Seminar: Controversial Medical Procedures and the Criminal Law

School of Advanced Study, University of London

Dean’s Seminar

Wednesday 24 February 2010
Senate House, South Block, Ground Floor
Room G37, at 12.30

Professor Penney Lewis, University of London Research Fellow, School of Advanced Study

At common law, medical practice is regulated by the criminal law in two main ways. First, by the law governing serious offences against the person or serious assault. Second, by the crime of maim or mayhem, which is a common law crime in some jurisdictions, and a statutory offence in others. Either at common law or in statute, a ‘medical exception’ exists which takes most medical treatment outside of both strands of criminal law regulation. In order to qualify for the medical exception, two elements must be present: the patient’s consent; and some form of public policy justification. Different versions of this public policy justification focus variously on the patient, the public, and the medical profession.

Most medical procedures are therapeutic and fall easily into the patient-focused narrowest version of the medical exception. Some controversial procedures have historically been separately regulated by the criminal law—abortion and euthanasia are the most prominent examples. In this paper I consider those new and controversial medical procedures (NCMPs) which are not separately regulated but fall to be dealt with by the criminal law.  They are controversial because they may be considered non-therapeutic. Thus, whether they fall within the medical exception is or has been the subject of some controversy. These include: cosmetic surgery; contraceptive sterilisation; organ donation; non-therapeutic research; gender reassignment surgery; and amputation for body dysmorphia disorder (BDD) or body integrity identity disorder (BIID). Formal legal change—judicial decisions or legislation—on NCMPs is rare. More commonly, legality is acknowledged retrospectively via state funding for some or all patients. Alternatively, legality can sometimes be inferred from civil or public law claims in which the underlying legality is assumed. Finally, government regulation may indicate lawfulness. Starting with the case of contraceptive sterilisation, widely seen as unlawful in the UK until the late 1960s, I examine how informal legal change on NCMPs occurs.

Admission is free.  All are invited
Wine will be offered.
Do bring your lunch.

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