مسؤولية الطبيب الجزائية : دراسة تقييميه نقدية للقواعد العامة و الخاصة في كل من القانونين الأردني و الإماراتي

Abstract EN

There is no special law regulating criminal liability of doctors in Jordan, and therefore such liability is governed by the general rules as stated in the Jordanian Penal Code 1960 No 16 (JPC), which apply to all types of offenders regardless of their professions.

As the nature of medical professions and practices entails the enactment of a special law setting the relevant legal rules by which doctors criminal liability should be governed, this paper seeks to provide an evaluative, critical and comparative study of the current laws of Jordan and United Arab Emirates (UAE) on this issue.

Central to the purpose of this study is to demonstrate the inadequacy and inefficiency of the general rules of criminal liability when applied to the liability of doctors, and provide some suggestions which can be considered in any future law reform on this contentious issue.

This is important because while considering the criminal liability of doctors, it is crucial to abandon some of the criminal law general rules as they fall short and inadequate to address various aspects of such liability on both intentional and non-intentional levels.

On the intentional side of such liability, the comparative analysis showed that there is no existing law to hold doctors liable for attempting to commit the misdemeanor of causing bodily harm to patients under both the JPC and the UAE criminal law.

Moreover, in both countries, there is no existing law to incriminate doctors who perform operations involving hymens restoration which have been removed as a result of illegal sexual relationships.

The paper also demonstrated that no criminal liability can be attributed to doctors on the grounds of negligence for the offence of abortion under both the JPC and the UAE laws, and they cannot be held liable for the misdemeanor of attempting to commit intentional abortion under the JPC.

On the non-intentional side of doctors’ criminal liability, it was illustrated that no definition of medical mistake exists in the JPC, and contrary to one provided for in the UAE medical liability law, the definition of such mistake pursuant to the Jordanian proposed law 2009 on medical liability is deficient.

Moreover, as opposed the UAE law, the professional mistake of doctors is not considered as an aggregative circumstance of their liability under the JPC, which does not also set a criterion according to which such mistake can be determined.

The analysis also highlighted that no doctors’ criminal liability can be established for their dangerous conducts unless some harmful results are ensued under both laws.

In addition, neither the JPC nor the UAE laws makes any difference in relation to doctors’ degree of criminal liability between situations involving medical negligence without foreseeing the possible outcomes of such negligence, and situations involving foreseeing such outcomes, and although not accepting them, acting recklessly towards their occurrence.

All in all, the analysis in this paper indicated that there are severe shortcomings of the existing laws concerning doctors’ criminal liability, and pointed out towards some possible deeper structural reforms