Withholding and Withdrawing Treatment: The Role of the Criminal Law

Abstract

Doctors or hospitals facing the issue of withholding or withdrawing treatment from patients voice a number of concerns, some factually based and some less so. One important concern is the possibility that such behavior will lead to an indictment for murder. How realistic is this fear? This article will review the U.S. cases involving withholding or withdrawing treatment, as they pertain to the issue of criminal liability.The criminal law, in general, has not been used as a tool to regulate medical practice. While criminal actions against medical professionals are not unknown, few such actions arise dircctly from the practice of medicine. A physician charged with Medicaid fraud, sexually molesting patients, or prescribing drugs for non-therapeutic purposes has not been charged with a crime that involves scrutinizing the standard of care he or she uses in practicing medicine. For example, by definition, there is no medical standard for the non-therapeutic use of prescription drugs.