The Scope of the Medical Exception in Criminal Law

Many medical procedures involve the causation of serious injury by doctors to their patients. Yet when accepted as ‘proper medical treatment’, doctors incur no criminal liability for their actions, per the ‘medical exception’ in criminal law. This exception is well established; its scope much less so. This article seeks to clarify the scope of the medical exception. First, it examines whether legal authority provides an explicit principle for determining the scope of the exception, arguing that no such explicit principle can be found. Second, it seeks to identify an implicit principle: a property shared by interventions that fall within the medical exception, which distinguishes them from interventions without. It considers three candidates, based on physiological, objective psychological, and broad welfare benefit, arguing that none fully succeeds in accounting for the medical exception's scope. The article then considers some implications, an objection, and some remaining problems for future research to consider.