Harm and Culpability

By A. P. Simester; A. T. H. Smith | Go to book overview

8
Criminal Liability in a Medical Context: the Treatment of Good Intentions

Andrew Ashworth

When the criminal courts have to decide issues involving the conduct of medical practitioners, the general doctrines of the criminal law are sometimes subjected to considerable strain. The standard formulation of intention in criminal law texts consists of either acting in order to bring about the prohibited result or, if the actor's purpose is otherwise, acting with awareness that the result is virtually certain to follow.1 Yet in Gillick v. West Norfolk Area Health Authority,2 the House of Lords held that a doctor who gives contraceptive advice to a girl under 16 for clinical reasons, whilst realizing that this would facilitate acts of unlawful sexual intercourse, would lack the intention necessary for conviction of aiding and abetting unlawful sexual intercourse. The precise significance of the case is discussed below. But Lord Scarman's explanation, that 'the bona fide exercise by a doctor of his clinical judgment must be a complete negation of the guilty mind' required for criminal liability, seems at odds with the basic proposition that a person acts with intention as to a certain result if he or she knows that the result is virtually certain to follow. This raises the question whether the standard formulation merely describes a general approach, or should be stated subject to exceptions, or is simply wrong.

Another example may be found in the famous case of Adams,3 where a doctor was accused of the murder of an elderly patient. He had administered large doses of heroin and morphia that proved fatal. The prosecution case was that Dr Adams intended to kill the patient in order to hasten his

____________________
1
Law Commission No. 177, A Criminal Code for England and Wales ( 1989), vol. 1, cl. 18, as slightly re-drafted by Sir John Smith, "A Note on Intention", [ 1990] Criminal LR85.
2
[ 1986] 1 AC 112. This was a civil action, in which the question of criminal liability arose incidentally.
3
Unreported; extracts from the summing-up may be found in H. Palmer, "Dr. Adams Trial for Murder", [ 1957] Criminal LR 365, and Lord Devlin, Easing the Passing ( London, 1985), 171-2.

-173-

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