceptance because it connected
with the community, looking to ‘the mainstream of public policy, toward
a language of rights, worries about questions of pluralism, efforts to
find moral consensus and moral strategies in the face of a diverse cul-
tural situation’.25 It was and is a social and cultural phenomenon26 that
American society accepted because it fitted comfortably with its system
of political normativity: liberalism.27 However, because bioethics exists
within a morally pluralistic society, consensus on morally controversial
issues such as abortion is hard and, in Engelhardt’s view, impossible to
achieve.28
17 Jonsen 1993. For instance, In the Matter of Karen Quinlan, an Alleged Incompetent 70 N.J.
10 (1976), the New Jersey Supreme Court endorsed a paediatrician’s recommendation
for the creation of health care ethics committees which ‘provided a crucial boost to the
fledgling ethics committee movement’. See Spielman 2007: 41.
18 Miola 2004: 253.
19 ‘[T]he analytic activity in which the concepts, assumptions, beliefs, attitudes, emo-
tions, reasons, and arguments underlying medico-moral decision-making are examined
critically’. Gillon 1986: 2.
20 [1993] 1 All ER 821, at 870–1.
21 [1990] Ch 359, 390–2 (per Scott J at first instance) and 412–4, 416 and 420–3 (per Sir
Stephen Brown P and Bingham LJ in the Court of Appeal).
22 [2002] EWHC 429 (Fam), at para 94.
23 See 824–34, especially 825–6, 829–30 and 832. 24 Wolf 2004: 293.
25 Callahan 1993: 9; Tauber 2005: 60. 26 Swazey 1993: 6.
27 Callahan 1993: 9; Ladd 1978: 6. As quoted in Schneider 1994: 21.
28 Engelhardt 2011. See the discussion of the controversy surrounding abortion in
Chapter 4, at 118–23.
What, then, of bioethics’ relationship with moral philosophy? Bioethics

can be perceived as applied moral philosophy; Jonsen has observed that
‘early bioethics was fashioned out of bits and pieces from moral phi-
losophy and moral theology’.29 Consequently, bioethics features numer-
ous theories and methodologies, and the moral–philosophical theories of
deontology and utilitarianism (especially rule utilitarianism)30 have a sig-
nificant presence in certain branches of bioethics. In the same way that
moral philosophy provides a foundation for bioethics, bioethics gives
moral philosophy ‘the reality of moral experience’;31 that is, abstract
philosophical theories and ideas can be tested against real-life medical
situations to see if they offer an effective way of resolving the situation.
Whilst bioethics thus shares an important relationship with moral phi-
losophy, they are not necessarily easy bedfellows. Clouser notes the con-
flicting reaction to bioethics from philosophers:
Bioethics brought purpose and immediacy to philosophy. Philosophers were

needed – even wanted! They had to reach conclusions and make recommen-
dations for action. An exciting new world! On the other hand, however, many
philosophers would claim that bioethics brought nothing but sophistry and degra-
dation, a kind of prostitution of what was good and pure in philosophy.32
Although Moreno recognises the significance of moral philosophy to

bioethics, he warns us to be critical of simply conceiving bioethics as
applied moral philosophy because, given the need to find resolutions to
ethical dilemmas in health care, ‘detachment cannot be the dominant
feature of the practice of applied ethics, though it might be for moral
philosophy’.33 Koch provides a critical view of bioethics as a ‘simplistic’
application of philosophy and questions its ability to serve the profession
and patients alike.34 And concerns that traditional theories in moral
philosophy did not translate well into bioethics led to the development of
new theoretical foundations for the discipline, such as Beauchamp and
Childress’ principlism.35
As a final point, besides the relationship between bioethics and moral
philosophy, morality is connected to medicine in a more ‘real’ sense. The
relevance of ‘the domain of the moral’36 to medicine has been emphasised
by Tauber, who focuses on the experience of being a patient in modern-
day health care:
29 Jonsen 1993: 4. 30 Jonsen 2000: 118–9. 31 Clouser 1993: 11 (our emphasis).

32 Ibid. 33 Moreno 2006: 711–2. 34 Koch 2008.
35 See Chapter 8, at 222–3, where we note that principlism’s popularity amongst bioethics
has waned more recently; Jonsen 1998: 329, 331–2.
36 Tauber 2005: 47.
The loss of autonomy, the fear of the unknown, the dissolution of identity accom-
panying pain in its multifarious forms, the dehumanization of being subjected
to the administrative processes of health care, and the psychological dependence
resulting from each of these challenges combine to make patients emotionally
dependent on health-care providers.37
Tauber’s reference to a loss of autonomy is not quite an accurate reflec-

tion of the contemporary health care experience for patients, however,
because of the present dominance of patient autonomy in medical ethics
and law. Notwithstanding this, the practical realities of health care serve
to emphasise that although bioethics can and should draw upon moral
philosophy, ultimately its task is to develop theories of ethics that apply
to and fit the specific, contemporary health care or scientific context.
The criminal law, moral philosophy and introducing

(political) liberalism
The study of moral philosophy and the law takes place within the broader
field of jurisprudence. Whilst positivistic philosophy has played a promi-
nent role in jurisprudential debate in recent centuries,38 moral philos-
ophy’s longstanding connection with jurisprudence has continued more
recently in the work of Duff, Dworkin, Finnis, George and Raz, for
example.39 Two theories in moral philosophy have had a particular
impact on criminal law theory: utilitarianism’s influence on the philoso-
phy of criminal law can of course be seen in Bentham’s work,40 and deon-
tology’s impact can be seen in the retributive approach to punishment41
and the notion that we ought not to punish an innocent person. Although
it is notable that utilitarian and deontological theories also feature promi-
nently in bioethics, this is not in itself indicative of a connection between
the study of the moral philosophy of the criminal law and bioethics. The
mere application of theories cut from the same cloth to two different
fields does not suggest that there is parity between them. The broader
statement that we are making here is that moral philosophy has had and
continues to have a major influence on the two fields.
The position that there is a necessary connection between law and
morality is rooted in natural law theories, although natural law theo-
rists differ in their ideas regarding what this necessary connection is.42
37 Ibid. See also Kennedy 1981.

38 See, e.g., the works of Austin 1995; Kelsen 1967; Hart 1961.
39 Duff 2007; Dworkin 1977; Finnis 1980; George 1992; Raz 1986.
40 Bentham 1970. 41 See, e.g., Primoratz 1989.
42 Contrast, e.g., Finnis’s notion of practical reasonableness (see n.46 below), with Fuller’s
procedural ‘internal morality’ of law. Fuller 1969.
According to the natural law position, if a law does not reflect morality
then it is not, in actual fact, a law at all.43 In traditional natural law theory,
natural law – the higher law – is in accord with justice; its foundation is jus-
tice. Human laws derive from natural law.44 Criminal law, in particular,
can be perceived to have its origins in natural law, and the most obvious
illustration of this is the law on murder.45 Finnis argues that the crimi-
nal law’s prohibition on killing stems from natural law, which, for him,
is composed of the basic principles of practical reasonableness:46 ‘[t]he
legal rule . . . corresponds rather closely to the requirement of practical
reason . . . that one is not to deliberately kill the innocent . . . this require-
ment is derived from the basic principle that human life is a good . . . ’.47
Finnis, therefore, traces the legal prohibition to his conception of what
guides an individual when acting, through to a fundamental principle of
natural law.
The criminal law’s relationship with natural law and morality is palpa-
ble because of its nature. Criminal law enforces moral standards and, in
so doing, exemplifies the wrongs society considers especially grievous. It
imposes punishment on those who deviate from these standards; ‘[t]he
criminal law gets personal. To be convicted of a crime is to be criti-
cised, or even sometimes condemned, as a person.’48 As such, it can
be perceived as a moral and retributive system, ‘a system of quasi-moral
judgment which reflects a society’s basic values; in which criminal punish-
ment serves the retributive function of meting out to offenders their just
deserts; and in which criminal law has a strongly symbolic function’.49
This raises the question of which wrongs should be the concern of the
criminal law. What if, for example, the authors decide to steal each other’s
ideas for this work, shared in informal discussions over coffee, when
writing their next individually authored works? Should the criminal law
intervene? The answer can be found by assessing whether the wrong in
question amounts to a public rather than just a private wrong. A public
wrong contravenes defining values that society recognises as fundamen-
tal and that the state endeavours to safeguard to ensure the good of its
43 See, e.g., ibid.: 39 (referring to his notion of an inner morality of law).

44 Aquinas 1966: 103–7 (FS, Qu.95, Article 2); Hutley 1940: 38.
45 Although cf. Glanville Williams’ argument that the law of murder is driven by pragmatic
necessity rather than morality. See Chapter 3, at 84.
46 ‘Practical reasonableness is reasonableness in deciding, in adopting commitments, in
choosing and executing projects, and in general in acting.’ Finnis 1980: 12.
47 Ibid.: 281.
48 Gardner 1998: 236. Note too Merry’s graphic illustration of this (Merry 2007:
68–9).
49 Lacey et al. 2003: 4.
citizens.50 It is a wrong that should concern all members of a society.51

Criminalising such a wrong and punishing a person who commits it
communicates the public’s moral indignation regarding such a person’s
conduct. Such moral indignation is likely to be felt where the person has
manifested ‘the kind of vice that displays a failure to have proper regard
for a significant interest of others’.52 Thus, to answer the question we
have set, whilst we each wrong the other by stealing her ideas, this wrong
is not grievous enough to amount to a public wrong – although we might
feel moral indignation in response to each other’s conduct, it is very
unlikely that this feeling will be shared by the public. This perception of
the criminal law immediately and vividly illustrates some of the tensions
we noted earlier. In the context of medicine and bioethics, often what is
disputed is whether the relevant conduct is ‘wrong’ at all. We may agree
that it is a wrong, if only a private wrong, for Suzanne to steal Margot’s
ideas. Should Suzanne at Margot’s request help her to die when she is in
intolerable agony, there will be debate about whether her actions amount
to a wrong.
It is also possible to see a connection between law and morality with-
out subscribing to the natural law thesis stated above that a rule which
fails to mirror the moral code cannot be a law. Instead, one could recog-
nise the validity of such law, but consider it to be a ‘bad’ law because
of its failure to comply with the (relevant) moral code. On this version
of legal moralism, morality is ‘a critical standard for assessing laws’.53
And, following this approach, not only should morality be a standard
for evaluating law, but also law should be seen as a vehicle for enforc-
ing society’s morality. This is particularly the case regarding the criminal
law – because of the nature of criminal law it seems the most apposite
forum for expressing society’s outrage at the violation of its moral code.
According to this thesis, such transgression should warrant state interven-
tion, sanction and punishment. A principle of legal moralism is that it
is appropriate to prohibit immoral conduct even when it does not cause
harm or offence to others; that is, ‘victimless’ immorality is a matter the
law should be concerned with, because it is one of the law’s functions to
enforce morality.54
Arguably the most famous legal moralist was Lord Devlin.55 Devlin
chose to refer to two dramatic and criminalised medical phenomena –
abortion and euthanasia – in support of his enforcement-of-morality
50 See Marshall and Duff 1998: 20.

51 See generally Duff 2007: 86 and 143; Husak 2008: 135–7.
52 Tadros 2005: 83. 53 Goodin 2010: 616. 54 Søbirk Petersen 2010: 216.
55 Devlin 1965. See also Stephen 1992: George 1993.
thesis.56 According to Devlin, even immoral behaviour that occurs in

private poses a threat to the moral fibre of society and, consequently,
society itself. Society has the right to take action through law to stamp
out immoral behaviour in order to protect its very fibre.57 If the state fails
to act against this depravity and corruption, then gradually the moral
attitudes of others will also be altered so that we become desensitised
to the behaviour in question and society’s shared morals are thus under
threat. For the behaviour in question to pose a threat that should be
stamped out by the criminal law, it must go beyond that which society
can tolerate.58 Devlin’s ‘disgust test’ provides guidance here: ‘[i]mmoral
behaviour B should be made illegal if, when reasonable men in society S
contemplate B calmly and dispassionately, they feel intolerance, indigna-
tion, and disgust.’59 In the context of alleged obscenity, for instance, the
nature and effect of the material in question would be a matter for the
jury to ascertain. However, it has been contended that rather than estab-
lishing what society’s shared morality is, juries’ decisions are a reflection
of the subjective prejudices of individual jurors.60 And even accepting
that a shared social morality thesis such as Devlin’s is valid, Dworkin has
argued that Devlin’s own ideas of what counts as society’s morality (espe-
cially on the matter of homosexuality) are ‘shocking and wrong’.61 This
suggests that there may be a fine line between what counts as ‘immoral’
behaviour and what is judged to be ‘disgusting’ behaviour on the basis
of aversions and prejudices.62 It has recently been suggested that the
concept of disgust has increasingly featured in bioethics too,63 a prime
example being Kass’ basis for rejecting human cloning.64
Related to the point regarding what makes behaviour ‘disgusting’, the
commonly recognised difficulty with theories of legal moralism is that
they assume agreement on what counts as immoral behaviour. As Moore
observes, ‘Some moral questions are not difficult to resolve. That murder
is wrong, rape is wrong . . . and homosexual sex is not wrong, are moral
conclusions easy to reach. But some moral questions are neither easy,
nor are the answers to them uncontroversial.’65 Moreover, this crucial
truth is not even addressed by Moore’s rich account of legal moral-
ism. According to his theory as to the proper motivation for enacting
56 Devlin 1965: 7, 23–4 and 135. 57 Ibid.: 11. 58 Ibid.: 17. 59 Ibid.
60 Johnson 2010: 155. 61 Dworkin 1966: 1001. 62 Ibid.
63 Salles and De Melo-Martin 2012: 267–8.
64 ‘We are repelled by the prospect of cloning human beings not because of the strangeness
or novelty of the undertaking, but because we intuit and feel, immediately and without
argument, the violation of things that we rightfully hold dear. Repugnance, here as
elsewhere, revolts against the excesses of human willfulness, warning us not to transgress
what is unspeakably profound.’ Kass 1998: 687.
65 Moore 1997: 78.
criminal law, ‘because an action is morally wrong is always a legitimate

reason to prohibit it with criminal legislation’ although ‘[o]ther goods
may outweigh the good that is achieved by prohibiting behaviour that is
immoral’.66 Yet this still presumes agreement on what counts as morally
wrong behaviour. Parts I and II of this book have shown that few of
the issues where bioethics and medicine connect reveal such agreement,
although bioethics attempts to find consensus.67
Without endorsing legal moralism, there may be other, more pragmatic
reasons for claiming that the criminal law should be harmonious with the
particular society’s moral code. Goodin has argued that ‘tracking moral-
ity enables the law to do what law is socially supposed to do, which is to
guide people’s behaviour’.68 Individuals can look to their particular soci-
ety’s moral code and deduce from this whether their behaviour will be
in accordance with the law. For instance, it is considered morally wrong
in our society to compel patients to have dangerous surgery against their
wishes and thus any doctor can deduce that such behaviour will be unlaw-
ful without the need to refer to the law. Although Goodin recognises that
morality cannot offer an inclusive guide to law’s content, he contends
that it usually provides a good guide, especially in the case of criminal
law.69 Where morality does not provide the answer as to whether cer-
tain behaviour is legally prohibited, because diverging moral judgements
exist, this will indicate to individuals that they should consult statu-
tory law to know what the law is.70 However, whilst morality may offer
some guidance as to the criminal law’s stance on certain issues related
to bioethics and medicine, there are (often bitterly) opposed moral opin-
ions on numerous subjects such as abortion, assisted dying, surrogacy,
buying and selling organs and embryo research. Given the existence of
diametrically opposed moral views on bioethical matters, anyone wishing
to know what medical behaviour is criminalised will be scouring statu-
tory law for some time. Even if several days are devoted to the search,
the searcher may find little, given that the parameters of criminal and
noncriminal conduct in medicine are so often the result of attempts to
apply the common law and, for example, determine whether procedure
X constitutes a criminal assault or ‘proper medical treatment’.71
Not all that is prohibited by the criminal law echoes morality. Offences
can generally be divided into two categories. First, a Mala in se crime
relates to conduct considered a wrong outside of its criminal label. That
is, even without criminalisation, the conduct would still be a wrong in
and of itself. Secondly, a Mala prohibita crime is a wrong because of its
66 Ibid.: 69–70. 67 Moreno 2005. Contrast Engelhardt 2011.

68 Goodin 2010: 615. 69 Ibid.: 623. 70 Ibid.: 625. 71 See Chapter 2, at 45–52.
criminal label. Without this label, the conduct would not amount to a
moral wrong. An example here would be of driving without a seatbelt.
Duff contends that it is still possible to construe Mala prohibita crimes as
moral wrongs, if regulatory offences such as not wearing a seatbelt are
created to serve the common good. Violating this law could then amount
to a moral wrong which it is appropriate to criminalise.72 But the danger
of limiting our scrutiny of the criminal law to that which can be seen
through a moral lens is that we fail to give due recognition and priority
to its other significant aspects. Lacey, Wells and Quick highlight criminal
law’s ‘regulatory, instrumental or utilitarian aspect . . . it prohibits certain
things on grounds of public health or safety, or for economic or political
reasons . . . ’. They ask ‘whether the moralist theory’s focus on a highly
selected portion of criminal law is ideological: serving to obscure conflict
and complexity by emphasising those aspects of contemporary criminal
justice which command widest support’.73 Medical practice gives rise to
a host of Mala prohibita crimes. Many may be found in the regulation
of aspects of practice in statutes such as the Human Fertilisation and
Embryology Act 1990 and are designed to protect patient safety. As
such, following Duff, they may fall into both categories, in that protecting
safety is for the common good. But apparently regulatory and utilitarian
concerns may also be used as a smokescreen for disputes about the
criminal law and morals. So the need for doctors to supervise both stages
of an early medical abortion may be argued to be a regulatory and safety
issue and yet be promoted by those who wish to ensure that we do not
travel down the road to decriminalising abortion for moral reasons.74
An alternative to morality as a framework for the criminal law, com-
monly accepted to be the framework of this jurisdiction’s contemporary
penal law, is liberal.75 For reasons that will become clear in the following
section, we draw attention to the significance of liberalism as a connec-
tion between criminal law and bioethics. In the context of criminal law,
Norrie has argued that ‘[c]riminal law is, at heart, a practical applica-
tion of liberal political philosophy.’76 Although some would argue that
this framework is also moral, because liberalism has its origins in moral
philosophy,77 we follow Coggon’s approach in differentiating between a
political and a moral sphere.78 The main distinction that can be drawn is
that morality tends to be concerned with relations between individuals,
whereas politics is focused more on the relationship between individuals
72 Duff 2007: 90–2 and 173.

73 Lacey et al. 2003: 4 and 11. Contrast Johnson 2010: 157.
74 See Chapter 4, at 104–5. 75 Hart 1963; Feinberg 1984.
76 Norrie 2001: 10. 77 See, e.g., Tauber 2005: 15.
78 Coggon 2012b: Chapter 7; more generally, Rawls 1993: 10.
and the state and political normative analysis tends to embrace a binding
communitarian ideology.79 It may be the force of individualism within
liberalism that has led to the diminution of law’s moral authority.80 In
Christman and Anderson’s words, ‘liberalism is centrally a view about
the extent of legitimate interference with the wishes of the individual’.81
It is reflected in certain fundamental rights within criminal law such as
the right to a fair trial and in criminal law principles such as that of
maximum certainty, which demands that offences are clearly defined to
enable citizens to know what exactly amounts to criminal behaviour.82
And in a liberal society, the criminal law’s restriction of individual liberty
should only be justified on the basis of causing harm and the violation of
others’ rights. ‘Harm’ is generally restricted to harm or a risk of harm to
others.83 However, as we will discuss in the next chapter, harm is a porous
concept. For example, female genital mutilation is physically harmful to
women. However, there may be particular circumstances in which an
adult woman might make a strong claim that if she is denied this surgery,
she is likely to suffer serious harm. Say, for example, that her commu-
nity’s norms are such that if she does not have the procedure, she will
be unmarriageable and ostracised when she returns home.84 Could this
be perceived as a harm sufficient to outweigh the physical harm caused
by the procedure? What constitutes harm is clearly influenced by soci-
ety’s norms,85 and there is flexibility inherent within liberal approaches
to harm.
Significantly, a political system common to Anglo-American societies
that embrace liberalism86 offers an alternative grounding for the crimi-
nal law to setting its foundations in moralism, a grounding which better
takes into account how the criminal law can ‘fit’ within a community with
diverse moral values.87 This brings us to the philosophy of political lib-
eralism. ‘Political liberalism seeks to identify liberal principles endorsed
by public reason’88 and where there is disagreement as to which morality
offers ‘the truth’:
the role of the State generally (and thus the role of law) is best conceived not
as a judge of which account of morality is superior, but as a means of achiev-
ing harmony between them, and mediating any conflict. This mediation is best
conceived as a question of politics.89
79 Coggon 2010 and 2012b, ibid. 80 Van der Burg 2001: 35.
81 Christman and Anderson 2005b: 9.
82 As enshrined under Article 7 of the European Convention on Human Rights.
83 Although note Hart’s liberal paternalism. Hart 1963. 84 See Chapter 2, at 50.
85 We are not suggesting that this is necessarily a good thing. See Chapter 2, at 51–2.
86 See generally Starr 2007. 87 Starr 2007: 176; Christman 2005: 340 and 343.
88 Gaus 2005: 297. 89 Coggon 2010: 548.
If we consider the relevance of this to criminal law, recognising political

liberalism as the source of normativity that should concern us offers
a means of resolving disagreements on whether behaviour should be
criminalised that exist because of moral plurality, as we will consider
further later.90 For now, we note that the way in which abortion is dealt
with by the criminal law could be construed as a solution reflecting
political liberalism – whilst women in England do not have a right to
abortion on demand, they can obtain a legal abortion if two medical
professionals consider that one of the grounds is met under the Abortion
Act 1967. That women have access to lawful abortion, albeit within
specified circumstances, is a watered-down reflection of the pro-choice
position. At the same time, the continued criminalisation of abortions
that are not carried out under one of the statutory grounds provides the
fetus with some protection, thus recognising to a degree the value of
fetal life that those who are pro-life advocate. The current legal position
(and the criminal law’s role part in this) is in essence a compromise
between the two conflicting moral standpoints, a political resolution.
Whilst controversy remains, we submit that endeavouring to take moral
pluralism into account creates less conflict than if the law reflected one
account of morality over the other.
Notably, focussing on the political alongside the moral emphasises
the need to ensure that the criminal law is politically legitimate, that
state power is being exercised appropriately in terms of the creation and
application of criminal law. And it may reveal the possible limitations
regarding political analysis of criminal law that is solely liberal. Indeed,
from some critical perspectives, the political legitimacy of the criminal law
and liberalism’s restrictions on the scope of the criminal law are in serious
doubt. According to Shiner, critical legal theory and critical criminology
urge that the practices of criminalization in contemporary neo-liberal democ-
racies face a crisis of legitimacy . . . . Liberalism standardly regards the exercise
of the criminal law power against citizens as justified because . . . the act that
attracted the coercive restriction of liberty was voluntary: hence the alleged cen-
trality of doctrines of mens rea, justification and excuse and the like to crimi-
nal law doctrine. The social conditions faced by those most commonly on the
receiving end of the criminal law’s coerciveness – the poor, the young and the
racialized . . . give rise to a legitimation crisis because it is not at all clear any longer
how accurate it is to insist that the actions of theirs that attracted the attention of
the criminal law were fully voluntary and thus their convictions justified.91
Thus, for those from the more left-critical schools of thought, to achieve
a holistic understanding of criminal law and its proper limits it is
90 See the following section and Chapter 8, at 233–4.

91 Shiner 2009: 180–1 (emphasis in original).
necessary to see political rather than moral legitimacy as the crucial

matter, and power is the key.92
This highlights the multifunctional political, moral and ideological
roles of the criminal law, the purposes that Lacey identifies it as serving
in being a system of social control, in supporting universal rights and
interests and reciprocal obligations, reflecting core shared meanings and
controlling social conflict.93 Again, to use the example of abortion, the
current legal position protects women from unsafe abortions; it offers
some (limited) protection to the fetus; the criminal law can be utilised as
a sword against the abortionist who fails to act in accordance with one
of the grounds under the Abortion Act; the criminalisation of abortion is
derived, in part, from morality;94 there are continued attempts to extend
or reduce the scope of legal regulation by the political parties by, for
instance, decreasing the time limit under one of the statutory grounds,95
or attempts to relax the requirement for the approval of two medical
professionals down to one.96 Thus, the criminal law is not just a political,
pragmatic, symbolic or moral entity, a shield or sword; it is all of these
and much more.
The ‘common morality’ and political liberalism

Notwithstanding caveats that bioethics is not merely applied moral phi-
losophy and criminal law is not all about morality, and that morality does
not (and should not) always provide the justification for criminalising
behaviour, morality is a theme which connects bioethics and the criminal
law. The core dimensions of the ‘common morality’ that Beauchamp and
Childress present are a crucial part of the foundation of both bioethics
and criminal law:
All persons living a moral life grasp the core dimensions of morality. They know
not to lie, not to steal others’ property, to keep promises, to respect the rights of
others, not to kill or cause harm to innocent persons, and the like. All persons
committed to morality do not doubt the relevance and importance of these
rules.97
Beauchamp and Childress present these rules as moral. They affirm

their legitimacy on the basis that compliance with them is essential to
92 Ibid.: 176–80. 93 Lacey 1993: 636. 94 See Chapter 4, at 105–6.

95 See, e.g., BBC News Report, ‘MPs reject cut in abortion time limit’ 21 May 2008.
Available at http://news.bbc.co.uk/1/hi/uk politics/7412118.stm.
96 See, e.g., BBC News Report, ‘MPs bid to change abortion laws’ 8 July 2008. Available
at http://news.bbc.co.uk/1/hi/uk politics/7494807.stm.
97 Beauchamp and Childress 2009: 2–3. See Beauchamp 2010: 43 for other examples of
rules in the common morality. For an alternative conception of the common morality,
see Gert, Culver and Clouser 2006.
achieve the objective of morality: the promotion of human flourishing

and the removal and prevention of conditions that worsen the human
condition.98 These ‘abstract, universal, and content-thin’ norms are core
to the moral code that, according to Beauchamp and Childress, is com-
mon to all societies. Particular moralities in different societies interpret
the rules that the common morality is comprised of differently, creating
their own ‘concrete, non-universal, and content-rich norms’.99 But can
consensus on how to interpret each rule exist even in one society? The
obvious difficulty is that whilst there is a core set of moral rules that
individuals in a particular society know that they ought to follow, moral
opinions differ on controversial bioethical issues such as abortion and
euthanasia and, thus, the way these rules should be interpreted. Can
there ever be general agreement as to whether the prohibition on killing
persons applies to fetuses, for example? Would general agreement exist
on what a person is? In short, whether there is a shared morality common
to a particular society is disputed.100 As Rawls observes, ‘[t]he political
culture of a democratic society is always marked by a diversity of oppos-
ing and irreconcilable religious, philosophical, and moral doctrines’, a
natural consequence of the exercise of human reason in an environment
of ‘enduring free institutions’.101 The kind of difficulties of interpretation
we noted above may lie around the periphery of each rule, however, and
do not mean that all persons committed to morality would not be in
agreement with each rule at least in its broader terms. Both the criminal
law and bioethics reflect the values enshrined in this code – the liberal
values of respecting others’ rights, of responsibility, of ‘do no harm to
others’. Callahan’s observations that acceptance of bioethics was gained
in part because of ‘the emergence ideologically of a form of bio-ethics
that dovetailed very nicely with the reigning political liberalism of the
educated classes in America’ and that ‘[b]ioethics came along with the
kind of intellectual agenda that was wholly compatible with that of liber-
alism’ are surely significant on this point.102 Not all bioethical approaches
are liberal,103 but it is notable that the field as originally construed was
liberal.
In searching for the legitimacy of the rules of the ‘common morality’
within morality itself, however, Beauchamp and Childress have painted
an incomplete picture. Whilst these rules might well be traced back to
morality, what remains unclear is why societies should be convinced that
98 Beauchamp 2010: 43. 99 Ibid.: 177. 100 Hart 1961; Engelhardt 2011: 250.
101 Rawls 1993: 3–4. 102 Callahan 1993: 10.
103 ‘A plurality of moralities produces a plurality of bioethics.’ Engelhardt 201: 256.
these rules are the ones which should be followed. One answer can be
found in Posner’s scathing declaration that ‘[m]oral principles that claim
universality can usually be understood as just the fancy dress of workaday
social norms that vary from society to society.’104 However, this does not
explain the value of these rules beyond their existence serving a social
utility purpose. Surely there is something more to, or different about, the
rule not to cause harm to others, for instance, than social norms such
as queuing at a bus stop? Consider this rule in the context of female
genital mutilation, for example. The prohibition of such procedures is
based on more than a ‘workaday social norm’, although it may be (in
part) a prohibition derived as much from cultural acceptability as from
morality.105
Notwithstanding diverse moral positions, the rules Beauchamp and
Childress state are those that we can agree and need to agree on in order
to live in a socially cohesive, harmonious environment with shared norms.
To achieve what Beauchamp and Childress present as the objective of
morality, the promotion of human flourishing, such a socially cohesive
environment is necessary. Is what is going on here an exercise in political
liberalism – mediation between various moral positions to reach a set of
rules which become the core rules in a liberal polity? From these rules
of the liberal polity emerge defining societal values such as autonomy,106
liberty, justice, equality and avoiding causing harm to others, values
which play a prominent part in both the criminal law and bioethics and,
in the context of criminal law, determine what count as public wrongs.
As Duff contends,
An account of what should count as public wrongs in a liberal polity . . . depends
on an account of the defining aims and values of such a polity . . . . If we are serious
about the values by which we define ourselves as a political community, and about
the demand that we show each other appropriate respect and concern as fellow
citizens, we will take breaches of such values and of that demand seriously, and
mark and condemn them as such.107
This may, in part, explain bioethics and criminal law’s slow acknowledg-
ment of patient autonomy and bodily integrity as both these values have
gained increasing prominence in our liberal polity.
Political liberalism endeavours to locate a core set of principles that
are congruent with conflicting moral positions and can be the subject
104 Posner 1999: 6.

105 As evidenced by the contrast with the cultural response to male circumcision. See
Chapter 2, at 52.
106 Duff 2007: 132. See also Christman 2005: 340; Gaus 2005. 107 Duff 2007: 88.
of consensus among all reasonable citizens.108 Note we are not endors-

ing a particular version of political liberalism here, but rather, focussing
on the broad idea of political liberalism as ‘a system of normativity that
speaks to and protects a population of people’; it guides both citizens
and the state109 towards the defining societal values such as those that
we have identified above. However, for the purposes of illustration, the
challenge for Rawls’ political liberalism is to answer the question ‘how is a
just and free society possible under conditions of deep doctrinal conflict
with no possible prospect of resolution?’110 It is a political conception
of justice as fairness which he presents as key to finding a solution.111
As Engelhardt contends, Rawls chooses to frame his account of justice
within a ‘particular political paradigm’ because this offers a solution
that can be supported within a ‘social democratic regime’, whereas a
morally normative account is inherently problematic in a morally plu-
ralistic society.112 This is important to his and other variants of political
liberalism; such political frameworks can better accommodate pluralism
than moral frameworks because premises which are claimed to be ‘moral
truths’ are not necessarily apparent to everyone.113
Therefore, a normative code that is shaped by political liberalism,
‘connected with the political community’s identity’,114 can be, and must
be capable of recognising divergent moral views. It allows for different
interpretations around the margins of each rule appearing in the ‘com-
mon morality’ alluded to above. Recognising this reveals a richer view
of the shared normative code in society that takes into account the sig-
nificance of the political in deciding which rules will attract common
agreement and thus form the normative code which underpins bioethics
and criminal law, rules that all reasonable citizens need to agree on for
a liberal polity to function effectively and flourish. Essentially, political
liberalism’s goals shape the norms within the common normative code,
providing part of the foundation for what Beauchamp and Childress
present as the ‘common morality’. But when it comes to criminal law’s
resolution of bioethical conflict, political liberalism provides part of the
answer because, in the context of medicine, medical politics and med-
icalisation play such a prominent role in achieving a legal compromise
between conflicting moral principles. This explains why, through the
Abortion Act 1967, most medicalised abortions have been legalised. It
108 ‘Political Liberalism is . . . based on an overlapping consensus on a political conception

of right and justice and presupposes no particular reasonable comprehensive concep-
tion of the good.’ Landesman 2010: 180.
109 Coggon 2010: 549. See also Coggon 2012b: Chapter 7. 110 Rawls 1993: xxviii.
111 Ibid.: 11. 112 Engelhardt 2011: 252. 113 Coggon 2010: 550–1 and 547–8.
114 Van der Burg 2001: 41.
is not that the liberal position that women should have the legal right to
abortion on demand won out but, rather, that in the main, medicalisation
has allowed women a choice.
Moreover, whilst it may be that the normative code which connects
criminal law and bioethics reflects liberal values, and liberalism continues
to be the prevailing source of political normativity in Anglo-American
and other Western societies, it has been claimed that liberalism is facing
a crisis.115 Wolf has opined that ‘In a world now grown dangerous not
only with terrorist threats to our political order but also with biomedical
threats to what some see as the natural order, the coercive force of law
may seem a refuge and individual liberties an indulgence.’116 As travel
and migration across the globe become more common, communicable
diseases may again pose a threat to life in the developed world too. The
gradual shift in the criminal law’s role from the guardian of paternalism to
partially safeguarding patient choices happened in easy times and cases.
Affirming a right to say no did not entail the risk of the sort of harm to
others usually seen as within the scope of criminal law. If biological threats
become more real, it may be that the prominence given to respecting
individuals’ rights in the normative code underpinning bioethics and the
criminal law comes to be seen as less vital because of the threat posed
by those who choose to ignore any responsibility to others. Public health
may more frequently come to outweigh individual liberties. Whilst this
does not affect our claim that political liberalism can be perceived to
connect the criminal law and bioethics, it does suggest that alternative
political perspectives about what regulation is in the common good may
increasingly test western society’s commitment to liberalism and thus
that there is a fluidity around the political normativity which shapes the
shared normative code.
Responsibility in bioethics and criminal law

Building on the connection between bioethics and criminal law that lib-
eralism provides, the notion of responsibility offers further parallels. By
‘responsibility’, we mean the general idea of taking responsibility for one’s
actions (‘the ability to explain oneself, to give an intelligible account of
oneself, to answer for oneself, as a rational being’117 ) and being brought
to account for not acting responsibly. Being capable of being a respon-
sible agent and accepting responsibility for one’s actions in response to
others’ attitudes towards oneself are key to an individual’s (moral) status
115 See, e.g., ‘The liberal supremacists’, The Guardian, 25 April 2009; Starr 2007: 1.
116 Wolf 2004: 301. 117 Gardner 2003: 161.
as a person in society; these are defining features of a person to the extent

that their absence reduces the individual’s status to a nonperson,118 as
Fischer and Ravizza explain in considering the situation where an indi-
vidual refuses to take responsibility for his actions:
If . . . a person resolutely shows no moral response or appreciation of the moral
force of the attitudes we take toward him, then eventually we must concede that he
is not an appropriate partner in the conversation: he has not taken responsibility
for himself. In this case, we stop resenting him as a person, and begin treating
him as we would a distasteful object or a dangerous (or annoying) animal.119
Besides being fundamental to an individual’s moral status, the concept

of responsibility also plays a more communal role in tackling the coordi-
nation problems to be found within liberal societies, as Garrath Williams
suggests:
responsibility is concerned with the sheer difficulty of maintaining and fostering
human cooperation in the light of a whole range of limiting factors: the resources
and attention that each agent can bring to bear, the competing demands on
each agent, the diverging perspectives of plural agents, [and] the limited but
overlapping spheres of responsibility of different agents . . . . It is easy to see that
these factors . . . enter into the everyday lives of almost all members of modern
liberal societies.120
Williams locates responsibility ‘among the moral achievements of mod-

ern liberal societies’.121 According to his analysis, modern liberal soci-
eties need responsibility because of the existence of pluralist moralities;
the absence of a fixed and consistent modern moral situation requires a
moral response and we look to responsibility to provide the answer.122
Moreover, in all societies there are responsibilities that must be performed
to ensure that society operates effectively and progresses. The division of
responsibilities between organisations and individuals avoids the prob-
lems of responsibilities failing to be attended because too onerous a task
is placed on one party, and of conflicting responsibilities being taken on
by the same individual/organisation/profession.123 In the context of med-
ical practice, responsibility (in terms of regulation, guidance, disciplinary
procedures and advice) is divided between statutory bodies such as the
GMC and the Human Fertilisation and Embryology Authority, the UK
Departments of Health, and the ancient Royal Colleges (independent
corporate bodies that promulgate codes of practice within the medical
specialties).
118 We use ‘person’ here (meaning a responsible agent) in a different sense to that which
we use in Chapters 3, 4 and 6.
119 Fischer and Ravizza 1998: 213 (emphasis in original). 120 Williams 2008: 462–3.
121 Ibid.: 468. See also Starr 2007: 4. 122 Ibid.: 464. 123 Williams 2012: 823.
As a notion, responsibility is more complex and elusive than might

at first meet the eye.124 Lacey has noted that ‘[i]n legal, moral and
political philosophy . . . questions about the conceptual structure of
responsibility . . . are of indubitable importance.’125 Much has been writ-
ten on moral and legal responsibility and the differences between the two.
It does not necessarily follow that because we are morally responsible for
acting in a certain way, we are also legally responsible.126 Legal responsi-
bility only exists where one’s behaviour falls within the scope of the civil
or criminal law and, arguably, the GMC’s regulatory jurisdiction. Thus,
Glover explains,
In legal context, to say that someone is responsible for an action may be to say
that he is liable to the normal legal consequences of it. To say that someone is
morally responsible for an action may be to say that he can legitimately be praised
or blamed if either of these responses is appropriate to the action in question.127
Whether moral responsibility can be ascribed depends upon state of

mind, awareness and control of one’s behaviour; it could be argued
that if we act intentionally, knowingly or negligently, then ‘[w]e are
morally responsible for acts that can be attributed to us, whether right or
wrong.’128 But moral responsibility has more dimensions than this expla-
nation alone suggests: we can utilise the idea of responsibility to explain
what (who) we understand a moral agent to be (responsible agency); to
explain when it is appropriate to blame someone for an action (retrospec-
tive responsibility);129 to explain someone’s duty, which is often attached
to a role he or she undertakes (prospective responsibility);130 and to
praise someone (responsibility as a virtue).131 Thus, Glover’s explana-
tion alludes to retrospective responsibility and responsibility as a virtue.
It is possible to see the idea of prospective responsibility in the context of
what we understand the medical professional’s role to involve. And it is
the ideas of moral agency and retrospective responsibility that are most
commonly used in criminal law jurisprudence, although other variants
of responsibility also feature in certain contexts.132
The question of whether and when it is appropriate to hold a medical
professional criminally responsible for actions in the context of health
124 Vincent 2011; Glover 1970: I. For instance, different understandings can exist depend-
ing upon whether one adopts a Kantian (based on reason) or Humean (based on
feelings and emotions) account of moral responsibility. See further Williams 2006.
125 Lacey 2001b: 249. 126 See, e.g., Fingarette 1967: 42. 127 Glover 1970: 19.
128 Miller et al. 2010: 457–8; Fischer and Ravizza 1998: 13.
129 Or what Vincent describes as ‘outcome responsibility’. Vincent 2011: 17.
130 See Downie 1964. 131 Williams 2006.
132 E.g., parents’ criminal liability for neglect of their children (prospective responsibility).
See the following chapter, n.111; Vincent 2010.
care is one of the central concerns of this book. We are not claiming
that the philosophical foundations for the conception of responsibility in
criminal law are identical to those in bioethics.133 Bioethics may require
a higher standard of responsibility than the law, especially in terms of
beneficence. So in England as the law stands, a doctor is no more at risk
of prosecution if he or she walks past a person having a heart attack than
we are if we fail to dial 999 and the unfortunate individual dies when
help would have saved him or her.134 The doctor will, however, face
disciplinary proceedings. And we have already noted that an individual’s
motivation for acting is irrelevant in the criminal law (at least on the face
of it), whilst accountability to ethical values is a part of responsibility in
ethics.135 Yet the idea of responsibility is present in both. Fletcher goes so
far as to argue that our culture is underpinned by the presupposition that
we are accountable for our actions, assuming that there is no valid claim of
excuse that we can rely on.136 Indeed, ‘[i]f that cultural presupposition
should someday prove to be empirically false, there will be far more
radical changes in our way of life than those expressed in the criminal
law.’137
Responsibility has been presented as a core component of the criminal
law by other theorists:
When a criminal court convicts the defendant of an offence, he is held respon-
sible for his conduct. And if the defendant is not responsible for committing
that offence, a criminal court would be wrong to convict him of it. From this,
we can . . . see that the idea of responsibility is central to the criminal justice
system.138
Differing conceptions of what exactly the criminal law holds individuals
responsible for exist. Generally, we might say that the criminal law holds
individuals responsible for a failure to adhere to ‘the basics of human
decency’ by way of negative responsibilities not to treat others in certain
ways.139 For Moore, the notion of responsibility in criminal law is used
in a moralistic ‘sense that names the conjunction of the moral properties
of wrongdoing and of culpability . . . culpable wrongdoing . . . is the kind
of responsibility presupposed by Anglo-American criminal law’.140
Just as criminal law holds individuals responsible for their actions, so
too does bioethics. In the context of prospective responsibility, ‘[t]he
133 See generally Lacey 2001b: 253–4. 134 See Chapter 8, at 233–6.
136 See also Gardner 1998: 237: ‘being responsible for what we do is our default condition,
which falls into doubt only when our status as rational creatures is called into question’.
137 Fletcher 1978: 801–2. 138 Tadros 2005: 1. 139 Williams 2012: 824.
140 Moore 1997: 36 and 45. For a relational conception of criminal responsibility, see Duff
2007.
sense of [ethical] responsibility exhibited by physicians and nurses arises

from their sense of care for others’.141 Furthermore, in demanding
that doctors act in an ethically appropriate way towards their patients,
bioethics holds medical professionals to account for failing to act ethically
when reflected in regulatory codes of practice, thereby imposing retro-
spective responsibility. Whilst accountability should occur at the individ-
ual level, with doctors assessing and taking responsibility for their ethical
behaviour,142 the incorporation of ethics into codes of professional prac-
tice means that bioethics also regulates at an institutional level. Indeed,
a doctor who ignores these ethical responsibilities can face professional
sanction by the GMC. Turning to the criminal law, responsibility occurs
at the individual level because knowledge of criminal law and awareness
that one will be held responsible by that law if criminalised behaviour
is detected may shape behaviour. We note that this is largely dependent
on the criminal law clearly spelling out what constitutes crime, and that
the courts struggle to adapt offences usually seen in a very different
context to deficient medical practice as, for example, in the context of
‘medical manslaughter’.143 Besides responsibility occurring at the indi-
vidual level, the institutional nature of criminal law144 means that it
regulates behaviour through legislative enactments, law enforcement and
the courts, for example. Thus, responsibility in both fields exists within
an institutional context.
With internal systems of norms, the criminal law and medicine both
harbour suppositions regarding the application of responsibility. Lacey
emphasises that assumptions concerning when it is appropriate to hold
individuals responsible for their actions are of significance to contempo-
rary social practices, especially those such as ‘moral blaming, judgments
of guilt in criminal law . . . [and] the operation of disciplinary and reg-
ulatory systems in a wide range of fora . . . in which individuals . . . are
explicitly subject to a system of norms’.145 We will consider shortly the
question of when criminal law and bioethics hold that it is appropriate
to attribute responsibility to an individual for his or her action(s), but
at this juncture, consider Tadros’ contention that ‘[o]ne is responsible
for those things that reflect on one qua agent’.146 He takes this view on
the basis that agents have a system of values and later comments that
‘[r]esponsibility . . . may be attributed when an agent acts on a desire that
is accepted in the light of his values.’147 This is of significance because
141 Tauber 2005: 18.

142 This is certainly the BMA’s approach in its ethical guidance to medical professionals:
British Medical Association [BMA] 2004; Miola 2007: 53.
143 See Chapter 3, at 73–80. 144 See Duff 2007: 37.
145 Lacey 2001b: 249. 146 Tadros 2005: 5. 147 Tadros 2005: 40.
the system of values one follows is likely to be shaped by one’s status as

a member of society and/or as a medical professional. A doctor may fol-
low the same moral code as other members of society, whilst additionally
abiding by values specific to the medical profession. Therefore, a doctor’s
responsibility for his or her actions can also be assessed by taking into
account a distinct, more demanding set of values he or she adopts as a
medical professional. More is demanded from doctors in terms of their
capacity to be morally responsible and reflexive, although not usually
through the utilisation of the criminal law.148
It would be wrong to perceive responsibility in bioethics and crimi-
nal law as being shaped only by their internal systems of norms, how-
ever. Political forces shape the notion of responsibility adopted by both,
and it is of significance that the concept of responsibility was originally
used in political philosophy.149 The very fact that responsibility is such
an important idea in criminal law and bioethical professional regula-
tion reflects values of fairness and individual liberty to be found within
liberalism.150 That is, the need to establish responsibility places limits
on what behaviour one can be brought to account for. Moreover, the
notion of responsibility in a liberal society reflects the idea that with
rights come obligations to others – in social life, one has to take respon-
sibility for behaviour that affects others. Significantly, therefore, con-
nections can again be made with this normativity. And there is also a
link to medicalisation here when the criminal law devolves responsibil-
ity to the medical profession. Take the example of abortion: the level of
responsibility undertaken by the medical profession is shaped, in part,
by the profession’s acceptance that abortion falls within the medical
realm.
It is also important to recognise how responsibility can give mean-
ing to the values accepted by the medical profession. Lacey has drawn
attention to the ‘social meaning of responsibility’, the fact that ‘prac-
tices of responsibility are normative and constructive in that they organise
both our practices and our interpretation of the world’.151 By delineating
the conditions under which responsibility can be attributed, bioethics
and medical ethics reinforce and illuminate the values underpinning the
practice of medicine and health care. For instance, in holding a medical
professional responsible for a breach of the sexual boundaries between
doctor and patient, even if the sexual activity is consensual,152 med-
ical ethics underlines and expresses the value of trust in the medical
148 Contrast Archard 2012. 149 Williams 2006.

150 On the criminal law, see Lacey 2001a: 353.
151 Lacey 2001b: 253 (emphasis in original). 152 Ost and Biggs 2012.
profession. This and other values assert what health care professionals
should be held accountable for.153
Yet on the face of it, there are some values which responsibility appears
to conflict with. Patient autonomy has been heralded (and derided) as a
principal value in medical ethics. If one of a physician’s primary duties
is to respect her patient’s autonomy and allow him to make decisions
regarding his medical treatment on the basis of his own values, does this
diminish physician responsibility? According to Tauber it does not:
To derive a course of action most consistent with the particular needs of

[the] patient is a self-reflexive exercise that must weigh both the health-care
provider’s medical judgment and the patient’s preferences . . . physician respon-
sibility remains whatever degrees of patient autonomy are exercised.154
Arguably, therefore, the physician retains responsibility even in the face

of a strong expression of patient autonomy because it is the physician who
is ultimately responsible for deciding on the most appropriate course of
action. Tauber’s presentation of the physician’s responsibility can be cri-
tiqued for not taking into account the fact that the level of responsibility
a physician retains depends on the treatment decision.155 If the decision
is whether to offer treatment in the first place, the physician’s respon-
sibility cannot be relinquished in the light of the patient’s demand for
treatment because the physician has to decide whether the treatment is
clinically indicated and appropriate treatment.156 However, if the deci-
sion relates to the withdrawal of treatment from a competent patient,
then the physician’s obligation to respect patient autonomy means that
the responsibility ultimately rests with the patient; the physician largely
surrenders responsibility.
Notably, patient responsibility has received less attention in the
bioethical and health care law literature. Draper and Sorell contend that
‘[m]edical ethics is one-sided. It dwells on the ethical obligations of doc-
tors to the exclusion of those of patients.’157 A side effect of the turn from
medical paternalism to patient empowerment is that consideration of
patients’ rights has been prioritised over consideration of their duties.158
Perhaps there is a fear that a focus on what obligations patients owe might
challenge the dominant autonomy paradigm,159 yet, as Coggon observes,
‘[o]pportunities for debate about what responsibilities patients should
153 Turoldo and Barilan 2008: 115. 154 Tauber 2005: 139–40.
155 We are grateful to Sarah Devaney for her observations on this.
156 As made clear in R (on the application of Burke) v. General Medical Council [2005] EWCA
Civ 1003. See also Chapter 2, at 45–8.
157 Draper and Sorell 2002: 335. 158 Brazier 2006.
159 Ibid.: 398; Coggon 2012c: 142.
have are foreclosed whenever we assume a default position that patients

rightly and rightfully possess complete freedom from responsibility.’160
Lately, this default position is not the one assumed in the context
of patients behaving appropriately whilst receiving health care (not
behaving violently or aggressively towards staff,161 keeping their hospital
and GP appointments and informing the health care provider in the case
of unavoidable cancellation).162 In the bioethical literature, patients’
responsibility for ill health that is perceived to be self-inflicted is
increasingly being debated.163 And one of the authors has noted how
patients’ responsibilities towards their families can also raise important
legal and ethical issues.164 Yet notwithstanding more recent attention
to patients’ responsibilities, the imbalance in the responsibility debate
towards assessing doctors’ responsibilities regarding their patients in the
bioethical and medical law literature remains.
On the issue of when it is appropriate to attribute responsible agency
in both bioethics and contemporary criminal law, both revolve around
an assumption that this is a matter relating to an individual’s possession
of capacities, in other words, ‘capacity responsibility’.165 In terms of
criminal law,
These capacities have both cognitive and volitional dimensions . . . the responsible
subject is an individual who was in possession of, or at least capable of being in
possession of, the relevant knowledge or beliefs about the context in which they
acted or omitted to act, and who had a fair opportunity to act otherwise than
they did.166
The capacities in question which hold us responsible for our conduct

are ‘capacities for knowledge, awareness, reflection, deliberation, and
160 Ibid.: 141.

161 Consider, e.g., notices on display in NHS hospital wards and waiting rooms that
aggressive, abusive or violent behaviour towards employees will not be tolerated and
Trust policy documents on this matter, such as Oxfordshire Primary Care Trust’s, avail-
able at http://www.oxfordshirepct.nhs.uk/about-us/documents/265HealthandSafety
ManagementofViolenceandAggressionPolicyApril2011.pdf.
162 E.g., patients under the care of one NHS Foundation Trust are advised: ‘It is vital
you let us know so that we can offer the appointment to another patient. It could be
you next time who needs a cancellation slot.’ See http://www.colchesterhospital.nhs
.uk/ql cancel.shtml.
163 See, e.g., Sharkey and Gillam 2010. 164 Brazier 2006: 402, 410–2.
165 Vincent 2011: 18.
166 Lacey 2001b: 255. Notwithstanding this concern with capacities, Lacey’s analysis
reveals that character responsibility is still evident in aspects of the contemporary
criminal process. See also Lacey 2010: 128–9 and see Chapter 5, at 128. See Tauber
2005: 241 on character responsibility in bioethics.
choice’.167 The ability to judge is also crucial.168 Such capacities evi-

dence a responsible subject,169 drawing us to Naffine’s detailed analysis
of who counts as a legal person (that is, a person whom the law can
address and who is subject to the law). One of the definitions of a legal
person she considers is ‘the responsible subject’, a rational human legal
agent who ‘can be held both morally and legally accountable for his
actions because his actions are guided by reason: he knows what he is
doing and still chooses to act as he does’.170 Significantly, the notion of
responsibility in criminal law jurisprudence revolves around this concept
of a legal person as a moral being.171 This is particularly evidenced in
Moore’s analysis: for him, the presupposition for holding an individual
responsible is that he or she ‘must be sufficiently rational and autonomous
to be a moral agent’.172 That there is a minimum age threshold for crim-
inal responsibility reflects this idea of the possession of certain capacities
being necessary in order to be considered accountable by the criminal
law.173 The principle that moral responsibility based on rationality is a
condition for criminal liability (which explains why young children and
some mentally incapacitated adults are excluded from being the subjects
of criminal law) can be seen as a doctrine within the ‘general part’ of
the criminal law.174 Even if the criminal law is faced with a responsible
subject, however, legal culpability does not always follow; account may
be taken of the surrounding circumstances in which the individual acts.
Thus, Drs Prentice and Sullman successfully appealed against their con-
victions for gross negligence manslaughter because neither of them had
administered the drugs in question before and they had been left unsu-
pervised. Although both were responsible agents, culpability for their
errors that led to their patient’s death was not sufficient to warrant their
convictions for manslaughter.175
The application of bioethics also presumes a rational moral agent,
capable of assessing her/his actions,176 and a high level of reflexivity is
assumed of the physician as a rational moral agent. In their analysis of
167 Lacey 2001b: ibid. 168 Williams 2008: 469. 169 Duff 2007: 39.
170 Naffine 2003: 362. 171 Ibid.: 364. 172 Moore 1997: 403.
173 Although, of course, questions can be raised as to whether the setting of an arbitrary
age limit is the appropriate way to ascertain whether such capacities exist. On moral
responsibility and age, see Fingarette 1967: 21.
174 Gardner 1998: 245. Principles falling under the general part of the criminal law apply
generally to all crimes and can be ‘guiding principles for the creation, interpretation, and
application of new criminal laws’ and/or doctrines ‘that provide the detailed linguistic
and conceptual apparatus of the law’. Gardner 1998: 208.
176 See Ladd 1978: 27. As quoted in Schneider 1994: 19.
the concept of responsibility in bioethics, Turoldo and Barilan refer to

the process of interiorisation as:
the ability to conduct an independent process of moral valuation, of being able
to exercise rationality in order to adopt or reject a sense of guilt or approbation
in emulation of authentic judgment . . . . The element of interiorization has taken
prominence in the recent bioethical literature belonging to the clinically oriented
point of view. Responsibility is rendered at the level of moral excellence, even
supererogation, an internal sense of duty to answer to moral standards that are
richer and more demanding than mere compliance with laws and regulation.177
This would seem to return us to morality again, with the emphasis on

the doctor as a moral agent and responsible person. Is it asking too much
for doctors to be morally excellent? The extent of a physician’s moral
responsibility and reflexivity is raised in the following:
How morally reflexive should a physician be? The answer, not surprisingly, is that
it depends on the context. Scenarios range widely: vexing end-of-life decisions;
clinical rationing of scarce resources; fidelity to patients’ self-interest, and so
on. . . . What strikes me as glaringly obvious is the depth of the moral challenge
beyond the ordinary identification of ethical issues.178
Thus, whilst criminal responsibility merely requires rationality, a physi-

cian’s moral responsibility is much more demanding – he or she is
expected to demonstrate a moral reflexivity when exercising her duty
to her patients, an ability to manoeuvre herself through difficult ethical
issues and engage in a superior moral evaluation of her own behaviour.179
Indeed, ‘[m]any moral obligations established by roles in health care are
moral ideals from the perspective of the common morality’.180 Responsi-
bility in the criminal law and bioethics is set at different levels for a simple
reason: responsibility is operating in fields that have differing functions
and applicability. The criminal law constrains the behaviour of all citi-
zens who are rational legal and moral agents, whereas it is specifically
behaviour occurring in the course of professional duties that bioethics
guides and regulates. Given that the criminal law is binding on all cit-
izens, it is necessary to set the level of legal and moral responsibility it
requires at a level that it can be assumed the majority in society can
reach. In contrast, physicians take on a significant, specific social role
which they are aware will require them to be morally reflexive in the face
of challenging ethical dilemmas relating to patients’ health. Retrospective
responsibility is imposed on doctors when it would not be so imposed on
177 Turoldo and Barilan 2008: 116. 178 Tauber 2005: 12 (emphasis in original).
179 See Downie 1964: 33–4.
180 Beauchamp and Childress 2009: 50 (emphasis in original).
others because of their role responsibility;181 their distinctive, specialised

societal role demands a higher level of capacity responsibility, as reflected
in bioethical discourse and regulation.182 We expect medical professionals
to have made their career choice on the basis of their own assessment that
they have the necessary capabilities to attain this higher level of responsi-
bility. Consequently, doctors and other members of society are not equal
moral agents. This also suggests that we apply prospective responsibil-
ity to medical professionals, placing emphasis upon their role and the
responsibilities that come with it. But this can be tempered to a degree if
doctors experience a lack of training (through no fault of their own), are
following poor protocols or working under poor conditions, for exam-
ple, as the quashing of Drs Prentice’s and Sullman’s convictions again
illustrates.
We draw attention to one final matter here, related to tackling coop-
eration difficulties between individuals in society. Whether one is most
convinced by the claim that it is the notion of morality, (political) lib-
eralism and/or responsibility that connects bioethics and criminal law,
through shaping and regulating behaviour, both bioethics and the crim-
inal law offer a way to deal with coordination problems183 in a liberal
society. They are connected in the sense that they serve a pragmatic pur-
pose. Perhaps their most important function in this regard is that both
bioethics and criminal law seek to avoid the violation of others’ interests,
which draws attention once more to the values of liberalism.
The theatre of interpretation

A final connector we now consider is the concept of interpretation, draw-
ing upon our background theme of theatre and literature. The cases and
events which the criminal law and bioethics become involved with are
often ones in which we need narrative thinking to understand. Bruner
has contended that ‘[t]here appear to be two broad ways in which human
beings organize and manage their knowledge of the world . . . one seems
more specialized for treating of physical “things,” the other for treating
of people and their plights. These are conventionally known as logical
scientific thinking and narrative thinking . . . ’.184 Cases involving the end
of life, abortion and the selling of organs, for instance, involve people
and their plights and, to make sense of them, narrative discourse cannot
181 See generally Vincent 2011: 21. 182 Ibid.: 22.

183 On which see Finnis 1980: 232; Moore 1997: 73.
184 Bruner 1996b: 39 (emphasis in original).
be avoided. By way of example, Re A185 can be placed within a nar-

rative framework that provides an explanation for the events that took
place. Utilising the view of a common structure of a story that Bruner
explores,186 the narrative framework could consist of the following:
r ‘a steady state which establishes a world view’ (that it is unlawful and
unethical to actively end life, and that all human beings have a right to
life)
r ‘a precipitating event which is some break in the steady state’ (the birth
of the conjoined twins, with one being reliant on the other for survival
and the other being unlikely to survive because of this)
r ‘a challenge unexpected by the protagonists, not necessarily by the
audience’ (this could be the parental resistance to what the medical
team proposed, or the challenge faced by the parents because of the
proposal that one of their children’s lives could be lawfully ended in
violation of their religious beliefs)
r ‘a restoration in which the precipitating event is resolved and some
steady state restored’ (the intervention of law to resolve the event)
r ‘a coda which signals that the narrative is at an end’187 (the separation
occurs, with the anticipated result)
Bioethics and the criminal law are involved in the process, offering mean-
ings, solutions and challenges that are subject to interpretation through-
out the story. Within the context of narrative construction, we focus
on the role of interpretation, an essential element in the narratives that
bioethics and criminal law play a part in shaping.
Some of the decisions taken by the courts and taken (or avoided) by
legislatures are excoriated by commentators as illogical and failing to
connect to any coherent doctrine of bioethics or the criminal law. Cases
such as Re A show disconnects and may seem to undermine our con-
tention for compatibility between bioethics and criminal law. But there
is a reason. Charon highlights the relevance of differing interpretations
within medical ethics and bioethics, noting that ethical issues regularly
come to light because there is conflict between interpretations of prin-
ciples and their application.188 When the criminal law enters the stage,
such conflict in interpretations often exists and the criminal law has to
resolve the case. For instance, the application of the criminal law in Re A
resolved the legal dilemma presented by the bioethical conflict that the
precipitating event gave rise to, that is, whether not harming one twin or
benefitting the other should take priority. But this does not necessarily
185 Re A (children) (conjoined twins: surgical separation) [2001] Fam. 147.

186 Bruner 1996a: 16–21, as presented by Davis, Dautenhahn, Nehaniv and Powell 2007.
187 Ibid.: 146. 188 Charon 1994: 272.
mean that the application of criminal law results in a satisfactory resolu-

tion to the event, or that the end result is not a distortion of criminal law,
as we sought to illustrate in Part II.
When the criminal law is applied to bioethical dilemmas, the ethical
issue must be interpreted and translated into criminal law discourse, prin-
ciples and concepts in order to (legally) resolve the case. Thus, Brooke
LJ moulded the case before him into one in which the doctrine of neces-
sity could apply to justify the medical team’s actions in operating on the
conjoined twins and thereby killing Mary.189 As this example also makes
clear, judges interpret criminal law jurisprudence in the light of the ethi-
cal dilemma before them: the defence of necessity had never before been
available in response to a case involving murder.190 Brooke LJ was able
to interpret the jurisprudence surrounding necessity to exclude policy
considerations present in previous cases; this was not a case of one per-
son being a judge in his own cause of the value of his life, or one in
which allowing necessity to justify the taking of a life would mean that
the law would be absolutely divorced from morality.191 On this interpre-
tation, necessity was available as a defence only in the case before him,
differentiating it from previous cases. Brooke LJ was continuing the story
of criminal law jurisprudence on necessity by responding to the specific
and distinctive elements in the case, a reflection of Dworkin’s ‘law as
integrity’ thesis:
Law as integrity asks a judge deciding a common-law case . . . to think of himself
as an author in the chain of common law. He knows that other judges have
decided cases that, although not exactly like his case, deal with related problems;
he must think of their decisions as part of a long story he must interpret and then
continue, according to his own judgment of how to make the developing story as
good as it can be.192
Through his interpretation and application of law-lore, Brooke LJ became

a co-author of a narrative of criminal law in which Re A became a chapter.
His translation of ethical conflict into a legal story involving necessity (an
approach based, in its most watered-down sense, on the lesser of two
evils) offered a resolution: ‘[b]y projecting the legal principle of the least
detrimental alternative into its environment, the common law finds there
not the “brute”, incommensurable conflict that is incapable of resolution,
but a commensurable one that it can manage and, ultimately, resolve.’193
Even in hard cases such as the conjoined twins case, although this task is
189 At 219–40. The same argument could be made about Ward LJ’s interpretation of the
facts before him as raising self-defence (at 204).
190 R v. Dudley and Stephens (1884) 14 QBD 273; R v. Howe [1987] AC 417.
191 At 239. 192 Dworkin 1998: 238–9. 193 Veitch 2007: 139.
especially difficult, it has still proven possible for judges to find, interpret
and apply a legal principle (whether that be necessity or self-defence)
that offers the least detrimental outcome.
It is not just the judge who plays an interpretive role. More broadly, fol-
lowing Kelman’s analysis, interpretation lies at the heart of the criminal
courts’ work, to the extent that any finding that a defendant is guilty will
have been shaped by the courts’ application of ‘interpretative constructs’
to the facts before them. That legal concepts themselves are deliberately
‘open-textured’, thereby facilitating interpretation,194 only adds to this
interpretative theatre. Consequently, there can be no neutral application
of a criminal law rule to the facts.195 Kelman utilises the term inter-
pretative construction to ‘refer to processes by which concrete situations
are reduced to substantive legal controversies: It refers both to the way
we construe a factual situation and to the way we frame the possible
rules to handle the situation.’196 He contends that such constructs can
be applied consciously or unconsciously, an example of the latter being
whether the interpreter views the defendant broadly (‘as a representa-
tive of the broader category of human beings’) or narrowly (as ‘a unique
individual, with a unique set of perceptions and capabilities’).197 The
application of interpretative construction and the framing of the situa-
tion, the defendant’s behaviour and the defendant himself, draws out
the way in which interpretation in the criminal law is both theatrical
and played out in a theatre. Indeed, ‘[t]he theatricality of the British
criminal trial might be regarded as one of its most attractive features by
those who do not find themselves unwilling participants in it.’198 The
accused, usually the most unwilling participant,199 ‘is placed dramati-
cally in a separate cage’.200 But centre stage is arguably taken by the
legal players and narrators; criminal courts are the theatres in which
barristers and judges perform. The winning side wins in part because
its barrister offers the jury the most convincing performance,201 and
the trial becomes a trial of the character of the accused rather than the
issues.202
However, the application of interpretative constructs can avoid the
conventional theatre of the criminal process in the first place. Different
theatres thus interpret and resolve the case. As we saw in Chapter 5, the
194 Lacey 1993: 626. 195 Kelman 1981. 196 Ibid.: 592.
197 Ibid.: 592 and 596. 198 McEwan 1998: 11.
199 Although Bourne illustrates that the defendant is not always an unwilling participant.
See Chapter 1, at 26–8, and Chapter 4, at 99.
200 McEwan 1998: 12. 201 See also Wells and Quick 2010: 52.
202 See R v. Arthur (1981) 12 BMLR, Chapter 1, at 33–7; R v. Bourne [1939] 1 KB 687.
Bland case was construed to require a declaration from the civil courts
that the withdrawal of treatment was lawful rather than the prosecution
of the relevant players for homicide after the event. And in cases of
assisted suicide, the theatre of interpretative construction initially occurs
behind the scenes, performed by Crown prosecutors. If it is decided
that no prosecution should be brought following the assessment and
interpretation of the evidence and public interest factors for and against
prosecution, the engagement with the theatre of the criminal process
ends there. In addition, we may see the translation of real-life situations
involving assisted dying through dramatists’ interpretative construction,
as illustrated by the television drama about Dr Anne Turner’s assisted
suicide.203
Kelman’s concept of interpretative construction can also be applied
within bioethics. Although bioethics involves the application of theories
and principles to real-life situations, ethicists and health care lawyers
also interpret real-life situations into substantive ethical controversies and
frame the possible ethical theories and principles to tackle the situation.
For example, a case in which the organs of a man were donated on the
condition that they would go to a white recipient204 is presented as an
ethical controversy of autonomy versus justice.205 Following a hospital’s
refusal to provide in vitro fertilisation treatment to a woman, her former
status as a prostitute is emphasised in the bioethical and health care
law literature and the case narrated as an ethical controversy involving
reproductive autonomy versus discrimination.206
The story that the ethicist, the Official Solicitor in declaratory cases,207
the judge, counsel for the prosecution or the defence, or the criminal law
theorist wishes to tell is inevitably shaped by the interpretations of those
involved in the story’s telling. Charon explains this in her presentation of
the medical ethicist as a narrator:
the medical ethicist faces narrative tasks in identifying the multiple tellers of
the patient’s story, the several audiences to whom the story is told, and the
interpretive community responsible for understanding it. The medical ethicist
relies on narrative methods to examine contradictions among the story’s multiple
representations, conflicts among tellers and listeners, and ambiguities in the
events themselves.208
203 See Introduction, at 8. 204 See Department of Health 2000.

205 See, e.g., Cronin and Price 2008.
206 R v. Ethical Committee of St Mary’s Hospital (Manchester), ex p Harriott [1988] 1 FLR
512; Brahams 1990: 857.
207 See Chapter 5, at 158. 208 Charon 1994: 261.
Moreover, there are devices that bioethicists avail themselves of to

encourage certain interpretations of the particular dilemma and to make
the most of dramatisation. According to Chambers, case presentations
covertly reinforce authors’ arguments and such presentations are used as
a rhetorical device. Through an examination of case presentations given
in the bioethical literature, he claims that ‘[f]ar from being morally neu-
tral, the case presentation communicates and persuades readers to see
dilemmas within a particular philosophical framework . . . ethicists per-
suade through narrative style’.209 The same argument could be made
regarding the thought experiments which are often favoured by bioethi-
cists and philosophers, the most famous of which include the deadly
runaway trolley, Smith and Jones and their unfortunate nephew, and the
parasitic (albeit nonblameworthy) violinist with a fatal renal condition.210
Dramatic thought experiments help to engage the reader and keep the
author’s work firmly lodged in her memory, and they also serve to make a
strong case for the author’s position. The near-automatic ‘right to bodily
autonomy’ response to the idea of one’s body being invaded and used by
another that the violinist scenario generates serves Thomson’s defence
of abortion well. The powerful image and reaction which it gives rise to
ensure that her work has continued prominence more than thirty years
after its publication.
Audiences’ interpretations also play a role in shaping bioethics and
criminal law and their impact on society. In the context of bioethics:
‘[t]he interpretive community of the case may include all who sit on a
hospital ethics committee, all doctors and students on a ward team, the
primary doctor and the primary nurse, the family, the patient, or anyone
else who encounters the case’.211 And to this we should add the readers
if the case is discussed in a bioethical work. Thus a real-life bioethical
dilemma is interpreted by the players in the actual event(s) and the
bioethicist’s audience as a part of narrative discourse. In criminal law,
the interpretive community comprises
the judge, who interprets legal principles and precedents and rules of fairness;
the jury,212 who interpret the legal argument, the defendant’s demeanour, the
performance of counsel and the witnesses in the stand;
the barristers, who interpret the law, the witnesses’ responses to questions and the
legal arguments of the other side;
209 Chambers 1994: 60–1. 210 See Foot 1978: 19–32; Rachels 1975; Thomson 1971.
211 Charon 1994: 263.
212 In the rare case when the criminal law principle is tested in a conventional criminal
trial. See further McEwan 1998: 10.
the defendant, whose interpretation is likely to be affected by what he or she

knows to be the facts regarding his or her behaviour, by nerves and because of
the overwhelming significance of the event for his or her future;
the witnesses, who offer their own interpretation of the event(s) they witnessed or,
if expert witnesses, offer the jury their expert opinion on the evidence for them
to interpret;
the media, who may be swayed towards a particular interpretation of the case
because of certain imperatives such as selecting particular aspects of case that
they know their audience will be interested in;213
the public, the majority of whom interpret the case without direct experience of
the theatre of the courtroom and through the potentially distorting lens of the
media;
judges and barristers in subsequent cases, who interpret the case and its precedent
in terms of their relevance to the new case or their distinguishing features;
the CPS, who interpret and apply the relevant offence and the evidential and
public interest factors when bringing a prosecution and may take the jury’s verdict
into account when making decisions as to whether to prosecute in future cases;
the legislature, who might be prompted to introduce proposals for legal reform if
the outcome of the case is interpreted as significant and problematic.
Interpretation is thus key to the evolution of narratives that construct the

reality which bioethics and criminal law help shape. Because of this, there
is no real ‘truth’ but multiple stories, and it is highly unlikely that there
will be one generic interpretation of an event. The story and interpreta-
tion which is most likely to be accepted is that which has the appearance
of truthfulness and realism: ‘[n]arrative “truth” is judged by its verisimil-
itude rather than its verifiability.’214 This returns us to the likelihood that
narratives in criminal law and bioethics will be shaped by the lawyers
and judges who provide the most convincing versions of the truth in the
courts, and the authors in the bioethical literature who offer the most
credible and persuasive presentation of the particular event or issue.
Finally, although our focus in this section is not on morality or political
normativity, interpretation also features prominently in criminal law and
bioethics, because both interpret society’s normative code. There is a
need for congruence between the interpretations of the rules originating
in morality and liberal values within bioethics and criminal law if they are
to regulate behaviour consistently and effectively, a matter addressed in
the next chapter. Consistency is facilitated by the fact that interpretations
in criminal law and bioethics will inevitably be affected by the culture and
213 See Brassington 2011: 227–8 and 231. 214 Bruner 1991: 13.
political normativity which both exist within. For ‘neither the ethical, the
legal, nor the literary case is ever read ahistorically or apolitically; all
interpretation is related to prior and future kindred readings and, at the
same time, contributes to and derives from semiotic and cultural systems
that attribute meaning to events’.215
Moving from broader connections between bioethics and

criminal law to more specific links
If bioethics and the criminal law are connected in important ways by
shared moral philosophies, values and concepts, shared political norms
and narrative construction, we might expect more convincing reasoning
to underlie the criminalisation or noncriminalisation of behaviour in the
context of the kind of bioethical dilemmas which we examined in Part
II. But it is too early yet to reach a conclusion on this matter; in order to
explore the issue of compatibility further, it is necessary to bore down into
more specific aspects of bioethics and criminal law, and thus in the next
chapter, we consider the way in which they regulate and shape behaviour
through certain principles.
In order to be accepted as principles that physicians should follow
in the context of the doctor–patient relationship and thereby to shape
behaviour, bioethical principles need to reflect the political norms within
societies. Because the criminal law is the state’s most draconian tool for
regulating behavior, in a society in which political liberalism is the prevail-
ing source of normativity, principles must exist which justify its selection
as the appropriate method of regulation. These principles should reflect
the values of liberalism. In theory, then, if criminal law and bioethics
exist within the same liberal political normativity, the principles to be
found in both disciplines should be compatible. Whether or not there is
parity between bioethical and criminal law principles is the focus of the
next chapter.
215 Charon 1994: 272.

8 Parallels and disconnects
Bioethical principles, principles of criminalisation

and the rule of law
As Part II illustrates, ethical dilemmas in medicine often involve ‘hard

cases’ testing criminal law’s application and interpretation. Faced with
difficult medico-legal dilemmas in non-criminal matters, judges fre-
quently attach weight to professional ethical guidance to help find a
resolution.1 The evolution of legal principles involving confidentiality2
and informed consent3 derives directly from ethical principles such as
nonmaleficence and autonomy. But even if judges do consider bioethical
issues in cases involving the criminal law,4 can bioethical principles offer
any assistance in achieving a resolution? Moreover, if criminal law is as
pervasive in health care as Parts I and II suggest, then there is a need
for some consistency between principles of bioethics and criminal law.
If consistency is lacking, this may explain some of the problem cases
addressed earlier.
Thus, building on our consideration of whether the criminal law and
bioethics are underpinned by the same or similar normative codes, we
now consider whether the ethical principles that guide medical profes-
sionals reflect and work compatibly with the principles of criminal law
We do not suggest that exact congruence is necessary or desirable. Ethics
may demand a higher standard of behaviour than the criminal law. Ethi-
cal codes of practice will address the totality of practice. One expectation
that it would be wrong to have of the criminal law is that it should pro-
vide physicians with comprehensive guidance on how to act when faced
with an ethical dilemma. As Ashworth notes, ‘that is a matter for . . .
statements of ethics’.5 But if the principles of criminal law are wholly
unrelated to the principles of bioethics, doctors may find themselves
1 See, e.g., W v. Egdell [1990] Ch 359, Chapter 7, at n.21.

2 Such as in X v. Y [1988] 2 All ER 648 and H (A Healthcare Worker) v. Associated
Newspapers; H v. N [2002] EWCA 195.
3 See, e.g., Chester v. Afshar [2004] UKHL 41, at para 14.
4 See, e.g., Airedale NHS Trust v. Bland [1993] 1 All ER 821; Re A (Children) (Conjoined
Twins: Surgical Separation) [2001] Fam. 147.
5 Ashworth 1996: 191.
217
violating the criminal law, yet acting ‘ethically’. If the criminal process
fails to adapt to the particular context of medicine, inconsistency between
criminal law, medical practice and ethics may provoke claims that the law
is unjust and arguments that rather than struggling to apply the general
law, specific offences should be created that take into account the eth-
ical principles which govern a physician’s practice.6 So although we do
not suggest that bioethical and criminal law principles should be iden-
tical, our claim is that they need to be compatible. Compatibility alone
is, however, only part of the analysis. How well the principles of either
bioethics or the criminal law work, even when compatible, may be of
greater import.
Another key question is how bioethical principles should be enforced;
when if at all should the criminal process be invoked? The criminal law
is usually and appropriately seen as the means of last resort, and thus
it is helpful here to envisage a ladder of enforcement. The first rung on
the ladder of implementation of bioethics is located in the doctor’s con-
science. Reflecting on bioethical principle, the individual does the right
thing.7 On the next rung of the ladder are the norms of medical practice.
Responsible professional practice guides decision making, and the doctor
who falls short of the norm may face the disapproval of colleagues. The
third rung is progressed to when the principle is reflected in professional
codes of practices or guidance, and on this rung, failure to comply with
the principle could result in sanctions such as suspension from medical
practice. Thus, a doctor who engages in consensual sexual behaviour
with a patient may face professional disciplinary action because of failure
to comply with the ethical principle that doctors must maintain sexual
boundaries.8 The next step up involves enforcement through civil law
with legal sanctions for breach, such as the tort of confidentiality when
the doctor breaches the ethical duty to keep patients’ confidences. Finally,
enforcement through the criminal law forms the top rung. Criminal law
intervenes when breach of a bioethical principle constitutes a wrong seri-
ous enough to amount to a public wrong, such as where a doctor violates
the ethical principle of autonomy by continuing to treat a patient in the
face of competent refusal. For the ladder to be sound, there must be
congruence between the law and the bioethical principle. If the two are
contradictory, the integrity and utility of both must be questionable and
both fail in the task of providing a principled framework for medical prac-
tice. We will see that in many cases congruence is present, but that these
tend to be the ‘easy’ cases. In the examples above, the ethical and legal
6 See Quick 2010: 186 and 197.

7 As in accordance with virtue ethics, see Gardiner 1993.
8 General Medical Council 2006; Ost and Biggs 2012.
Parallels and disconnects 219
obligations to maintain confidence, and the ethical principle of

(patient) autonomy and the criminal offence of battery offer some such
congruence.
The previous chapter demonstrated that connections between
bioethics and criminal law may be established via moral philosophy,
(political) liberalism, the notion of responsibility and narrative construc-
tion. Moving on to examine connections or disconnections between spe-
cific bioethical and criminal law principles has posed a problem, given the
plethora of bioethical literature and jurisprudence. Our particular focus
is principlism in bioethics,9 criminal law jurisprudence and, specifically,
principles of criminalisation and principles of legality deriving from the
rule of law. We acknowledge that principlism is not by any means the the-
oretical approach adopted by all bioethicists, although it is a dominant
approach in the United States and the UK. We frame our analysis around
the four bioethical principles to be found within principlism because there
seems to be a clear connection between the ‘four common, basic prima
facie moral commitments’10 – nonmaleficence, beneficence, autonomy
and justice – and principles of criminalisation and legality within the
criminal law. Thus, to put it crudely, if there are fundamental obstacles
to connecting principlism and the criminal law, those problems may well
be magnified in other bioethical approaches.
Principlism in bioethics
The principlist approach evolved in the 1970s and 1980s. Beauchamp
has suggested that during this time, general norms were developed which
offered professionals from various disciplines a ‘distilled morality’, a
shared way of analysing ethical problems.11 Principlism is designed to
be applied by physicians to assist them in ethical decision making. Its
usefulness as such a tool has been noted by the BMA, although it is crit-
ical of a ‘blinkered adherence to abstract principles’.12 Beauchamp and
Childress are the founding fathers of principlism and when they devel-
oped their approach, their ‘proposal was that traditional preoccupation
of health care with a beneficence-model of health care ethics be shifted
in the direction of an autonomy model, while also incorporating a wider
set of social concerns, particularly those focused on social justice’,13 a
shift to be copied to an extent by the criminal law.
Beauchamp and Childress based their approach on four principles
grounded in the common morality:14 autonomy, beneficence, nonmalef-
icence and justice. Behind each of the principles lie undertones of
9 Beauchamp and Childress 2009. 10 Gillon 1994a: 184.

11 Beauchamp 2010: 36. 12 BMA 2004: 318. 13 Beauchamp 2010: 36.
14 On which, see Chapter 7: 195–6.
Kantian moral philosophy and duty-based ethics. Failing to respect

another’s autonomy can be perceived to amount to treating them only
as a means without regard to their purposes and desires;15 causing oth-
ers harm is something that should never be done, no matter what good
consequences ensue; an imperfect duty of beneficence was recognised
by Kant,16 as were duties of justice.17 Those who adopt the principlist
approach may disagree on the scope of each principle, but in Gillon’s
view, this is far from a failing.18 Indeed, Beauchamp and Childress argue
that their principles need to be specified to fit particular contexts in order
to lose abstractness, and specification can lead to a narrowing of their
scope.19 That the scope of the principles is, at least initially, malleable is
an implicit part of their approach.
None of the four principles is absolute or more important than the
others; when their application to a specific scenario results in conflict
between two or more of them, which one(s) should override the others
depends on context. Notably, then, the four principles in and of
themselves (and bioethical principles more generally) cannot provide a
concrete answer to a particular dilemma. Unlike criminal law, bioethical
principles do not have an imperative of certainty but, rather, ask ques-
tions and offer possible ways of deciding on the appropriate way to act.20
Although this suggests a certain open-endedness and looseness about
the application of the four principles, Beauchamp and Childress provide
a list of conditions that must be satisfied for it to be legitimate to infringe
one principle when following another, including that ‘[g]ood reasons
can be offered to act on the overriding norm rather than on the infringed
norm’.21
Jonsen explained how principlism was received, understood and
embraced by (some) bioethicists:
These principles were law-like statements that presumably were comprehensive,
covering all moral questions that could arise. In effect, when the bioethicists
‘applied’ these principles to cases, they became crypto-casuists, appreciating the
circumstances and the constraints of the situation as much as, if not more than,
the principle.22
15 Beauchamp and Childress 2009: 103.

16 Kant saw the duty of beneficence as imperfect rather than perfect because beneficence
has to be selective – circumstances outside of our control can direct how much benefi-
cence (if any) we are able to exercise.
17 These duties being duties of right that we can demand from other agents. See Kant
1991: 188.
18 Gillon 1994a: 187. See also Gillon 1986, especially the discussion of the Arthur case in
the introductory and concluding chapters.
19 Beauchamp 2010: 45–6. 20 See later, at 251–2.
21 Beauchamp and Childress 2009: 23. 22 Jonsen 1991: 127–8.
According to Gillon, the four principles are ‘acceptable within a vari-

ety of moral theories’ because they provide ‘a common set of moral
commitments, a common moral language, and a common set of moral
issues’.23 He goes so far as to take the four principles beyond bioethics
into moral lawmaking, contending that laws are ‘morally legitimate’ if
they are enacted in a democratic political system that ‘makes laws on the
basis of certain common moral values that reflect the four principles’.24
Thus, one of the principal advocates of principlism argues that a natural
connection with the law marries it to the principles.
Whilst we noted above that a basis for all the principles might be found
in Kantian moral philosophy, Gillon’s contention that a political system
can follow the moral values these principles reflect suggests another foun-
dation. In the previous chapter, we argued that the common normative
code which connects criminal law and bioethics mirrors values to be
found within liberalism. Rather than adherence to the four principles
and common moral values ensuring morally legitimate laws, as Gillon
contends, might it instead be the case that it is the values that derive
from liberalism which both legitimate the four principles and allow us to
determine which laws are legitimate? If this is the case, then in present-
ing these principles, Beauchamp and Childress are effectively engaging
in politics, choosing principles which are most likely to be supported
within societies whose political norms are liberal.25 This may provide a
response to the claim that the four principles are the children of aspects
of the common morality in American society and limited in their applica-
bility and relevance.26 Arguably, they have a broader application because,
in the abstract, they fit with and are integral to most interpretations of
liberalism.27 Thus, they are of relevance not only to American society but
also to any society that recognises such a system. Furthermore, placing
liberalism at the base of principlism also provides Beauchamp and Chil-
dress’ principles with a theoretical foundation that it has been argued
their method lacks, helping avoid the criticism that the principles are not
only flexible, but infinitely flexible.28 And drawing out the way in which
the four principles are connected to liberalism provides a response to
Clouser and Gert’s assertion that there is a lack of parity between them.
They argue that
23 Gillon 1986: 175; Gillon 1994a: 184. 24 Gillon 1994a: 186.

25 We are grateful to John Coggon for drawing our attention to this line of argument.
Others too have noted that politics underlies bioethical debate. See Powers 2005:
320.
26 A challenge noted by Herissone-Kelly 2003: 66.
27 See the previous chapter, at 197. 28 See Lee 2010.
The proponents of principlism claim to derive principles from several different

theories . . . and then they urge the student or health care professional to apply
one or more of these competing principles to a given case. There is no attempt
to show how or even whether these different principles can be reconciled. There
is no attempt to show that the different theories, from which the principles are
presumably derived, can be reconciled. . . . 29
But when the four principles are placed within the context of liberalism,
their emphasis on autonomy, liberty (the protection of rights), justice,
equality and human good binds them together; they are united in the
endeavours of liberalism. Whilst the principles as echoed in liberalism can
conflict,30 that this potential conflict can be reconciled31 suggests again
a unity between liberal values and their contextualisation in Beauchamp
and Childress’ four principles. Beauchamp and Childress might object to
the application of liberalism as a theoretical underpinning for their prin-
ciples, because they claim they have a more universal application within
a commonly shared morality.32 But grounding the principles in liberal-
ism seems more realistic in recognising the influence of political norms
and is also reflective of the political climate in which bioethics emerged.
It explains the ‘relatively young’ principle of autonomy alongside the
other three longer-standing principles33 and it places the four principles
squarely within the context of the societies and political climate in which
they are applied.34
Whilst there may be congruity between liberal values and the four prin-
ciples, Beauchamp and Childress’ approach is not accepted by all as illu-
minating the correct principles that inform bioethics and/or as the method
by which moral dilemmas in health care can be resolved.35 The popu-
larity of principlism has waned recently. For example, Erin has drawn
attention to a different set of four principles (autonomy, dignity, integrity
and vulnerability) and argues that there is a tendency amongst students
to adopt principlism unreflectively in a way that stifles critical ethical
analysis.36 Charon has challenged the ability of principlism to reveal the
whole picture and has called for other approaches, such as narrative
ethics, to draw attention to the ‘corporeal, emotional, social and spiritual
meaning’ and significance of ‘events of illness and health care’.37 Clouser
and Gert reject the very notion that bioethical debate can be informed
and directed by principles, seeing them instead as chapter headings to
29 Clouser and Gert 1990: 232–3. 30 Christman 2005: 330.

31 Ibid. On the ‘inseparable connection’ between the four principles, see Rehbock 2011.
32 See Beauchamp and Childress 2009: 388–97.
33 Karlsen and Solbakk 2011: 589. 34 See also Callahan 2003: 288.
35 Clouser and Gert 1990; Erin 2003: 79–89; Harris 2003; Muirhead 2012; Walker 2009.
36 Erin 2003: 80 and 83. 37 Charon 1994: 262.
discuss concepts of relevance to bioethics.38 However, notwithstanding

its critics, principlism continues to be a dominant bioethical approach.
Principles of criminalisation
Criminalisation is a significant matter in contemporary criminal law the-
ory and is also of relevance for political and social theory.39 Whilst we
examine principles of criminalisation, Lacey has emphasised that the over-
all process of criminalisation facilitates an understanding of the criminal
law as a social practice. In her view, ‘the criminal law can and should
be understood as part of an integrated process of criminalization incorpo-
rating all stages from the articulation of offences through investigation,
diversion, prosecution, trial, sentencing, the royal prerogative and the
execution of punishment’.40 Understood in this way, criminalisation has
as much to do with the way in which cases are selected for prosecution,41
for example, as it has to do with the specific behaviour that is criminalised
by a statutory offence.
In terms of our focus, it is problematic to view English criminal law
simply as a system of rules, for it ‘both is shaped and ought to be shaped
by a number of principles, policies and other standards and doctrines’.42
Principles of criminalisation can be perceived to underwrite the criminal
law, guiding lawmakers as to what the criminal law ought to be con-
cerned about and when it is appropriate to place a criminal sanction
on behaviour, although some laws may only impose loose constraints
because of the elusiveness of their wording.43 A central idea behind the
existence of such principles is that if they are followed, the (ideal) result
will be a criminal law that is neither under- nor over-inclusive in its scope.
It is therefore unsurprising that they have developed from theories which
present ‘visions of what criminal law ought to be’:44 ‘[c]riminalization
does not reflect any solid, unchanging body of doctrine: it is a response to
what society deems to be acceptable’.45 Thus, for instance, the ten crim-
inalisation principles Jareborg highlights as most important to a ‘defen-
sive’ model of criminal law reflect a liberal ideology such as that we have
argued connects bioethics and criminal law.46 The first three principles
38 Clouser and Gert 1990: 221 39 See Lacey 2009: 942–7.

40 Lacey 2001b: 258 (emphasis in original).
41 See, e.g., Crown Prosecution Service 2010a. 42 Ashworth 2009: 45.
43 Ibid.: 82. 44 Lacey et al. 2003: 9 (our emphasis).
45 Bowles, Faure and Garoupa 2008: 394.
46 E.g.: ‘A crime presupposes that a legitimate interest or value . . is violated, or threatened’;
‘Criminalization must be general, it must concern types of deeds; it must not concern
particular cases or individuals’. Jareborg 2002: 94–5.
we look at (the harm principle, the welfare principle [the latter of which
we connect to the bioethical principle of beneficence] and autonomy) are
recognised justifications for criminalisation. However, like the principlist
approach in bioethics, they have their critics and are not all adopted by
lawmakers, especially in the case of obligations that may arise from the
principle of welfare such as a duty of easy rescue. Whether the crimi-
nal law has any role at all in promoting behaviour deemed beneficent,
because its role is to prohibit bad behaviour rather than to make citi-
zens good, is a significant matter highlighting the differing functions of
criminal law and bioethics which we will address. We also explore the
principle of justice in terms of what justice demands of principles of
criminalisation, although we note too how it can be used as a basis to
demand criminalisation.
Besides guiding lawmakers, when principles of criminalisation are
applied to direct the creation of criminal laws, they will bring influ-
ence to bear on the behaviour of individuals who must then abide by the
specific content of these laws. As such, principles of criminalisation can
in some way be seen to regulate the conduct of individuals in society, just
as principlism regulates the conduct of the medical profession.
Parallels and disconnects between the ‘four principles’ in

bioethics and principles of criminalisation
Nonmaleficence
Prohibitions against causing harm readily connect bioethical principles
and the criminal law, offering a deceptively ‘easy’ case. Beauchamp and
Childress’ presentation of the nonmaleficence principle is that ‘[o]ne
ought not to inflict evil or harm’. This requires that we intentionally
refrain from acting in a way which causes harm.47 But what should
count as harm?48 According to Feinberg, two (or more) variants of harm
could count: harm can occur in a normative or non-normative sense.
When an individual is wronged, when the other person’s conduct violates
a right, harm occurs in the first, normative sense.49 In terms of what
amount to rights, Feinberg states that it is a person’s moral rights that
are at issue.50 A moral right ‘is a claim backed by valid reasons and
addressed to the conscience of the claimee or to public opinion’ and
‘ . . . welfare interests . . . are the grounds for valid claims against others
47 Beauchamp and Childress 2009: 151.

48 For analysis, see Feinberg 1984; Harcourt 1999; Holtug 2002; Persak 2007; Uniacke
2004.
49 Feinberg 1984: Chapter 3. See also Holtug 2002: 379. 50 Feinberg, 1984: 111.
(moral rights) par excellence’.51 Turning to Feinberg’s second notion of

harm, an individual is harmed if his or her interest is left ‘in a worse
condition than it would otherwise have been in had the invasion not
occurred at all’.52 Feinberg defines interests as ‘things in which one has
a stake’, things that are vital to an individual’s well-being.53 Beauchamp
and Childress emphasise that it is the concept of harm in this latter sense,
as a setback to interests, which they adopt.54
Although the principle of nonmaleficence offers guidance in clear-
cut cases of direct harm55 – for example, the doctor goes ahead with
surgery that he or she knows he or she is not competent to perform –
there are harder cases in which an application of the principle is more
problematic. A prime example is voluntary active euthanasia. On the
face of it, it is difficult to argue that when a doctor ends a patient’s
life this can be anything other than harmful, because causing another’s
death can be perceived to be the ultimate harm. But for the patient,
death may offer relief from suffering. It can be argued that in cases of
unbearable suffering, death for the patient who wishes this suffering to
be brought to an end counts as a benefit,56 and it would be unlikely to
be considered a ‘harm to self’ where the individual consents, on the basis
of a liberal interpretation of the harm principle.57 There is an apparent
contradiction here between the objective character of the act (harm)
and its character as experienced subjectively by the patient (benefit).
And if it is conceded that causing death can only be a harm, then the
principles of nonmaleficence and autonomy are in conflict when applied
to VAE.
Ambiguity surrounds the concept of harm. That one should do no
harm can be straightforwardly stated, but because there is no clear, uni-
versally accepted definition of what constitutes harm, and moral opinions
on what counts as harm differ, applying the principle is less straight-
forward. This is problematic in the medical context because in many
instances, the doctor has to cause some harm to the patient in order to
achieve the ends of prolonging life and protecting or improving health.
Difficult cases involve weighing up harms and benefits, such as the harm-
ful side effects of providing chemotherapy to patients whose cancers are
not curable, where the benefit is the prolongation of life for only a short
period of time. There is often a difference between the occasioning of
harm in the contexts of medicine and the normal kind of criminal law
51 Ibid.: 110 and 112. 52 Ibid.: 34. 53 Ibid. See also Uniacke 2004: 174.
54 Beauchamp and Childress 2009: 152. 55 Ibid.: 152 (emphasis in original).
56 Miller et al. 2010: 459–60. In such cases, Beauchamp and Childress argue that not
helping a patient in this situation could constitute harm. Beauchamp and Childress
2009: 181.
57 See also Price 2009: 162.
cases, because in the latter, the individual who causes harm is rarely
acting in order to achieve a good end. Gillon thus stresses that nonmalef-
icence should not be interpreted in the sense of the injunction ‘Primum
non nocere’ – above all do no harm.58
Ambiguous as it is, the harm principle equally and obviously features
in the criminal law, beginning with John Stuart Mill’s famous ‘avoidance
of harm’ principle. Deceptively simple, Mill’s thesis contended that the
only legitimate state interference with an individual’s liberty is that which
is taken to avoid the individual causing harm to others. Mill states that:
‘[w]henever . . . there is a definite damage, or a definite risk of damage,
either to an individual or to the public, the case is taken out of the
province of liberty, and placed in that of morality or law.’59 The criminal
law’s relationship with the avoidance of harm principle is of long-standing
duration. Reliance upon Mill has led to reform of the criminal law (for
example, the Wolfenden Committee’s recommendations in its Report on
Homosexual Offences and Prostitution60 implemented in part in the Sexual
Offences Act 1967), and places necessary constraints upon criminal law
in a liberal society. Although Mill’s (modified) harm principle as applied
to the criminal law has its supporters,61 it has met with strong criticism
throughout its existence,62 and failed to convince two influential writers
upon the criminal law, Mill’s Victorian contemporary James Fitzjames
Stephen,63 and Lord Devlin64 in the twentieth century. Both argued that
the criminal law could rightly regulate immoral behaviour, even if that
behaviour does not harm others. One important point about the work
of all three is that each, in its own way, emphasises the importance of
morality to society. Although Mill was critical of law’s intervention on
the basis of public morality, his harm principle itself has been observed
to essentially answer a moral question about when it is appropriate for
the law to intervene.65 When presented as a principle of criminalisation,
the harm principle elucidates a conception of what the criminal law ought
to be concerned about. But we emphasise that whilst this ‘ought’ could
be a moral question, it can also be a political question. That is, the state
ought to criminalise harmful behaviour because it is injurious to the
community’s interests and because the requirement of establishing harm
places appropriate limits upon state power.
Notably, whereas the notion of harm as it features in bioethics gives rise
to a negatively framed principle against behaving in a certain way (doctors
58 Gillon 1986: 80 59 Mill 1993: 150. 60 Wolfenden Committee 1957.

61 Such as Raz 1986: Chapter 15; Baker 2011: Chapter 2.
62 For recent criticism, see Harcourt 1999; Holtug 2002. 63 Stephen 1992.
64 Devlin 1965. 65 Hart 1963: x.
owe a duty of nonmaleficence to patients), the notion of harm in the

context of the criminal law lies at the centre of a principle which permits
coercive action to be taken; state intervention into an individual’s liberty
by way of the criminal law is warranted where behaviour causes harm.
Although, superficially, this suggests a disconnect between bioethics and
criminal law, because of its liberal origins, the harm principle within the
criminal law is also negative in the sense that it is intended to limit state
intervention. And one consequence of its application as a principle of
criminalisation is that not causing harm to others essentially becomes a
negative responsibility at the individual level which is enforceable through
the criminal law: if one does cause harm to others, one may face criminal
liability.
As in bioethics, real problems are encountered when the harm prin-
ciple is applied to medicine. First, there is the matter of how harm is
to be defined – what types of harm are encompassed by the principle
when applied as the basis of legitimate state criminalisation? In assessing
what should count as harmful behaviour that is a matter for the crimi-
nal law, Feinberg defines the ‘liberty limiting’ harm principle as follows:
‘[i]t is always a good reason in support of penal legislation that it would
probably be effective in preventing (eliminating, reducing) harm to per-
sons other than the actor . . . and there is probably no other means that
is equally effective at no greater cost to other values.’66 He then seeks
to offer an explanation of harmful behaviour according to this principle:
behaviour is only (criminally) harmful if it both wrongs an individual and
sets back his interests. Thus for Feinberg, both of these notions of harm
must be reflected by the conduct in question in order for it to count as
harmful behaviour that the criminal law can prohibit.67 Whilst Feinberg’s
analysis offers further explanation of the nature of harm and sets limits
on the application of the principle, an immediate difficulty is that when
the harm principle is limited to behaviour which causes a setback to
interest and amounts to a wrong, harm might become an underinclusive
criminalisation principle. For ‘[i]f we stick to a Feinbergian notion of
harm, we cannot capture the grounds that we surely have for criminal-
ising several kinds of wrongful conduct.’68 Consider a rape perpetrated
on an unconscious victim who will never know of its occurrence. For
example, a doctor rapes a patient whilst she is under anaesthetic. Or in a
less dramatic example, medical students carry out internal examinations
on unconscious patients without consent to forward their training, not
their patients’ care. The patients have clearly been wronged, but it may
66 Feinberg 1984: 26 (emphasis in original). 67 Ibid.: 215.

68 Duff 2007: 135. See also Duff 2001.
seem difficult to establish a setback to their interests where there is no

awareness of the violations.69 Moreover, Feinberg’s presentation of the
principle raises additional questions: in the context of harm as a wrong
that violates an individual’s rights, what should count as a moral right?70
And should there be a hierarchy attached to various setbacks to inter-
ests so that only some are considered serious enough to warrant criminal
law’s intervention whilst others can be dealt with by the law of tort?
What the harm principle does not do is to answer the question of when
it is appropriate to impute fault in harder criminal law cases involving
bioethical conflict. Take, for example, the case of Re A and the necessity
of causing harm to Mary in order for Jodie to survive. Whilst applying
the harm principle could result in the conclusion that the criminal law
should prohibit the separation and resultant killing of Mary, an argument
can also be made (along the lines of Ward LJ’s reasoning) that Mary was
harming Jodie through her ‘parasitic’ existence.71 Self-defence operates
to allow the separation. Whilst Feinberg’s refinement of the harm prin-
ciple would facilitate consideration of whether Mary is wronged by the
separation and thus an assessment of the matter of Mary’s human rights,
there are other relevant matters which the harm principle simply does
not and cannot get to grips with, such as the doctors’ conflict of duties
and the significance of Mary being designated for death. However, plac-
ing the harm principle within a utilitarian framework as Mill would have
done might help to resolve whether the separation was the lesser of two
evils, an approach reflected in the Court of Appeal’s judgment.
More generally, should the principle apply to harms against the per-
son, moral harm, social harm and public harm? In the context of
medicine, does the principle offer grounds to criminalise behaviour that
is repugnant72 or risks public health?73 Mill offers some guidance as
to the interpretation of harm, referring to acts which are ‘injurious to
others’, such as ‘[e]ncroachment of their rights . . . unfair or ungenerous
use of advantages over them;74 even selfish abstinence from defending
them against injury’. All such conduct can lead to moral reprobation, but
only when it involves a breach of duty to others.75 And it is only when
69 Although a setback to interest can be construed in such a case: see Archard 2007: 379.
70 On harm in this context, see also von Hirsch and Simester 2006.
72 See the justification for prohibiting human cloning in Kass 1998 and, in the context
of amputations of healthy limbs for Body Integrity Identity Disorder sufferers (see the
later discussion at 231–2), see Bayne and Levy 2005: 84.
73 On the criminal law and xenotransplantation, see Fovargue 2012.
74 As an example in the context of the doctor–patient relationship here, see Ost and Biggs
2012.
75 Mill 1993: 146–7.
individuals violate others’ rights that they should be punished by law.76

Yet, in other places, Mill seems to be prepared to expand the harm prin-
ciple further. Because he fails to explain why public indecency offences,77
for example, are harmful, the construct of harm here can potentially be
open to broad interpretation. What is clear, however, is that Mill does
not permit other concerns such as moralism or paternalism to shape his
harm principle.
Secondly, how far can the principle be taken when it comes to likely
harm, or a risk of harm? Mill’s principle requires ‘definite damage, or a
definite risk of damage’.78 But as Persak reminds us,
It is important to take notice of a major problem of the harm principle, namely

its possible open-endedness. . . . This difficulty looms large if we extend the harm
too much and put any kind of danger, risk, endangerment or remote harm on a
par with the actual, direct harm as an equally valid reason for criminalisation.79
Dan-Cohen is particularly critical of the view that harm can delimit the
scope of the criminal law. He argues that the harm principle has actu-
ally increased state power to impose criminal liability because potentially
‘every infliction of harm becomes a candidate for criminalization’.80 Cou-
ple this with the fact that harm and the possibility of causing harm are
ubiquitous in modern-day society, and the scope of the principle appears
both unwieldy and open-ended. Thus, it can be cited to increase crim-
inalisation rather than limit it and, as such, becomes liberty-restricting
rather than liberty-enhancing.
A further question is whether the harm principle lies at odds with the
criminal law’s attention to culpability and responsibility. Is it right to
criminalise an individual’s harmful actions when he or she is, for some
reason, considered less culpable? Defences exist which enable an indi-
vidual’s actions to be excused, or which reflect an understanding that
those actions are justified.81 Because the criminal law does hold that
certain circumstances mean that a person should not be held as blame-
worthy for harmful actions, does this suggest recognition that the harm
principle fails to offer a sufficient basis upon which criminalisation can
be rationalised? Dan-Cohen observes that, ‘[i]f criminal law’s defining
mission is the prevention of harm, then the requirement of culpability
appears as an external imposition and as an impediment to the attainment
of this goal.’82 But Mill’s thesis is not absolutist. His doctrine only has
76 Ibid.: 143. 77 Ibid.: 167. 78 Ibid.: 150.

79 Persak 2007: 44–5. See also Duff 2007: 135.
80 Dan-Cohen 2002: 153. See also Harcourt 1999: 113 and 120.
81 See Ashworth 2009: Chapters 4 and 6. 82 Dan-Cohen 2007: 2422.
application to ‘human beings in the maturity of their faculties’,83 and thus

children and the mentally incompetent remain outside its scope. Further-
more, he recognises that there will be cases where state intervention will
not be justified, despite the fact that an individual’s actions have caused
harm.84 Also, the harm principle is capable of recognising an exception
on the basis of harm being caused for a legitimate reason, for example,
self-defence and, in our context, ‘proper medical treatment’.85 Thus,
although Mill does not address the matter of culpability in any depth, it
is incorrect to assume that the harm principle cannot accommodate the
question of culpability. As an example here, whilst the criminalisation of
gross negligence manslaughter in the medical setting may be warranted
on the basis of harm, the non-absolutist nature of the principle means
that there are cases such as that involving Drs Sullman and Prentice,
where questions surrounding the level of culpability for the harm caused
can ultimately lead to that behaviour not being criminalised.86
It is because of the difficulties identified above that the harm principle
alone cannot answer the question of when it is appropriate to crimi-
nalise behaviour. It is now becoming somewhat trite to suggest that the
harm principle cannot in itself be the only legitimation for criminalisa-
tion. There are few who argue that it is a principle which, taken alone,
can effectively and appropriately determine the boundaries of the crim-
inal law, and some have gone so far as to argue that the harm principle
is unworkable.87 Still, it is unlikely that it will ever be abandoned as a
recognised principle of criminalisation, given the legitimacy of its justi-
fication for imposing criminal liability in liberal societies that endeavour
to protect citizens from the harmful actions of others.
To conclude here, the most obvious parallel between the principle of
‘do no harm’ in bioethics and harm as a principle of criminalisation
is that despite the powerful appeal the notion of not causing harm to
others holds, the practical application of either principle is not always
easy because the concept of harm is so malleable. Moreover, whether in
the arena of bioethics or criminal law, hard cases such as Re A or those
involving assisted dying create further difficulties.
Beneficence
As we shall see, the links between bioethics and the criminal law are
weaker in the context of the principle of beneficence than in the context
83 Mill 1993: 78. 84 Ibid.: 163.

85 ‘An individual, in pursuing a legitimate object, necessarily and therefore legitimately
causes pain or loss to others’. Ibid.
86 See Chapter 7, at 207. 87 Dan-Cohen 2007. See also Dripps 1998.
of nonmaleficence. More than any other of the principles, beneficence

reflects the ethos of medical practice, albeit that this may not always be
the case in practice.88 ‘Promoting the welfare of patients – not merely
avoiding harm – embodies medicine’s goal, rationale, and justification’,89
and the relief of suffering is ‘an essential part of the profession’s calling’.90
Doctors who swear to abide by the Hippocratic Oath undertake a duty of
beneficence; their special relationship with their patients requires them to
promote their welfare.91 The centrality of promoting the welfare of others
to the concept of beneficence has given rise to theories that beneficence is
the foundation of morality.92 One of the principal qualities of beneficence
that Shelp identifies which motivates the promotion of others’ welfare is
respect for persons,93 a factor common to each of the four principles. But
as with the principle of nonmaleficence, there is no definitive, universally
accepted presentation of the elements that constitute the principle of
beneficence, or the specific obligations that beneficence entails.94 Indeed,
some theorists refute the existence of a moral duty of beneficence, arguing
instead that there is simply a ‘moral ideal of helping others’.95 Nor is
there universal agreement on the end of beneficence – is it to bring good
or to protect from evil?96 And is it an aim that we should act to fulfil
individually, or a communal aim that we achieve ‘together with others’?97
According to Beauchamp and Childress, beneficence can require that
we
1. Protect and defend the rights of others.
2. Prevent harm from occurring to others.
3. Remove conditions that will cause harm to others.
4. Help persons with disabilities.
5. Rescue persons in danger.98
This presentation of the rules of beneficence indicates that, besides
imposing a duty to do good, the principle of beneficence can also be
understood as imposing a duty to prevent evil. This is because of the
connection between the obligations of beneficence and nonmaleficence –
when doctors act to benefit their patients, they are also required to con-
sider their ‘coexisting’ duty to do no harm to others.99 Beneficence is
thus constrained by this and the other two principles.100 Consider the
condition of body integrity identity disorder (BIID). Those suffering
88 See Chapter 1, at 23–4. 89 Beauchamp and Childress 2009: 205.

90 Shepherd 1996: 104. 91 Gillon 1986: 73–4. 92 Cullity 2007: 26.
93 He also highlights respect for the beneficiary’s self-esteem and the value of liberty and
freedom. Ibid.: 214–7.
94 See also Beauchamp and Childress 2009: 205. 95 Clouser and Gert 2000: 228–30.
96 See Shelp 1982b: 204. 97 On which see Murphy 1993: 267.
98 Beauchamp and Childress 2009: 199. 99 Gillon 1986: 166–7. 100 Ibid.: 74.
from the condition of BIID desire the amputation of a healthy limb

because the body of an amputee matches their inner body images.101
Some BIID sufferers go to extreme lengths to rid themselves of the
unwanted bodily limb and have sought assistance from surgeons to ampu-
tate the limb in order to achieve the bodily image they desire. Whilst it
seems difficult to conclude other than that amputating a healthy limb is
to cause harm, one surgeon who has carried out such amputations claims
that
the subjective perception of the individual with BIID is that amputation is the
answer to their problem and will transform their life for the better. They regard
amputation as enhancing or enabling rather than disabling. It also prevents them
embarking on attempts at self-injury which may have fatal consequences. In this
respect, it is a harm avoidance strategy rather than a harmful procedure.102
Smith is arguing that a surgeon who amputates a BIID sufferer’s
unwanted limb is doing good and benefitting the patient rather than
causing harm. Given that the patient consents to the amputation, BIID
raises difficulties for the criminal law too because the surgeon may face a
charge of causing grievous bodily harm under Section 18 of the Offences
Against the Person Act 1861, and it is unclear whether the patient’s con-
sent to the procedure can offer the doctor a defence to such a charge.103
The answer becomes circular and the courts will look first to medical
practice to see if the surgery constitutes ‘proper medical treatment’.104
Lack of consensus within the medical profession regarding what consti-
tutes appropriate treatment for BIID means that answer is uncertain.105
The law and bioethics ask the same question, but both fail to offer clear
answers.
As a further example to illustrate possible tensions between beneficence
and nonmaleficence, we can return to euthanasia. Even if it is accepted
that to kill someone is always to cause harm, the principle of beneficence
poses dilemmas because it is necessary to consider whether alleviating
pain and suffering through death is a good. If one no longer exists, then
one surely cannot be benefitted by the relief of pain and suffering? And
even if it is not necessary to establish some kind of benefit to confirm that
alleviating suffering through death is a good, can this good outweigh the
harm? One way of resolving this dilemma is to argue that if causing death
is the only remaining way to alleviate an individual’s pain and suffering,
then if a physician seeks to do good for a patient, inflicting this harm may
be a necessary ‘evil’ in order to achieve this end.106
101 First 2005; Smith 2012. 102 Smith 2012: 75. 103 Ibid.: 82–3.
104 See Chapter 2, at 45–52. 105 Ryan 2009: 22 and 26.
On the conflict between beneficence and justice, Abrams asks the ques-
tion ‘whether the duty of beneficence requires a physician to render opti-
mum personal care to his or her individual patients or whether the duty
obligates the physician to render as much aid as possible, even if this
means compromising, to some extent, the treatment rendered to any one
patient’?107 Given the constraints on doctors’ time, this suggests that
however they decide to resolve the issue, they will have to compromise
one of the values. Moreover, physicians may choose to prioritise the duty
of beneficence to all their patients over the requirements of justice by
electing to do good for their patients rather than considering the good of
everyone.108
Turning our attention to the criminal law, criminal law’s broad pur-
pose can be perceived as to promote the good of society and its mem-
bers by stamping out behaviour deemed to be injurious to both society
and individuals. However, criminal law prohibits harmful and wrongful
behaviour, rather than promoting a duty to do good, or to prevent evil.
It is negative in its approach, in the sense that it generally demands that
individuals refrain from acting in a certain way. Thus, although medi-
cal professionals have a positive ethical and professional duty to act in a
beneficent way towards their patients, no such general duty is imposed
by the criminal law in this jurisdiction.109 Omissions to act are only
criminalised in limited cases.110 For example, parents commit a criminal
offence if they neglect their child in a manner likely to cause unnecessary
suffering or injury to health.111 Criminal liability for omissions usually
only arises when an individual has assumed a duty to act in a certain
way. And such a duty tends to arise from a special relationship – such as
parent and child, or doctor and patient. Therefore, as beneficence in the
context of health care tends to relate to the special doctor–patient rela-
tionship, in the limited circumstances where the criminal law imposes
what could be perceived to be a duty to do good (or to prevent evil112 ),
it is similarly not a generalised duty of beneficence, but a duty arising in
special relationships.
Our focus here is on the question of whether the doctor’s ethical duty
of beneficence is and should be reflected in criminal law even if there is
107 Abrams 1982: 193. 108 Gillon 1986: 77–8.

109 Whilst we argued in Chapter 2 (at 47) that the actions of a doctor who causes bodily
harm are seemingly not criminalised on the basis of beneficence, the criminal law does
not impose a duty on the surgeon to do good.
110 Ashworth 1989.
111 S.1 of the Children and Young Persons Act 1933. The criminal law also imposes a duty
where an individual creates a dangerous situation to minimise the danger to others.
See R v. Miller [1983] 2 AC 161.
112 See Feinberg 1984: 130–50.
no general duty to rescue. That is, should it not only be doctors who omit
to treat patients they are under a duty to treat who break the criminal law,
owing to the obligations arising from their special relationship, but any
doctor who fails to assist a person in need of rescue, notwithstanding the
absence of a special relationship? The principle of criminalisation that
could be applicable here has been described by some theorists (albeit
in a broader context of a duty to rescue imposed on everyone) as the
principle of welfare. This principle focuses on the state’s obligation to
provide social conditions that enable the achievement of collective goals
for the common good.113 For Lacey, the welfare principle encompasses
the satisfaction of certain basic interests, including maintaining health
and personal safety.114 There is a potential, then, for the imposition of
a duty on doctors through the criminal law to protect the interests of
personal safety and health based on the principle of welfare. In a broader
context, Ashworth has contended that ‘[t]here are powerful arguments
of welfare which support certain duties to act to protect others in dire
situations.’115 In the case of doctors, who are already under an ethical
obligation to come to their patients’ aid, these arguments are more pow-
erful still. However, would it be appropriate to impose a criminal law
duty on doctors to come to the aid of anyone in need of rescue? In Lord
Macaulay’s famous view, it is only appropriate to impose a criminal law
obligation to assist in cases involving a special relationship.116 In order to
impose a broader obligation on doctors through the criminal law, society
would need to judge that a doctor’s failure to act to protect another’s
life or health constitutes a wrong that warrants the criminal law’s
sanction.
Of course, a criminal law which made doctors liable for failing to
act when they could intervene to prevent a person from being harmed,
whatever the circumstances, would be oppressive and unworkable. The
argument that doctors should be held (criminally) accountable for failing
to prevent harm to another is most compelling when the other’s funda-
mental interests in life are at stake, and rescuing him or her would not put
the doctor at risk.117 This is when we would consider a failure to rescue
to be most wrongful and harmful.118 As Ashworth notes, we should be
cautious about imposing a duty under the criminal law to act in a cer-
tain way in particular circumstances, because this restricts an individual’s
freedom of action when the criminal law usually leaves individuals free to
pursue their own ends and desires. However, he questions whether this
113 Ashworth 2009: 26. 114 Lacey 1988: 104. As cited by Ashworth 2009: 26.
115 Ashworth 2009: 55. 116 Macaulay 2004: 221. 117 Ashworth 2006: 45.
118 It has been proposed that non-trivial harm and wrongful behaviour are two of the four
internal constraints which must be satisfied for criminal laws to be justified. See Husak
2008: Chapter 2.
concern outweighs the ‘fundamental interest in life and personal

integrity’ when coming to another’s aid and protecting this interest would
not pose any personal danger or cause more than a little inconvenience
to the individual.119 This is true of most medical cases. In such cir-
cumstances, imposing a criminal law ‘duty of easy rescue’120 does not
substantially limit a doctor’s autonomy.121 Their ethical and professional
obligations require them to do so anyway. Adopting a utilitarian perspec-
tive, in a situation where Dr X is caused a little inconvenience by coming
to Y’s aid, the gain of saving Y from death or serious damage to health
outweighs the minor inconvenience to X.122 Slote’s argument that there
should only be a positive obligation to prevent serious evil or harm to oth-
ers if doing so does not seriously interfere with X’s life plans or lifestyle
and does not involve X committing any wrongs of commission is also
relevant here.123 This latter point raises an interesting issue that has par-
allels with the conflict that can occur between the duties of beneficence
and nonmaleficence in bioethics. If the criminal law in this jurisdiction
did impose a duty to rescue on doctors, how would it then respond in
a situation where through fulfilling this obligation, a doctor must neces-
sarily cause harm to someone else? Consider, for instance, a doctor who
comes upon the scene of a motor accident involving a bus. There are sev-
eral survivors on the bus in need of urgent medical assistance. Without
risking his or her safety, the doctor could enter the bus through a window
which the glass has been smashed out of. However, this, the doctor’s only
way of entry, is blocked by Mike, one of the survivors on the bus who is
lying unconscious half in and half out of the window. Should the doctor
move Mike, then the doctor can see that from the nature of his injuries,
he is likely to die. There is no sign of any other imminent rescue effort.
If the doctor does move Mike in order to reach the other survivors, how
would this be dealt with by the criminal law? Would the act of causing
harm to Mike be justified by saving the other survivors’ lives and, thus,
the performance of his duty of easy rescue?
It seems that the defence of necessity might potentially be applicable in
these circumstances. Necessity can operate in extreme circumstances, as
a result of there being ‘duress of circumstances’.124 The defence is only
available if the defendant acted reasonably and proportionately in order
to avoid a threat of death or serious injury, an objective test. The jury
119 Ashworth 2006: 46. See also Murphy 2001: 653; Beauchamp and Childress 2009:
202.
120 Ashworth 2006: 47. ‘The duty to rescue is a duty of beneficence, a positive duty
requiring people to benefit others, even total strangers.’ Murphy 2001: 625.
121 Malm 2000: 701; Murphy 2001: 631. 122 Dingwall and Gillespie 2008: 32.
123 Slote 1977: 127.
124 R v. Martin [1989] 1 All E.R. 652 at 653–4 (per Simon-Brown J).
must then decide whether the defendant was impelled to act because as a
consequence of what he or she reasonably believed the situation to be, the
defendant had good cause to fear that otherwise death or serious injury
would result. Finally, the jury must consider whether a sober person
of reasonable firmness, sharing the characteristics of the accused, would
have responded to that situation by acting as the accused acted. Although
necessity has never been allowed as a defence in cases of murder, Brooke
LJ’s judgment in Re A suggests that this scenario may be one in which
necessity could operate, because it meets the requirement of being an
action taken to preserve life.125
However, returning to the broader matter of whether the criminal law
should impose a duty of easy rescue on doctors, there are a number of
issues that would need careful consideration. First, it would be necessary
to calculate the benefit/burden ratio. The difficulty here is ascertaining
at what point the balance becomes more equal – how much would Dr
X have to be inconvenienced before the benefits of easily rescuing Y are
of equal or lesser weight? Secondly, there is a need to carefully consider
whether obliging doctors to perform easy rescues under the criminal law
is appropriate and, indeed, necessary. Such a duty would go beyond the
ethical duty that doctors (only) owe to their own patients. A criminal
law duty of easy rescue could serve a symbolic purpose, conveying the
message that as a society we expect our doctors to assist in any easy
rescue scenario. But is the criminal law the most appropriate tool to
utilise to convey this message?126 An alternative would be to resort to
the civil law, but causation is crucial in tort law, and it is unlikely that
such causation will be found in the case of a doctor who has no special
relationship with a person that he or she fails to rescue. And thirdly, and
perhaps most importantly, what would be the justification for imposing
such a duty on doctors only, rather than on everyone? The literature on
a criminal law duty of easy rescue is in fact focused primarily on such a
duty being applicable to all in society, rather than on particular groups
such as doctors.127 Our earlier analysis of criminal law responsibility
suggests that doctors’ responsibility should be set no higher than that of
other criminal law subjects.128 Why should we all not be obliged to, for
example, throw a lifebelt or call the emergency services in situations of
easy rescue?129
125 See the discussion in Chapter 6 at 166–9; Wicks 2003: 22; Dennis 2009.
126 See McCall Smith 1993b: 55.
127 See, e.g., Dingwall and Gillespie 2008; Feinberg 1994; Malm 2000; McCall Smith
1993; Murphy 2001.
129 These are the examples offered in Ashworth 2006: 46.
Autonomy
Autonomy in modern times is a central bioethical concept and prin-
ciple, with strong connections to the criminal law in liberal societies;
it is thus unsurprising that much attention has been paid to the idea of
autonomy.130 Although a generally accepted definition of autonomy does
not exist, it has traditionally been conceived as relating to the individ-
ual and variously defined as: ‘literally self rule . . . the capacity to think,
decide, and act on the basis of such thought and decision freely and inde-
pendently and without . . . let or hindrance’;131 ‘the capacity of a person
critically to reflect upon, and then attempt to accept or change, his or
her preferences, desires, values, and ideals’;132 ‘a matter of independence,
or at least as a capacity for independent decisions and action’;133 ‘self-rule
that is free from both controlling interference by others and from certain
limitations such as inadequate understanding that prevents meaningful
choice’.134 Although they differ, all these definitions refer to an indi-
vidual’s capacity to self-govern herself or himself.135 The principle of
respecting autonomy thus only extends to patients who have this capac-
ity, although the wishes of incapacitated patients must be considered in
ascertaining their best interests under Section 4(b) of the Mental Capac-
ity Act 2005. When faced with competent patients, medical professionals
must respect patients’ decisions regarding treatment and give patients any
necessary information to enable them to reach informed decisions. That
patient autonomy is respected in this way is a repercussion of the signifi-
cance attached to informed consent in bioethics,136 as evidenced by the
retreat from paternalism illustrated in Leigh v. Gladstone.137 Indeed, indi-
vidual autonomy as reflected by the need to obtain informed consent has
been prioritised in bioethics and professional ethical guidelines.138 How-
ever, a critical view of respect for individual autonomy in bioethics is that
patients are usually only able to exercise their autonomy by accepting or
declining treatment offered by the medical professional.139 Patients are
unable to demand medical treatment or procedures; the respect accorded
to individual autonomy is limited by the medical profession’s authority
and remit140 and by what doctors can lawfully offer by way of treatment.
For example, a patient may only gain access to the Class A controlled
130 For just some examples, see Childress 1990; Moreno 2007; O’Neill 2002.
131 Gillon 1986: 60. 132 Dworkin 1988: 48.
133 O’Neill 2002: 23 (emphasis in original). 134 Beauchamp and Childress 2009: 99.
135 See also Stoljar 2007. 136 O’Neill 2002: 38. 137 See Chapter 2, at 40–41.
138 Beauchamp and Childress 2009: 118. 139 O’Neill 2002: 26 and 37.
140 See R (on the application of Burke) v. General Medical Council [2005] EWCA Civ 1003;
Coggon 2007b: 237.
drug methadone through a doctor’s prescription if the doctor considers

this to be appropriate treatment for the patient’s opiate dependency. And
the need to respect individual autonomy can also be overridden by one
or more of the other three principles, such as, for example, revealing
confidential information to protect others from harm.141
Certain bioethicists are critical both of the emphasis placed on individ-
ual autonomy and of the capacity of this version of autonomy to resolve
ethical issues because of its failure to account for obligations to others.
O’Neill142 has argued that individual autonomy is only one aspect of what
she refers to as principled autonomy, a much broader concept of auton-
omy that has its origins in Kant’s work.143 She differentiates this from
individual autonomy: ‘principled autonomy is expressed in action whose
principle could be adopted by all others. Any conception of autonomy that
sees it as expressing individuality . . . or as carving out some particularly
independent or distinctive trajectory in this world is a form of individ-
ual rather than of principled autonomy.’144 Kantian autonomy turns the
emphasis away from the individual, towards the obligations and respect
that we owe to others. Starting from this premise, O’Neill presents her
notion of principled autonomy as follows:
Principled autonomy requires that we act only on principles that can be principles
for all; it provides a basis for an account of the underlying principles of universal
obligations and rights that can structure relationships between agents.145
Principled autonomy provides a way of fulfilling our obligations to oth-

ers, by requiring us to adopt ‘responsible decision-making’146 through
following principles which can be universal laws. O’Neill demonstrates
how only ethically defensible principles can be willed as universal laws.
Agents could not will a principle of coercion as a principle for all, for
instance, because it could not be adopted by everyone in society. This
is because at least some individuals will be unable to act in a way which
enables them to follow the principle, because they will be coerced by
others who are committed to the principle.147
The idea of principled autonomy can be critiqued because in assessing
whether an individual has acted autonomously, it ignores the individual’s
will, holding that an individual has not acted autonomously if he or she
141 W v. Egdell [1990] Ch 359. See also General Medical Council 2009: para. 37.
142 O’Neill 2002. See also Downie and Macnaughton 2007: 42–3; Tauber 2005: 113–22
(on relational autonomy).
143 Kant 1999: 89 (4: 440). 144 O’Neill 2002: 85 (emphasis in original).
145 Ibid.: 96. 146 Coggon 2007b: 241.
147 O’Neill 2002: 86–7 and see 98 for her rejection of deception as a principle that can be
willed as a universal law.
acts incompatibly with universal law. Yet ‘a person is by definition not

acting autonomously if he must go against his will, or has no will’.148
Of course, the validity of this critique depends on the conception of
autonomy one adopts, which returns us to the varied nature of notions of
autonomy. In a pluralistic society which embraces political liberalism, the
existence of varying and sometimes competing versions of autonomy is to
be expected.149 However, this does pose problems for the criminal law –
can it (and should it be expected to) deal with such nuances? As discussed
below, the idea of individual autonomy is that which is most commonly
reflected by the criminal law. But the existence of certain offences such
as sexual offences involving a relationship of care also suggests that the
criminal law can recognise and reflect other versions of autonomy, such
as relational autonomy,150 in particular contexts.151
Individual autonomy is a prominent aspect of the criminalisation
debate. In fact, it can feature both in claims that support the utilisa-
tion of the criminal law and in claims that criminalisation of behaviour
should only occur as a last resort. First, autonomy can be relied on as
a justification for involving criminal law, by highlighting the violation of
personal autonomy that occurs when one individual forces another to do
something the other do not wish to do, or obtains the other’s consent
by deceit, or fails to obtain this consent to something the other has no
knowledge of. Where coercing another’s will constitutes behaviour that
is deemed to be especially wrongful – examples here would be cases of
blackmail, rape and robbery and, in our context, any coercive medical
treatment, however much it was thought to be for the patient’s good –
then respect for and protection of the victim’s autonomy can be relied
upon to support the contention that such behaviour is appropriately
criminalised,152 a matter to which we return below. Thus, in medical
practice, removing a sliver of tissue from a patient without consent con-
stitutes a criminal assault because of the violation of personal and bodily
autonomy this involves. This reflects the liberal conception of criminal
law as a protector of individual rights. We note that this is not necessarily
the reason for criminalising such behaviour when the tissue is taken from
the dead even without any consent. In this case, other matters such as
moral sentiment and the symbolic value attached to the body come into
play.153
Secondly, we have already noted that the criminal law holds individ-
uals responsible for their behaviour, assuming they have the necessary
148 Coggon 2007b: 242. 149 See van der Brink 2005: 252–3; Dworkin 1988: 6.
150 On which see Herring 2009. 151 See ss.38–41 of the Sexual Offences Act 2003.
152 See Ashworth 2006: 42. 153 See Chapter 2, at 55–7.
capacity and are exercising free will.154 As Ashworth comments, the prin-
ciple of autonomy as applied to the criminal law requires that ‘individu-
als should be protected from official censure, through the criminal law,
unless they can be shown to have chosen the conduct for which they are
being held liable’.155 Such an emphasis on autonomy can be linked to a
minimalist approach to the criminal law as follows: to protect individuals
from an abuse of state power, they should have the freedom to act as they
wish without criminal sanction unless they behave in an especially wrong-
ful and reprehensible way; the criminal law should be utilised as a last
resort.156 Taking into account the preventive and expressive functions of
the criminal law, if there are other more effective means of preventing the
behaviour in question, then the criminal law should not be utilised and/or
if there are non-criminal means to censure the behaviour, then criminal
law intervention should not occur.157 If the principle of last resort were
to be followed, perhaps there would be a greater distinction between the
reach of bioethical principles and the criminal law; the former always
apply in the context of the doctor–patient relationship, whilst the lat-
ter would only be utilised if there were no other appropriate means –
civil, moral, etc. – of regulating the behaviour in question. Thus, the
criminal law would be made applicable to less behaviour. However, as
Husak points out: ‘[n]o one can pretend that the criminal law incor-
porates a last resort principle at the present time. . . . Anglo-American
jurisdictions create offences so casually and routinely that the criminal
law is just as likely to be employed as a first resort.’158 Therefore, the last
resort principle remains more a principle for critiquing the criminal law’s
ambit, than a feature of the criminal law.
Here, it is possible to draw something of a distinction between auton-
omy in criminal law and the principle as it features in bioethics. As already
noted, bioethics tends to focus on the patient’s autonomy. Although some
consideration has been given to the autonomy of medical professionals
(for example, the issue of conscientious objection regarding the practice
of abortions),159 it is the need to respect the patient’s autonomy that
is prioritised in bioethics. Therefore, autonomy is presented as an obli-
gation that the agent (doctor) owes to the patient. In contrast, because
of the way in which autonomy is linked with the harm principle and
the significance of the principle of minimalism, autonomy in criminal
law theory is most often presented as part of the liberal position against
154 See also Dubber 2004: 30. 155 Ashworth 2009: 24.
156 Ibid.: 32–3; Husak 2004. 157 Husak 2004: 216–27.
158 Ibid.: 208 (emphasis in original). See also Lacey et al. 2003: 12.
159 Wicclair 2000; Savulescu 2006.
criminalisation. The agent has an expectation that his or her auton-

omy will be protected, provided the agent’s behaviour is not deemed
harmful to others. However, autonomy has an equally forceful presence
in criminal law when utilised to highlight the wrongfulness of an indi-
vidual’s behaviour towards others and thereby justify criminalisation.160
When individuals exercise their autonomy to coerce others and behave
in a wrongful and harmful manner, then autonomy is an important part
of the reason why the criminal law intervenes. This is because (a) we
are holding individuals accountable for their choices and (b) society is
seeking to protect the autonomy of others. If we view autonomy as an
‘incomparable, unique and superlative good’,161 then
on the assumption that in the central, paradigmatic cases, criminal sanctions

always limit the autonomy of the person on whom they are imposed – and limit it
in the most severe way that we can devise . . . such sanctions are only appropriate
in defense of autonomy itself.162
A similar view of the pivotal role played by autonomy in criminal law

is expressed by Dubber: ‘[c]riminal law is the state’s response to crime
though punishment, designed to reaffirm the autonomy of the victim
without denying the autonomy of the offender’.163 This might suggest
that it is not appropriate to criminalise gross negligence that causes death
because the doctor does not make an autonomous decision to harm the
patient. However, such behaviour is deemed culpable because the doctor
chooses to act in a way that is so far removed from the required standard
of care owed that even though he or she did not intend to cause harm, it
is appropriate to criminalise this behaviour.164
The victim’s autonomy does not always prevail in the criminal law,
however. As in bioethics, respecting another’s autonomy will not make
the actor’s behaviour legitimate in every case. For example, a doctor’s
reliance on autonomy to justify giving a patient access to an illegal
drug that the patient desires and the doctor considers might improve
the patient’s condition, although there is no medical support for this, is
unlikely to convince others of the legitimacy of the doctor’s behaviour.
And there are criminal offences to which the ‘victim’s’ consent does not
provide a defence.165 An obvious example here would be a case where
an individual assists another to commit suicide at the other’s request,
160 Dubber 2004: 36. 161 Becker 1999: 967. 162 Ibid. (our emphasis).
163 Dubber 2004: 31 and see also 35–6.
164 Where it is the circumstances rather than an autonomous choice that leads to the
patient’s death, this is why criminalisation is less likely to be deemed appropriate. See
the text accompanying n.175 in Chapter 7.
165 See R v. Brown [1994] 1 AC 212 HL and Chapter 2, at 45–6.
and this example draws attention to reasons to criminalise behaviour

that might outweigh autonomy. Moreover, the criminal law’s failure to
attach the same priority to autonomy as bioethics draws attention to
a disconnect between autonomy in the two fields. The criminal law’s
reluctance to recognise a universal defence in the case of consensual
behaviour that constitutes assault provides an illustration here;166 it will
not suffice for a surgeon simply to say that the patient wanted his or
her arm chopped off. So too does abortion, because a large proportion
of the bioethical literature on the subject frames abortion as something
that falls within the realm of the woman’s bodily autonomy, an option
that should be available to her, albeit authors may place certain limits
on bodily autonomy as the fetus reaches a certain point of maturity.167
In contrast, the continued criminalisation of abortion and the power
vested in the medical profession regarding the abortion decision in the
case of lawful abortions under the Abortion Act 1967 evidences a very
different approach under the criminal law that disregards the principle of
autonomy.168
Given the emphasis that the principle of autonomy places upon individ-
ual rights, there is arguably a need in some cases for a counterbalancing
justification for criminalisation that takes into account the broader social
context in which criminal law operates, and focuses on collective inter-
ests. This can be found in the welfare principle,169 which ‘recognizes the
social context in which the law must operate and gives weight to collec-
tive goals . . . [it may ensure] that citizens benefit from the existence of
facilities and structures which are protected, albeit in the last resort, by
the criminal law.’170 In the context of assisted suicide, therefore, the prin-
ciple of welfare might be cited to justify criminalisation notwithstanding
violation of the autonomy of the individual who desires an assisted death
if this serves a collective goal of protecting the vulnerable from those who
would desire to push them towards an assisted suicide for self-gain.
Returning to the criminalisation of behaviour because it infringes
another person’s autonomy, why should it be that invasions of autonomy
(even if no tangible harm results) can be sufficiently grievous to warrant
criminal sanction? Becker argues that the harm caused by damage to
autonomy can be a matter for public (criminal) law because we all tend
to be burdened by this damage.171 We might, for instance, be financially
166 Ibid.
167 We note that there are of course opposing positions in the literature. See, e.g., Wolf-
Devine and Devine 2009.
168 See also the discussion of Leigh v. Gladstone in Chapter 2, at 41, for a further example
of the criminal law’s failure to respect autonomy.
169 See earlier, at 234. 170 Ashworth 2009: 26. 171 Becker 1999: 970.
burdened by the costs to the public purse of taking legal action against
the wrongdoer, and by the costs of psychiatric treatment if the victim is
mentally harmed. We may feel a moral burden because society has failed
to protect the victim’s autonomy. However, we suggest that the burden
on us all does not exist just because of this damage, but also because
the individual’s actions are wrongful and harmful in other senses. If a
person commits rape or theft, for example, thereby violating the victim’s
autonomy, we may feel a moral burden because the person has been able
to treat the victim as an object, or infringe the victim’s property rights,
rather than or besides the fact that society has failed to prevent the vic-
tim’s autonomy from being damaged.172 The financial burden of legal
intervention which we all share reflects the fact that society perceives the
agent’s actions to be particularly wrongful and harmful partly because of
the violation of autonomy, but not only because of this.
Thus, in our view, criminal law’s intervention is warranted in part
because of the agent’s invasion of another’s autonomy, but also because
she or he has failed to act in accordance with principles that can be
universal laws – for example, respecting individuals’ liberty and treating
others as ends in themselves rather than only as a means of promoting
others’ welfare.173 On this view, the criminal law reflects Kantian prin-
cipled autonomy, the idea that autonomy also demands obligations to
others, such as the recognition of their autonomy, interests and liberties.
Indeed, principled autonomy may go some way to rationalise the crim-
inalisation of behaviour committed negligently rather than with intent.
The existence of such crimes would seem to be at odds with individu-
alised conceptions of autonomy, because although ‘[t]hey may interfere
with a person’s autonomy . . . they do not do so for the sake of mani-
festing another’s.’174 Yet crimes such as gross negligence manslaughter,
for instance, could be defended on the basis that the agent who owes a
duty of care to an individual and causes that individual’s death through
gross negligence has failed to follow a principle that can and should be
an underlying principle of universal obligation: namely an obligation to
172 Or, in Nozick’s terms, we could refer to a violation of the victim’s right of self-ownership.
Nozick 1974: 33.
173 Adopting O’Neill’s reasoning, we view respecting individuals’ liberty and treating other
individuals as ends in themselves as principles which could be universal laws. If, con-
versely, some in society decided to act in accordance with principles of violating others’
liberty and treating others only as a means of promoting their own welfare, these could
not be principles that all could follow; some individuals in society would be unable to
follow them as a consequence of having their liberty violated and being treated only as
a means to an end by those persons acting upon the principles. See above, nn.142–5.
174 Dubber 2004: 32.
take sufficient care when acting in performance of a duty owed to another

person.175
Given the value attached to the principle of autonomy in both bioethics
and the criminal law, paternalism is no longer usually a defence for inter-
vention to prevent a person from acting in a particular way (whether
the intervention is from a doctor or the criminal law).176 Acting to pre-
vent another from harming himself or herself would violate Mill’s harm
principle.177 But whilst autonomy prevails over paternalism in the case
of a competent adult in bioethics and health care, the situation is very
different if the individual wishing to make decisions regarding his or her
health care is an incompetent adult. In such cases where autonomy is
lacking, treatment can be given in the patient’s best interests.178 There
are examples of criminal offences that can, at least in part, be perceived to
reflect encroachments on autonomy for paternalistic reasons. That it is a
criminal offence not to wear a seatbelt reflects the idea that on grounds of
safety, the state can legitimately inhibit individual autonomy. And as with
bioethics, the criminal law rejects the notion that a person without capac-
ity can give valid consent to sexual intercourse. But paternalism may be
combined with other reasons for restricting an individual’s autonomy in
criminal law’s discourse. Take again the example of a surgeon amputat-
ing the limb of a BIID sufferer. Imagine that such a case comes before
a criminal court and it is decided that consent is no defence to a charge
of causing grievous bodily harm. Whilst the most likely rationalisation
will be paternalism, lurking in the wings we may find concerns driven
by the moral sentiment attached to the body and revulsion at the idea of
amputating a healthy limb.179
Finally, when considering the role autonomy plays in the criminal law,
we should bear in mind the existence of a number of factors that can
influence the exercise of autonomy and may in fact constrain individuals
when they choose how to act, thus having a bearing on their responsibil-
ity. Criminal lawyers and criminologists have argued that the criminal law
needs to take greater account of social contexts, of environmental factors,
for example, which may impact on an individual’s choices and ability to
exercise free will,180 and there have been growing calls to apply the lens
of relational autonomy to the criminal justice system.181 As an example,
we might ask whether framing sexual offences around a lack of consent is
appropriate, especially in certain contexts such as that involving a male
175 See also, more generally, Ashworth 1989: 448.

176 Although see Hart’s defence of paternalism: 1963: 31–4. 177 Mill 1993: 78.
178 S.4 of the Mental Capacity Act 2005. 179 See n.72 above.
180 Ashworth 2009: 24–5. 181 See, e.g., Herring 2009.
doctor and female patient. For can a patient ever give free consent to sex-
ual behaviour with her (male) doctor because of the power and gender
imbalance?182 But raising such a question might in itself present a cer-
tain stereotypical image of genderised autonomy. Feminist theorists have
drawn attention to the way in which criminal law’s discourse itself can
limit women’s autonomy by portraying ‘women as passive victims whose
agency and autonomy is effaced by the focus on the perspective of male
defendants’.183 All of these constraints on autonomy in the context of a
criminal law system that is framed around autonomy and responsibility
raise the crucial issue of justice, to which we now turn.
(Liberal) justice
The notion of justice is central within both bioethics and criminal law, but
do both attach the same meaning to justice? Whilst a multitude of con-
ceptions of justice exist, accounts of justice have in common notions of
‘fair, equitable, and appropriate treatment in light of what is due or owed
to persons’.184 For example, Beauchamp and Childress define distribu-
tive justice as ‘fair, equitable, and appropriate distribution determined by
justified norms that structure the terms of social cooperation’.185 How-
ever, their account of different varieties of justice has led Clouser and
Gert to contend that their principle of justice is not, in fact, a principle
at all:
[Beauchamp and Childress] refer to a principle of justice as though it is something
we ought to apply to moral situations. It is clearly not a guide to action, but rather
a checklist of considerations that should be kept in mind when reflecting on moral
problems.186
Reflecting on what Beauchamp and Childress highlight as common

aspects of understandings of justice, this checklist could include consider-
ations of fairness, equality and appropriate treatment. But why could this
‘checklist’ not guide action? Although an application of this and the other
three principles does not provide ‘the answer’ to a moral dilemma,187
considering how to resolve such a dilemma by taking a course of action
that treats those involved fairly, equally and appropriately can guide an
individual as to the way forward. Arguably, one of the strengths of the
concept of justice is that it has no definitive, set-in-stone meaning. The
demands of justice can reflect contemporary social norms and the norms
182 See Ost and Biggs 2012. 183 Nicolson 2000 25.
184 Beauchamp and Childress 2009: 241. 185 Ibid.
186 Clouser and Gert 1990: 227. And see Gert et al. 2006: 111.
187 See the final section of this chapter.
of the prevailing political normativity. Hence, Beauchamp and Childress’

allusion to fairness, equality and appropriate treatment fits contempo-
rary, liberal notions of what justice means.
In considering the connection between justice and Beauchamp and
Childress’ other three bioethical principles, it is possible to question
whether the principle of justice, in its focus on broader policy concerns,
stands apart from the other principles, which are directed more specif-
ically to the doctor–patient relationship.188 However, justice could well
play a role in this relationship if, for example, a physician has to decide
how much time to allocate to different patients on the basis of need.189
As Gillon explains,
The doctor who stays in theatre to finish a long and difficult operation and conse-
quently misses an outpatient clinic is probably relying – implicitly or explicitly –
on some sort of theory of justice whereby he can fairly decide to override his
obligation to his outpatients in favour of his obligation to the patient on the
table.190
The concept of justice is integral to criminal law and more broadly the
criminal justice system. Justice is relevant to the issue of why we crimi-
nalise behaviour: one of the reasons behaviour is criminalised is to achieve
justice for victims of wrongful behaviour, because the criminal law is con-
sidered to be the most appropriate way of dealing with the behaviour in
question and achieving justice. Whether criminalisation and the conse-
quent criminal process achieve justice is hotly debated. We focus not
upon a specific principle of criminalisation, but on the requirements that
the notion of justice demands of principles of criminalisation.191 First,
if behaviour is criminalised, then the notion of justice stipulates that the
offence should apply to all (legal) persons in society.192 Secondly, law-
makers should only criminalise behaviour when it is fair and appropriate
to do so. Thirdly, principles of criminalisation should be democratic and
fourthly, the burden of proof should be on those who wish to criminalise
behaviour in a liberal society.193
As Ashworth observes, practical decisions regarding criminalisation
are made by law enforcement officers through their exercise of discretion
when they decide whether to apply the law.194 Therefore, justice would
demand that their exercise of discretion is carried out in a fair way. For
188 O’Neill 2002: 35. 189 See Veatch, Haddad and English 2010: 99–102.
190 Gillon 1986: 86.
191 There is a parallel here with justice in Beauchamp and Childress’ theory, if justice is
interpreted in the way that Clouser and Gert do above, at n.186.
192 See Chapter 7, at 207, and above, at 236.
193 See generally Ashworth 2009: 22. 194 Ibid.: 23.
instance, is it fair to operate a policy under which doctors are more likely
to be prosecuted for assisted suicide when the evidence that this is in the
public interest appears to be based on a small number of responses to
a public consultation?195 And, continuing with the example of assisted
suicide, would it be fair if a prosecution was brought in a case very similar
to a previous one in which it was considered not to be in the public interest
to prosecute? More broadly speaking, there is a connection with the idea
of procedural justice in the context of criminalisation and the ethical
obligation upon medical professionals to perform their duties to patients
in a fair, non-discriminatory way.
It is possible again to see the notion of justice when applied in the con-
text of criminalisation as shaped by the prevailing political normativity
in criminal law: liberalism.196 As Norrie comments, ‘[a]t the core of the
philosophy behind the criminal law is a moral [and political] individual-
ism which proclaims that for the state to intervene against the individual,
it must have a good and clear licence to do so.’197 We will further explore
this connection between liberalism and the concept of justice as it oper-
ates in the criminal law in the context of the rule of law and draws
parallels with the four principles in the next section. The malleability of
the notion of justice is present in the criminal law as in bioethics. Varying
ideas of retributive justice, restorative justice and procedural justice fea-
ture prominently in criminal law theory and the criminal justice system.
Because of this malleability, it is difficult to do more than draw broad
connections between justice as it features as a principle in bioethics and
as it appears in criminal law. In fact, more may be gained by exploring
parallels between bioethical principles and a rule that gives rise to the
principles of legality in the criminal law – a rule of which justice is an
integral component.
Connections between the four principles

and the rule of law
The rule of law, one of the primary principles of liberalism,198 lays
the foundation for principles of legality within the criminal law; ‘the
rule of law militates in favour of clear and certain offence definitions,
good publicity, and conformity between announced rule and adjudica-
tive standard’.199 It demands that the criminal law be applied consis-
tently, reciprocally and fairly, so, in our context, doctors should be treated
195 See the text accompanying n.164 in Chapter 5. 196 And see Rawls 1993.
197 Norrie 2001:10 and see 29–31. 198 Simmonds 2005: 91; Starr 2007: 21.
199 Gardner 1998: 243.
exactly the same as anyone else in criminal law unless there are legitimate
reasons to differentiate between them and other members of society on
the grounds of fairness.200 As Lacey observes, even if the reality is that
the criminal law does not always operate in these ways in practice, it has
to give a convincing impression that it does in order to be effective and
for citizens to accept it.201
Despite the fundamental status of the rule of law, no one definition of
the notion is accepted by all:
The rule of law . . . stands for the supremacy of law over the supremacy of indi-
vidual will. But to say this is to speak only in the most general of terms. As in
the case of all abstract political ideals, the requirements of the rule of law are
contested.202
Gillon’s contention that law is morally legitimate if enacted in a political

system that acts in accordance with the four principles has echoes of the
rule of law about it.203 And it is possible to see connections with each
of the four principles in various explications of the rule. The rule of law
‘expresses an incontrovertible minimum of respect for the principle of
autonomy: citizens must be informed of the law before it can be fair to
convict them of an offence’.204 In terms of beneficence, the rule of law is
an ‘indispensable element’ of the common good.205 The rule of law plays
a role in prohibiting state activities that are harmful to citizens such as
‘indefinite detention without trial’ and ‘cruel or degrading treatment or
punishment’.206 Finally, more than any of the other principles, justice is
an integral element of almost all definitions of the rule.
Specifically, it is possible to see the principle of justice enshrined in a
principle that is an element of the rule of law and which exists within the
general part207 of the criminal law: ‘[t]he principle of proportionality –
that sanctions be proportionate in their severity to the gravity of offences –
appears to be a requirement of justice’.208 Proportionality between differ-
ent offenders can be demanded by the principle of justice.209 Moreover,
the value of justice is promoted by the division of responsibilities (in
criminal law as in other areas of law) between legislature and judiciary.
The danger of vesting all responsibility with one body is that ‘the rule of
law becomes the rule of men – that is, the generality and impartiality of
200 See Archard 2012. 201 Lacey 1993: 641. See also Wells and Quick 2010: 77.
202 Meyerson 2004: 1.
203 At least if we have in mind a substantive as opposed to a thin conception of the rule of
law, on which ibid.: 4.
204 Ashworth 2009: 57. See also Gardner 1998: 239–40. 205 Finnis 2008.
206 International Bar Association 2005. 207 See Chapter 7: n.174.
208 von Hirsch 1993: 6. 209 See also Hart 1963: 37.
law are lost, and rule becomes more or less tyrannical.’210 Such a state of
affairs can lead to political interests overriding the principle of justice.211
This raises the issue of the power medical professionals wield to shape the
notion of justice as it applies to them by defining what constitutes proper
medical treatment and behaviour that avoids the grasp of the criminal
law.212 In the context of the DPP’s policy on assisted suicide, it highlights
the rule of law-based criticism that ‘ . . . the question of whether a cate-
gory or persons will be prosecuted depends on the view of one official
and that view could change when the DPP changes’.213
A broader analogy can be made between the rule of law and the four
principles in terms of what they demand of lawmakers and doctors, by
drawing upon Fuller’s analysis of the relation between law and morals
and the moralities of duty and aspiration. Fuller distinguishes the moral-
ity of duty, which ‘lays down the basic rules without which any ordered
society directed towards certain specific goals must fail of its mark’, from
the morality of aspiration, which he explains as ‘ . . . the morality of the
Good Life, of excellence, of the fullest realization of human powers’.214
The morality of duty is thus likened to the rules of English grammar
that must be followed in order for one’s communication to be compre-
hended and to ensure that language is preserved ‘as an instrument of
communication’. The morality of aspiration is more akin to the vaguer
and more indeterminate rules of good writing which send us in the direc-
tion of perfection, but which do not provide any sure means of achieving
excellence.215 Both the rule of law and the four principles can be con-
ceived to reflect these two notions of morality. First, the four principles,
when translated into regulatory codes and guidance, set down the min-
imum requirements that doctors must abide by in their relationships
with patients. They provide basic rules which need to be followed to
respect patient autonomy, such as obtaining a competent patient’s con-
sent to treatment. These basic rules can be conceived to represent a
morality of duty; if they are not followed, the health care that a physician
offers cannot be said to be directed toward reflecting the four principles.
However, although medical professionals should try strive to achieve the
four principles, it is impossible to do so completely.216 Moreover, on a
210 Williams 2012: 824. 211 See Stafford v. UK (2002) 35 EHRR 32, at para 78.
212 See Chapter 2, at 47 and our concerns in the concluding chapter, at 262.
213 Commission on Assisted Dying 2012: 286. 214 Fuller 1969: 5–6.
215 Fuller borrows this analogy from Adam Smith. Ibid.: 6.
216 E.g., Beauchamp and Childress observe that ‘[m]uch beneficent conduct . . . does con-
stitute ideal, rather than obligatory, conduct, and the line between an obligation and
a moral ideal is often unclear in the case of beneficence’. Beauchamp and Childress
2009: 199.
practical level, it is impossible to achieve each principle completely, given

that they can conflict with each other in certain cases.217
Turning to the rule of law, Fuller’s eight ideals of excellence composing
his inner morality of law (which include that law is promulgated, has
prospective as opposed to retrospective effect and is comprehensible)218
can themselves be perceived to constitute the rule of law.219 Whilst the
rule of law sets minimum requirements that lawmakers must adhere to in
order to comply with the demands of legality, these conditions ‘become,
as we ascend the scale of achievement, increasingly demanding challenges
to human capacity’.220 Thus, Simmonds refers to ‘the guiding aspiration
of “the rule of law”’ and the idea of rule of law as ‘a set of conditions to
which legal systems ought to strive to conform but from which they are
all likely to fall short’, although ‘ . . . all instantiations of law participate
in the ideal to some extent’.221 Furthermore, as with the four principles,
absolute conformity is made impossible because elements of the rule of
law can conflict.222 And in the specific context of criminal law, absolute
adherence to elements of the rule of law (such as the notion of equality
before the law) is made impossible because of the reality of the adversarial
justice system.223
It is apparent, therefore, that like Fuller’s inner morality of law, the
rule of law and the four principles embrace both the moralities of duty
and aspiration.224 The four principles and principles of legality deriv-
ing from the rule of law in criminal law guide medical professionals
by setting minimum requirements, but they are also principles of aspi-
ration. As Beauchamp and Childress put it: ‘ . . . aspirations of moral
excellence . . . support and enrich the morality of obligations, rights, and
actions that are grounded in a framework of principles and rules’,225
whether this framework is that of principlism or principles of legality in
the criminal law.
Can principles of bioethics and the criminal law work

together? Are they compatible?
The parallels and contrasts between the principles of bioethics and crimi-
nal law suggest that the connection between them is akin to a lighthouse’s
217 See the discussion of possible tensions between nonmaleficence and autonomy above,
at 241–2. This is also the case with the ideals of excellence that comprise Fuller’s inner
morality of law. See Nicholson 1974: 310.
218 Fuller 1969: Chapter 2. 219 See Simmonds 2005: 67, n.10.
220 Fuller 1969: 41.
221 Simmonds 2005: 67, 63 and 86 (emphasis in original). See also Waldron 1989: 80.
222 See, e.g., Maxeiner 2007: 535. 223 Wells and Quick 2010: 78–9.
224 Fuller 1969: 42. 225 Beauchamp and Childress 2009: 57.
beam: sometimes clearly visible, at other times absent. When applied to

behaviour in the form of professional regulation or criminal prohibitions,
principles in both fields regulate behaviour affecting others. Perhaps the
greatest parallel here exists in the reflection of the avoidance-of-harm
principle, the idea that one’s (ethical and legal) duties towards others
include a negative obligation not to cause harm.
However, it is possible to see a number of disconnects between princi-
ples in bioethics and criminal law. First, there is a difference between how
binding bioethics and criminal law are. Bioethical principles apply when
the medical professional is acting in a professional capacity, whereas crim-
inal law applies all the time. Whether the medical professional follows
bioethical principles when outside of work depends on his or her con-
ception of what is a good life for him or her. However, the professional’s
duty to abide by the criminal law is not subject to his or her own ethical
assessment. The different functions of bioethics and criminal law partly
explain this disconnect. Moreover, the consequences if a medical profes-
sional violates bioethical principles as enshrined in professional codes of
practice are different to the consequences for an individual who violates
the criminal law. There is no risk of any deprivation of liberty in the for-
mer case (unless the individual has also broken the law), although there
are some analogies in that, like an individual who breaks the criminal law,
a doctor who violates an ethical code of practice may face stigma, loss of
reputation and possible loss of employment. But if ethical principles are
not translated into regulatory guidance or codes of practice, the external
consequences for a doctor who breaches them are likely to be minimal.
Secondly, bioethics regulates morally good activities, whereas the crim-
inal law does not.226 Thirdly, the criminal law has an imperative of cer-
tainty, whilst ethics allows a case-by-case approach and thus contains an
uncertain plurality. When it comes to the principles within the general
part of the criminal law and elements of criminal offences, the principle of
maximum certainty demands that offences are clearly defined to enable
citizens to know what constitutes criminal behaviour. A failure in this
regard could amount to a violation of Article 7 of the ECHR, an absolute
right providing that ‘[n]o one shall be held guilty of any criminal offence
on account of any act . . . which did not constitute a criminal offence
under national or international law at the time when it was committed.’
It has been recognised that the principle of legal certainty underlies this
right.227 Yet case law suggests that uncertainty posed by one particular
element of an offence is not problematic, provided it forms part of a
226 Ashworth 1996: 191.

227 Kokkinakis v. Greece (1994) 17 EHRR 397, at 423, para 52.
more comprehensive definition of criminalised behaviour.228 And there

are certain offences for which an arguable case could be made that more
than one element violates the principle of maximum certainty.229 More-
over, Lacey argues that indeterminacy in the criminal law is actually
not a bad thing, because it enables judges to engage in common-usage
techniques which better ensure that the public accept the legitimacy of
the criminal law.230 For example, whether or not we agree with the way
that the doctor’s defence has been moulded in end-of-life cases,231 the
judges are applying a common meaning to the doctor’s behaviour (that
the doctor should not be criminally responsible for the patient’s death)
and are consequently promoting interpretations of intention, causation
and ‘proper’ treatment to juries which support this common meaning.
Thus, principles of bioethics and criminal law may not be as disconnected
as first appears on the matter of (un)certainty.
The values of liberalism also offer a connection between the fields,
because what makes the principles of bioethics and the principles that
the criminal law is based on compatible is their reflection of liberal values.
The very fact that the liberal notions of autonomy and justice play such a
prominent role in both principlism and the rule of law as apparent in the
criminal law is evidence of this. The connections that liberalism makes
between criminal law and bioethical principles such as those to be found
in principlism should enable them to work together and ensure a degree
of compatibility.
A further way in which bioethical principles and principles of crimi-
nalisation are connected is that they do not dictate what course of action
should be taken. Principles of bioethics do not prescribe the course of
action that medical professionals should take by stating how they must
act in the situation before them.232 Rather, medical professionals must
decide how to interpret and apply the principles in the situation they
are faced with.233 The same is true for principles of criminalisation. For
example, a criminalisation principle based on avoiding harm to others
can guide lawmakers, but it does not tell them specifically what behaviour
to proscribe; it provides no particular list of behaviour that they ought
to criminalise. That it does not provide ‘The Answer’234 is evidenced by
fact that it is not always applied with certainty: harm is often not clearly
228 See Hashman and Harrup v. UK (2000) 30 EHRR 241 at 258, para 39 and Ashworth
2009: 65.
229 E.g., the offence of theft under s.1 Theft Act 1968 (the uncertainty in question relates
to the mens rea element of dishonesty and the actus reus element of appropriation). See
Ashworth 2009: 364–5 and 378.
230 Lacey 1993. 231 See Chapter 5, at 137–44. 232 O’Neill 2002: 123.
233 Gillon 1994b: xxii (emphasis in original). 234 Ibid.
spelt out and it is not always clear that the case for criminalisation on
the basis of harm is proven.235 Furthermore, reliance on harm does not
assist lawmakers in some cases because the concept of harm can be so
all-encompassing and divisive, thereby conflicting with the imperative of
certainty.
At the same time as this suggests a connection between principlism in
bioethics and principles of criminalisation, it also indicates that they may
be unable to provide a solution to dilemmas on which conflicting moral
opinions exist. As the earlier discussion in this chapter demonstrates, in
applying principlism or a principle of criminalisation based on avoiding
causing harm to others, we rarely find the answer to the question of
whether behaviour is permissible. This is because of the ambiguities con-
cerning what counts as harm and differing and contrasting moral views
on this matter. Thus, in finding a solution to the dilemma of whether
abortion violates the bioethical principle of ‘do no harm’ and should be
criminalised, for example, we might actually benefit more from consider-
ing what political imperatives demand236 – does abortion accord with or
offend the values reflected in political liberalism? Particularly, how can
a legal position on abortion mediate between conflicting moral values?
To consider another example, should a doctor abstain from providing
a patient who wishes to go to Dignitas with medical records because
doing so would be considered ‘harmful’ according to the prevailing polit-
ical normativity? As Coggon has argued, the political norms a society
follows takes into account different values and finds the best compro-
mise between them. Although sometimes it is not possible to reach a
compromise between moral and ethical views of harm and autonomy,
the solution (for criminal law makers and doctors and their regulators)
can be found by considering what the political imperative is: ‘[w]here
conduct must be prescribed, this may conflict with choices that people
would otherwise make, and the reason it is defensible politically is that
it is necessary to sustain the liberal system that protects as many values
as possible.’237 So in the context of the amputation of a BIID sufferer’s
unwanted limb, the powerful value of protecting the vulnerable in soci-
ety cannot, of itself, trump the autonomy of the BIID sufferer. In the
case of the competent adult BIID sufferer, the political imperative is to
respect his or her autonomy and permit the surgeon to operate without
fear of criminal law repercussions. This should not be an instance like
that of wearing one’s seatbelt where paternalistic justifications prevail,
235 E.g., the offence of possessing non-photographic, pornographic images of children

under s.62 of the Coroners and Justice Act 2009. See Ost 2010a.
236 Coggon 2010: 552. And see Chapter 7, at 195–9. 237 Coggon 2010: 553.
provided medical opinion exists that amputation is for the good of the
patient.238 And in a liberal society, moral sentiment attached to the body
or rejection on the grounds of repugnance should not be a legitimate
political imperative. Perhaps the only exception should be cases where
the extent of the surgery (for example, seeking to have all limbs severed)
would make it highly difficult for the person to function independently
and impose undue costs on society.
However, political liberalism can only provide part of the answer in
the context of medicine because of the significance of medical politics
and medicalisation in influencing the way in which the criminal law deals
with bioethical controversy.239 Moreover, despite our view that moral
sentiment and repugnance should not prevail in the context of BIID, as
we saw in previous chapters, the potential of political liberalism to offer
a solution to bioethical conflict is limited by the powerful presence of
reactionary politics, moral sentiment, the theatre surrounding the cases
we have discussed and, depending on the context, by the sanctity of life
principle.
238 As we noted earlier, the current controversy surrounding the appropriate medical
treatment for BIID sufferers would need to be resolved in favour of amputation being
considered proper medical treatment for such surgery to be legitimated.
Concluding thoughts
A story part told?
We set out to tell a story about the ways that the criminal process engages
with medicine and bioethics and to establish how far (if at all) any sort of
coherent theory or theories could be discerned to explain the interaction
between the three when they meet in the theatre of the courts, the leg-
islature and public opinion. We reach the end of this book realising that
even this story is but part told. Many developments in medicine falling
within the purview of the criminal process are not addressed here. Parts
of our story suggest that some traditional assumptions are likely to be
challenged soon, to the extent that the question in ten years time may
not be about what the criminal process permits doctors to do but what
limits the law places on what we may do to ourselves (with or without)
assistance from whomever we choose. Medical/health law may be overtaken
by ‘law and the body’, rather as bioethics has superseded medical ethics.1
Should that come to be, the challenges for the criminal law will become
more, not less acute as the cloak of medicalisation will be lost.
The criminal process, overtly or covertly, forms the framework within
which medicine may be practised, and becomes the forum for the resolu-
tion of bioethical controversy. This might be considered wholly apposite,
because there is a need to ensure that the criminal law encompasses some
bioethical controversy in medicine and science to allay concerns that
public wrongs committed in the name of medicine and science will go
unpunished, although how much these concerns are the result of fears
created by theatre is hard to ascertain.2 However, the criminal process’
intervention and the answers that the courts, legislatures and the CPS
provide are often subject to swingeing criticism. Attacks may focus on the
outcome and the reasoning. The former should be no surprise, given the
chasm of moral controversy that engulfs issues such as abortion, circum-
cision and assisted dying. But some of the bitterest criticism addresses the
1 Chapter 7, at 183.
2 See Brassington 2011: 234 for discussion of how misleading newspaper headlines that
are designed to attract attention can generate fear.
255
process of decision making itself. Recall McEwan castigating the judges

in Re A and Bland. Using the tactic of seeking a declaration, defining the
criminal law in the civil courts allows judges to ‘be seen to find a justifica-
tion for the morally “soft option”, giving the impression that judges now
want to leave their courts bathed in the glow of having been seen to do
what feels good to the public at large’.3 The criminal law is left ‘in total
disarray’.4 However, when crucial questions of bioethics and medicine
are played out in the ‘proper’ criminal courts (as in the prosecution of
Aleck Bourne and Leonard Arthur) the process sometimes does little
better, failing to provide any rational guidance on the ethical matter on
‘trial’ and focussing far more on the character of the individual in the
dock. Is the criminal process, then, an appropriate forum for the reso-
lution of bioethical controversy? Do criminal law and bioethics share a
sufficiently similar normative code?
Surveying the relationship of bioethics and the criminal process reveals
an eclectic mix of similarities and differences. Both revolve around the
concept of responsibility and have been increasingly influenced by polit-
ical liberalism. Both accede to shared values, defending autonomy and
preventing harms. There does not seem to be any irresoluble clash on
normative codes that would prompt a call to divorce the two, even were
that feasible. The differences lie rather in interpretation and application
and are to do, in part, with the defining functions of each in society.
Bioethics plays two roles. First, in the academy and public debate, ques-
tions central to human existence and flourishing are contested. Elegant
arguments are advanced and rebutted. Internal conflicts about interpre-
tation and application abound. Secondly, some of the questions debated
within the medical profession itself, where consensus can be reached,
are translated into professional guidance ‘codes of ethics’. Criminal law
enforces ‘rules’ that prohibit serious wrongs and the courts and others
applying the criminal law must provide an answer. The luxury of philo-
sophical debate is not enjoyed within the criminal process. To add to
the difficulty confronting the courts, the kinds of bioethical dilemmas
that present within the criminal process tend to be dilemmas prompting
polarised debate and not reduced or reducible to ‘codes of ethics’. Thus,
for many commentators, whatever answer the criminal process offers will
be wrong.
Bioethics and the criminal law often share a language and common
objectives. Some of the inconsistencies between them have a simple cause.
Bioethics focusses on creating the ‘best’ outcomes. The criminal law, as
the ‘theatre’ of last resort, concentrates or should concentrate on the
3 McEwan 2001: 246. 4 Ibid.

prevention of the worst sort of wrongs. When a bioethical argument

declares that X is good and the criminal law designates it a ‘wrong’,
conflict ensues. Despite a common language, some such conflicts become
so inflammatory in their representation in public debate that it can seem
that communication has broken down. Additionally, the job for the courts
is made more difficult because in many cases the courts have no recourse
to bespoke laws designed to address the dilemmas posed by medicine
but must adjust principles developed for very different sorts of conduct
to the needs of medicine. The greater freedom enjoyed by the legislature
to frame laws to meet the needs of medicine and bioethics is frustrated
by the tendency of elected lawmakers either to react to current moral
panics, or to allow fear of moral controversy to encourage then to evade
questions posed by medicine and bioethics. Whether the decision maker
is a judge or Parliament, in very many cases a particular story frames and
drives the decision, thus impeding rational reflection.
Theatrical distortions
In reflecting on how medicine, bioethics and the criminal process relate
to one another and finding that there is no fundamental incompatibil-
ity among them, we looked for other factors that cause cases involving
bioethical conflict to pose such difficulties for the criminal law and pro-
voke criticism from bioethicists and criminal law scholars. Acknowledg-
ing the sheer and intrinsic difficulty of many of the cases, ‘theatre’ adds to
that difficulty and helps explain some of the tension between medicine,
bioethics and the criminal process. Drama often distracts from the truth.
The theatre surrounding the cases we have considered does not hold
‘the mirror up to nature’5 but, rather, has a distorting effect through its
‘contaminating power’.6 This explains why, for instance, R v. Adams has
become such a key case when it did not start as such; the cause célèbre,
the theatre of Adams, has led to its prominence. The forceful character
of Aleck Bourne, the dreadful plights of Tony Bland and Tony Nicklin-
son and the clean-cut young doctor who is in the dock for making an
error make good drama but are not necessarily conducive to construc-
tive dialogue to resolve the underlying ethical and legal dilemmas. The
drama, public perceptions of medicine and bioethics and human emotion
regarding the issues at stake can turn attention towards the wrong issues,
draw the lighthouse’s beam away, and impair the achievement of closer
connections between the fields.
5 Hamlet, 3:2: 17–24. 6 Pollard 2005: 40.

By what methodology have we demonstrated that theatre and drama

are causing problems for judges? We acknowledge that there is no def-
inite quantitative measure of this; that is, our book has not and could
not have proven that theatre and drama are posing problems by, for
instance, measuring judicial reference to such difficulties in health care
cases which involve the criminal law. Judges may grapple with human
emotion and intense media coverage surrounding a case, for instance,
without revealing that this has caused them to struggle. However, the
cause célèbre cases and our case studies draw attention to the emotion
and drama surrounding difficult cases. Judges add to the theatre (for
example, Ward LJ’s choice of dramatic language in his judgment in the
conjoined twins case7 and Devlin’s theatrical narrative of Adams’ trial8 ),
and narrative construction is omnipresent in bioethics and criminal law.
The existence of different legal and bioethical stories can only add to
the distortion of the truth, if indeed there is one truth. The fact that the
kinds of cases we have considered are controversial suggests that there
never will be one construction of them that is universally accepted. One
may accept the presentation of Mary in the conjoined twins case as a
defenceless baby or a parasite, or of Dr Adams as a mercy killer or serial
killer, but this does not make a particular construction correct or other
constructions wrong.
Are there strategies that might better focus the lighthouse’s beam and
reduce conflict between the criminal law on paper, the criminal law in
practice, bioethics and medical practice? We have seen in earlier chapters
that some poignant cases simply have no ‘right’ answer and that the par-
ticular context of other medical dilemmas will not ‘fit’ with the internal
consistency of the criminal law. To achieve the right answer on particular
facts, one must do violence to the shape of the criminal law. So should
we look to remove more cases from the public stage? Could the CPS
give more comprehensive guidance not just to address cases of assisted
dying, but also to embrace a wider range of cases where medical prac-
tice leads to criminal investigations, for example? In the USA, bioethics
mediation9 has developed to offer an alternative forum for resolving eth-
ical controversy. Might some of the hardest cases, such as Re A,10 be so
resolved?
We accept that diverting possibly criminal cases from the legal process
altogether might be seen as subverting the rule of law, and only a few of
7 See Chapter 6, at 174. 8 Devlin 1985.

9 See Dubler and Liebman 2004; Nuffield Council on Bioethics 2006.
10 Bearing in mind that the Court of Appeal indicated that no criminal charges would have
been brought had the hospital chosen not to operate. See Chapter 6, at 167.
the causes célèbres and case studies we have examined could be so diverted.
In the broader range of bioethical dilemmas with which the courts and the
legislature must engage, we can do little more than draw attention to the
distortion created by theatre and suggest that the presentation of cases in
the media could focus less on conflict and the personal story and more on
the complexity of so many bioethical debates. More importantly, those
invited to comment by the media should avoid the temptation to deliver
a good ‘sound bite’. All parties in the debates need to be open about their
agendas and not pretend to impartiality when in reality they are pursuing
a set end. So hard though it tried, the Commission on Assisted Dying
failed to convince opponents of its mission that it was truly independent,
meaning that important voices in the debate refused to engage with it.11
Yet even if some of the theatre’s distortion can be reduced, the zone
of interaction between bioethics, medicine and criminal law is a site of
tension because of the problematic presence of other phenomena.
Culture, medicine and public sentiment

Imagine a comprehensive and rational debate about the extent to which
the law should sanction otherwise unlawful conduct in the name of
‘proper’ medical treatment. Such a debate might help to define the
parameters of this slippery concept and strike a coherent balance between
autonomy, beneficence and the public good. Could some of the discon-
nects between bioethics and the criminal law be ‘repaired’? Any such
hope may be in vain, for as we have seen, there are tensions between
the prevailing values of (political) liberalism that offer a rational under-
standing of the links between bioethics, medicine and the criminal pro-
cess and the intrusion of culture, moral sentiment and reactive politics.
The distinction between the blanket prohibition of any form of female
‘circumcision’, even of consenting adult women, and the continued legit-
imacy of infant male circumcision can only be fully understood in the
context of both the broad cultural roots of the latter in our society and the
revulsion occasioned by the former. Successive Acts of Parliament regu-
lating the uses to which human body parts may be put have been framed
by popular sentiment. Legislatures by their very nature react to popular
demand and fear the cost of alienating any powerful sector of opinion.
For this reason, among others, when the judges declare that the criminal
law is in disarray, elected lawmakers often reject calls for intervention.
The rational bioethicist will call for us and those who actually create
11 See, e.g., Saunders 2011: 240.

the law to ignore ‘sentimental morality’.12 However, riding roughshod

over cultural and popular sentiment may exacerbate rather than heal any
rift between bioethics and the criminal process. The latter must provide
answers that are broadly acceptable to the community it serves and within
the criminal process, popular opinion may be represented by the jury, or
in the legislature, elected lawmakers. Even in the many cases where the
shape of the criminal law as it affects medicine is determined by judges
alone, the judges cannot ignore deeply held beliefs of substantial sectors
of the community. To do so may polarise opinion yet further and risk
losing the common language within which a liberal society can debate
questions of bioethics. And part of that debate needs to be how best to
accommodate culture and sentiment. That does not mean that the law
should kowtow to irrational prejudice, but that in shaping and enforcing
the criminal law as it affects medicine, lawmakers and judges must face
the challenge of mediating between conflicting philosophical mind-sets
and cultural norms in such a way as to recognise the needs of a diverse
community within the bounds of reason in a liberal democracy.
Medicine framing the criminal process’ response:

promoting a dialogue?
In seeking to achieve this difficult task of mediation, the courts and Par-
liament regularly turn to the notion of ‘proper’ medical treatment (and)
the doctors’ defence. Medicalisation legitimises what otherwise remains
unlawful and offers a protective shield if the defendant in the dock is a
doctor. Medicalisation becomes akin to a door that allows conduct usu-
ally condemned to be seen as socially desirable. Critics may perceive its
use as the law ceding control of key parts of human life to the doctors,
and/or evading tricky moral questions. Something seen as an exception
may be transformed into a legitimate claim. Such a process may be
observed in the context of abortion. Opponents of a particular outcome
in bioethics will be wary of ethical arguments that X be considered justi-
fied by medical beneficence, fearing that the next step will be to classify
X as proper medical treatment and so lawful. People who espouse invio-
lability of life are thus suspicious of any move, however small, to extend
the privilege doctors enjoy in end-of-life decision making. Those who
support more liberal stances on matters such as abortion and end-of-life
care may, for different reasons, be wary of medicalisation, for it finds its
legitimacy largely within doctrines of beneficence, relegating autonomy
to a subordinate role. To borrow from a literary critic’s (modified) words,
12 Harris 1998: 55–9.

just as the physician invades the body, through an alliance of the medi-
cal profession and the courts, medicine ‘rupture[s] the integrity of [the
criminal law’s] bodily boundaries’.13
Yet the doctors’ defence does some useful work in bridging moral con-
troversy and allowing pragmatic compromise to achieve an acceptable,
if not ideal, state of affairs in apparently irresoluble controversies. Lord
Goff suggested that
Mutual understanding between doctors[, law-makers] and the judges is the best
way to ensure the evolution of a sensitive and sensible legal framework for the
treatment and care of patients, with a sound ethical base, in the interest of the
patients themselves.14
Three problems beset his Lordship’s hopes. (1) For many, his proposed
way forward reeks of entrenchment of medical privilege. (2) It fails to
help in explaining the boundaries of such privilege, for example, why it
applies to legitimate certain ‘assaults’ and abortion but not assisted dying.
(3) Where medical privilege does apply, the precise scope of the defence
remains hazy. So should Parliament intervene to address the latter two
concerns? Extending the legal cloak of medicalisation to assisted dying
would seem feasible only via statute:15
It is for Parliament to decide on behalf of the people whether it would be in

the interests of society as whole to implement a safeguarded system that would
provide [the option of assisted dying for terminally ill individuals], and there is a
clear need for a more inclusive public debate to inform this process.16
Such a debate will require that the partisans find a language within which
to communicate and not merely confront. As to defining proper med-
ical treatment, in 1995 the Law Commission recommended a specific
‘medical exemption’ to the general criminal law rules relating to consent:
‘proper medical treatment or care administered by or under the direction
of a registered medical practitioner’, to be defined in statute, would
constitute an exception.17 Alldridge attacked the paternalism of the
proposal.18 He argued that there should be a broader statutory defence
of consent which ‘genuinely honours individual autonomy.’19 Ashworth
has also suggested that statutory intervention is desirable, advocating the
creation of a specific defence which, at the time he was writing, could in
13 Pollard 2005: 39.

14 Lord Goff in Airedale NHS Trust v. Bland [1993] 1 All ER 821, at 871.
15 R (on the application of Nicklinson) v. Ministry of Justice [2012] EWHC 2381 (Admin);
Williams 2007: Chapter 7.
16 Commission on Assisted Dying 2012: 287. 17 Law Commission 1995: para. 8.50.
18 Alldridge 1996: 139. See also Ashworth 1996: 187. 19 Alldridge 1996: 143.
his view have been appropriately included in part of a new criminal code
for England and Wales. He suggested that
It should not be limited to medical professionals. It should not be limited to

surgical operations, and should extend at least to “medical treatment”. It should
cover decisions and conduct which are either clinically necessary or reasonable
in the circumstances, defined in such a way as to make it clear that the courts
and not the profession have the last word.20
Ashworth highlighted ‘the importance of a legislative declaration of prin-

ciple’ on a matter of public policy,21 but he also recognised the need
for the flexibility to adapt to very different cases and, unlike Alldridge,
allowed some scope for clinical judgement.
Suggestions that the notion of proper medical treatment should be
diluted and even demedicalised in pursuit of clarity have two conse-
quences. The first relates to the role of doctors and how far they are to be
regarded as mere technicians who act to implement their clients’ instruc-
tions. Second, we should note that a gradual drift, whereby a morally
controversial intervention is first a crime, next permissible as medical
treatment and then a right that may be claimed, is just what those who
seek to oppose changes in the law governing matters such as abortion
and assisted dying fear.
We have argued22 that there is a need for a medical ‘defence’ because
medical treatment is a special case23 and that in the context of the body
not every chosen intervention, however damaging or bizarre, should be
lawful. Perhaps the litmus test should be whether the behaviour, even
if it is perceived by the medical profession concerned to be ‘treatment’,
does not show regard for the patient’s welfare. However, health is not
an exclusively private matter and a limited public interest in individu-
als’ health and functioning should be openly recognised. Some limits on
autonomy are permissible. But a balance must be struck that ensures
that if medical treatment is accorded a privileged status, it cannot simply
be used to permit doctors to dictate what is reasonable and accept-
able in a liberal polity. And ‘the courts, rather than any profession . . .
should be the final arbiters of reasonableness in this respect.’24 This
could then avoid Beck’s dark picture of medical power, whilst also recog-
nising that the utilisation of this power alongside political liberalism and
judicial arbitration may allow a rational resolution of bioethical conflict.
For medicalisation plays a useful if often criticised role in mediating
between the polarised extremes of bioethical debate. It may offer a way
20 Ashworth 1996: 190. 21 Ibid.: 191. 22 See Chapters 2 and 5.

23 Archard 2012; McGee 2005 and 2011. 24 Ashworth 1996: 189.
forward that is less than intellectually first class, but better than the prac-
tical alternatives. For this reason we consider that implementation of the
Law Commission’s proposals from 1995 is long overdue.
The passing of time and the host of legal and ethical dilemmas that
have surfaced since 1995 mean that proposals for law reform will first
need careful consideration either by a specially constituted committee
of inquiry, or by an existing body such as the Law Commission or the
Nuffield Council on Bioethics. First, the fundamental issue of whether,
in the twenty-first century, the concept of proper medical treatment has
a role to play at all needs to be teased out. Then its definition and
application must be addressed. At the heart of the deliberations should
lie the question: When is a medical or other intervention touching on
the body and human health a matter for the criminal process? Or is
it a question on which a liberal society must accommodate different
moral values and/or a matter on which a clear ethical stance should be
adopted, but not one for which it is appropriate to don the ‘jackboots’
of the criminal law.25 Then there will be the tricky question of whether
to grant any committee a broad or narrow remit. Should it grasp the
nettle of the legitimacy of medical treatment at the end of life? The
present compromise allowing medicine to legitimise ending some lives
has meant, as Ashworth noted in 1996, that ‘the general doctrines of the
criminal law are sometimes subjected to considerable strain.’26
If a publicly constituted committee is to grasp this nettle, it will be
crucial that as many as possible of the participants in the debates can
agree on a language in which to engage in constructive dialogue and avoid
mutual aspersions of ill-will and distortion of the facts. The traditional
language of the criminal law does not help. The words ‘assault’ and
‘murder’ set up images that embed presuppositions of evildoing. Phrases
such as ‘sanctity of life’ are bandied about with little reflection. In debates
on assisted dying and abortion, one side accuses the other of contempt
for human life and the other responds with charges of callousness in the
face of human suffering. Yet both struggle with the need to adapt the
ethical framework of medicine to meet the challenges of progress and to
connect law and bioethics to a society that shares few certainties. Too
often polarised opinions on all the matters addressed in this book have
resulted in fruitless conflict. We hope that we may have indicated ways
to achieve a more constructive dialogue that will enable proposals for
law reform to be implemented and ease the task of the judges faced with
hard cases. Nonetheless, we recognise that in some such cases, there will
never be a perfect answer; the right answer is only the least bad.
25 Dworkin 1993: 15. 26 Ashworth 1996: 173.

References
Abrams, Natalie 1982. ‘Scope of beneficence in health care’, in Shelp 1982,

pp. 183–98.
Alghrani, Amel, Bennett, Rebecca and Ost, Suzanne (eds.) 2012. The Criminal
Law and Bioethical Conflict: Walking the Tightrope. Cambridge: Cambridge
University Press.
Alghrani, Amel and Brazier, Margaret 2011.‘Re-positioning the fetus in the con-
text of research’, Cambridge Law Journal 70: 51–82.
Alghrani, Amel, Brazier, Margaret, Farrell, Anne-Maree, Griffiths, Danielle and
Allen, Neil 2011. ‘Healthcare scandals in the NHS: crime and punishment’,
Journal of Medical Ethics 37: 230–2.
Alghrani, Amel and Chan, Sarah 2012. ‘“Scientists in the dock”: regulating
science’, in Alghrani, Bennett and Ost 2012, pp. 121–39.
Alldridge, Peter 1996. ‘Consent to medical and surgical treatment: the Law
Commission’s recommendations’, Medical Law Review 4: 129–43.
Allen, Neil 2013. ‘Psychiatric care and criminal prosecution’, in Griffiths and
Sanders 2013a, pp. 159–73.
Annas, George J. 2004. ‘American bioethics and human rights: The end of all
our exploring’, Journal of Law, Medicine and Ethics 32: 658–63.
Anon. 1938a. ‘Charge of procuring abortion’, British Medical Journal 2: 97–8.
Anon. 1938b. ‘The trial of Mr Bourne’, British Medical Journal 2: 185.
Anon. 1957. ‘Trial of Dr J Bodkin Adams’, British Medical Journal 1: 889–94.
Anon. 1981. ‘Dr Leonard Arthur: his trial and its implications’, British Medical
Journal 283: 1340–1.
Aquinas, Thomas 1966. Summa Theologica: Vol. 28. Cambridge: Blackfriars.
Archard, David 2007. ‘The wrong of rape’, Philosophical Quarterly 57(228): 374–
93.
Archard, David 2012. ‘Criminalising medical negligence’, in Alghrani, Bennett
and Ost 2012, pp. 236–50.
Arlidge, Anthony 2000. ‘The trial of Dr David Moor’, Criminal Law Review
31–40.
Ashcroft, Richard E. 2001. ‘Emphasis has shifted from medical ethics to
bioethics’. British Medical Journal 322(7281): 302.
Ashcroft, Richard E., Dawson, Angus, Draper, Heather and McMillan, John R.
(eds.) 2007. Principles of Health Care Ethics. 2nd edn. Chichester: Wiley.
Ashworth, Andrew 1989. ‘The scope of criminal liability for omissions’, Law
Quarterly Review 105: 242–59.
264
References 265
Ashworth, Andrew 1996. ‘Criminal liability in a medical context: The treatment

of good intentions’, in Simester, Andrew P. and Smith, A. T. H. (eds.), Harm
and Culpability. Oxford: Clarendon Press, pp. 173–93.
Ashworth, Andrew 2006. Principles of Criminal Law. 5th edn. Oxford: Oxford
University Press.
Ashworth, Andrew 2009. Principles of Criminal Law. 6th edn. Oxford: Oxford
University Press.
Austin, John 1995. The Province of Jurisprudence Determined. Rumble, Wilfrid
(ed.). Cambridge: Cambridge University Press.
Baker, Dennis 2011. The Right Not to Be Criminalized: Demarcating Criminal
Law’s Authority. Aldershot: Ashgate.
Barsam, Ara Paul 2008. Reverence for Life: Albert Schweitzer’s Great Contribution
to Ethical Thought. Oxford: Oxford University Press.
Bayne, Tim and Levy, Neil 2005. ‘Amputees by choice: body integrity identity
disorder and the ethics of amputation’, Journal of Applied Philosophy 22(1):
75–86.
Beauchamp, Thomas L. 2010. Standing on Principles: Collected Essays. Oxford:
Oxford University Press.
Beauchamp, Thomas L. and Childress, James F. 2009. Principles of Biomedical
Ethics. 6th edn. New York: Oxford University Press.
Beck, Ulrich 1992. Risk Society: Towards a New Modernity. London: Sage.
Becker, Lawrence C. 1999. ‘Crimes against autonomy: Gerald Dworkin on the
enforcement of morality’, William and Mary Law Review 40: 959–73.
Bedford, Sybille 1961. The Best We Can Do. Harmondsworth: Penguin.
Bentham, Jeremy 1970 [1789]. An Introduction to the Principles of Morals and
Legislation. Burns, James H. and Hart, Herbert L. A. (eds.). London: The
Athlone Press.
Beyleveld, Deryck and Brownsword, Roger 2007. Consent in the Law. Oxford:
Hart.
Beynon, Helen 1982. ‘Doctors as murderers’, Criminal Law Review 17–28.
Biggs, Hazel 2001. Euthanasia, Death with Dignity and the Law. Oxford: Hart.
Biggs, Hazel 2002. ‘Speaking for the dead: life in perpetuity’, Res Publica 8(1):
93–104.
Biggs, Hazel 2003. ‘A pretty fine line: Life, death, autonomy and letting it B’,
Feminist Legal Studies 11: 291–301.
Bourne, Aleck 1938. ‘Abortion and the law’, British Medical Journal 2: 254–5.
Bourne, Aleck 1962. A Doctor’s Creed: The Memoirs of a Gynaecologist. London:
The Quality Book Club.
Bowles, Roger, Faure, Michael and Garoupa, Nuno 2008. ‘The scope of crimi-
nal law and criminal sanctions: an economic view and policy implications’,
Journal of Law and Society 35(3): 389–416.
Brahams, Diana 1990. ‘Ethics and the law: the law and assisted conception’,
British Medical Bulletin 46(3): 850–9.
Brassington, Iain 2011. ‘Media bullshit in the assisted dying debate’, Medical
Law International 11: 227–38.
Brazier, Margaret 1997. ‘Parental responsibilities, foetal welfare and children’s
health’ in Bridge, Caroline (ed.), Family Law: Towards the New Millennium.
London: Butterworths, pp. 263–93.
266 References
Brazier, Margaret 1999. ‘Liberty, responsibility, maternity’, Current Legal Prob-

lems 52: 359–91.
Brazier, Margaret 2002. ‘Retained organs: ethics and humanity’, Legal Studies
22: 550–69.
Brazier, Margaret 2006. ‘Do no harm – do patients have responsibilities too?’
Cambridge Law Journal 65: 397–422.
Brazier, Margaret 2008a. ‘Exploitation and enrichment: the paradox of medical
experimentation’, Journal of Medical Ethics 34: 180–3.
Brazier, Margaret 2008b. ‘The age of deference – a historical anomaly?’, in
Freeman 2008a, pp. 464–76.
Brazier, Margaret 2012. ‘Can the Common law accommodate moral controversy
in medicine: the case of abortion’, in Alghrani, Bennett and Ost 2012,
pp. 191–202.
Brazier, Margaret and Alghrani, Amel 2009. ‘Fatal medical malpractice and
criminal liability’, Professional Negligence 25: 51–67.
Brazier, Margaret and Allen, Neil 2007. ‘Criminalising medical malpractice’, in
Erin and Ost 2007, pp. 15–27.
Brazier, Margaret and Cave, Emma 2011. Medicine, Patients and the Law.
5th edn. London: Penguin.
Brazier, Margaret and Harris, John 2011. ‘Does ethical controversy cost lives?’,
in Farrell, Price and Quigley 2011, pp. 15–34.
Bridgeman, Jo 1995. ‘Declared innocent?’, Medical Law Review 3: 117–41.
Bridgeman, Jo 1998. ‘A woman’s right to choose?’, in Lee 1998, pp. 76–94.
British Medical Association [BMA] 2004. Medical Ethics Today – Its Practice and
Philosophy. 2nd edn. London: BMJ Books.
Brook, Peter 1977. The Empty Space. Harmondsworth: Penguin.
Brookes, Barbara and Roth, Paul 1994. ‘Rex v Bourne and the medicaliza-
tion of abortion’ in Clark, Michael and Crawford, Catherine (eds.), Legal
Medicine in History. Cambridge: Cambridge University Press, pp. 314–
43.
Bruner, Jerome S. 1991. ‘The narrative construction of reality’, Critical Inquiry
18: 1–21.
Bruner, Jerome S. 1996a. Actual Minds, Possible Worlds. Cambridge, MA: Harvard
University Press.
Bruner, Jerome S. 1996b. The Culture of Education. Cambridge, MA: Harvard
University Press.
Callahan, Daniel 1993. ‘Why America accepted bioethics’, Hastings Center Report
23(6) Supp: 8–10.
Callahan, Daniel 2003. ‘Principlism and communtarianism’, Journal of Medical
Ethics 29: 287–91.
Campbell, Alastair, Gillet, Grant and Jones, Gareth 2005. Medical Ethics.
4th edn. Oxford: Oxford University Press.
Cave, Emma 2004. The Mother of All Crimes. Aldershot: Ashgate.
Chambers, Tod S. 1994. ‘The bioethicist as author: the medical ethics case as
rhetorical device’, Literature and Medicine 13(1): 60–78.
Charon, Rita 1994. ‘Narrative contributions to medical ethics: recognition, for-
mulation, interpretation, and validation in the practice of the ethicist’, in
References 267
Dubose, Edwin D., Hamel, Ronald P. and O’Connell, Laurence J. (eds.), A

Matter of Principles: Ferment in US Bioethics. Valley Forge, PA: Trinity Press
International, pp. 260–83.
Childress, James, F. 1990. ‘The place of autonomy in bioethics’, Hastings Center
Report 20(1):12–17.
Christman, John 2005. ‘Autonomy, self-knowledge, and liberal legitimacy’, in
Christman and Anderson 2005a, pp. 330–57.
Christman, John and Anderson, Joel (eds.) 2005a. Autonomy and the Challenges
to Liberalism. Cambridge: Cambridge University Press.
Christman, John and Anderson, Joel 2005b. ‘Introduction’ in Christman and
Anderson 2005a, pp. 1–23.
Clark, George 1964–6. A History of the Royal College of Physicians. Oxford: Claren-
don Press.
Clouser, K. Danner 1993. ‘Bioethics and philosophy’, Hastings Center Report
23(6) Supp: 10–12.
Clouser, K. Danner and Gert, Bernard 1990. ‘A critique of principlism’, Journal
of Medicine and Philosophy 15(2): 219–36.
Coggon, John 2007a. ‘Ignoring the moral and intellectual shape of the law after
Bland: the unintended side-effect of a sorry compromise’, Legal Studies
27(1): 110–25.
Coggon, John 2007b. ‘Varied and principled understandings of autonomy in
English law: justifiable inconsistency or blinkered moralism?’ Health Care
Analysis 15: 235–55.
Coggon, John 2008a. ‘Best interest, public interest, and the power of the medical
profession’, Health Care Analysis 16: 219–32.
Coggon, John 2008b. ‘On acts, omissions and responsibility’, Journal of Medical
Ethics 34: 576–9.
Coggon, John 2008c. ‘Problems with claims that sanctity leads to “pro-life” law,
and reasons for doubting it to be a convincing “middle way”’, Medicine and
Law 27: 203–13.
Coggon, John 2010. ‘Assisted dying and the context of debate: “medical law”
versus “end-of-life” law’, Medical Law Review 18(4): 541–53.
Coggon, John 2012a. ‘All to the good? Criminality, politics and public health’,
in Alghrani, Bennett and Ost 2012, pp. 251–64.
Coggon, John 2012b. What Makes Health Public? Cambridge: Cambridge Uni-
versity Press.
Coggon, John 2012c. ‘Would responsible medical lawyers lose their patients?’,
Medical Law Review 20(1): 130–49.
Coke, Edward 1644. The Third Part of the Institutes of the Laws of England. London.
Commission on Assisted Dying 2012. Final Report. London: Demos.
Cronin, Antonia J. and Price, David 2008. ‘Directed organ donation: is the donor
the owner?’, Clinical Ethics 3(3): 127–31.
Crown Prosecution Service 2008. Decision of Prosecution – The Death by Suicide
of Daniel James, 9 December 2008. Available at http://www.cps.gov.uk/news/
articles/death by suicide of daniel james/index.html.
Crown Prosecution Service 2009. Interim Policy for Prosecutors in Respect of Cases
of Assisted Suicide. London: Crown.
268 References
Crown Prosecution Service 2010a. Policy for Prosecutors in Respect of Cases of

Encouraging or Assisting Suicide. London: Crown.
Crown Prosecution Service 2010b. Public Consultation Exercise on the Interim Policy
for Prosecutors in Respect of Cases of Assisted Suicide. London: Crown.
Cullity, Garrett. 2007. ‘Beneficence’ in Ashcroft, Dawson, Draper and McMillan
2007, pp. 19–26.
Dan-Cohen, Meir. 2002. Harmful Thoughts: Essays on Law, Self and Morality.
Princeton, NJ: Princeton University Press.
Dan-Cohen, Meir. 2007. ‘Thinking criminal law’, Cardazo Law Review, 28(6):
2419–26.
Darnton, John, 1999. The Experiment. New York: Dutton.
Davis, Colleen 2011. ‘Conjoined twins as persons that can be victims of homi-
cide’, Medical Law Review 19: 430–66.
Davis, Megan, Dautenhahn, Kerstin, Nehaniv, Chrystopher L. and Powell, Stu-
art D. 2007. ‘The narrative construction of our (social) world: steps towards
an interactive learning environment for children with autism’, Universal
Access in the Information Society 6: 145–57.
Dellapenna, Joseph W. 2006. Dispelling the Myths of Abortion History. Durham,
NC: Carolina Academic Press.
Dennis, Ian H. 2009. ‘On necessity as a defence to crime: possibilities, problems
and the limits of justification and excuse’, Criminal Law and Philosophy 3:
29–49.
Department of Health 2000. An Investigation into Conditional Organ Donation, the
Report of the Panel. London: Department of Health.
Department of Health 2002. Human Bodies, Human Choices: The Law on Human
Organs and Tissue in England and Wales: A Consultation Report. London:
Stationary Office.
Department of Health 2004. Committee of Inquiry – Independent Investigation into
How the NHS Handled Allegations about the Conduct of Clifford Ayling. CM
6948. London: Stationary Office.
Derrida, Jacques 1981. ‘Plato’s pharmacy’, in Dissemination, tr. Barbara Johnson.
Chicago: University of Chicago Press, pp. 63–119.
Devlin, Patrick 1962. Samples of Lawmaking. London: Oxford University Press.
Devlin, Patrick 1965. The Enforcement of Morals. London: Oxford University
Press.
Devlin, Patrick 1979. The Judge. Oxford: Oxford University Press.
Devlin, Patrick 1985. Easing the Passing: The Trial of Doctor John Bodkin Adams.
London: The Bodley Head.
Dingwall, Gavin and Gillespie, Alisdair A. 2008. ‘Reconsidering the good Samar-
itan: a duty to rescue?’ Cambrian Law Review 39: 26–39.
Dobinson, Ian ‘Doctors who kill and harm their patients’, in Griffiths and
Sanders 2013a, pp. 248–264.
Downie, Robert S. 1964. ‘Social roles and moral responsibility’, Philosophy
39(147): 29–36.
Downie, Robert S. and Macnaughton, Jane 2007. Bioethics and the Humanities.
London: Routledge Cavendish.
References 269
Draper, Heather and Sorell, Tom 2002. ‘Patients’ responsibilities in medical

ethics’, Bioethics 16(4): 335–52.
Dripps, Donald A. 1998. ‘The liberal critique of the harm principle’, Criminal
Justice Ethics 17(2): 3–18.
Dubber, Markus, D. 2004. Political Theory of Criminal Law: Autonomy and
the Legitimacy of State Punishment. Available at http://ssrn.com/abstract=
529522.
Dubler, Nancy N. and Liebman, Carol B. 2004. Bioethics Mediation: A Guide to
Shaping Shared Solutions. New York: United Hospital Fund.
Duff, R. Anthony 1982. ‘Intention, responsibility and double effect’, Philosophical
Quarterly 32: 1–16.
Duff, R. Anthony 1990. Intention, Agency and Criminal Liability. London: Black-
well.
Duff, R. Anthony (ed.) 1998. Philosophy and the Criminal Law. Cambridge:
Cambridge University Press.
Duff, R. Anthony 2001. ‘Harms and wrongs’, Buffalo Criminal Law Review 5:
13–44.
Duff, R. Anthony 2007. Answering for Crime: Responsibility and Liability in the
Criminal Law. Oxford: Hart.
Duff, R. Anthony 2008. ‘Whose luck is it anyway?’ in Clarkson, Chris M. V.
and Cunningham, Sally (eds.), Criminal Liability for Non-aggressive Death.
Aldershot: Ashgate, pp. 61–78.
Dworkin, Gerald 1970. ‘The law relating to organ donation in England’, Modern
Law Review 33: 353–77.
Dworkin, Gerald 1988. The Theory and Practice of Autonomy. Cambridge:
Dworkin, Ronald 1966. ‘Lord Devlin and the enforcement of morals’, Yale Law
Journal 75(6): 986–1005.
Dworkin, Ronald 1977. Taking Rights Seriously. Cambridge: Harvard University
Press.
Dworkin, Ronald 1993. Life’s Dominion: An Argument about Abortion and
Euthanasia. New York: Alfred Knopf.
Dworkin, Ronald 1998. Law’s Empire. Oxford: Hart.
Eekelaar, John and Dingwall Robert 1984. ‘Some legal issues of obstetric prac-
tice’, Journal of Social Welfare Law 6: 258–70.
Elliott, Tracey 2009. ‘Body dysmorphic disorder, radical surgery and the limits
of consent’. Medical Law Review 17: 149–82.
Engelhardt, H. Tristram 2011. ‘Confronting moral pluralism in posttraditional
Western societies: bioethics critically reassessed’, Journal of Medicine and
Philosophy 36: 243–60.
Erin, Charles A. 2003. ‘Who needs “the four principles?”’ in Häyry and Takala
2003a, pp. 79–89.
Erin, Charles A. and Harris, John 2003. ‘An ethical market in human organs’,
Erin, Charles A. and Ost, Suzanne (eds.) 2007. The Criminal Justice System and
Health Care. Oxford: Oxford University Press.
270 References
Farrell, Anne-Maree, Price, David and Quigley, Muireann (eds.) 2011. Organ
Shortage: Ethics, Law and Pragmatism. Cambridge: Cambridge University
Press.
Feinberg, Joel 1984. The Moral Limits of the Criminal Law: Harm to Others. Oxford:
Feinberg, Joel 1994. Freedom and Fulfilment. Princeton, NJ: Princeton University
Press.
Feng, Tan Keng 1987. ‘Failure of medical advice: trespass or negligence?’ Legal
Studies 7: 149–68.
Ferner, Robin E. and McDowell, Sarah E. 2006. ‘Doctors charged with
manslaughter in the course of medical practice, 1795–2005: a literature
review’, Journal of the Royal Society of Medicine 99: 309–14.
Fingarette, Herbert 1967. On Responsibility. New York: Basic Books.
Finnis, John 1977. ‘The rights and wrongs of abortion’, in Dworkin, Ronald
(ed.), The Philosophy of Law. Oxford: Oxford University Press, pp. 129–52.
Finnis, John 1980. Natural Law and Natural Rights. Oxford: Clarendon Press.
Finnis, John 2008. Common Law Constraints: Whose Common Good Counts?
Cambridge Centre for Public Law. Available at http://www.cpl.law.cam.ac
.uk/Finnis J Paper(1).pdf.
Fischer, John M. and Ravizza, Mark 1998. Responsibility and Control: A Theory of
Moral Responsibility. Cambridge: Cambridge University Press.
First, Michael B. 2005. ‘Desire for amputation of a limb: paraphilia, psychosis
or a new type of identity disorder’, Psychological Medicine 34: 919–28.
Fletcher, George 1978. Rethinking Criminal Law. Boston and Toronto: Little,
Brown.
Foot, Phillipa 1978. Virtues and Vices. Oxford: Blackwell.
Ford, Mary 2007. ‘Nothing and not nothing: law’s ambivalent response to trans-
formation and transgression at the beginning of life’, in Smith, Stephen W.
and Deazley, Ronan (eds.), The Legal, Medical and Cultural Regulation of the
Body. Aldershot: Ashgate, pp. 21–46.
Forst, Rainer 2005. ‘Political liberty: integrating five conceptions of autonomy’,
in Christman and Anderson 2005a, pp. 226–42.
Foster, Charles, Herring, Jonathan, Melham, Karen and Hope, Tony 2011. ‘The
double effect effect’, Cambridge Quarterly of Healthcare Ethics 20: 56–72.
Fovargue, Sara 2012. ‘Bioethical conflict and developing biotechnologies: is pro-
tecting individual and public health from the risks of xenotransplantation a
matter for the (criminal) law?’ in Alghrani, Bennett and Ost 2012, pp. 140–
56.
Fovargue, Sara and Miola, José 1998. ‘Policing pregnancy: implications of the
Attorney General’s Reference (No 3 of 1994)’ Medical Law Review 6: 265–
96.
Fox, Marie and Thomson, Michael 2005. ‘Short changed? The law and ethics of
male circumcision’, International Journal of Children’s Rights 13: 161–81.
Fox, Marie and Thomson, Michael 2012. ‘The new politics of male circumcision:
HIV/Aids, health law and social justice’, Legal Studies 32: 255–81.
Freeman, Michael 2001. ‘Whose life is it anyway?’ Medical Law Review 9: 259–80.
References 271
Freeman, Michael (ed.) 2008a. Law and Bioethics. Oxford: Oxford University
Press.
Freeman, Michael 2008b. ‘Law and bioethics: constructing the inter-discipline’,
in Freeman 2008a, pp. 1–12.
Fuller, Lon L. 1969. The Morality of Law. New Haven, CT: Yale University Press.
Furness, Peter and Sullivan, Richard 2004. ‘The Human Tissue Bill’, British
Medical Journal 328: 533–4.
Gardiner, Patti 2003. ‘A virtue ethics approach to moral dilemmas in medicine’,
Gardner, John 1998. ‘On the general part of the criminal law’, in Duff 1998,
pp. 205–55.
Gardner, John 2003. ‘The mark of responsibility’, Oxford Journal of Legal Studies
23(3): 157–71.
Gaus, Gerald F. 2005. ‘The place of autonomy within liberalism’, in Christman
and Anderson 2005a, pp. 272–306.
Gavigan, Shelley 1984. ‘The criminal sanction as it relates to human reproduc-
tion: the genesis of the statutory prohibition of abortion’, Journal of Legal
History 5: 20–43.
Gelfand, Toby 1993. ‘The history of the medical profession’, in Bynum,
William F. and Porter, Roy (eds.), Companion Encyclopaedia to the History of
Medicine. London: Routledge, pp. 1119–50.
General Medical Council 2006. Maintaining Boundaries. London: GMC.
General Medical Council 2009. Confidentiality. London: GMC.
General Medical Council 2010. Treatment and Care Towards the End of Life.
London: GMC.
George, Robert P. 1992. Natural Law Theory: Contemporary Essays. Oxford:
Clarendon Press.
George, Robert P. 1993. Making Men Moral: Civil Liberties and Public Morality.
Oxford: Oxford University Press.
George, Rob and Regnard, Claud 2007. ‘Lethal opioids or dangerous pre-
scribers?’ Palliative Medicine 21: 77–80.
Gert, Bernard, Culver, Charles M. and Clouser, K. Danner. 2006. Bioethics: A
Systematic Approach. 2nd edn. Oxford: Oxford University Press.
Gillon, Raanan 1986. Philosophical Medical Ethics. Chichester: Wiley.
Gillon, Raanan 1994a. ‘Medical ethics: four principles plus attention to scope’,
British Medical Journal 309: 184–8.
Gillon, Raanan (ed.) 1994b. The Principles of Health Care Ethics. Chichester:
Wiley.
Glover, Jonathan 1970. Responsibility. London: Routledge and Kegan Paul.
Gooderham, Peter 2011. ‘“No-one fully responsible”: a “collusion of anonymity”
protecting health-care bodies from manslaughter charges’, Clinical Ethics 6:
68–77.
Goodin, Robert E. 2010. ‘An epistemic case for legal moralism’, Oxford Journal
of Legal Studies 30(4): 615–33.
Goss, James 2000. ‘A postscript to the trial of Dr David Moor’, Criminal Law
Review 568–70.
272 References
Griffiths, Danielle and Alghrani, Amel unpublished. ‘The Criminal Doctor in the
Media Spotlight’, unpublished.
Griffiths, Danielle and Sanders, Andrew (eds.) 2013a. Medicine, Crime and Soci-
ety. Cambridge: Cambridge University Press.
Griffiths, Danielle and Sanders, Andrew 2013b. ‘The road to the dock: pros-
ecution decision-making in medical manslaughter cases’, in Griffiths and
Sanders 2013a, pp. 117–158.
Grotowski, Jerzy 1968. Towards a Poor Theatre. New York: Simon and Schuster.
Gurnham, David 2009. Memory, Imagination, Justice: Intersections of Law and
Literature. Farnham: Ashgate.
Hall, Mark A. 2002. ‘Law, medicine and trust’, Stanford Law Review 55: 463–
527.
Harcourt, Bernard E. 1999. ‘The collapse of the harm principle’, Journal of
Criminal Law and Criminology 90(1): 109–94.
Harris, John 1985. The Value of Life. London: Routledge.
Harris, John 1995. ‘The philosophical case against euthanasia’, in Keown, John
1995, pp. 36–45.
Harris, John 1998. Clones, Genes and Immortality: Ethics and the Genetic Revolution.
2nd edn. Oxford: Oxford University Press.
Harris, John 2001. ‘Human beings, persons and conjoined twins: an ethical
analysis of the judgment in Re A’, Medical Law Review 9: 221–36.
Harris, John 2002. ‘Law and the regulation of retained organs’, Legal Studies 22:
550–69.
Harris, John 2003. ‘In praise of unprincipled ethics’, Journal of Medical Ethics
29(5): 303–6.
Harris, John 2005. ‘Scientific research is a moral duty’, Journal of Medical Ethics
31: 242–8.
Hart, Herbert L. A. 1961. The Concept of Law. Oxford: Clarendon Press.
Hart, Herbert L. A. 1963. Law, Liberty and Morality. London: Oxford University
Press.
Häyry, Matti and Takala, Tuija (eds.) 2003a. Scratching the Surface of Bioethics.
Amsterdam/New York: Rodopi.
Häyry, Matti and Takala, Tuija 2003b. ‘What is bioethics all about? a start’ in
Häyry and Tuija 2003a, pp. 1–7.
Herissone-Kelly, Peter 2003. ‘The principlist approach to bioethics, and its
stormy journey overseas’, in Häyry and Takala 2003a, pp. 65–77.
Herring, Jonathan 2009. ‘Relational autonomy and rape’, in Day Sclater, Shelley,
Ebtehaj, Fatemeh, Jackson, Emily and Richards, Martin (eds.), Regulating
Autonomy: Sex, Reproduction and Family. Oxford: Hart, pp. 53–72.
Herring, Jonathan. 2010. Medical Law and Ethics, 3rd edn. Oxford: Oxford Uni-
versity Press.
Hewson, Barbara 2001. ‘Killing off Mary: was the Court of Appeal right?’ Medical
Heywood, Rob 2010. ‘The DPP’s prosecutorial policy on assisted suicide’, King’s
Law Journal 21(3): 425–43.
Holtug, Nils 2002. ‘The harm principle’, Ethical Theory and Moral Practice 5:
357–89.
References 273
Horder, Jeremy 2000. ‘On the irrelevance of motive in criminal law’, in Horder,
Jeremy (ed.), Oxford Essays in Jurisprudence, Fourth Series. Oxford: Oxford
University Press, pp. 173–91.
House of Commons Science and Technology Committee 2007. Scientific Devel-
opments Relating to the Abortion Act 1967. Twelfth Report of Session 2006–7.
London: HMSO.
Howard, Joseph C. 2009. ‘The principle of double effect as applied to the Maltese
conjoined twins’, The National Catholic Bioethics Quarterly, 9(1): 85–96.
Howe, Jim 2006. ‘The persistent vegetative state, treatment withdrawal, and the
Hillsborough Disaster: Airedale NHS Trust v Bland’, Practical Neurology 6:
238–46.
Husak, Douglas 2004. ‘The criminal law as last resort’, Oxford Journal of Legal
Studies 24: 207–35.
Husak, Douglas 2008. Overcriminalization. Oxford: Oxford University Press.
Hutley, Francis C. 1940. ‘The field of jurisprudence’, Australasian Journal of
Philosophy 18(1): 38–46.
Huxtable, Richard 2007. Euthanasia, Ethics and the Law: From Conflict to Com-
promise. Abingdon, UK: Routledge-Cavendish.
Huxtable, Richard 2012. ‘Euthanasia excused: between prohibition and permis-
sion’, in Alghrani, Bennett and Ost 2012, pp. 49–68.
Huxtable, Richard and Forbes, Karen 2009. ‘New interim guidance on assisted
suicide’, British Medical Journal 339: 1209.
Inquiry into the Management and Care of Children Receiving Complex Heart
Surgery at the Bristol Royal Infirmary 2000. Removal and Retention of Human
Material: Interim Report. London: Stationary Office. [=Interim Report]
International Bar Association 2005. Rule of Law Resolution. Available at http://
www.ibanet.org/About the IBA/IBA resolutions.aspx.
Jackson, Emily 2010. Medical Law. 2nd edn. Oxford: Oxford University Press.
Jackson, Emily and Keown, John 2012. Debating Euthanasia. Oxford: Hart.
Jareborg, Nils 2002. Scraps of Penal Theory. Uppsala: Förlag.
Jennett, Brian 2002. The Vegetative State. Cambridge: Cambridge University
Press, 2002.
Johnson, Paul 2010. ‘Law, morality and disgust: the regulation of “extreme
pornography” in England and Wales’, Social & Legal Studies 19: 147–
63.
Jonsen, Albert R. 1991. ‘American moralism and the origin of bioethics in the
United States’, Journal of Medicine and Philosophy 16: 113–30.
Jonsen, Albert R. 1993. ‘The birth of bioethics’, Hastings Center Report 23(6)
Supp: 1–4.
Jonsen, Albert R. 1998. The Birth of Bioethics. Oxford: Oxford University Press.
Jonsen, Albert R. 2000. A Short History of Medical Ethics. Oxford: Oxford Uni-
versity Press.
Kant, Immanuel 1991 [1797]. The Metaphysics of Morals. Eng. transl. Gregor,
Mary. Cambridge: Cambridge University Press.
Kant, Immanuel 1999 [1785]. Groundwork of the Metaphysics of Morals, in Kant,
Immanuel Practical Philosophy. Ed. Gregor, Mary J. Cambridge: Cambridge
University Press, pp. 37–108.
274 References
Karlsen, Jan R. and Solbakk, Jan H. 2011. ‘A waste of time: the problem of
common morality in principles of biomedical ethics’, Journal of Medical
Ethics 37: 588–91.
Kass, Leon 1998. ‘The wisdom of repugnance: why we should ban the cloning
of humans’, Valparaiso University Law Review 32(2): 679–705.
Kazarian, Mélinée, Griffiths, Danielle and Brazier, Margaret 2011. ‘Criminal
responsibility for medical malpractice in France’, Journal of Professional Neg-
ligence 27: 188–99.
Kelman, Mark 1981. ‘Interpretive construction in the substantive criminal law’,
Stanford Law Review 33: 591–673.
Kelsen, Hans 1967. Pure Theory of Law. 2nd edn. Eng. trans. Knight, M. Berke-
ley, CA: University of California Press.
Kennedy, Ian 1981. Unmasking Medicine. London: Allen and Unwin.
Kennedy, Ian 2001. Learning from Bristol: The Report of the Public Inquiry into
Children’s Heart Surgery at the Bristol Royal Infirmary 1984–1995. Cm 5207.
London: HMSO.
Kennedy, Ian and Grubb, Andrew 2000. Kennedy and Grubb’s Medical Law.
3rd edn. London: Butterworths.
Keown, John 1988. Abortion, Doctors and the Law. Cambridge: Cambridge Uni-
versity Press.
Keown, John (ed.) 1995. Euthanasia Examined; Ethical, Legal and Criminal Per-
spectives. Cambridge: Cambridge University Press.
Keown, John 2002. Euthanasia, Ethics and Public Policy. Cambridge: Cambridge
University Press.
Keown, John 2006. ‘Restoring the sanctity of life and replacing the caricature: a
reply to David Price’, Legal Studies 1: 109–19.
Keown, John and Jones, David 2008. ‘Surveying the foundations of medical law:
a reassessment of Glanville Williams’s The Sanctity of Life and the Criminal
Law’, Medical Law Review 16: 85–126.
Kirklin, Deborah 2004. ‘The role of medical imaging in the abortion debate’,
Journal of Medical Ethics 30: 426.
Koch, Tom 2008. ‘Bioethics? A grand idea’, Canadian Medical Association Journal
178(1): 116.
Kuhse, Helga 1987. The Sanctity-of-Life Doctrine in Medicine: A Critique. Oxford:
Lacey, Nicola 1988. State Punishment. London: Routledge.
Lacey, Nicola 1993. ‘A clear concept of intention: elusive or illusory?’ Modern
Law Review 56(5): 621–42.
Lacey, Nicola 2001a. ‘In search of the responsible subject: history, philosophy
and social sciences in criminal law theory’, Modern Law Review 64(3): 350–
71.
Lacey, Nicola 2001b. ‘Responsibility and modernity in criminal law’, Journal of
Political Philosophy 9(3): 249–76.
Lacey, Nicola 2009. ‘Historicising criminalisation: conceptual and empirical
issues’, Modern Law Review 72: 936–60.
Lacey, Nicola 2010. ‘Psychologising Jekyll, demonising Hyde: the strange case
of criminal responsibility’, Criminal Law and Philosophy 4: 110–33.
References 275
Lacey, Nicola, Wells, Celia and Quick, Oliver 2003. Reconstructing Criminal Law.
3rd edn. London: LexisNexis.
Ladd, John 1978. ‘Legalism and medical ethics’, in Davis, John W., Hoffmaster,
Barry C. and Shorten, Sarah (eds.), Contemporary Issues in Biomedical Ethics.
New York: Humana Press, pp. 1–35.
Landesman, Bruce, M. 2010. ‘The responsibilities of the liberal state: compre-
hensive vs. political liberalism’, Utah Law Review 1: 171–82.
Law Commission 1995. Consent in the Criminal Law. Consultation Paper 139.
London: HMSO.
Law Commission 2004. Partial Defences to Murder. Report 290. London: HMSO.
Law Commission 2006. Murder, Manslaughter and Infanticide. Report 304.
London, HMSO.
Lee, Ellie (ed.), 1998, Abortion Law and Politics Today. London: Macmillan Press.
Lee, Marvin J. H., 2010. ‘The problem of “thick in status, thin in content” in
Beauchamp and Childress’ principlism’, Journal of Medical Ethics 36: 525–8.
Lewis, Penney 2007. ‘The empirical slippery slope from voluntary to non volun-
tary euthanasia’, The Journal of Law, Medicine and Ethics, 35: 197–210.
Liddell, Kathleen and Hall, Alison 2005. ‘Beyond Bristol and Alder Hey: the
future regulation of human tissue’, Medical Law Review 13: 170–223.
Macaulay, Thomas B. 2004 [1880]. ‘Notes on the Indian penal code’, in
Macaulay, Thomas B. and Lady Trevelyan (ed.), Biographies, Lays and
Poems. Vol. 1. The Complete Writings of Lord Macaulay. Whitefish, MT:
Kessinger.
Maclean, Alisdair 2004. ‘The doctrine of informed consent; does it exist and has
it crossed the Atlantic?’ Legal Studies 24: 386–413.
Maclean, Alisdair 2010. Autonomy, Informed Consent and the Law: A Relational
Challenge. Cambridge: Cambridge University Press.
Malm, Heidi M. 2000. ‘Bad Samaritan laws: harm, help, or hype’, Law and
Marshall, Sandra E. and Duff, R. Anthony 1998. ‘Criminalization and shared
wrongs’, Canadian Journal of Law and Jurisprudence, XI(1): 7–22.
Mason, J. Kenyon 2001. ‘Conjoined twins: a diagnostic conundrum’, Edinburgh
Mason, J. Kenyon and Laurie, Graeme T. 2011. Mason and McCall Smith’s Law
and Medical Ethics. 8th edn. Oxford: Oxford University Press.
Matthews, Paul 1995. ‘The man of property’, Medical Law Review 3: 251–74.
Maxeiner, James R. 2007. ‘Legal indeterminancy made in America: U.S. legal
methods and the rule of law’, Valparaiso University Law Review 41: 517–89.
McCall Smith, Alexander 1993a. ‘Criminal negligence and the incompetent doc-
tor’, Medical Law Review 1: 336–49.
McCall Smith, Alexander 1993b. ‘The duty to rescue and the common law’,
in Menlowe, Michael A. and McCall Smith, Alexander (eds.), The Duty to
Rescue: The Jurisprudence of Aid. Aldershot: Dartmouth, pp. 55–91.
McCall Smith, Alexander 1999. ‘Euthanasia: the strengths of the middle ground’,
Medical Law Review 7: 194–207.
McEwan, Jenny 1998. Evidence and the Adversarial Process. 2nd edn. Oxford:
Hart.
276 References
McEwan, Jenny 2001. ‘Murder by design: the “feel good” factor and the criminal
law’, Medical Law Review 9: 246–58.
McGee, Andrew 2005. ‘Finding a way through the ethical and legal maze: with-
drawal of medical treatment and euthanasia’, Medical Law Review 13: 357–
85.
McGee, Andrew 2011. ‘Ending the life of the act/omission dispute: causation
in withholding and withdrawing life-sustaining measures’, Legal Studies 13:
467–91.
McGuinness, Sheelagh 2011. ‘A, B and C leads to D for delegation’, Medical
McGuinness, Sheelagh 2013. ‘Law, reproduction and disability – fatally “handi-
capped”?’ Medical Law Review doi: 10.1093/medlaw/fws041. First published
online: 2 January 2013.
McGuinness, Sheelagh and Brazier, Margaret 2008. ‘Respecting the living means
respecting the dead too’, Oxford Journal of Legal Studies 28: 297–316.
McLean, Shelia A. M. 2007. Assisted Dying: Reflections on the Need for Law Reform.
Abingdon, Oxon: Routledge-Cavendish.
Means, Cyril C., Jr 1968. ‘The law of New York concerning abortion and the
status of the foetus 1664–1968: a case of the cessation of constitutionality,’
New York Law Forum 14: 411–515.
Means, Cyril C., Jr 1971. ‘The phoenix of abortion freedom: is a penumbral right
or Ninth Amendment right about to arise from the ashes of a fourteenth
century common law liberty?’ New York Law Forum 17: 335–410.
Merry, Alan 2007. ‘When are errors a crime? lessons from New Zealand’, in Erin
and Ost 2007, pp. 67–98.
Merry, Alan and McCall Smith, Alexander 2001. Errors, Medicine and the Law.
Cambridge: Cambridge University Press.
Meyerson, Denise 2004. ‘The rule of law and the separation of powers’,
Macquarie Law Journal 1: 1–6.
Michalowski, Sabine 2002. ‘Sanctity of life – are some lives more sacred than
others?’ Legal Studies 22(3): 377–97.
Mid Staffordshire NHS Foundation Trust Inquiry 2010. Independent Inquiry
into Care Provided by Mid Staffordshire NHS Foundation Trust January 2005–
March 2009. HC375-1. London: The Stationery Office.
Mill, John Stuart 1993 [1859]. On Liberty, in Utilitarianism, On Liberty, Consid-
erations on Representative Government. London: Orion, pp. 69–185.
Miller, Franklin, G., Troug, Robert D. and Brock, Dan W. 2010. ‘Moral fictions
and medical ethics’, Bioethics, 24(9): 453–60.
Miola, José 2004. ‘Medical law and medical ethics – complementary or corro-
sive?’ Medical Law International, 6: 251–74.
Miola, José 2007. Medical Ethics and Medical Law: A Symbiotic Relationship.
Oxford: Hart.
Miola, José 2012. ‘The impact of the loss of deference towards the medical
profession’, in Alghrani, Bennett and Ost 2012, pp. 220–35.
Montgomery, Jonathan 2011. ‘Guarding the gates of St Peter: life, death and
lawmaking’, Legal Studies 31: 644–66.
Moore, Michael 1997. Placing Blame. Oxford: Clarendon Press.
References 277
Moore, Wendy 2006. The Knife Man: Blood, Body-Snatching and the Birth of
Modern Surgery. London: Bantam Books.
Moreno, Jonathan D. 2005. ‘The end of the great bioethics compromise’, Hast-
ings Center Report, 35(1): 14–15.
Moreno, Jonathan D. 2006. ‘Ethics consultation as moral engagement’, in Kuhse,
Helga and Singer, Peter (eds.), Bioethics: An Anthology. 2nd edn. Oxford:
Blackwell, pp. 707–13.
Moreno, Jonathan D. 2007. ‘The triumph of autonomy in bioethics and com-
mercialism in American health care’, Cambridge Quarterly of Healthcare Ethics
16: 415–9.
Muirhead, William 2012. ‘When four principles are too many’, Journal of Medical
Ethics 38: 195–6.
Mullock, Alexandra 2010. ‘Overlooking the criminally compassionate: what are
the implications of prosecutorial policy on encouraging or assisting suicide?’
Murphy, Liam B. 1993. ‘The demands of beneficence’, Philosophy and Public
Affairs 22(4): 267–92.
Murphy, Liam B. 2001. ‘Beneficence, law, and liberty: the case of required
rescue’, Georgetown Law Journal 89: 605–65.
Naffine, Ngaire 2003. ‘Who are law’s persons? from Cheshire cats to responsible
subjects’, Modern Law Review 66: 346–67.
Nicholson, Peter P. 1974. ‘The internal morality of law: Fuller and his critics’,
Ethics 84: 307–26.
Nicolson, Donald 2000. ‘Criminal law and feminism’, in Nicolson, Donald
and Bibbings, Lois (eds.), Feminist Perspectives on Criminal Law. London:
Cavendish, pp.1–26.
Norrie, Alan 1998. ‘“Simulacra of morality?” Beyond the idea/actual antinomies
of criminal justice’, in Duff 1998, pp. 101–55.
Norrie, Alan 1999. ‘After Woollin’, Criminal Law Review 532–44.
Norrie, Alan 2001. Crime, Reason and History. 2nd edn. London, Butterworths.
Norrie, Alan 2006. ‘Between orthodox subjectivism and moral contextualism:
intention and the consultation paper’, Criminal Law Review 486–501.
Norrie, Alan 2011. ‘Legal form and moral judgement: euthanasia and assisted
suicide’, in Duff, R. Anthony, Farmer, Lindsay, Marshall, Sandra E., Renzo,
Massimo and Tadros, Victor (eds.), The Structures of the Criminal Law.
Oxford: Oxford University Press, pp. 134–56.
Nozick, Robert 1974. Anarchy, State and Utopia. New York: Basic Books.
Nuffield Council on Bioethics 2006. Critical Care Decisions in Fetal and Neonatal
Medicine: Ethical Issues. London: Nuffield Council on Bioethics.
Nuffield Council on Bioethics 2011. Human Bodies: Donation for Medicine and
Research. London: Nuffield Council on Bioethics.
Ognall, Harry 1994. ‘A right to die? some medico-legal reflection’, Medico-Legal
Journal 62: 165–79.
O’Neill, Onora 2002. Autonomy and Trust in Bioethics. Cambridge: Cambridge
University Press.
Ost, Suzanne 2007. ‘Euthanasia and the defence of necessity: advocating a more
appropriate legal response’, in Erin and Ost 2007, pp. 99–117.
278 References
Ost, Suzanne 2010a. ‘Criminalising fabricated images of child pornography: a

matter of harm or morality?’ Legal Studies 30(2): 230–56.
Ost, Suzanne 2010b. ‘The de-medicalisation of assisted dying: is a less medi-
calised model the way forward?’ Medical Law Review 18(4): 497–540.
Ost, Suzanne and Biggs, Hazel 2012. ‘“Consensual” sexual activity between
doctors and patients: a matter for the criminal law?’ in Alghrani, Bennett
and Ost 2012, pp. 102–17.
Otlowski, Margaret 1997. Voluntary Euthanasia and the Common Law. Oxford:
Palley, Howard A. 2006. ‘Canadian abortion policy: national policy and the
impact of federalism and political implementation on access to services’,
Publius: The Journal of Federalism 36: 569–86.
Pattinson, Shaun 2011. Medical Law and Ethics. 3rd edn. London, Sweet and
Maxwell.
Persak, Nina 2007. Criminalising Harmful Conduct. New York: Springer-Verlag.
Petersen, Kerry 2011. ‘Abortion laws and medical developments: a medico-legal
anomaly in Queensland’, Journal of Law and Medicine (Australia) 18: 594–
600.
Plato 1992. The Republic, 2nd ed. Eng. transl. Grube, George M. A. Indianapolis:
Hackett Publishing Company.
Pollard, Tanya 2005. Drugs and Theatre in Early Modern England. Oxford: Oxford
University Press.
Porter, Roy 1997. The Greatest Benefit to Mankind: A Medical History of Humanity
from Antiquity to the Present. London: Fontana Press.
Posner, Richard 1999. The Problematics of Moral and Legal Theory. Cambridge,
MA: Harvard University Press.
Powers, Madison 2005. ‘Bioethics as politics’, Kennedy Institute of Ethics Journal
15(3): 305–22.
Price, David 1997. ‘Euthanasia, pain relief and double effect’, Legal Studies 17:
323–42.
Price, David 2005. ‘The Human Tissue Act 2004’, Modern Law Review 68:
798–821.
Price, David 2009. ‘What shape to euthanasia after Bland? Historical, contem-
porary and futuristic paradigms’, Law Quarterly Review 125: 142–74.
Price, David 2010. Human Tissue in Transplantation and Research. Cambridge:
Primoratz, Igor 1989. Justifying Legal Punishment. Atlantic Highlands, NJ:
Humanities Press.
Protevi, John 2005. The Schiavo Case: Jurisprudence, Biopower, and Privacy as Sin-
gularity. Available at http://www.protevi.com/john/Schiavo%209%20July%
2005.pdf.
Quick, Oliver 2006. ‘Prosecuting “gross” medical negligence: discretion and the
Crown Prosecution Service’, Journal of Law and Society 33: 421–50.
Quick, Oliver 2007. ‘Medical manslaughter: the rise (and replacement) of a
contested crime’, in Erin and Ost 2007, pp. 29–47.
Quick, Oliver 2010. ‘Medicine, mistakes and manslaughter: a criminal combina-
tion?’ Cambridge Law Quarterly 69(1): 186–203.
References 279
Quick, Oliver 2013. ‘Medical manslaughter and expert evidence: the role of
context and character’, in Griffiths and Sanders 2013a, pp. 101–116.
Quigley, Muireann 2011. ‘Incentivising organ donation’, in Farrell, Price and
Quigley 2011, pp. 89–103.
Rachels, James 1975. ‘Active and passive euthanasia’, New England Journal of
Medicine 292: 78–80.
Rachels, James 1986. The End of Life. Oxford: Oxford University Press.
Rawls, John 1993. Political Liberalism. New York: Columbia University Press.
Raz, Joseph 1986. The Morality of Freedom. Oxford: Oxford University Press.
Rehbock, Theda 2011. ‘Limits of autonomy in bioethics? Conceptual clarifica-
tions’, Cambridge Quarterly of Healthcare Ethics 20: 524–32.
Retained Organs Commission 2004. Remembering the Past; Looking to the Future:
The Final Report of the Retained Organs Commission. London: Department of
Health.
Richardson, Ruth 2000. Death, Dissection and the Destitute. 2nd edn. Chicago:
University of Chicago Press.
Richer, Karine 2008. ‘Abortion in Canada: twenty years after R. v. Morgen-
taler’. Parliamentary Information and Research Service. Library of Parlia-
ment PRB08 22E.
Rietjens, Judith A. C., van der Maas, Paul J., Onwuteaka-Phillipsen, Bregje D.,
van Delden, Johannes J. M. and van der Heide, Agnes 2009. ‘Two decades
of research on euthanasia from the Netherlands. What have we learnt and
what questions remain?’ Bioethical Enquiry 6: 271–83.
Robertson, John A. 1994. Children of Choice: Freedom and the New Reproductive
Technologies. Princeton, NJ: Princeton University Press.
Royal Liverpool Children’s Inquiry 2001. Report of the Royal Liverpool Children’s
Inquiry. HC 12–11. London: Stationery Office. [=Redfern Report]
Ryan, Christopher J. 2009. ‘Out on a limb: the ethical management of body
integrity identity disorder’, Neuroethics 2: 21–33.
Saini, Pushpinder 1999. ‘The doctrine of double effect and the law of murder’,
Medico-Legal Journal 67(3): 106–20.
Salles, Arleen and De Melo-Martin, Inmaculada 2012. ‘Disgust in bioethics’,
Cambridge Quarterly of Healthcare Ethics 21: 267–80.
Saunders, Peter 2011. ‘The role of the media in shaping the UK debate on
“assisted dying”’, Medical Law International 11: 239–56.
Savell, Kristen 2011. ‘A jurisprudence of ambivalence: three legal fictions con-
cerning death and dying’, Cultural Studies Review 17: 52–80.
Savulescu, Julian 2006. ‘Conscientious objection in medicine’, British Medical
Journal 332(7536): 294–7.
Sawday, Jonathan 1995. The Body Emblazoned: Dissection and the Human Body in
Renaissance Culture. London: Routledge.
Schneider, Carl E. 1994. ‘Bioethics in the language of the law’, Hastings Center
Report 24(4): 16–22.
Schweitzer, Albert 1966. The Teaching of Reverence for Life. London: Peter Owen
Ltd.
Scott, Rosamund 2004. ‘The English fetus and the right to life’, European Journal
of Health Law 11: 347–64.
280 References
Sharkey, Kerith and Gillam, Lynn 2010. ‘Should patients with self-inflicted ill-
ness receive lower priority in access to healthcare resources? Mapping out
the debate’, Journal of Medical Ethics 36: 661–5.
Sheldon, Sally 1997. Beyond Control: Medical Power and Abortion Law. London:
Pluto.
Sheldon, Sally 1998. ‘The Abortion Act 1967: a critical perspective’, in Lee
1998, pp. 43–58.
Sheldon, Sally and Wilkinson, Stephen 1998. ‘Female genital mutilation and
cosmetic surgery: regulating non-therapeutic body modification’, Bioethics
12: 263–85.
Shelp, Earl E. (ed.) 1982a. Beneficence and Health Care. Dordrecht: Kluwer.
Shelp, Earl E. 1982b. ‘To benefit and respect persons’, in Shelp 1982a, pp. 199–
222.
Shepherd, Lois L. 1996. ‘Sophie’s choices: medical and legal responses to suf-
fering’, Notre Dame Law Review 72(1): 103–56.
Shiner, Roger A. 2009. ‘Theorizing criminal law reform’, Criminal Law and
Simmonds, Nigel E. 2005. ‘Law as a moral idea’, University of Toronto Law Journal
55: 61–92.
Skegg, Peter D. G. 1976. ‘Human corpses, medical specimens and the law of
property’, Anglo-American Law Review 4: 412–25.
Skegg, Peter D. G. 1988. Law, Ethics and Medicine. Oxford: Oxford University
Press.
Skegg, Peter D. G. 1992. ‘Criminal liability for the unauthorised use of corpses
in medical education and research’, Medicine Science and the Law 32: 51–4.
Slote, Michael A. 1977. ‘The morality of wealth’, in Aiken, William and LaFol-
lette, Hugh (eds.), World Hunger and Moral Obligation. Englewood Cliffs, NJ:
Prentice-Hall, pp. 124–47.
Smith, George P., II 2011. ‘Refractory pain, existential suffering, and palliative
care: releasing an unbearable lightness of being’, Cornell Journal of Law and
Public Policy 20(3): 469–532.
Smith, John C. 1971. ‘The element of chance in criminal liability’, Criminal Law
Review 63–75.
Smith, John C. 2000. ‘A comment on Moor’s case’, Criminal Law Review 41–4.
Smith, Robert, 2012, ‘Body integrity identity disorder – a problem of percep-
tion?’, in Alghrani, Bennett and Ost 2012, pp. 71–87.
Smith, Russell G. 1993. Medical Discipline: The Professional Conduct Jurisdiction
of the Genera Medical Council, 1858–1890. Oxford: Clarendon Press.
Søbirk Petersen, Thomas 2010. ‘New legal moralism: some strengths and chal-
lenges’, Criminal Law and Philosophy 4: 215–32.
Spencer, John R. and Brajeux, Marie-Aimée 2010. ‘Criminal liability for neg-
ligence – a lesson from across the Channel’, International and Comparative
Law Quarterly 59: 7–23.
Spielman, Bethany 2007. Bioethics in Law. Totowa, NJ: Humana Press.
Starr, Paul 2007. Freedom’s Power: The History and Promise of Liberalism. New
York: Basic Books.
References 281
Stephen, James Fitzjames 1878. Digest of the Criminal Law. St. Louis: F. H.
Thomas.
Stephen, James Fitzjames 1992. Liberty, Equality, Fraternity: And Three Brief
Essays. Chicago: University of Chicago Press.
Stoljar, Natalie 2007. ‘Theories of autonomy’, in Ashcroft, Dawson, Draper and
McMillan 2007, pp. 11–7.
Suziedelis, Ann K. 2001. ‘Conjoined twins: the ambiguity of double effect rea-
soning’, Medical Ethics and Bioethics 8(3–4): 3–5.
Swazey, Judith P. 1993. ‘But was it bioethics?’ Hastings Center Report 23(6) Supp:
5–6.
Sykes, Nigel and Thorns, Andrew 2003. ‘The use of opioids and sedatives at the
end of life’, Lancet Oncology 4: 312–8.
Tadros, Victor 2005. Criminal Responsibility. Oxford: Oxford University Press.
Tallis, Raymond 2004. Hippocratic Oaths: Medicine and its Discontents. London:
Atlantic Books.
Tanner, Sonja 2010. In Praise of Plato’s Poetic Imagination. Lanham, MD:
Lexington Books.
Tauber, Alfred I. 2005. Patient Autonomy and the Ethics of Responsibility.
Cambridge, MA: MIT Press.
Thomson, Judith J. 1971. ‘A defense of abortion’, Philosophy and Public Affairs
1: 47–66.
Tur, Richard H. S. 2002. ‘The doctor’s defence and professional ethics’, King’s
College Law Journal 13: 75–95.
Turoldo, Fabrizio and Barilan, Y. Michael 2008. ‘The concept of responsibil-
ity: three stages in its evolution within bioethics’, Cambridge Quarterly of
Healthcare Ethics, 17: 114–23.
Uniacke, Suzanne 1984. ‘The doctrine of double effect’, Thomist 48(2): 188–218.
Uniacke, Suzanne 2001. ‘Was Mary’s death murder?’ Medical Law Review 9:
208–220.
Uniacke, Suzanne 2004. ‘Harming and wronging: the importance of normative
context’, in Oderberg, David S. and Chappell, Timothy (eds.), Human Val-
ues: New Essays on Ethics and Natural Law. Basingstoke: Palgrave Macmillan,
pp. 166–83.
van der Brink, Bert 2005. ‘Liberalism without agreement: political autonomy
and agnostic citizenship’, in Christman and Anderson 2005a, pp. 245–71.
Van der Burg, Wibren 2001. ‘The expressive and communicative functions of
law, especially with regard to moral issues’, Law and Philosophy 20: 31–59.
Veatch, Robert M., Haddad, Amy, M. and English, Dan C. 2010. Case Studies
in Biomedical Ethics. Oxford: Oxford University Press.
Veitch, Kenneth 2007. The Jurisdiction of Medical Law. Aldershot: Ashgate.
Vincent, Nicole A. 2010. ‘On the relevance of neuroscience to criminal respon-
sibility’, Criminal Law and Philosophy 4: 77–98.
Vincent, Nicole A. 2011. ‘A structured taxonomy of responsibility concepts’, in
Vincent, Nicole A., van der Poel, Ibo and Van der Hoven, Jeroen (eds.),
Moral Responsibility: Beyond Free Will and Determinism. London: Springer,
pp. 15–35.
282 References
von Hirsch, Andrew 1993. Censure and Sanctions. Oxford: Oxford University
Press.
von Hirsch, Andrew and Simester, Andrew P. 2006. ‘Penalising offensive
behaviour’, in von Hirsch, Andrew and Simester, Andrew P. (eds.), Inci-
vilities: Regulating Offensive Behaviour. Oxford: Hart, pp. 115–31.
Waldron, Jeremy 1989. ‘The rule of law in contemporary liberal theory’, Ratio
Juris 2: 79–96.
Walker, Tom 2009. ‘What principlism misses’, Journal of Medical Ethics 35: 229–
31.
Warnock, Mary and Macdonald, Elizabeth 2008. Easeful Death: Is There a Case
for Assisted Dying? Oxford: Oxford University Press.
Wells, Celia 2013. ‘Medical manslaughter – organisational liability’, in Griffiths
and Sanders 2013a, pp. 192–209.
Wells, Celia and Quick, Oliver 2010. Lacey, Wells and Quick: Reconstructing Crim-
inal Law: Text and Materials. Cambridge: Cambridge University Press.
Wenkel, David H. 2006. ‘Separation of conjoined twins and the principle of
double effect’, Christian Bioethics 12(3): 291–300.
Wicclair, Mark R. 2000. ‘Conscientious objection in medicine’, Bioethics 14(3):
205–27.
Wicks, Elizabeth 2003. ‘The greater good? issues of proportionality and democ-
racy in the doctrine of necessity as applied in Re A’, Common Law World
Review 32: 15–34.
Wilks, Michael 2007. ‘Medical treatment at the end of life: a British doctor’s
perspective’, in Erin and Ost 2007, pp. 165–73.
Williams, Garrath 2006. ‘Responsibility’, Internet Encyclopaedia of Philosophy.
Available at http://www.iep.utm.edu/responsi-3/.
Williams, Garrath 2008. ‘Responsibility as virtue’, Ethical Theory in Moral Prac-
tice, 11: 455–70.
Williams, Garrath 2012. ‘Responsibility’ in Chadwick, Ruth (ed.), Encyclopaedia
of Applied Ethics, Vol. 3. 2nd edn. San Diego: Academic Press, pp. 821–8.
Williams, Glanville 1957. The Sanctity of Life and the Criminal Law. London,
Faber and Faber.
Williams, Glanville 1994. ‘The fetus and the “right to life”’, Cambridge Law
Journal 53: 71–80.
Williams, Glenys 2001. ‘The principle of double effect and terminal sedation’,
Williams, Glenys 2007. Intention and Causation in Medical Non-killing. Abingdon,
UK: Routledge-Cavendish.
Williams, Glenys 2008. ‘Acts and omissions in treatment withdrawal: conceptual
problems and policy decisions’, Cambrian Law Review 39: 75–94.
Wolf, Susan M. 2004. ‘Law and bioethics: from values to violence’, Journal of
Law, Medicine and Ethics 32: 293–306.
Wolf-Devine, Celia and Devine, Philip E. 2009. ‘Abortion: a communitarian
pro-life perspective’, in Tooley, Michael, Celia Wolf-Devine, Celia, Levine,
Philip E. and Jaggar, Alison M. Abortion: Three Perspectives. New York:
Oxford University Press, Chapter 2.
References 283
Wolfenden Committee, 1957. Report on Homosexual Offences and Prostitution.

Cmnd 247. London: HMSO.
Woolley, Benjamin 2004. The Herbalist. London: Harper Collins.
Wyles, Lilian 1952. A Woman in Scotland Yard. London: Faber and Faber.
Young, Robert 2007. Medically Assisted Death. Cambridge: Cambridge University
Press.
Zellick, Graham 1976. ‘The forcible feeding of prisoners’, Public Law 153–87.
Index
abortion, 95 criminal process response to, 126

and protection of morals and society, death of patients and, 69
105 DPP’s prosecution policy on, 127
and protection of women, 101 medical manslaughter and, 69
criminal law and, 96, 195 mitigating motive in, 127
debates on, 95 motives in, 126, 128
decriminalisation of, 109 relatives in, 148
early medical, 100, 104 Attard, Gracie. See Attard, Jodie
historical prohibitions on, 102 Attard, Jodie, 164, 167, 168, 172, 177,
in Canada, 96, 109 228
in England, 114 Attard, Mary, 70, 164, 168, 172, 174, 176,
in UK, 96 228
late-term, 100 Attard, Rosie. See Attard, Mary
legal moralism and, 189 attempted murder, 128
mental health and, 104 autonomy, 42, 237. See also beneficence;
proper medical treatment and, 99 justice; nonmaleficence; patient
protection of future children and, 106 autonomy
sanctity of life and, 84, 118 bioethics and, 219, 222
therapeutic, 102 body and, 38–9
Abortion Act 1967, 30, 99, 116, 194 criminal law and, 40, 239
Abortion Law Reform Association, 27, criminalisation principle and, 224
29 death and, 68
actus reus, 134, 135, 150 definitions of, 237
Adams, John Bodkin, 3, 30, 33–4, 138 medicalisation and, 47
alcohol consumption, 107 negative autonomy, 153
Alder Hey Children’s Hospital, 55 of pregnant women, 115
amputation, 43 positive, 153
analgesics, 145 principled, 238
Anatomy Act 1832, 24, 38, 57 responsibility and, 205
anatomy theatres, 3, 21 avoidance of harm principle, 226
Anderson, Joel, 193
Anderson, Robert, 55 Barber–Surgeons Company, 17
apothecaries Barilan, Y. Michael, 208
practice before 1858, 16, 17 barristers, 214, 215
appropriate consent, 57 battery, 43
Arthur, Leonard, 33 Beauchamp, Thomas, 195, 196, 197, 198,
Ashcroft, Richard, 183 219, 221, 224, 231, 245
Ashworth, Andrew, 1, 76, 234, 246, 261 Beck, Ulrich, 11, 262
assisted suicide. See also death of patient; Bedford, Sybille, 30, 138
euthanasia; killing Beggars’ Opera, The (Gay), 18
benign conspiracy, 148 beneficence, 230. See also autonomy;
character responsibility in, 128 justice; nonmaleficence
284
Index 285
bioethics and, 219 Callahan, Daniel, 196

body integrity identity disorder and, 231 Canada, decriminalisation of abortion in,
criminal law and, 233 109
euthanasia and, 232 Canadian Charter of Rights, 109
justice and, 233 canon law, 16
moral duty of, 231 capacity responsibility, 206
nonmaleficence and, 231 case law, 2
respect for persons and, 231 case presentations, 214
rule of law and, 248 causation, 135
benign conspiracy, 148 causes célèbres, 25
Bentham, Jeremy, 187 Adams Bodkin, 30
bioethics, 183 Arthur, Leonard, 33
acceptance of, 196 Bourne, Aleck, 26
criminal law and, 4, 10, 185, 250, 256 Censors, 17, 18, 19
criminal process and, 256 Chambers, Tod, 214
criminalisation principle and, 252 character responsibility, 128
doctrine of double effect and, 145 Charon, Rita, 210, 222
emergence of, 184 Cherish Life, 101
interpretative construction in, 213 Childress, James, 195, 196, 197, 198, 219,
liberalism and, 11, 182, 252 221, 224, 231, 245
medical ethics and, 183 Christman, John, 192
medicine and, 10 circumcision, 49, 51
moral philosophy and, 181, 186 Clouser, K. Danner, 221, 222, 245
principlism in, 219 Code of Hammurabi, 16
responsibility in, 199 Coffe, Linda, 95
shift from medical ethics to, 183 Coggon, John, 42, 122, 192, 205, 253
uncertainty and, 251 College of Physicians, 18, 21, 22
bioethics mediation, 258 Commission on Assisted Dying, 67, 88,
Bland, Tony, 70, 152, 154, 176, 257 162, 259
body, 38 common morality, 195
autonomy and, 38–9 communicable diseases, threat of, 199
integrity, 42 concoctions, 102
medical assaults on, 40 conflict of duty, 167
ownership of, 52 Congenital Disabilities (Civil Liability) Act
patient autonomy and, 41 1976, 108
proper medical treatment or care for, 45 conjoined twins
self and, 38–9 stillborn or tumour, 174
self-determination and, 42 designated for death, 168
body integrity identity disorder (BIID), conjoined twins, separation of, 163
231, 253 conflict of duty and, 167
body parts criminal law and, 2
organ trafficking in, 61 criminal process and, 165
ownership of, 52 doctrine of double effect and, 169
retention of, 55 Gracie and Rosie Attard, 164
sale of, 39, 53 immunity and, 169
body snatching, 23 legal defence of necessity and, 166
Bourne, Aleck, 3, 26, 70, 95, 99, 257 monstrous birth in, 172
Brady, Ian, 41 narrative framework for, 210
Brave New World, 8 rejected defences and, 169
Bridgeman, Jo, 157 self-defence and, 166
Bristol Royal Infirmary, 183 very unique case and, 168
British Medical Journal, 28 withdrawal of life support and, 176
British Pregnancy Advisory Service, 104 contraception, 84
Brookes, Barbara, 28 cosmetic surgery, 48
Byrne, Charles, 23 Cox, Nigel, 1, 70, 79, 140
286 Index
criminal law, 2. See also rule of law responsibility for medical error in, 75
abortion and, 96 sanctity of life and, 67, 83
and withdrawal of life-sustaining serious but not wrong, 82
treatment, 152 serious medical errors and, 72
as moral and retributive system, 188 serious wrongs and, 71
autonomy and, 239 defendant, 215
beneficence and, 233 Dellapenna, Joseph, 28, 106
bioethics and, 10, 250, 256 deontology, 187
certainty and, 251 depression, abortion and, 104
charades and prosceniums in, 159 Devlin, Lord, 189, 226
defensive model of, 223 diamorphine, 76, 141
deontology and, 187 Dignitas, 8, 150, 151
doctrine of double effect and, 137, 145 dignity, 222
legal moralism and, 189 dihydrocodeine, 34, 35
liberalism and, 11, 182, 252 Director of Public Prosecutions (DPP), 7,
medical deaths and, 66 8, 69, 88, 130, 149, 151, 161
medical exemption in, 261 disgust test, 190
medicine and, 10 dissection
moral philosophy and, 183 anatomy theatres and, 21
morality and, 191 body snatching and, 23
natural law and, 187 burial and, 22
patient autonomy and, 40 crime and, 21
political liberalism and, 193 history of, 20
response to medical problems, 1 no property rule, 24
responsibility in, 199 of convicted criminals, 22
role in medicine and bioethics, 4 doctors
utilitarianism and, 187 criminal law and, 5
criminal process, 3, 255 moral responsibility of, 207
before 1858, 16 practise before 1858, 16
bioethics and, 256 responsibilities of, 205
conjoined twins and, 165 doctor’s defence, 137
medicalisation and, 260–3 doctrine of double effect (DDE), 135, 169
pervasive influence of, 4 bioethics and, 145
criminal responsibility, 125 criminal law and, 137, 145
criminalisation, principles of, 223, 252 doctor’s defence and, 137
nonmaleficence and, 224 ending of life and, 135, 145
Crown Prosecution Service (CPS), 7, 69, palliative care and, 145
73, 74, 149, 161, 215 Donne, John, 90
culpability, 229 Dorries, Nadine, 30, 103
culture, 259 Down’s Children Association, 33
Down’s syndrome, 33, 34
Dan-Cohen, Meir, 229 Draper, Heather, 205
De Human Corporis Fabrica (Vesalius), 21 Duff, R. Anthony, 134, 192, 197
death of patient, 66. See also assisted Dworkin, Ronald, 89, 90, 91, 121, 190,
suicide; euthanasia 211
assisted suicide and, 69
autonomy and, 68 early medical abortion (EMA), 100, 104
criminal law and, 66 Easing the Passing, 30
criminal liability for negligence in, 70 Edinburgh Guild of Surgeons, 22
gross negligence in, 77 ending of life. See also assisted suicide;
harm short of, 80 euthanasia; killing; medical
medical manslaughter and, 69, 72, 77 manslaughter
medical practice and, 66 causation, 135
moral luck and game of chance in, 79 with compassion, 126
recklessness in, 77 criminal responsibility for, 125
Index 287
doctrine of double effect and, 135, 145 Goff, Lord, 185, 261
intention in, 133 Goodin, Robert, 191
motivation for, 125 Gray, David, 76
England, abortion laws in, 114 Griffiths, Danielle, 74, 81
Erin, Charles, 222 gross negligence, 77
European Convention on Human Rights, criminal liability for, 70
64, 80, 251 informed consent and, 43
European Court of Human Rights, 80, 107 gross negligence manslaughter, 71, 79
Euth Society of America, 173
euthanasia. See also assisted suicide; ending harm, 193
of life; killing; voluntary active ambiguity in concept of, 225
euthanasia (VAE) criminal law and, 226
beneficence and, 232 direct, 225
criminal law and, 84 in nonnormative sense, 224
criminal process’s response to, 126 in normative sense, 224
Glanville Williams on, 84 risk of, 229
inviolability of life and, 85 short of death, 80
involuntary, 84 to patients, 80
John Keown on, 85 harm principle, 224
legal moralism and, 189 criminalisation principle and, 224
of disabled children, 173 culpability and responsibility, 229
sanctity of life and, 84 medical practice and, 227
those who end life in, 88 Health and Safety at Work Act 1974,
voluntary active, 146, 148, 153, 225 72
herbs, 102
family law, 2 heroin, 131, 138
Feinberg, Joel, 224, 227, 228 Hippocratic Oath, 231
Fellowship of Surgeons, 17 Hobbes, Thomas, 166
female circumcision, 49, 197 homosexuality, criminal law on, 182
Female Genital Mutilation Act 2003, 49 Hope, Lord, 108
Ferner, Robin, 73, 74 Horder, Jeremy, 127
fetal alcohol syndrome, 107 Human Fertilisation and Embryology Act
feticide, unintentional, 106 1990, 6, 192
fetus. See also abortion Human Fertilisation and Embryology
in utero injuries to, 107 Authority, 200
legal personality of, 97, 115 Human Organs Transplant Act 1989, 54,
legal status of, 95 61
maternal autonomy and, 115 Human Tissue Act 1961, 25, 55, 60
moral status of, 115 Human Tissue Act 2004, 6, 53, 56, 57, 61,
unintentional homicide of, 106 63
Finlay, Ilora, 87 Human Tissue Authority, 61
Finnis, John, 188 Hunter, John, 23
Fischer, John, 200 Hunter, William, 23, 24
formal medical ethics, 181 Huntington’s disease, 151
Fuller, Lon, 249, 250
immoral behaviour, 189, 190
gang rape, 28 immunity, 169
Gavigan, Shelley, 105 Infant Life (Preservation) Act 1929,
Gay, John, 18 107
General Medical Council (GMC), 16, 19, infanticide, 84
53 informed consent, 44
Gert, Bernard, 221, 222, 245 Inglis, Frances, 131, 148
Gilderdale, Kay, 130, 132–3, 148 Inglis, Thomas, 131, 132
Gillon, Raanan, 221, 226, 246, 248 integrity, 222
Glover, Jonathan, 201 intention, 133, 146
288 Index
interiorisation, 208 morality of aspiration and, 249

interpretation, theatre of, 209 morality of duty and, 249
audience, 214 Leache, Tegan, 101
bioethics vs. medical ethics, 210 legal moralism, 189, 190
case presentations, 214 legal person, 207
criminal law and, 210 legal responsibility, 201
interpretative construction in, 212 legislature, 215
interpretive community, 214 lethal injection, 131
narrative framework in, 210 Leviathan (Hobbes), 166
thought experiments in, 214 liberal justice, 245
interpretative construction, 212 liberalism, 11
interpretive community, 214 as connection between criminal law and
inviolability of life, 83, 85, 124 bioethics, 192
Irwin, Michael, 151 bioethics and, 182, 252
Islam, 119 criminal law and, 182, 252
principlism and, 221
Jackson, Emily, 84, 85 rule of law and, 247
James IV, King, of Scotland, 22 Liddell, George, 141
Jareborg, Nils, 223 life support, withdrawal of, 176
Jones, David, 119, 120, 121 life-sustaining treatment, withdrawal of,
Jonsen, Albert, 220 152–9
Judaism, 119 logical scientific thinking, 209
judges, 214, 215 London College of Physicians, 16–17
jury, 214 Lord Ellenborough’s Act of 1803, 102
justice, 219, 245. See also autonomy;
beneficence; nonmaleficence Macaulay, Lord, 234
beneficence and, 233 mala in se crime, 191
criminalisation principle and, 224 mala praxis, 17
rule of law and, 248 mala prohibita crime, 191–2
Malleson, Joan, 26, 28
Kant, Immanuel, 220 Manchester conjoined twins, 70, 163–78.
Kelman, Mark, 146, 212, 213 See also conjoined twins
Keown, John, 27, 28, 29, 83, 85, 119, manslaughter, 72
121 criminal law and, 5, 203
killing. See also assisted suicide; ending of death of patient and, 69
life; euthanasia; medical gross negligence and, 77
manslaughter recklessness and, 77
causation, 135 Mason, J. Kenyon, 108
criminal responsibility, 125 maternal autonomy, 115
doctrine of double effect, 135 McCall Smith, Alexander, 74, 75, 77,
intention, 133 160
motivation for, 125 McDowell, Sarah, 73, 74
with compassion, 126 McEwan, Jenny, 163, 256
McGee, Andrew, 160
Lacey, Nicola, 134, 146, 149, 192, 195, media, 215
201, 203, 204, 223, 234, 252 Medical Act 1858, 16
Laurie, Graeme, 108 medical assaults, 40
law as integrity, 211 battery, 43
Law Commission, 149, 261, 263 bodily integrity, 42
law, inner morality of, 250 female circumcision, 49
law, rule of, 247 male circumcision, 51
beneficence and, 248 proper medical treatment or care and,
definition of, 248 45
guiding aspiration of, 250 rhetoric, 41
inner morality of, 250 medical errors, responsibility for, 75
justice and, 248 medical ethicists, 213
Index 289
medical ethics, 15 of aspiration, 249

bioethics and, 183 of duty, 249
formal, 181 political liberalism and, 195
semiformal, 181 morals, protection of, 105
medical exemption, 261–3 Morgentaler, Henry, 95, 109
medical law, 15 morning after pill, 100
developments in, 2 morphine, 130, 138, 141
medical manslaughter, 72–80 Morrell, Edith, 30
criminal law and, 5, 203 motives, 125
death of patient and, 69 Mullock, Alexandra, 127
gross negligence and, 77 murder
recklessness and, 77 criminal law and, 5
medical politics, 11, 262 Edith Morrell case, 30
Medical Practitioners Tribunal Service John Pearson case, 33
(MPTS), 20 Murder Act of 1752, 22, 23, 24
medical treatment Mustill, Lord, 107, 157
abortion and, 99
doctors’ defence and, 260–3 Naffine, Ngaire, 207
medical assaults and, 45 narrative ethics, 222
medicalisation, 260–3 narrative thinking, 209
medicine, 259 natural law, 187
bioethics and, 10, 183–7, 195–216, necessity, legal defence of, 166
218–23 negative autonomy, 153
criminal law and, 4, 10, 181–3, negligence, 77
187–216, 217–54 criminal liability for, 70
politics of, 11, 262 informed consent and, 43
regulation before 1858, 16, 262 NHS Retained Organ Commission,
mens rea, 134, 135, 150 56
Mental Capacity Act 2005, 72, 81 Nicklinson, Tony, 126, 257
mental health, abortion and, 104 no property rule and corpses, 24
Mental Health Act 1983, 72, 81 nonmaleficence, 219, 224. See also
mercy killing autonomy; beneficence; justice
relatives as assistors in, 125, 130–3, Norrie, Alan, 128, 192, 247
148–51 Nuffield Council on Bioethics, 263
Merrett, Jamie, 81 Nuremberg trials, 184
Merry, Alan, 74, 75, 77
methadone, 238 Offences Against the Person Act 1861, 27,
midwives, 102 43, 72, 82, 99, 101, 114, 232
mifepristone, 104 offences, categories of, 191
migration, 199 Office of the Health Professions
Mill, John Stuart, 226, 228, 229 Adjudicator (OHPA), 20
Miola, José, 155, 181 O’Neill, Onora, 67, 91, 238
Montgomery, Jonathan, 90 opioids, 145
Moore, Michael, 191, 207 organ retention, 55
moral indignation, 189 organ selling, 39, 53
moral luck, 73 organ trafficking, 61
moral philosophy, 187 Otlowski, Margaret, 151
bioethics and, 181
criminal law and, 183 pain relief, patient’s death and, 128
deontology, 187 palliative care, 145
utilitarianism, 187 patient autonomy, 42, 237
moral responsibility, 207 bioethics and, 219, 222
moral right, 224 body and, 38–9
moral sentiment, 11 criminal law and, 40, 239
morality, 189 criminalisation principle and, 224
criminal law and, 191 death and, 68
290 Index
patient autonomy (cont.) relatives facilitating assisted suicide abroad

definitions of, 237 (RFASA), 150
medicalisation and, 47 Renaissance, 21
negative, 153 Report on Homosexual Offences and
of pregnant women, 115 Prostitution, 226
positive, 153 Republic, The, 10
principled, 238 responsibility
responsibility and, 205 capacity, 206
patients, responsibilities of, 205 contemporary social practice and, 203
Pearson, John, 34 definition of, 199
Percival, Thomas, 105 harm principle and, 229
Persak, Nina, 229 in bioethics and criminal law, 199
persistent vegetative state (PVS), 4, 152, in medical practice, 200, 201, 203
154 legal, 201
pharmakon, 10 liberal societies and, 200
Philosophical Medical Ethics, 33 moral, 201, 207
physicians narrative framework for, 209
criminal law and, 5 of agents, 203
moral responsibility of, 207 patient autonomy and, 205
practise before 1858, 16 patients’, 205
responsibilities of, 205 refusal to take, 200
Plato, 10 social meaning of, 203
political liberalism, 11, 197 theatre of interpretation and, 209
common morality and, 195 restorative justice, 247
criminal law and, 193 retributive justice, 247
positive autonomy, 153 reverence for life, 89, 90, 124
Posner, Richard, 197 Richardson, Ruth, 25
potassium chloride, 128, 140 Roman Catholic Church, 16, 84, 119
Powers, Madison, 184 Rose, William, 18
pregnant women Roth, Paul, 28
attack on, 106 Royal Colleges, 200
autonomy, 115 RU486, 101
claims over body, 98 rule of law, 247. See also criminal law
in utero injuries to fetus, 107 beneficence and, 248
proper medical treatment, definition of, 248
99 guiding aspiration of, 250
Price, David, 39 inner morality of, 250
principled autonomy, 238 justice and, 248
principlism, 219 morality of aspiration and, 249
procedural justice, 247 morality of duty and, 249
proportionality, 248
public health, 199 sanctity of life, 83
public sentiment, 259 abortion and, 118
Purdy, Debbie, 8 Glanville Williams on, 84
John Keown on, 85
Quacks’ Charter, 17 Sanctity of Life and the Criminal Law, The
Quick, Oliver, 192 (Glanville Williams), 2, 68
Sanders, Andrew, 74, 81
rape, 227 Sawday, Jonathan, 21
Ravizza, Mark, 200 Schiavo, Terri, 3
Rawls, John, 196, 198 Schweitzer, Albert, 89
recklessness, 77, 82 science fiction, 8
Redfern, Michael, 55 self-abortion, 101
Redfern Report, 55 self-determination, 42
Reformation, 16 semiformal medical ethics, 181
Index 291
serial killer, 5, 41 thought experiments, of bioethicists and

sexual morality, and abortion, 105 philosophers, 214
Sexual Offences Act 1967, 226 Tur, Richard, 147
sexual promiscuity, and abortion, 106 Turner, Anne, 8, 213
Shelp, Earl, 231 Turoldo, Fabrizio, 208
Shiner, Roger, 194 Tuskegee syphilis experiment, 184
Shipman, Harold, 5
Simmonds, Nigel, 250 Unrelated Live Transplant Authority, 54
Sorell, Tom, 205 Usher, Alan, 35
Special Crimes and Counter Terrorist utilitarianism, 187
Division (SCCTD), 69
St. Mary’s Hospital London, 27 Van Velzen, Dick, 56
Star Chamber, 18 vasectomy, 47
Stephen, James Fitzjames, 226 Vera Drake (film), 95
suicide, assisted. See also euthanasia Vesalius, Andreas, 21
benign conspiracy, 148 vincristine, 73
character responsibility in, 128 vitalism, 86
criminal process’ response to, 126 voluntary active euthanasia (VAE), 146,
death of patient and, 69 148, 153, 225. See also euthanasia
DPP’s prosecution policy on, 127 Von Hagens, Gunther, 3
medical manslaughter and, 69 vulnerability, 222
mitigating motive in, 127
motives in, 126, 128 Walters, Julie, 8
relatives in, 148 Weddington, Sarah, 95
suicide, decriminalisation of, 41 welfare principle, 224, 234
Suicide Act 1961, 41 Wells, Celia, 192
surgeons, 17 wilful neglect, 97
practise before 1858, 16 Williams, Garrath, 200
Sykes, Nigel, 145 Williams, Glanville, 2, 68, 84, 119, 155,
172
Tadros, Victor, 203 Williams, Glenys, 155
Tauber, Alfred, 205 witnesses, 215
television drama, 8 Wolf, Susan, 185, 199
theatre, 7 Wolfenden Committee, 226
anatomy as, 3, 21 women
components of, 8 attack on, 106
distortion from, 10, 257 autonomy of, 115, 245
ending of life and, 161 claims over body, 98
of interpretation, 209 in utero injuries to fetus, 107
relevance of, 7 proper medical treatment of, 99
television drama, 8 protection of, 101
therapeutic abortion, 102
Thomson, Judith, 98 zone of indeterminate application, and
Thorns, Andrew, 145 end-of-life cases, 160

Bioethics, Medicine and The Criminal Law, Volume 3 Medicine and Bioethics in The Theatre of The Criminal Process by Margaret Brazier Suzanne Ost

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Bioethics, Medicine and The Criminal Law, Volume 3 Medicine and Bioethics in The Theatre of The Criminal Process by Margaret Brazier Suzanne Ost

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more information - www.cambridge.

To date, little analysis exists of the criminal process’ roles as a regula-

m a r g a r e t b r a z i e r is Professor of Law at the University of

Books in the series

Margaret Brazier and Suzanne Ost

This publication is in copyright. Subject to statutory exception

First published 2013

Library of Congress Cataloguing in Publication data

ISBN 978-1-107-01825-9 Hardback

Cambridge University Press has no responsibility for the persistence or

Acknowledgements page xii

Introduction: beginning the story 1

Part I Setting the scene

2 Crime, doctors and the body (politic) 38

3 From ‘theatre’ to the dock – via the mortuary 66

Part II Judges on the stage: case studies

5 Medical (and non-medical) ending of life 124

6 Which twin lives? 163

Conflict of duty 167

Part III Bioethics and the criminal law: connecting

8 Parallels and disconnects: bioethical principles,

Concluding thoughts: a story part told? 255

A, B and C v. Ireland [2010] ECHR 2032

R (on the application of Nicklinson) v. Ministry of Justice [2012] EWHC

Abortion Act 1967

Infant Life (Preservation) Act 1929

Beginning the story

‘You are far from being bad men’.

medicine, law and ethics. A vibrant subdiscipline of ‘medical law’

5 Veitch 2007. 6 Brazier and Cave 2011: 236–9.

reserved for celebrity disputes or true theatrical productions. Note, in

12 R v. Bourne [1939] 1 KB 687. 13 R v. Adams [1957] Crim LR 365.

The pervasive influence of the criminal process

in terms of determining the law. Some degree of privilege still protects

The relevance of ‘theatre’

debate. Public sympathy for families who have accompanied relatives to

35 Above, nn.32 and 33.

A story and some themes

39 Brook 1977: 154. 40 Grotowski 1968: 56 and 58.

Tensions and transient connections: the lighthouse’s beam

to offer both a remedy for and an exacerbation of bioethical conflict in

Moral sentiment and medical politics

of medicine, lagging behind medical developments because the requi-

The politics of medicine (involving, for example, questions related to how

44 Beck 1992: 209. 45 Ibid.: 210.

Setting the scene

1 See Kennedy and Grubb 2000: 3. And see Veitch 2007.

to the start of the nineteenth century, the regulation of medicine was

The ‘criminal process’ and the regulation of medicine

6 Porter 1997: 45.

College of Physicians was granted a charter by Henry VIII (confirmed

9 See Gelfand 1993.

The Censors of the College were vigorous in their pursuit of unli-

14 Woolley 2004: 123. 15 Ibid.: 127–32. 16 Ibid.:128. 17 Ibid.: 124–8.

The gruesome history of dissection

32 See Sawday 1995. 33 Woolley 2004: 349–50. 34 Sawday 1995: 65.

No peaceful burial place

Hogarth encapsulates the connection between dissection, then the key

40 Richardson 2000: 77 41 Tallis 2004: 187–92.

49 Sawday 1995: 60.

medicine, especially surgery.58 And without anatomy, and thus dissec-

58 See Brazier 2008a. 59 Richardson 2000: 30–1.

Causes célèbres in the twentieth century: