ABSTRACT
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
