Treatment demanded by the patient
There are limits to the extent to which consent is capable of providing a defence in criminal law to offences of assault. It is generally accepted that ‘reasonable surgical interference’ is lawful and would not render the surgeon open to criminal prosecution. This so-called ‘medical exception’ has been justiﬁed on the ground of the public interest or for therapeutic purposes. But what about surgery which has no therapeutic purpose, such as surgery solely for cosmetic purposes, which cannot be justified on the basis of public interest but, it seems, has always been accepted as lawful where a patient with capacity gives consent? And what is to be regarded as ‘reasonable surgical interference’? Gender reassignment surgery, which involves the removal of healthy body parts and is irreversible, has always been regarded as lawful. In contrast, there is much controversy over the position of patients who suffer from body dysmorphic disorder and who wish the amputation of a healthy limb. There is debate over the categorisation of body dysmorphic disorder and its appropriate treatment. It is suggested it is at least arguable that, given the criminal law does not interfere with cosmetic surgery, it should not do so in cases where the amputation of a healthy limb would lead to the alleviation of a patient’s suffering and reduce the risk of the patient self-harming. Outside ‘standard cosmetic surgery’, cases in which removal of healthy parts of the body are proposed will always have to be carefully assessed: we would suggest they would comprise the rare cases where a patient with capacity has given fully informed consent and where all other avenues for treatment have proved unsuccessful. In practice, a surgeon contemplating such surgery should take speciﬁc legal advice and in any event may run into the practical obstacle that hospitals may refuse to provide the facilities for such operations to be carried out.
In contrast, unregulated body modiﬁcation will usually be found unlawful even with ‘patient’ consent. In March 2019, so-called ‘Dr Evil’, a tattooist who had a body modiﬁcation business and carried out unregulated surgical procedures, pleaded guilty to three offences: removal of an ear, splitting of a tongue with a scalpel and removal of a nipple. Each of the customers had signed a consent form and all the procedures were carried out without anaesthetic. The tattooist brought an interlocutory appeal against the ruling that the customer’s consent provided no defence to the charges. The Court of Appeal held that the fact that members of the public consented to the procedures did not amount to a defence.