ABSTRACT
As indicated in the Introduction to this book, many of the things that doctors, particularly surgeons, do would be crimes in England and Wales if performed by someone not medically qualified. Cutting open a patient to check if an organ is diseased, removing that organ, and drawing blood are all activities that cause bodily harm, even grievous bodily harm. For doctors, the law has endorsed a magic mantra that makes these potential wrongs right: the medical exception of ‘proper medical treatment’. If a colleague asked us to amputate her left arm and we did so competently and safely, we are likely to face prosecution for causing grievous bodily harm, despite our care and skill, unless we acted in dire necessity to save her from, for example, being trapped in a burning building. Indeed, in Airedale NHS Trust v Bland, Lord Mustill said that ‘[i]f one person cuts off the hand of another it is no answer to say that the amputee consented to what was done’. 1 Yet, if our colleague persuaded a surgeon to do the same and remove her left arm, he may be able to invoke the medical exception to shield him from such charges. A surgeon is, of course, better placed than we are to assess our colleague’s condition and offer less radical alternatives to amputation. And even if we suppose that our colleague has capacity, her consent to us removing her arm would not change anything; we would still be committing a crime, while a surgeon who acted with her consent does not appear to be doing so. 2 Does this mean, then, that doctors who are asked to undertake life-changing, or even life-limiting, procedures can do so without, on the whole, fear of sanction or punishment, whereas legal academics who (competently and safely) perform the same activity must ‘go straight to jail’?
