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Johnston, Josephine --- "If thy leg offend thee, cut it off: surgery, consent and the criminal law" [2016] OtaLawFS 28; Law, ethics, and medicine: essays in honour of Peter Skegg 147

Last Updated: 31 May 2019

7 IF THY LEG OFFEND THEE, CUT IT OFF:

SURGERY, CONSENT AND THE CRIMINAL LAW

Josephine Johnston

“Healthy limbs cut off at patients’ request” read a headline in The Guardian newspaper on January 31, 2000.1 I found the article during my lunchbreak and it immediately seemed like the case study I was looking for. I was at the end of my OE (the famous “overseas experience” many New Zealanders take in their twenties), working in London to save a little money before returning home to begin a master’s degree in bioethics and health law. I knew I would have to write a dissertation on a question with both ethical and legal dimensions. I had long been interested in the ethical obligation to respect autonomy and in the legal imperative to protect people from harm. What might happen when those two commitments collide? I read on.

“Robert Smith cut off the lower legs of two patients, one from England and one from Germany, during private operations at Falkirk and District Royal Infirmary,” the report continued. “The men had been turned away by surgeons across Europe before Mr Smith agreed to operate.” Smith had more candidates ready and waiting, but his National Health Service trust had put a halt to the operations apparently as a result of adverse publicity and political pressure.2 In the face of sudden media interest, Smith maintained that the amputations were necessary to treat an underlying psychological disorder and prevent dangerous attempts at self-amputation. “I have very serious concerns that they will go to an unlicensed practitioner or take the law into their own hands and lie down on a railway line, or take a shotgun,” he said. A medical ethicist quoted in the article likened the amputations to sex change operations and argued that they are justified as treatment for “a severe psychological disease.” I wondered whether they could be understood as a kind of extreme body modification—akin to cosmetic surgery or tattooing.

One month later, I was sitting in the office of Professor Peter Skegg at the University of Otago, explaining the case to him and asking him to supervise my dissertation looking at the law and ethics of healthy limb amputations and other kinds of extreme body modification. He agreed, reaching for his book Law,

Gerard Seenan “Healthy limbs cut off at patients’ request” (31 January 2000) Guardian <www.theguardian.com/society/2000/feb/01/futureofthenhs.health>.

Pennie Taylor “My left foot was not part of me” The Guardian (London, 6 February 2000) at 14.

Ethics and Medicine: Studies in Medical Law,3 urging me to read about the history of mayhem, and suggesting I consult an English case about a group of sadomasochists convicted of assault even though they all consented to their “injuries.” While the desires and actions I was interested in investigating were strange, if not outright disturbing, Skegg recognised that these highly unusual cases raised significant legal and ethical questions about bodily autonomy, the nature of harm, and the relationship between medicine and the law. He encouraged and supported my research, for which I will always be immensely grateful. In this chapter, I revisit some of the cases and questions that I considered in my dissertation, with a particular focus on those issues that overlap most directly with one aspect of Skegg’s own work—the legal justification for surgery.

1. AN INTRODUCTION TO HEALTHY LIMB AMPUTATIONS AND AMPUTEES WANNABES

Healthy limb amputations made a dramatic entrance into the public eye in early 2000, when the British press reported that the left leg of Essex man Kevin Wright had been amputated by Scottish surgeon Robert Smith. This was not the first time the media had covered healthy limb amputation,4 but it was—and remains—the most significant media coverage of the phenomenon. As the newspaper articles and radio stories explained, Wright’s leg was not diseased; in fact there was nothing medically wrong with it. Since he was eight years old Wright had simply not wanted his left leg. “My left foot was not part of me,” Wright explained to the press when they interviewed and photographed him outside his home. “It didn’t feel part of me. I don’t understand why, but I knew I didn’t want my leg.”5 Even though Wright said he had felt the desire to be an amputee all his life, he did not start searching for a solution to his intense and consistent desire until he was 28 years old. He consulted medical professionals, who prescribed drugs which he said did not touch his problem, and he was offered electric shock therapy. He seemed unable to find any medical professional, either psychiatrist or surgeon, who could help alleviate his obsession. Then he met Robert Smith. The surgeon read two psychiatric assessments of Wright and one psychological report, and eighteen months later agreed to carry out the amputation. “I came to the conclusion I

3 PDG Skegg Law, Ethics and Medicine (Clarendon Press, Oxford, 1984).
4 See for example: James Burnett “South side man uses homemade guillotine to sever arm”

Milwaukee Journal Sentinel (Milwaukee, 7 October 1999) at 3; Carl Elliott “A New Way to be Mad” (2000) 286(6) The Atlantic Monthly 72.
5 Taylor, above n 2, at 14.

would try and help him”, he said “but not without great trepidation because of the legal, ethical and media interest involved.”6

The media didn’t learn of Wright’s story until two and a half years later. By then, Smith said that he had no regrets about performing the operation. “It took me 18 months to pluck up the courage”, he told the media “but it was the most satisfying operation I have ever performed”.7 Wright was also pleased with the results. “I have happiness and contentment and life is so much more settled, so much easier” he said, “I have not regretted the operation one bit. I don’t want to think of what I’d have been like without it.”8

Wright’s leg was amputated at the Falkirk and District Royal Infirmary, a National Health Service hospital in Scotland. Following Wright’s operation Smith performed another healthy limb amputation, this time on a seventy-one year old German man. But when he applied for permission to carry out a third amputation he encountered resistance and outrage, both of which had been conspicuously absent from his first two operations. This time the request was referred to the hospital trust’s chairman, who had not been aware of the first two operations. On the 31st of January 2000 the chairman placed an immediate ban on any further healthy limb amputations.

Kevin Wright was not the first Englishman to demand this procedure. The earliest reported case that I am aware of comes from a 1785 text by the French surgeon and anatomist Jean-Joseph Sue, in which he describes an Englishman who offered a French surgeon one hundred guineas to amputate his healthy leg. Protesting that he did not have the proper equipment, the surgeon refused to operate. He changed his mind, however, when the Englishman produced a gun, proceeding to amputate the man’s leg under threat of death. Some time later the surgeon received payment of 250 guineas in the mail, along with a letter. “You have made me the happiest of all men,” explained the Englishman, “by taking away from me a limb which put an invincible obstacle to my happiness.”9

In perhaps the most famous case reported in the United States media, former surgeon John Brown was paid a fee of US$10,000 by Philip Bondy to amputate

6 At 14.
7 Gillian Harris “Surgeon happy he removed healthy limbs” The Times (London, 1 February

2000) at 7. The same quote is reported in Cherry Norton “Disturbed patients have healthy limbs amputated” The Independent (London, 1 February 2000) at 13.
8 Taylor, above n 5, at 14.
9 Jean-Joseph Sue Anecdotes Historiques, Littéraires et Critiques, sur la Médicine, la Chirurgie,

& la Pharmacie. 1st Part. (Chez la Bocher, Paris, 1785). This reference was translated by Dr Douglas Price.

his leg.10 Brown, whose practising licence had been suspended over twenty years earlier for performing substandard sex change operations, ran an underground medical practice in Tijuana, Mexico. Bondy had travelled to Mexico with friend and fellow amputee wannabe Gregg Furth, who had also intended to have a limb amputated. Furth pulled out of the operation at the last minute, in part because he saw Brown’s Mexican assistant walk into the clinic carrying a butcher’s knife. But Bondy went through with the surgery and was left by Brown in a San Diego hotel to recuperate while he buried the severed limb in the desert. Three days later Furth found Bondy dead in his hotel room. The cause of death was gangrene poisoning. Brown was subsequently convicted of second-degree murder and sentenced to

15 years’ imprisonment.11

On the internet, people like Philip Bondy, Kevin Wright and Sue’s Englishman, are known as “amputee wannabes” or, simply, “wannabes.” I will use these terms here, both because they are the only uncontested terms to describe people seeking healthy limb amputations and because many of these individuals use these terms to describe themselves. By 2000, the internet had already emerged as an important tool for connecting people with unusual interests or desires, including amputation of a healthy limb. Indeed, it is through the internet that many wannabes reportedly first discover that they are not the only person in the world who wants to become an amputee.12 The desire does not appear to be common—despite a growing number of medical journal articles on the desire, data on prevalence of the desire does not yet exist although it is presumed to be quite rare.13 In 2000, a person active within the amputee wannabe community in the United States told a documentary filmmaker that he knew of about 200 people with this desire.14

In 2001 and then again in 2004, I met several amputee wannabes at meetings in New York City. They were interested in discussing the possibility of characterizing the desire for healthy limb amputation as a kind of mental disorder, one that mirrors an existing disorder with a surgical treatment. Their interest was, at least in part, strategic. If their amputation desire could be understood as a kind

10 Michelle Williams “Jury deliberations begin in murder trial for former sex-change doctor” The Associated Press State and Local Wire (USA, 5 October 1999).

11 Randy Dotinga “‘Butcher Brown’ sentenced in Amputation Murder” ABP News (17 December 1999).
12 Elliott, above n 4.

13 Anna Sedda and Gabrielle Bottini “Apotemnophilia, body integrity identity disorder or xenomelia? Psychiatric and neurologic etiologies face each other” (2014) 10 Neuropsychiatric Disease and Treatment at 1255.

14 Randy Dotinga “Out on a limb” (27 November 2000) Salon <www.salonmag.com /health/ feature/2000/08/29/amputation>.

of mental disorder, much like gender identity disorder (now known as gender dysphoria), amputation could then become a recommended treatment much like sex reassignment surgery, providing wannabes with safe access to their much desired amputations. Perhaps the surgery might be covered by medical insurance or other third party payers.

The wannabes I spoke with recognized, however, that a mental disorder diagnosis can carry a stigma, and if medicalization of their desire did not go as planned—if the disorder were not accepted as a valid construct or if surgery were not accepted as a safe and effective treatment—they would need to revert to a different approach, perhaps conceptualizing healthy limb amputations as a form of body modification, more invasive than tattoos and piercing, a bigger operation then breast enlargement or lip augmentation, but in that same ilk. While that conception preserved their mental health status, it too has downsides. The prospective amputee would not be suffering from a mental disorder—they would be a competent individual exercising their right to self-determination and self-fulfilment. Amputation would not be a medical treatment, but an elective procedure selected (and usually paid for) by an individual who wants their appearance to better conform to their preferences. As I weighed these two different paths over a decade ago, I wondered what the law might say about them. Which, if any, path could the law support: medicalization or body modification?

2. SURGERY AND THE CRIMINAL LAW: IS IT A CRIME TO AMPUTATE A HEALTHY LIMB?

Every day, surgeons all over the world cut into the bodies of living people. They excise tumours and amputate diseased limbs. They do not face criminal charges for the wounds they intentionally inflict. These surgeons also remove healthy body parts. Living organ donation, abortion, sterilizations, and elective removal of appendixes are accepted surgical practice, as is the removal of healthy tissue for cosmetic reasons in a facelift, rhinoplasty, or liposuction. Yet if I picked up a scalpel and amputated your leg, I would almost certainly be charged with assault—this is true even if you agreed to the amputation. Why are some acts of intentionally cutting into bodies considered crimes, while others are not? How does the criminal law understand surgery? In what follows I will examine assault crimes, consider why surgical procedures are not generally considered crimes, and assess how that law might apply to a procedure like amputation of a healthy limb at the request of the amputee wannabe. Before that discussion, I will provide a little background on New Zealand’s criminal law.

2.1 Background to New Zealand’s Assault Law

The criminal law defines and details acts and omissions that will attract state sanctioned punishment.15 It is backed by the threat of punishment, usually fines or prison sentences, as well as the stigma of conviction. In contrast to the civil law, it is the state rather than any injured party that brings a criminal case against an accused. The result of prosecution is seldom to financially make good the loss suffered by any victim. Rather, the criminal sentence aims to punish the guilty party, deter and prevent the commission of more crimes, and rehabilitate the offender. In a criminal case it is also not necessary for the victim, if there is one, to support the prosecution. All crimes are considered wrongs against the state, which is said to have an interest in the prevention and prosecution of crime.16

New Zealand’s criminal law is contained in statutes, primarily the Crimes Act 1961,17 and in the principles of the common law. It shares much of its substantive and procedural content with the criminal law of other common law jurisdictions, whose case law is often drawn upon by New Zealand judges. Only acts or omissions that are actually specified as offences by the Crimes Act or another New Zealand statute are crimes.18 However, the common law’s justifications, excuses, and defences, if not inconsistent with a statute, remain part of our criminal law.19 Various provisions of New Zealand’s Crimes Act, as well as some common law rules, could be applied to people performing surgical procedures, beginning with the provisions related to assault, on which I will focus here.20 While technically distinct at common law, assault (a threat to apply unlawful force) and battery (the actual application of unlawful force) have been amalgamated in the Crimes Act under the single term “assault”.21 Relevant provisions range from common assault,22 which applies to “the act of intentionally applying force ... to the person of another”23 and carries a maximum sentence of one year’s imprisonment, to wounding with intent to cause grievous bodily harm, which is the Act’s most

15 Section 151 of the Crimes Act 1961.

16 Andrew Simester, Warren Brookbanks and Gerald Orchard Principles of Criminal Law (Brookers, Wellington, 1998) at 3.

17 In the following text references to “the Crimes Act” or “the Act” are references to New Zealand’s Crimes Act 1961.

18 Section 9 of the Crimes Act. Note that this section is subject to two exceptions contained in the proviso, which preserve the common law crime of contempt and the jurisdiction and powers of Court Martial.
19 Section 20 of the Crimes Act.
20 Sections 188-190, 196-197 of the Crimes Act.
21 Simester, Brookbanks and Orchard, above n 16, at 500 and Skegg, above n 3, at 32, n 13.
22 Section 196 of the Crimes Act.
23 Section 2 of the Crimes Act.

serious assault offence. Carrying a maximum sentence of 14 years imprisonment,24 section 188 of the Crimes Act makes it an offence for anyone who, “with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.”25

2.2 Is Surgery an Assault Causing “Grievous Bodily Harm”?

Because surgery involves touching, including cutting into the body, and results in physical wounds that can take months to heal, many legal commentators assume that all surgery is a kind of assault, but that this assault is excused from criminality for reasons to be explored below.26 However, Peter Skegg has questioned this premise, arguing that medical procedures designed to benefit bodily health should not be regarded as causing “bodily harm.” 27 He notes that one reason for the ready acceptance of medical procedures as harms may be the definition of bodily harm given in the English case R v Donovan (1934),28 a case in which a man caned a seventeen year old women for sexual gratification. The caning did not cause the woman any permanent injury, raising the question whether “bodily harm” had been caused. The court held that it had, saying that the words have their “ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the [victim]. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.”29 Skegg argues, however, that while many medical procedures could be said to interfere with health and comfort in ways that are more than transient and trifling (often much more so than caning), the medical procedure as a whole ought to be considered when assessing whether the procedure causes, or is intended to cause, bodily harm, and not just the surgical intervention itself. This holistic30 examination would, Skegg argues, reveal that most surgery aims to improve the overall bodily health of the patient, even if at the cost of short-term physical discomfort. When looked at as a whole, removal of a tumor, for example, aims to cure the patient of cancer, even though the removal involves cutting the patient’s skin and removing tissue (that is, infliction of a fairly significant wound).

Skegg goes on to note that his approach may also apply to the small category of cases, such as sex change operations, where physical harm is inflicted with

24 Section 188(1) of the Crimes Act.
25 This description combines subsections 1 and 2 of section 188 of the Crimes Act.
26 Skegg, above n 3, at 29-30.
27 Skegg, above n 3, at 30.
28 R v Donovan [1934] 2 KB 498.
29 At 509.
30 The term “holistic” is not used by Skegg.

the intent of causing psychological, rather than physical, benefit. However, as he also points out, arguing that bodily good includes psychological benefit and that this psychological good alone is enough to justify the infliction of physical harm requires a very liberal interpretation of the words “bodily harm”.31 While there are cases that support part of Skegg’s argument (that the phrase “bodily harm” includes psychological harm),32 it is not clear whether courts would accept it in this context or the additional premise that causing physical injury does not constitute bodily harm if it benefits a person’s overall psychological well-being. In fact, it is not clear whether courts would accept Skegg’s main argument that surgery is not a harm if it aims to produce an overall benefit—although I must note that the argument appears entirely logical to me. Instead of following Skegg’s approach, the law most likely understands surgery to cause a kind of bodily harm. Usually, surgeons will not be criminally liable for causing these harms, not because the person on whom the surgery is performed consented to the operation, but because surgery is part of an ad hoc class of activities that cause harm but are exempted from criminal liability.

2.3 Is There a Crime of Harm to Self?

Before saying more about why those who perform surgery on others are unlikely to be convicted of assault, we should recall that some amputee wannabes try to amputate their own limb, leading to the question: Could an amputee wannabe be charged with assaulting herself? Under New Zealand law, common assault is specifically defined as a two party offence (force must be applied “to the person of another”), but the offence of causing grievous bodily harm uses the words “to any person,” which could arguably include to oneself. The meaning of “any person” as it appears in the Crimes Act has not been judicially considered. However, the same words as they appear in the Judicature Amendment Act 1972 were considered by New Zealand’s Supreme Court in 1977.33 The judge held that if the legislature had intended that “any person” should actually mean “any other person” it could have said so in the section, and that the words must therefore be taken to include the actor.34 If the same logic is applied to sections 196 and 188 of the Crimes Act, a person who harms herself could not be charged with common assault, but she might face a charge of causing grievous bodily harm.

31 Skegg, above n 3, at 31.

32 For example in England in R v Miller [1954] 2 QB 282 and in New Zealand in R v Mwai [1995] 3 NZLR 149 at 155.
33 Layton Wines Ltd v Wellington South Licensing Trust (No 2) [1977] 1 NZLR 570

34 In another case the words “any other person” as they appear in section 242 of the Crimes Act 1908 relating to theft by receiving were considered. The Court of Appeal held that “any other person” must be someone other than the accused: R v Reisterer [1962] NZLR 1040 at 1043.

The common law approach to self-harm is less clear. Glanville Williams argues against a crime of self-injury at common law, noting that the crime of mayhem, defined by Blackstone as “depriving another of the use of such of his members as may render him less able in fighting,” has never been applied in a case of self-inflicted injury35 and pointing out that since attempted suicide is no longer a crime in England it would be illogical to punish people for inflicting a lesser degree of harm upon themselves.36 New Zealand has also done away with the crime of attempted suicide, so a similar logic might be applied to the question of self-harm, although the motivation for decriminalizing attempted suicide was that suicidal people should be treated by mental health professionals rather than subjected to criminal sanction; the implications of the law change for other kinds of self-harm do not appear to have been considered. That said, it seems likely that harm to self would more likely be considered grounds for involuntary commitment than for a criminal charge. The same cannot, however, be said for causing harm to another, which surgery by one person on another may be said to involve and to which I now return.

2.4 Consent and the Legal Justification for Surgery

If the acts involved in surgical procedures are prima facie assaults, how are they justified at law? It is not the mere fact that the person who performs the amputation is a surgeon; medical practitioners in New Zealand have faced criminal charges for acts performed in the course of their work.37 In excavating the reasons for the legality of surgery, I will look to both common and statutory law. The availability of consent as a defence or excuse will be considered first. I will then discuss the statutory codification of the defence of “reasonable surgery” at section 61 of New Zealand’s Crimes Act.

Almost all surgery is performed with the explicit consent of the patient (in emergency situations, explicit consent to life-saving surgical interventions is unnecessary at common law). Theoretically, this consent could function in two ways to excuse from criminal liability the person who performs the surgery. First, it could be argued that lack of consent is an element of the crime to be proven by the prosecution along with all the other elements of the offence. Second, it could be argued that consent is a positive defence to an assault charge, which, if raised and proven by the defendant, would excuse the crime in question. As it turns out, neither of these arguments forms the basis for the legality of surgery.

35 Glanville Williams Textbook of Criminal Law (2nd ed, Stevens & Sons, London, 1983) at 584.
36 At 584.

37 See for example R v Yogasakaran [1990] 1 NZLR 399 and Long v R [1995] 2 NZLR 691.

Section 188(1) does not explicitly require lack of consent as an element of the offence, and neither do the other provisions in the Act dealing with assault. This absence should be contrasted with section 128 of the Crimes Act, which explicitly defines rape as non-consensual. If lack of consent is not an explicit element of New Zealand’s crime of wounding with intent to cause bodily harm, or any of the other charges involving assault or the causation of bodily harm, could it be argued that lack of consent is an implied element of these provisions? After all, assault is defined in the Crimes Act and at common law as the application of “unlawful force,” and one could argue that for that force to be unlawful, it must be non-consensual. This argument succeeds for minor assault charges—indeed, it is often noted that certain applications of force, for example a kiss, are lawful unless consent is absent.38 However, the success of the argument appears to depend very much on the type and nature of the force applied.

The House of Lords considered the argument that consent is an implied element of assault in R v Brown (1994),39 a case to be discussed in greater detail below in the context of consent as a defence. The appellants in Brown were charged with charged with assault occasioning actual bodily harm and wounding or inflicting grievous bodily bodily harm. They argued that lack of consent was an element of their charges and that it was not proved by the prosecutor respondent. This argument was rejected by the majority, which held that while lack of consent is an element of common assault at common law where no physical injury is sustained by the victim, it is not an element of assaults occasioning actual bodily harm.40 The distinction between the different kinds of assault charges was justified on the grounds that it is not in the public interest for people to cause each other actual bodily bodily harm, such that lack of consent is not an element to be proved where actual bodily harm has been caused. The same argument was considered in the Canadian Supreme Court in the case of RvJobidon (1991), where the accused was charged with manslaughter following a fist-fight.41 Assault is defined in the Canadian Criminal Code as being “without the consent of another person” and manslaughter is defined as causing death by an unlawful act.42 Jobidon argued that because the deceased had consented to the fight it was not an unlawful act, and

38 Simester, Brookbanks and Orchard, above n 16 at 507 and R v Donovan [1934] 2 KB 498 at 507.
39 R v Brown [1994] 1 AC 212.

40 At 231, per Lord Templeman. Although the question for the Court was whether consent was a necessary element of the offences charged, their Lordships focused their judgments on the slightly different question of whether consent could be a defence to the charges. The case will therefore receive a more detailed consideration below.
41 R v Jobidon (1991) 66 CCC (3d) 454.
42 Sections 265 and 22 of the Canadian Criminal Code.

that he could not therefore be found guilty of manslaughter. However, the court refused on public policy grounds to follow Jobidon’s argument, and held that the common law (which will be discussed below) required that consent to cause “serious hurt” or “non-trivial bodily harm” be vitiated.43 Jobiden’s conviction was upheld.

If lack of consent is not an element of more serious assault charges, can the presence of consent be raised as a defence? There is no provision in the Crimes Act that specifically provides for the defence of consent in relation to the crimes I am considering here. However, this absence should not be taken as a sign that such a defence cannot exist because common law defences continue to operate unless they have been expressly repealed or are inconsistent with an enactment.44 The Crimes Act does contain some provisions that explicitly rule out consent as a defence to particular, specified, charges. For example, section 63 of the Crimes Act states that no one has the right to consent to their own death, and further adds that the fact that the deceased consented to his or her death will not affect the criminal responsibility of any party to the killing.45 Similarly, the Act states that consent of a woman is no defence to a charge of performing the surgical procedure known as female genital mutilation.46 However, there are no provisions in the Crimes Act explicitly removing the defence of consent when it comes to assault causing bodily harm.

Nevertheless, that particular defence is unlikely to be available to someone who performs a major surgical procedure like an amputation. It turns out that the availability of the common law defence of consent depends very much on the act in question. While the presence of consent will be an answer to a charge of common assault that does not occasion physical harm, it will not at common law be a defence to a charge of manslaughter or murder. And, as we will see, consent is not currently considered a defence at common law to causing actual, serious or grievous bodily harm.47 In Donovan, the consent from the woman who was caned was pled as a defence to assault charges, but the court held that her consent could not excuse the defendant from criminal liability for inflicting bodily harm because what the defendant had done was in itself an illegal act.48 This reasoning

43 R v Jobidon (1991) 66 CCC (3d) 454, at 494.
44 Section 20 of the Crimes Act 1961.

45 Section 63 of the Crimes Act.

46 Sections 204A and 204B of the Crimes Act were inserted as of 1 January 1996, by section 3 of the Crimes Amendment Act 1995.

47 Simester, Brookbanks and Orchard, above n 16, at 509 and Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Thomson Reuters) at [p1D-92].
48 R v Donovan [1934] 2 KB 498.

has been criticised, both by commentators49 and by the English Court of Appeal,50 as being “tautologous”: if an act is criminal regardless of whether consent is given, then naturally it can be no defence to show that the victim consents. Yet while other cases have not applied this reasoning, they have reached the same practical conclusion about the irrelevance of consent. In Attorney-General’s Reference (No 6 of 1980)51 an eighteen year old youth was charged with assault occasioning actual bodily harm after he hit another young man in a fist fight in a public street. Both men had agreed to the fight in order to resolve an argument. The English Court of Appeal surveyed a range of judicial approaches to the question of whether consent could excuse assault. It settled on the following:52

... it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.... [I]t is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.

Unfortunately, the court did not explain why it is not in the public interest for people to cause each other bodily harm. It cannot be that the public might be offended or upset by witnessing such acts, because the rule is said to apply regardless of whether the act occurs in private or in public.53 Perhaps it is feared that the individuals involved will become a burden on the state and therefore cost the public money and time,54 although as R v Brown shows, the rule against consensual harm has also been held to apply to impermanent bodily harm that has cost the public nothing. What is clear, however, it that it is the public that is said to be protected by a prohibition on consensual harm, and not the individuals who are harming each other.

The leading common law case on the legal relevance of consent to criminal assault charges is the English case of R v Brown (1994).55 In Brown, the House of Lords by a three to two majority refused to accept that the presence of consent would normally be a defence to charges of assault occasioning actual bodily harm under the UK’s Offences Against the Persons Act. The case concerned a group of men

49 See for example Williams, above n 35, at 587.
50 Attorney-General’s Reference (No 6 of 1980) [1981] EWCA Crim 1; [1981] 1 QB 715 at 718.
51 At 718.
52 At 719.
53 At 719.

54 Williams, above n 35, at 585 suggests that “the injured person is more likely to become a charge upon the public – in modern terms, is more likely than others to be in need of supplementary benefit.”
55 R v Brown [1994] 1 AC 212.

who had videotaped themselves performing consensual sado-masochist activities, which included branding, burning, hitting of the genitals, whipping, caning, biting and stinging with nettles. Police found the videotapes and charged the men with assault. Although none of the accused’s acts had caused any permanent injury to their “victims”, and although all acts were done in private and with the consent of the parties,56 the House of Lords upheld all the convictions by a three to two majority.

The majority and the minority judgments illustrate two different ways of thinking about the role of consent in these assault charges. Writing for the majority, Lord Templeman held that if an assault causes actual bodily harm it is no defence to the charge to show that the victim consented to the assault. However, it would be a defence to show that the assault was occasioned in the course of a “lawful activity” to which the other party had consented. As examples of lawful activities Lord Templeman listed surgery, circumcision, tattooing, ear-piercing and violent sports such as boxing.57 Therefore, it is only if the activity is “lawful” that the consent of the victim is relevant to the charge. If the activity is not classified as a “lawful activity” then it is no defence to show consent. The other majority judges exhibited essentially the same reasoning. Lord Jauncey held that the consent of the victim was no defence to assault occasioning actual bodily harm unless the assault came within one of a number of “well known exceptions such as sporting contests and games, parental chastisement or reasonable surgery.”58 Neither judge was prepared to create a new exception for the behaviour of the accused.

It was argued for the accused that allowing consent as a defence to the activities in question would not be against the public interest because the activities were carried out in private, between consenting adults and in a well-ordered manner.59 In response Lord Templeman stated that “sado-masochist encounters which breed and glorify cruelty” are injurious to the participants and unpredictable, and as such did not fall within the class of lawful activities for which the defence of consent would be available.60 Lord Jauncey replied that “it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual sado-masochist activities should be lawful.”61 Lord Lowry concurred with these assessments, adding that “[s]ado-masochistic activity cannot be regarded

56 The accused were charged after police found video tape of the group’s activities and not as a result of any complaint laid to the police, see R v Brown [1994] 1 AC 212 at 215.
57 R v Brown [1994] 1 AC 212 at 231.
58 At 244-245.
59 At 244-245.
60 At 236.
61 At 236.

as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society.”62

The dissenting judges took a very different view of the law and how it was to be applied. Lord Mustill examined precedent cases but concluded that judges in the past had relied on an “intuitive reference to public policy in substitution for any theory of consent and violence.”63 He refused to accept that the infliction of bodily harm, particularly in private, was prima facie criminal. Instead, he held that the consensual infliction of bodily harm in private was outside the realm of the criminal law, unless the public interest required otherwise.64 While acknowledging that activities like those at issue in Brown were potentially dangerous, and would be considered morally objectionable by many members of the public, Mustill did not find sufficient reasons for classifying them as criminal offences. The other minority judge also approached the case on the basis that the acts in question were prima facie legal precisely because they were consensual. However, Lord Mustill specifically restricted his discussion to the infliction of actual bodily harm, which was the charge in question. He distinguished this kind of assault from assault causing grievous bodily harm, although he gave no reason for the distinction. Similarly, Lord Slynn was not prepared to excuse all consensual harm, stating that a line must be drawn somewhere as to the harm which one can and cannot consent to. He did not explain why, but he held that the line was to be drawn at assault occasioning grievous bodily harm or death.65 Assault occasioning actual bodily harm that was below this threshold was legal if consensual.

At the heart of the division between the five judges is a difference in how they conceived of the role of consent. The majority judges held that all inflictions of bodily harm are illegal, regardless of consent, except where the activity that causes the harm is one that is already established as lawful, such as boxing or tattooing, or one that falls within a new category of lawful activities (leading to the further question of whether creation of that new category can be justified). The minority judges considered that consent is a defence to all charges of causing actual bodily harm except where the activity is plainly not in the public interest or where the harm caused is grievous or deadly. The position of the minority is slightly more sympathetic to the argument that people who harm each other ought to be able to plead consent as a full defence. However, even the minority judges would not

62 At 246 and 255.
63 At 264.

64 At 270 and at 271. Lord Mustill found further support for his framing of the issue in the European Convention on Human Rights which he found favoured the rights of people to conduct their private lives undisturbed by the criminal law.
65 At 279-280.

allow the defence of consent where the harm caused is as serious as something like an amputation.

Following Brown, another case of consensual harm came before the English courts. The decision in this case closely resembles the arguments of the minority judges in Brown. In R v Wilson (1997)66 a man was charged with assault occasioning actual bodily harm, the same charge faced by the defendants in Brown. Mr Wilson had branded his initials onto the buttocks of his wife, apparently at her request and with her consent. Russell LJ delivered the judgment of the three member Court of Appeal. He held that there was no factual comparison between the facts of the case before the court and the facts in either Donovan or Brown.67 While Brown dealt with sado-masochist activity, Wilson was merely doing something logically the same as tattooing, which is already an accepted lawful activity. The majority wrote: 68

Mrs Wilson not only consented to that which the appellant did, she instigated it ... the appellants desire was to assist her in what she regarded as the acquisition of a desirable piece of body adornment ... no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery.

Applying reasoning similar to that of the minority in Brown, the Court asked whether public policy or the public interest demanded that the branding be considered a crime. They found that it was not in the public interest that activities such as buttock branding should amount to criminal behaviour.69 As a final remark, the judges noted:70

In this field, in our judgment, the law should develop upon a case by case basis rather than upon general propositions to which, in the changing times in which we live, exceptions may arise from time to time not expressly covered by authority.

In so saying, the judges implicitly rejected the notion of a definite rule on the availability of consent as a defence, a view that stands in sharp contrast to that held by the majority in Brown.

66 R v Wilson [1997] QB 47.
67 At 50.
68 At 50.
69 At 50.
70 At 50.

In the New Zealand case of R v Lee (2001),71 the status of the defence of consent was considered when a religious leader was charged with manslaughter after one of his followers died as the result of injuries sustained during an exorcism. The judge noted:72

In my view, it is appropriate to have a policy in this country similar to the policy referred to by the House of Lords in Brown. However, it is not necessary in this case to fix the boundaries of such a policy. In particular, it is not necessary to determine where the line should be drawn between those injuries to which a person could consent to infliction upon himself and those injuries which are so serious that consent is immaterial.

The judge refused to accept that the defence could operate to excuse injuries that caused death, and therefore he held that consent could not excuse Mr Lee. While the remarks of the judge may appear to assist individuals wishing to argue for the legality of surgical body modifications, it must be remembered that the judge spoke favourably of Brown, which in both its majority and minority judgments rules against a consent defence where serious bodily harm is inflicted. The “line” referred to in Lee would likely be drawn at or below grievous bodily harm.

Although an amputee wannabe might do a little better with the Wilson and Lee judges than with those from Brown, any judge who did extend the law so that healthy limb amputations were excused if consensual would be going beyond the dicta of those judges. Amputation is very invasive and leaves the wannabe physically disabled, though she may argue that she is psychologically much better off than before the operation (taking us back to Skegg’s point about the meaning of harm). In neither Brown nor Wilson were the recipients of the bodily harm permanently physically disabled as a result of the defendants’ actions.

2.5 Surgery is Legal because it is Established as an Exception to Assault

This case law shows us that surgery is not excused from the criminal law because it is consensual, but because it is part of an established group of activities excepted from criminal liability. Indeed, despite their fundamentally different approaches to the question of consent, all the judges in Brown agree that assault occasioning actual bodily harm is not a crime where it is “reasonable surgery” carried out with the patient’s consent. As the majority in Brown articulated it, surgery is one of

71 R v Lee HC Auckland T10974, 3 December 2001.
72 At [11].

the lawful activities that are exempt from the rule that consent does not excuse serious assault.73 Once it is established that the activity in question is “reasonable surgery,” the issue of consent is live and, except in the case of emergencies, lack of consent will render a surgical operation criminal. The position is largely the same under New Zealand’s Crimes Act, which makes specific provision for surgical procedures.

Section 61 affirms the common law rule that reasonable surgical operations intended to benefit the patient are lawful despite the fact that they involve wounding or the infliction of bodily harm,74 and section 61A, which was added in 1977, extends this protection to surgical operations performed for a lawful purpose with the patient’s consent. Both sections apply to “every one” who performs a surgical operation and not only to registered medical practitioners. That said, both sections should be read in light of section 155 of the Crimes Act, which imposes a legal duty on every one who administers surgical treatment to have and use reasonable knowledge, care, and skill. In interpreting this section in R v Myatt (1991)75 the Court of Appeal held that “a person undertaking to administer medical treatment is under a legal duty to exercise the reasonable knowledge, skill and care called for from a medical practitioner holding himself out as undertaking that kind of treatment.”76 For an amputation, the standard of care required by section 155 is that which would be expected of an orthopaedic surgeon: a person who would hold herself out as being capable of performing the operation.77 Therefore, any person who is not a qualified surgeon is at greater risk of infringing the criminal law precisely because she is not trained in the art.

To use section 61, the defence would need to show that the surgical procedure in question—such as a healthy limb amputation—was intended to benefit the recipient. Commentators have suggested that the benefit criterion focuses on the state of mind of the person performing the operation and that it is enough that he or she intended to benefit the person operated upon, there being no need to prove that actual benefit was derived.78 That said, it is not known how far a

73 R v Brown [1994] 1 AC 212 at 231 (“surgery”), at 244 (“necessary surgery”), at 266 (“proper medical treatment”), at 277 (“surgical operations”) and Attorney-General’s Reference (No. 6 of 1980) at 719 (”reasonable surgical intervention”).

74 This is the view put forward in Robertson’s Adams on Criminal Law, above n 47, and it accords with expressions of the common law as it presently stands unaltered by statute in England. See Lord Lane in Attorney General’s Reference (No 6 of 1980) [1981] EWCA Crim 1; [1981] 1 QB 715 who affirms at 719 the “accepted legality of ... reasonable surgical interference.”
75 R v Myatt [1991] 1 NZLR 674.
76 At 682.
77 At 682.
78 Robertson, above n 47, at [p1D-85]. If actual benefit was required then the defence would

court would take this subjective interpretation. It may instead require that the “benefit” be one that a reasonable person would believe could result from the surgery, leading us to the other important aspect of section 61: showing that the operation was “reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.” It is not clear how this criterion is to be applied or which surgical operations will be considered “reasonable,” but it will likely refer to what is considered reasonable by a significant body of medical opinion.

Section 61A of the Crimes Act 1961 was inserted in 1977 and supplements the protection offered by section 61. The section protects from criminal responsibility any one performing an operation who has the consent of the patient and who performs the operation for a lawful purpose. Section 61A reads:79

(1) Every one is protected from criminal responsibility for performing with reasonable care and skill any surgical operation upon any person if the operation is performed with the consent of that person, or if any person lawfully entitled to consent on his behalf to the operation, and for a lawful purpose.
(1) Without limiting the term “lawful purpose” in subsection (1) of this section, a surgical operation that is performed for the purpose of rendering the patient sterile is performed for a lawful purpose.

Consent is a necessary ingredient of the defence but it is not, in itself, enough. While there is no requirement, as there is in section 61, that the operation be intended for the patient’s “benefit,” a defendant must show that the operation was performed for a “lawful purpose.” Other than operations intended to sterilize, the legislation gives no examples of operations that will be considered to be performed for a “lawful purpose,” and it gives no guidance on how the term is to be interpreted. However, because section 61A supplements section 61, it may be assumed that it is intended to cover operations that do not “benefit” (as the term is traditionally understood) the person operated upon, but are nevertheless commonly performed in medicine.

The common law recognises a number of operations as being legitimate that aren’t strictly speaking “beneficial” or “therapeutic”. These procedures include living organ donation, cosmetic surgery, and abortion.80 Living organ donations offer no

not apply to operations which were intended to benefit the patient but which in fact had no beneficial effect, or which actually caused harm. If this were so no one could be sure that the defence would apply to them until after the operation was declared successful.
79 Crimes Act, section 61A.

80 The Law Commission Consent in the Criminal Law: A Consultation Paper (HMSO, London, 1995) at 109-116.

physical benefit to the donor—they are performed entirely for the physical benefit of the recipient, with the benefits to the donor being psychological (the donor may feel good about himself for donating the organ or may gain by the continued or improved life of the recipient). In the case of cosmetic surgery the benefit may also be understood as psychological, because the operations aim to improve the way a person feels about themselves rather than to cure a disease or illness.81 But these interventions might also be accepted at law not because they are in any way therapeutic, but because they are understood as permissible exercises of bodily autonomy. Much the same might be said about abortions—we could understand them as therapeutic in a broad sense of the term, but they can also be justified by privacy and autonomy rights.

It is possible that healthy limb amputations and other surgical procedures aimed at reimagining a person’s body could be understood as similar to or as even a kind of cosmetic surgery. More likely, they would come to be understood as similar to sex reassignment operations, which are also surgical interventions involving the removal of healthy tissue. Although there was concern that sex change operations would be considered illegal assaults when they were first performed, largely because there was debate about whether they were therapeutic, their legality today appears to depend on acceptance of their therapeutic status. In 2000, the English Court of Appeal implicitly accepted sex change operations as a legitimate part of medicine when it required a Health Authority to reformulate its priority and funding policies for sex reassignment surgery to give proper weight to its own acknowledgement that transsexualism is an illness.82 The court did not ask whether transsexualism was in fact an illness for which surgery was a therapy, but it implicitly accepted that it was. Today, these operations are widely understood as legitimate therapy.

3. FUMBLING FOR A DIAGNOSIS: THE CRIMINAL LAW PREFERS MEDICALIZATION OVER SELF-DETERMINATION

On my analysis, healthy limb amputations and other major surgeries fall within a class of acts that will be considered crimes in New Zealand regardless of whether the amputee consented to the procedure unless these operations can be said to be “reasonable” surgery or surgery performed for a “lawful purpose”. The status of these operations will be the same in many other common law countries; because a healthy limb amputation is not considered as a kind of cosmetic surgery and does

81 At 110-111.
82 North West Lancashire Health Authority v A, D and G [2000] 2 FCR 525.

not fall under any of the other common law exceptions, it will be a crime unless the amputation is accepted as treatment for a disease or disorder. So it should come as no surprise that this is precisely the route that amputee wannabes have been pursuing for the past decade and a half—they have sought to have their desire recognized as a mental disorder and to have amputation accepted as a safe and effective treatment.

When I first learned about amputee wannabes, there was no medical (or legal) consensus about how to characterize the desire for amputation of a healthy limb and there were very few clinicians willing to publicly argue that amputation of could be a medically appropriate response to that desire. That situation is largely unchanged today, despite a growing medical literature on the topic. As we have also seen, some wannabes have been able to realise their desires, either by amputating the limb themselves or by having it amputated by someone else (a surgeon or a non-surgeon), but they have done so in situations that endanger their lives and that open those performing the surgery to legal risk. Amputation of a limb is an extremely risky procedure that can result in death or leave the amputee with a painful stump unless carried out by a trained surgeon working in controlled conditions. Wannabes know this and many would be relieved if qualified surgeons operating in hospital environments were willing and able to perform their amputations. But such surgeons are difficult to locate.

As we have seen, it is not that surgeons have an outright ban on removing healthy body parts. Living organ donation and elective removal of other healthy tissue, like appendixes, for therapeutic or preventative purposes are accepted parts of surgical practice, as is the removal of healthy tissue for cosmetic reasons in a facelift or a rhinoplasty. But healthy limb surgeons will be concerned that performing healthy limb amputation exposes them to civil and criminal liability, threatens their medical licenses, and might contravene medical ethics by violating the ancient maxim “do no harm”, unless it can be established that amputation is necessary to cure or alleviate a serious medical problem. Certainly Robert Smith justified Wright’s amputation on the basis of “clinical need”83 indicated for a condition that caused great suffering in his patients. At least three mental disorders have been proposed, two of which are not listed in either International Statistical

83 BBC2 Horizon “Complete Obsession”. Transcript of television documentary, United Kingdom, screened 17 February 2000.

Classification of Diseases84 or the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).85

In 1977 the psychologist John Money published the first academic medical article on wannabes, containing the case histories of two men who each desired amputation of one of their legs.86 He termed the desire “apotemnophilia” meaning “amputation love,” thereby categorising it as a paraphilia (a recurrent, intense sexual urge, fantasy or behaviour), which does not fit well with the little that is known about amputee wannabes. When the Falkirk story broke in early 2000, Kevin Wright and fellow wannabes were described in the press as suffering from body dysmorphic disorder (BDD), which the DSM-5 describes as being “preoccupied with one or more nonexistent or slight defects or flaws in their physical appearance” leading the sufferer to “perform repetitive, compulsive behaviors in response to the appearance concerns.”87 Sufferers may, for example, feel that their nose is too crooked or too big, and consistently check it in mirrors. They are often so embarrassed of their imagined defect that they will avoid social situations. Some seek surgical treatment, but such treatment may cause the fixation to worsen or result in a new preoccupation emerging.88 Like apotemnophilia, BDD is probably an inaccurate diagnosis, because amputee wannabes do not appear to consider their limb an objective defect.

Today, the proposed diagnosis that seems to have the most traction in the medical literature (although the number of publications remains modest) is a modification of gender identity disorder.89 The DSM describes gender identity disorder as a mental disorder characterised by strong and persistent cross-gender identification and persistent discomfort with one’s assigned sex.90 It first appeared in the DSM in 1980 and has as one of its recognised treatment options gender reassignment surgery, for which standards of care were developed in 1979.91 Smith is not the

84 World Health Organisation International Statistical Classification of Diseases and Related Health Problems (2nd ed, World Health Organisation, Geneva, 2004).

85 American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM-5). (American Psychiatric Publishing, Arlington, 2013).
86 This is the same Gregg Furth described above.
87 American Psychiatric Association, above n 85.

88 Andri Bjornsson, Elizabeth Didie and Katharine Phillips “Body dysmorphic disorder” (2010) 12(2) Dialogues in Clinical Neuroscience 221.
89 Elliott, above n 4.
90 American Psychiatric Association, above n 85.

91 The updated standards of care are: Harry Benjamin International Gender Dysphoria Association “The Standards of Care for Gender Identity Disorder” (April – June 1998) 2(2) The International Journal of Transgenderism <http://www.symposiom.com/ijt/ijtc0405 . htm> .

only one to draw the parallel. One of the psychiatrists who examined Smith’s wannabe patients and recommended some for surgery, told a BBC documentary crew:92

I see transsexuals and transsexuals want healthy parts of their body removed in order to adjust to their idealized body image and so I think that was the connection for me. I saw that people wanted to have their limbs off with equally as much degree of obsession and need and urgency and it was a powerful emotion.

The parallel was developed by Robert Smith and Gregg Furth in their book Apotemnophilia, in which they labelled the healthy limb amputation desire “body identity disorder” and offered a diagnostic description based almost word for word on DSM-IV’s description of gender identity disorder (DSM-5 uses the term “gender dysphoria”).93 Completing the parallel, they detailed treatment standards for amputation, recommending that surgery be made available to wannabes who have lived for a minimum of one year as a simulated amputee and have been referred for surgery by three mental health professionals. In 2005, a slight modification of Smith and Furth’s term was proposed by Columbia psychiatrist Michael B First—Body Integrity Identity Disorder or BIID.94 Although over two dozen articles in the medical literature now use that term, the disorder has not yet been added to an authoritative diagnostic manual.

The fate of proposals for a mental disorder diagnosis for amputee wannabes, with amputation as an effective treatment option for that disorder, would make all the difference to how the criminal law understands healthy limb amputations. If accepted, the amputations could be understood as reasonable surgery performed for a lawful purpose, much like sex reassignment surgery is today. If it is not, they will be an assault causing grievous bodily harm, regardless of whether the amputee wannabe consents to the operation, because the criminal law does not support the idea that harm is subjective or that people can engage in consensual bodily harm.

While amputation desire is rare, attempts to modify the body are not (they may become more common, as robotics and information technology develop implantable devices). How the law understands these body modifications is of very real practical importance to those seeking the interventions and to those who would perform them. As we have seen, this understanding reveals significant limits

92 BBC2 Horizon, above n 83.

93 Gregg Furth and Robert Smith Apotemnophilia: Information, Questions, Answers and Recommendations about Self-demand Amputation (Authorhouse, Bloomington, 2000) at 7-11.

94 Michael B First “Desire for amputation of a limb: paraphilia, psychosis, or a new type of identity disorder” (2005) 35(6) Psychological Medicine 919.

to the degree of bodily self-determination that the law is willing to recognize. The therapeutic route, whereby healthy limb amputations (and similar interventions) are categorised as medically indicated treatment of an illness or disorder, is more likely to result in access to body modification surgery then the libertarian route, whereby the operations are categorised as exercises of individual bodily freedom. This might change, as social norms evolve. In the future, arguments for bodily self-determination might gain more traction than they have in the cases discussed here. For now, however, an amputation will be understood as a criminal harm, regardless of how fervently it was desired.