17 July 2015
The relationship between medical practice and criminal law is much closer than many realise. Doctors are permitted to do things that others are not, provided that what they do is regarded as ‘proper medical treatment’.

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 the cases of R v Brown [1993] and Airedale NHS Trust v Bland [1994], and by the Law Commission in 1994. As those involved in sado-masochistic activities discovered in Brown, consent, in the absence of medical (or legitimate sporting) justification, is not enough to make harming others lawful. And in Bland, while it was legitimate for the doctors to withdraw life-sustaining treatment, if a concerned relative did the same it would become a criminal matter.

This means that 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.

The phrase ‘proper medical treatment’ is seductively simple, but the chapters in this collection show that it is, in reality, more complex in its meaning, justification, application to evolving developments in medicine, and recognition of changing social attitudes to the body.   It also conceals a plethora of issues and influences which combine to determine whether a particular treatment is legitimate. The development and introduction of abortion, organ donation, and non-therapeutic cosmetic surgery, for example, have all raised ethical, legal, and clinical issues. The contributors to this collection encourage the reader to question the way the law, the medical profession, and society interact in order to determine whether a new or ethically contentious procedure is and should be regarded as proper medical treatment.   Legal, historical, social, ethical, and professional influences which contribute to the acceptance of a particular procedure are thus considered. For example, just over 60 years ago Lord Denning was horrified by the prospect of a man having a vasectomy, declaring it degrading; yet today vasectomy is a common, even mundane, procedure.

The chapters in this collection explore a number of issues, including why some ethically contentious treatments, such as abortion, are accepted as ‘proper’, and others, such as physician-assisted suicide, are not. And how does the medical profession influences such determinations; if a doctor is willing to perform a procedure should it be regarded as legitimate simply because it has gained professional approval? The role of patient demand in this regard is also considered, as is the balance between doctors as merely servants of the public and their wants and desires, with their professional autonomy and clinical judgement. Furthermore, are the motivations for performing certain treatments relevant, and do some medical treatments become accepted as proper through custom and practice and because some doctors believe that it is better for them, rather than someone else less qualified, to do? Thus, they have to do it rather than it being a clinical judgement or a choice. And what of the financial implications of certain treatments? If the state is willing to fund a treatment, does that automatically make it proper or appropriate? These issues, and many others, are explored in this collection.

Sara Fovargue and Alexandra Mullock (eds.) The Legitimacy of Medical Treatment: What Role for the Medical Exception? (Routledge, 2015) is available from August 11th 2015. The collection, written by health care lawyers, bioethicists, clinicians, and health economists considers the meaning and implications of the legal concept of ‘proper medical treatment’, and explores the diverse factors which influence whether ethically contentious or innovative medical treatments become legitimate.

You can find out more about Sara’s research at http://www.lancaster.ac.uk/fass/law/profiles/sara-fovargue

You can find out more about Alexandra’s research at http://www.manchester.ac.uk/research/alexandra.mullock/personaldetails