Editors: Stanton, C., Devaney, S. and Farrell, A.
In Bioethics, Medicine and the Criminal Law, Margaret Brazier and Suzanne Ost ‘tell a story about the ways that the criminal process engages with medicine and bioethics’—a story designed to explore and ‘to explain the interaction between the three when they meet in the theatre of the courts, the legislature and public opinion’. In fact, Brazier and Ost tell several stories, two of which inspire this paper. The first is a story about the use of ‘medicalisation’ (‘compromise medicalisation’ as we will term it) as a strategy for dealing with bioethical conflicts that divide communities. So, for example, Brazier and Ost present the Abortion Act 1967 in this light; and, putting the point more generally, they suggest that ‘medicalisation plays a useful if often criticised role in mediating between the polarized extremes of bioethical debate…offer[ing] a way forward that is less than intellectually first class, but better than the practical alternatives.’ The second story highlights the ‘kindly’ treatment typically accorded by prosecutors, juries and judges to doctors who follow their conscience and try to do the right thing (even when this might fly in the face of the law)—for example, ‘doctors who seek to practise compassionately at the end, or beginning, of life, [or] who seek to honour their patients’ wishes….’
Against the backcloth of these stories, we suggest that, when Parliament introduces a measure of ‘compromise medicalisation’, this does more than change the law; crucially, it changes the responsibilities of both doctors and legal actors. Post-enactment, the medical profession, as a trusted third-party, is charged with safeguarding the terms of the compromise; and, where doctors fail to discharge their new responsibilities, it is quite wrong for those legal actors who play a leading role in the theatre of the criminal justice system to default to a kindly attitude.