Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-2xdlg Total loading time: 0 Render date: 2024-07-04T22:53:02.567Z Has data issue: false hasContentIssue false

Chapter 9 - Medicine and the Limits of Criminal Law in Germany

Published online by Cambridge University Press:  11 February 2021

Get access

Summary

OVERVIEW

INTRODUCTION

The ‘limits of criminal law’ can be understood in several ways. For the purposes of this chapter, a distinction will be made between three types of limits: (a) first, in the sense of the question as to the conditions under which it can be applied in accordance with the principle of ultima ratio or the question as to which higher-ranking normative limits it is subject to; (b) second, in the sense of its inherent, quasi-‘endogenic’ functional limits if it is applied or could be applied according to (a); and finally (c), phenomena from outside (‘exogenic’) the sphere of criminal law also warrant consideration, as they limit its application (in certain areas), for example practical limits on its applicability in cases that – typically – cannot be resolved or that can only be resolved by disproportionate means. In the following, my remarks will focus primarily on the function of criminal law and its limits in the field of medicine. An overview of those areas of medicine that, from a German perspective, are especially receptive to regulation by the criminal law (1.2) is followed by the closer inspection of questions of consent and medical malpractice and their central importance to the physician–patient relationship in many areas of treatment (2). Finally, selected features of the role of criminal law in connection with euthanasia (3) and – in the areas of abortion and sterilisation – in the context of the control of medical activities by way of procedural regulations (4) will be discussed.

AREAS OF MEDICAL LAW: SOME EXAMPLES

Medicine is a highly diverse field, and as a result, medical law, too, is remarkably broad in scope. Criminal law is just one of many legal options in this area, and only rarely is it the only option that applies. Most cases involve the performance of (or failure to perform) curative treatment. From the point of view of (German) criminal law, this raises the question, on the one hand, as to the conditions under which the performance of a medical procedure is legitimate (see 2.1 and 2.2 below); on the other hand, it also gives rise to the question of criminal responsibility for mistakes made during the performance of medical procedures that are, in fact, legitimate (medical malpractice, see 2.3 below).

Type
Chapter
Information
The Limits of Criminal Law
Anglo-German Concepts and Principles
, pp. 173 - 194
Publisher: Intersentia
Print publication year: 2020

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×