Introduction

When a surgeon amputates a diseased leg or removes an inflamed appendix with her patient’s consent, she may worry about legal consequences if she makes a serious error and bungles the operation. She may fear being sued, or reported to the General Medical Council, or, in an extreme case and the patient dies, she may be prosecuted for gross negligence manslaughter. But if she does her job well she need not fear any of these possibilities, and so a surgeon should not be concerned about the criminal law. Neither she nor her patients will see the amputation or removal of the appendix as an assault. Yet were it not for the existence of the ‘medical exception’ which takes ‘proper medical treatment’ outside the remit of the criminal law, doctors (and surgeons in particular) might be serial criminals. Indeed, the relationship between medical practice and the criminal law is much closer than many realise. The legal justification for bodily invasions in the medical context has developed according to the medical exception to the criminal law discussed by the House of Lords in R v Brown ¹ and Airedale NHS Trust v Bland, ² and by the Law Commission in 1994. ³ Without the exception, medical and surgical activities may fall within the remit of the Offences Against the Person Act 1861. While the phrase ‘proper medical treatment’ is seductively simple, the chapters in this collection show that it is, in reality, more complex in its meaning, justification, and application to evolving developments in medicine and changing social attitudes to the body. In fact, it conceals a plethora of issues and influences which combine to determine whether a particular treatment is legitimate.