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

• Date: 17 January 2021
• Published date: 17 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

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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

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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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