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High Court considers defence of “consent” in body modification case

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High Court considers defence of “consent” in body modification case 13th April 2018


The High Court has handed down a ruling in a case involving a business licensed for tattooing and body piercing but obtained “consent” to perform body modification.

The case involved an appellant (unnamed) who is by trade a tattooist and body piercer who added "body modification" to his services. He operates from premises in Wolverhampton.

The appellant is due to stand trial in the Crown Court at Wolverhampton on an indictment charging three counts of wounding with intent to do grievous bodily harm contrary to Section 18 of the Offences Against the Person Act 1861. There are three alternative counts of inflicting grievous bodily harm contrary to Section 20 of the same Act. The procedures performed by the appellant which found these counts were first, the removal of a customer's ear; secondly, the removal of a customer's nipple; and thirdly, the division of a customer's tongue to produce an effect similar to that enjoyed by reptiles.

The customer who was subject to the body modification procedures did give consent but the question that arose from the case was whether consent could provide a defence to the counts on the indictment.

Read the full hearing transcript here:
http://www.bailii.org/ew/cases/EWCA/Civ/2018/560.html

Lord Burnett of Maldon stated in his ruling that: “That said, there is, to our minds, no proper analogy between body modification, which involves the removal of parts of the body or mutilation as seen in tongue splitting, and tattooing, piercing or other body adornment. What the defendant undertook for reward in this case was a series of medical procedures performed for no medical reason. When Lord Lane referred to "reasonable surgical interference" in the Attorney General's Reference case (quoted in [23] above) it carried with the implication that elective surgery would only be reasonable if carried out by someone qualified to perform it. The professional and regulatory superstructure which governs how doctors and other medical professionals practice is there to protect the public. The protections provided to patients, some of which are referred to in the medical evidence before the judge, were not available to the appellant's customers or more widely to the customers of those who set themselves up as body modifiers. It is immaterial that this appellant took some trouble to ensure a sterile environment when he operated, or that his work was in some respects tidy and clean. Consent as a defence could not turn on the quality of the work then performed.

“The protection of the public in this context extends beyond the risks of infection, bungled or poor surgery or an inability to deal with immediate complications. Those seeking body modification of the sort we are concerned with in this appeal invited the appellant to perform irreversible surgery without anaesthetic with profound long-term consequences. The fact that a desire to have an ear or nipple removed or tongue split is incomprehensible to most, may not be sufficient in itself to raise the question whether those who seek to do so might be in need of a mental health assessment. Yet the first response in almost every other context to those who seek to harm themselves would be to suggest medical assistance. That is not to say that all who seek body modification are suffering from any identifiable mental illness but it is difficult to avoid the conclusion that some will be, and that within the cohort will be many who are vulnerable. There are good reasons why reputable medical practitioners will not remove parts of the body simply when asked by a patient. One only has to reflect on the care, degree of inquiry and support given to a patient before gender reassignment surgery can be performed to appreciate the extensive nature of the protections provided in the medical context.

“The personal autonomy of his customers does not provide the appellant with a justification for removing body modification from the ambit of the law of assault. It is true that Mr Lott could have cut his own left ear off and in doing so would have committed no criminal offence. So too the other customers. But the personal autonomy of one individual does not extend to involving another in what would otherwise be a crime. We note that the European Court of Human Rights rejected the arguments advanced under article 8 of the Convention by the appellants in the Brown case, (1997) 24 EHRR 39, and remind ourselves that the level of harm engaged in that case was below really serious injury.

“In short, we can see no good reason why body modification should be placed in a special category of exemption from the general rule that the consent of an individual to injury provides no defence to the person who inflicts that injury if the violence causes actual bodily harm or more serious injury. Even were the general rule to be revisited by Parliament or the Supreme Court and a different line drawn which allows consent to act as a defence to causing actual bodily harm and wounding, body modification causes really serious harm. Neither of the dissentient voices in the Brown case would have been willing to allow consent to act as a defence to causing grievous (serious) bodily harm and we note that the proposals of the Law Commission, whilst suggesting some loosening of the constraints found in Brown, would also not have gone that far. The appellant's argument envisages consent to surgical treatment providing a defence to the person performing the surgery whether or not that person is a suitably qualified as a doctor, and whether or not there is a medical (including psychological) justification for the surgery. Even were we attracted by the argument, which we are not, such a bold step is one that could only be taken by Parliament.”

The appeal was accordingly dismissed.

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