WHEN THE EXCEPTION IS THE RULE: RATIONALISING THE MEDICAL EXCEPTION IN SCOTS LAW

Date17 January 2021
Published date17 January 2021
ARTICLES
WHEN THE EXCEPTION IS THE
RULE: RATIONALISING THE
MEDICAL EXCEPTION IN SCOTS
LAW
Jonathan Brown*
ABSTRACT
No physician who performs a legitimate medical operation on a patient
commits a criminal offence or a delict.
This is so in spite of the fact that
infringement of the bodily integrity of another person is seen as both
a
crime
and
a
civil
wrong.
Notwithstanding
the
fact
that
the
patient
may
desire
the
operation,
the
defence
of
consent
cannot
possibly
justify the serious injuries intentionally inicted in the course of, say,
an
amputation,
since
this
procedure
is
highly
invasive
and
effects
irreversible changes to the patient’s physicality.
The so-called medical
exception is consequently invoked to preclude prosecution of medical
practitioners who carry out procedures that involve serious wounding.
Quite
where
the
justication
for
the
medical
exception
lies,
remains
controversial. The exception has long been justied axiomatically – by
reference to the existence of surgery as a profession – or has otherwise
*
Lecturer in Scottish Private Law, University of Strathc lyde. I am grateful to
Dr Emmanuel Voyiakis of LSE for his he lpful comments on an earlier draft
of this article. Naturally, I alone remain at fault for any remaining errors in
the text.
1
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JONATHAN BROWN
2
been held to be sui generis. Herein, however, it is submitted that its
basis in Scots jurisprudence can be found through consideration of
the etymology of the word “injury” as applied as a term of art in Scots
law. At its core, the crime/delict of “injury” is connected to the Roman
notion of iniuria, which served to preserve and uphold the boni mores
– good morals. Conduct that contumeliously affronted the dignity
of a person could clearly be classied as contra bonos mores, but
it is apparent that iniuria may be effected even in instances where
there could be no subjective affront to the individual person. This,
it is submitted, rationalises the medical exception: “Proper medical
treatment” is not contra bonos mores and so cannot be said to amount
to injury or assault. Hence, the framing of the medical exception as
such in Scots law is incorrect. The so-called exception is, rather, a
necessary consequence of the conceptual understanding of the terms
“assault” and “real injury” in Scottish jurisprudence.
Keywords: Delict; iniuria; injury; Scotland; assault; criminal law; boni
mores; public policy
1 Introduction
No medical practitioner who performs a legitimate medical opera-
tion on a patient (in the course of competently carrying out the
duties of their profession)1 commits a delict or a criminal offence.2
This is so in spite of the fact that to infringe the bodily integrity
of another person is plainly both a crime3 and a civil wrong.4
Notwithstanding the fact that the patient may desire the operation,
the defence of consent cannot possibly justify the serious injuries
intentionally inicted in the course of an operation to effect a
kidney transplant, or to amputate a limb, or even to insert a stent,
since these procedures are highly invasive and effect irreversible
1 “Proper” medical treatment is a prerequisite. See Brazier & Fovargue 2016: 12.
2 See, generally, Fovargue & Mullock 2016: passim.
3 Gordon 2016: para 33.46.
4 See MacLean 2007: para 11.09. When speaking generally, the phrase “civil
wrong” is preferred throughout this contribution. When referring to Scots
law specically, the term “delict” is used, and the term “tort” is employed
when specic consideration is given to common-law jurisprudence.
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RATIONALISING THE MEDICAL EXCEPTION IN SCOTS LAW
3
changes to the physicality of the patient(s).5 The so-called medical
exception has consequently and consistently been invoked by legal
commentators when considering cases of invasive surgery, or
procedures that involve serious wounding.6
Since consent is no defence to serious assault,7 this exception
to the general rule, namely that to inict such is to commit a crime,
must be justied by means other than an appeal to the willingness
of the patient.8 Quite where this justication lies, however, remains
controversial and undertheorised. As a legitimate surgical operation
may be elective or wholly cosmetic, such treatment cannot be legally
justied on grounds of necessity.9 In 1967, Gordon’s Criminal Law
consequently concluded that the medical exception was sui generis.10
This assessment has not much changed in the decades between the
publication of that work and the text’s fourth edition.11 The editors
of the latest edition of Gordon’s work provide no rationale for the
existence of the medical exception, merely noting it is probably12
justied “because the injuries are inicted in such cases not for
their own sake or in order to cause pain or gratify an intention to
harm, but for the benet of the patient”.13 In considering the legal
position within the common-law tradition, although Stephen could
5 Indeed, so-called drugging is a well-known and nominate example of the
crime of real injury in Scots law (see Grant v HM Advocate 1938 JC 7), and so,
but for the medical exception, even the anaesthetist who prepared the patient
for surgery would be guilty of a specic crime but for the medical exception.
6 Lewis 2012: 356.
7 In criminal law; the defence of volenti non t injuria would be available to a
defender in any delictual case. A distinction in respect of the criminal law
must here be drawn between Scots law and English law. In English law, it
has been argued that consent is sufcient to negate “trespassory touching”,
which might otherwise be minor assault (or battery). In Scots law, however,
there exists case law (Smart v HM Advocate 1975 JC 30 at 33) which suggests
that consent is no defence to even minor assault and the very notion of
“trespassory touching” is alien to that legal system. See Earle & Whitty 2006:
para 242.
8 Indeed, it has been observed that “although it probably makes very little
difference in practice, it should be noted that, in principle, consent is not a
defence” to assault. See MacLean 2007: para 11.10.
9 See Williams 1962: 156.
10 Gordon 1967: 774.
11 Gordon 2016 vol 2: para 33.39.
12 Emphasis added.
13 Gordon 2016 vol 2: para 33.39.
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