As every undergraduate medical law student knows, when a patient is capable of giving her consent, the least touching without consent may amount to a tort and a crime. 1 But, as Lord Mustill remarked in R v Brown , 2 more invasive medical treatments (those intrusions which outside the medical context might amount to assaults causing actual or grievous bodily harm, or maim) may be ‘well above any point at which consent could even arguably be regarded as furnishing a defence’. 3 According to his Lordship, where such treatments are concerned, it is not the existence of consent but the fact that the intervention counts as proper medical treatment, which prevents criminal liability from attaching to those treatments. In these more invasive cases, as Margaret Brazier and Sara Fovargue suggest, proper medical treatment works ‘magic’ 4 and ‘transform[s] something wrong into something ‘right’’. 5
Where abortion is concerned, the concept of proper medical treatment never works to transform wrongs into rights. That magic is worked, instead, by the Abortion Act 1967, as amended by the Human Fertilisation and Embryology Act 1990. The practice of abortion, otherwise a statutory crime in England and Wales under sections 58 and 59 of the Offences Against the Person Act 1861 (and a common law crime in Scotland), is transformed, provided that certain conditions are met, into lawful medical treatment by section 1 of the amended 1967 Act. Why consider the concept of proper medical treatment in this context at all, then? I suggest that there are at least two reasons to regard the concept as being relevant to abortion law, notwithstanding that the current lawfulness of abortion is not attributable to it. The first is that the concept of proper medical treatment is
that consent alone can render it non-criminal (as is the case with superficial examinations and treatments involving only minor touching of the body), or is sufficiently severe to require the ‘magic’ power of the medical exception, the idea of proper medical treatment is busy in the background. It defines the nature and contours of the practitioner-patient relationship and sketches out the landscape of health care law.