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All those in clinical professions seek consent for what would otherwise be an unlawful touch. As citizens contemplate body modification, are there interventions which cannot be made lawful by consent?
In 1604, one man persuaded another to slice off his left hand, optimising sympathy whilst begging; 200 years later, a dentist extracted the front teeth of a musketeer, preventing him from biting open the paper cartridge containing gunpowder and ball, rendering him incapable of loading his rifle and therefore unfit for combat duty. In neither case did consent save the ‘clinician’ from conviction.
Both of these injuries equated to serious injury from which flows the risk of unanticipated further disease and possibly death. This imposes a substantial cost on society as a whole. For this reason, Parliament regulates (albeit loosely) piercing and tattooing in adults, whilst proscribing tattooing in children.
More recently, the courts have held that causing serious injury outside medical practice is unlawful, irrespective of consent, finding that the infliction of facial scars on a child’s cheek is a crime. This illustrates that if the law condemns an act, consent does not provide an answer to the criminal charge.
To what extent do the courts consider body modification lawful?
In a criminal appeal case, a registered tattooist and piercer included ‘body modification’ in his public offering. He found himself charged with three charges of wounding with intent to inflict grievous bodily harm, since he had removed an ear from one customer, a nipple from another, and split a third customer’s tongue into the forked reptilian style. It was accepted that in each case consent had been provided; the question for the court was whether that consent made these excisions or incisions lawful. The Crown Court judge who first heard the case held that consent provided no defence to these serious injuries.
The left ear was removed from a Mr Lott without anaesthetic. Both defence and prosecution accepted that this posed the risk of both hearing loss and injury to the facial nerve. The upshot included difficulty in wearing spectacles or hearing aids. The nipple/areola complex was excised leaving a linear scar, resulting in asymmetry. The tongue splitting was performed using a scalpel without anaesthetic; aside from the foreseeable risks to airway and circulation during the procedure, speech and feeding would be affected.
The court noted that if any of these customers had performed the procedures upon themselves, no crime would have been committed. Nonetheless, the judges could find no reason why body modification should be equated to surgery. For the non-surgeon, consent provides no defence to the person who inflicts violence causing actual bodily harm or a more serious injury. The body modifier’s conviction was upheld.
Many surgical acts would be crimes if done by anyone else other than a surgeon. Since this case provides further evidence that consent is not sufficient to make serious injury lawful, it also confirms that proper medical treatment, with consent as a pre requisite, is in a category of its own. One reason (of many) for this distinction is that a doctor will be equipped to consider whether their patient has capacity for the treatment they seek.
Procedures performed by surgeons for body dysmorphic disorder may not have been tested in court. But it can be seen that a serious injury such as limb amputation would need to be balanced by its prevention of an equally serious harm to justify inclusion in the category where with consent, the procedure is deemed reasonable medical treatment. Where the patient with capacity in desperation wishes to be rid of a leg that is distressing them, it may not be for the criminal law to go behind the patient’s autonomous judgement of how best to make them healthy.
This remains an area of practice fraught with anxiety for clinicians facing unusual requests for modification. How, for instance, to deal with the paralympian seeking surgical modification to further optimise their competitive potential? A criminal case identifying ‘serious injury’ as something against which consent is no defence provides guidance as to circumstances where a clinician should seek early advice.
Department of clinical law, February 2019