Abstract
It has long been established that consent to a medical procedure, including surgical operations, will be valid when that procedure is performed by a medical professional (often referred to as the “medical exemption”). The jurisprudence relating to consent and medical procedures has developed according to the nature of the medical procedure, the individuals receiving said procedure, and the individual carrying out the procedure. Paterson involved a somewhat novel issue, not previously determined by the courts, as to whether an individual can rely on this medical exemption in circumstances where patients are not told the true facts about their medical condition, where the medical procedure was not for a proper medical purpose, and where the doctor concerned knew this to be the case. Furthermore, Paterson involved a finding by the Court of Appeal that the complainants’ consent had been vitiated as a result of the deception they faced.
The applicant, Paterson, (P), was charged with, and convicted of, 17 counts of wounding with intent, contrary to s 18 of the Offences Against the Person Act (OAPA) 1861, and three counts of inflicting grievous bodily harm contrary to s 20 of that Act. P, a consultant general surgeon specialising in breast surgery, sought leave to appeal out of time against his conviction, having previously had his sentence increased following a reference by the Attorney General under s 36 of the Criminal Justice Act 1988 (see R v Paterson [2017] EWCA Crim 1625, [2018] 4 WLR 109).
The facts of the instant case can be summarised as follows. Having qualified as a doctor in 1981, and becoming a consultant in 1994, P was regarded as the “go to” specialist in the diagnosis and treatment of breast conditions, specifically breast cancer. The prosecution's case was predicated on P's conduct during the years 1997–2011, where P worked as a consultant in a number of hospitals (both private and public). The prosecution alleged that during those 14 years, P had ‘deliberately misrepresented the contents of medical reports, exaggerated the complainants’ risk of cancer, and advised and knowingly carried out unnecessary surgery including mastectomies.’ (at [6]) These unnecessary surgeries formed the basis of the 20 counts against P.
At trial, the prosecution informed the jury that no reasonable surgeon would consider the operations to be justified, despite the difference of opinion that normally exists in the medical practise. The prosecution presented evidence to show that P had, inter alia, lied to the patients and their GPs, exaggerated (and invented) risks of cancer in order to justify serious operations and failed to advise on alternative medical treatments to surgery. The prosecution presented evidence from each complainant and evidence from three expert witnesses. In response, P gave evidence that each complainant had consented to the procedure following his medical advice which he honestly considered to be appropriate. P did not call any expert evidence in his defence.
The learned trial judge, Jeremy Baker J, directed the jury that before they could convict P on each count, they had to be sure (at [20]):
That the patient's consent was based upon advice which no responsible body of duly qualified and experienced breast surgeons would have given to the patient; That the applicant knew that that no responsible body of duly qualified and experienced breast surgeons would have given that advice to the patient; That at the time he carried out the surgical operation he intended to cause the patient grievous bodily harm.
P was subsequently convicted on all 20 counts and sentenced accordingly.
P applied for an extension of time of three years and nine months in which to apply for leave to appeal against his conviction. As part of this application, P alleged that the trial judge had misdirected the jury as to the issues of consent and mens rea. In respect of consent, P contended that the legal exemption protecting doctors who perform medical procedures applied to him. In particular, P submitted that consent can only be vitiated in circumstances where the patients’ consent was procured through fraud in respect of certain fundamental details, namely the identity of the doctor or as to the nature and purpose of the act. P alleged that none of the complainants were deceived as to his identity (who was at the time a practising licenced doctor), or as to the nature of the surgery being carried out. Therefore, consent could not have been vitiated. In respect of mens rea, P contended that the reference in the judge's direction to a ‘responsible body of duly qualified and experienced breast surgeons’ required the jury to consider the reasonableness of P's conduct. P averred that reasonableness in this context had no part to play in either a s 18 or s 20 offence, it being more relevant to cases involving negligence, and thus amounted to a misdirection.
In respect of the issue of consent, her Ladyship chose not to assess the veracity of P's submissions. Having noted a number of key authorities, including R v Brown [1994] 1 AC 212 and R v Richardson (Diane) [1999] QB 444, Dame Victoria Sharp P explained that (at [32]) ‘[a] full discussion of those authorities and the principles to be derived from them must await a case other than this one, and which is dealt with by way of an appeal.’ Her Ladyship did take the opportunity, however, to explain the relevance of these authorities to P's submissions. At [32], her Ladyship explained: In brief however, [counsel for P] suggested, by reference to at least some of these cases, that because the act causing serious harm to each complainant was a medical procedure to which each complainant consented and the applicant was a registered doctor, there has been no assault. However, none of the cases cited to us have determined that in circumstances such as those of this case (i.e. where the patients were not told the true facts about their “medical condition”, where the medical procedure was not for a proper medical purpose – and thus not a proper medical treatment - and where the doctor concerned knew this) that the “medical exemption” applies, and a doctor can act with impunity from the criminal law.
Furthermore, at [33] her Ladyship dealt with P's argument of reasonableness within the judge's directions. This was not a case of ‘clinical negligence wrongly transplanted into the criminal forum, and did not turn on the issue of the reasonableness of the treatment provided.’ (at [33]) The reference to a responsible body of breast surgeons was directed to answer the issue of consent. According to Dame Victoria Sharp P (at [33]): The essence of the case against the applicant, and what the jury had to be sure of before they could convict, was that no responsible body of qualified breast surgeons would have advised those patients to have the treatment he advised them to have (advice they clearly relied on in consenting to that treatment); and the applicant knew this. (original emphasis)
Her Ladyship would conclude that (at [33]) ‘the patients were deceived about the true position by the applicant, who dishonestly and for an improper collateral purpose misrepresented the position to them, thus vitiating their purported consent to the procedures he then carried out.’ The Court thus refused the extension of time to appeal, and the application for leave to appeal (at [34]).
Commentary
Paterson is immediately a case of interest given the issue left unanswered by the courts in previous cases, and one which remained unanswered by the Court in Paterson. In particular: Whether the medical exemption applies in cases where the patients were not told the true facts about their “medical condition”, where the medical procedure was not for a proper medical purpose, and where the doctor concerned knew this. Whilst her Ladyship did not seek to resolve this issue, the Court did conclude that the consent of the complainants in the instant case had been vitiated by the deception of P. This case note seeks to question whether it was necessary for the Court to reach this conclusion, or whether liability against P could have been found by alternative means.
Relevant Case law
At [32] of her judgment, Dame Victoria Sharp P identifies that extensive written submissions were made on the issue of consent, which involved a number of key cases being referred to including the likes of R v Brown, and more recently R v Lawrance [2020] EWCA Crim 971. As her Ladyship identifies in her judgment, ‘none of the cases cited to us have determined’ the issue before the Court. What is immediately striking is the use of case law concerning sexual offences (eg Lawrance) with that of case law involving non-sexual offences against the person (eg Brown, Richardson etc). Unfortunately, there is no statement in the judgment as to how these authorities were used or in what way they were relied upon. The immediate question arising from that, therefore, is whether the principles enunciated in cases of a sexual nature are capable of being applied to non-sexual offences against the person. Can such fundamental concepts in sexual offences as “nature”, “purpose” and “quality” be applied to non-sexual offences? Given the operation of presumptions in sexual offences (namely the conclusive presumption in s 76 of the Sexual Offences Act 2003), should we rely upon case law that has narrowed those concepts? This has yet to be satisfactorily addressed by the courts.
Did the Court Have to Find That Consent was Vitiated?
The Court of Appeal in the instant case concluded that the complainants had been ‘deceived about the true position’ of P (at [33]), thus meaning that their consent had been vitiated. It is questionable, however, whether the court could have found liability against P without the necessity to find such deception. Could the court have not found that the procedure undertaken by P itself was not for a medical purpose; the consent of the complainants’ therefore being irrelevant? Could the court have not found that the complainants were not sufficiently informed in order to provide consent; meaning that there was no consent in the first place? We suggest that whilst the court did not wish to engage in a full analysis of the matter, the finding of consent being vitiated has arguably overcomplicated the circumstances faced by the court.
In order to determine whether P's actions were lawful in the given case, it may have been appropriate to adopt a three-staged approach. First, the question must be asked whether the procedure undertaken by P was for a medical purpose. If the answer to that is no, then P has committed the offences charged. If the answer to that is yes, it must then be asked whether the complainants gave informed consent to the procedures. If the complainants were not sufficiently informed, then no consent is present, and P remains liable. If consent was informed, however, the final question to ask is whether the complainants’ consent was vitiated by deception on part of P. By taking this structured approach, we can hopefully find a way of dealing with the matter without having to resort to asking whether consent was vitiated.
A Medical Purpose
The medical exemption is expressed, in Attorney-General's Reference (No 6 of 1980) [1981] QB 715 (as approved in Brown), in quite narrow terms as one exempting bodily harm which results from ‘reasonable surgical interference’ (per Lord Lane CJ at 719). What amounts to a reasonable surgical interference has not been given significant attention by the courts. What is clear, however, is that the exception does not give medical professionals an unfettered right to perform any medical procedure upon consenting patients. Perhaps the leading authority of recent times on this topic is that of R v M(B) [2018] EWCA Crim 560, [2019] QB 1 (referred to by the Court in Paterson) where Lord Burnett CJ undertook a review of medical procedures and surgical interference in the context of body modifications.
First, to benefit from the exemption, medical procedures can only be lawfully carried out by those qualified and regulated to perform them (per Lord Burnett CJ at [42]). His Lordship justified this condition on the basis that it was necessary for the protection of the public. At the time of the procedures, P was a licenced and regulated consultant. Secondly, the procedure must be for a valid medical purpose, that is to say the purpose must be therapeutic (and not a medical procedure ‘performed for no medical reason’ (at [42] of M(B)). A surgeon cannot, for example, consensually remove a leg merely because that patient wishes to claim disability benefits or to enable them to compete in the Paralympics. Whether the procedure is for a valid medical purpose must be a determination according to the evidence before the decision makers at the time, including the genuine level of risk involved.
Where does this leave P in the instant case? The evidence available in the judgment demonstrates that P had lied to the complainants, their GPs, and his colleagues about the condition of the complainants. These lies involved both exaggerated and invented claims as to the risk of cancer, which was not justified by the evidence available to P at the time. Furthermore, there was a failure to advise the complainants as to alternative medical treatments and a failure to discuss the diagnosis and treatment of the complainants at MDT meetings. Taking those materials together, which P in their application for leave to appeal did not contest, the Court of Appeal could have concluded that the procedures undertaken by P were simply not for a proper medical purpose. If this were the case, then the complainants alleged consent to those procedures would be entirely irrelevant (as it was in M(B) in respect of body modifications).
If, however, the court was of the view that the procedures undertaken by P could be regarded as being for a proper medical purpose, then the matter of whether effective consent has been given becomes relevant to the question of whether proper medical treatment is being given. As Lord Mustill explained in Airedale NHS Trust v Bland [1993] AC 789 (at 891): The reason why the consent of the patient is so important is not that it furnishes a defence in itself, but because it is usually essential to the propriety of medical treatment. Thus, if the consent is absent, and is not dispensed with in special circumstances by operation of law, the acts of the doctor lose their immunity.
Informed Consent
Whether a procedure should benefit from being shielded from the criminal law by virtue of being construed as ‘proper medical treatment’ then turns on the question of whether effective consent has been given (where such is required). In cases involving emergency, this question of consent will be irrelevant as doctors will be acting out of necessity in a situation where a patient cannot give consent. In other cases, to give effective consent, a person must be fully appraised of the act to which they are consenting. In other words, the consent they give must be informed.
The amount of information a person should be given in order to allow them to give informed consent will differ dependent upon the activity involved and the degree of harm that may result. Here, as stated, the complainants had consented to invasive, life altering procedures (both physically and psychologically) on the understanding that these procedures were being undertaken for a sound medical purpose. P had knowingly deceived his patients by exaggerating their risk of cancer and carrying out surgeries that would not be deemed necessary (and indeed were not) by competent medical professionals. An outright lie about the clinical position of the complainants undoubtedly vitiates consent, and it is evident P told a number of such lies (at [13] – [19]). However, it cannot be overlooked that the exaggerations, lies, and omissions perpetrated by P would also have the result that the complainants were not fully informed about the procedures and could not then exercise their capacity to give effective consent. If, for example, a patient consented to an amputation when told that their leg was gangrenous when, in actual fact, it was healthy and the doctor knew it was healthy, we would not accept that informed consent had been given. We question whether the facts are so different here?
But what of the concealment by P of medical opinion which contradicted the advice he gave to the complainants? It is settled law that silence is ‘incongruous with honesty’, as informed consent cannot be given to a fact to which the complainant is ignorant (R v Konzani [2005] EWCA Crim 706, per Judge LJ at [42]). Though Konzani concerned concealment of an uncontested fact (that the appellant had HIV and was aware he had contracted HIV) a failure to inform patients of contradictory medical opinion is a failure to provide them with all the facts which should have informed their decision. Had the patients known the ‘true position’ they would likely have not consented. As Dame Victoria Sharp P stated, the patients had clearly relied upon P's advice to ‘consent’ to the treatment (at [33] of Paterson). In light of this, it once more appears irrelevant that the complainants’ consent was vitiated by the deception of P. Rather, the complainants were simply not sufficiently informed to be able to provide effective consent.
Vitiated Consent
As what might be considered a last resort, the court could find (as it did) that consent can be vitiated where it has been induced by deception or by fraud.
In the instant case, P submitted that as there had been no deception as to identity, or as to the nature of the surgery then ‘the failure to inform them that other doctors would have taken a different view of their condition or treatment, or the (lack of) reasonableness of their treatment, did not vitiate their consent.’ (at [21]). This put a rather rosy spin on the falsehoods P had perpetrated in order to obtain the consent of his patients.
There is clearly no deception as to identity here, even on its broadest interpretation encompassing qualifications that go to the heart of that identity (R v Melin [2019] EWCA Crim 557, [2019] QB 1063). In R v Richardson, the Court of Appeal held that the appellant's failure to disclose that she no longer held a valid licence to practise dentistry was not a deception that changed her identity – she remained a dentist. Likewise, an incompetent (but qualified and regulated) doctor can still rightfully hold himself out as a doctor. Rather, as the Court in the instant case summarised, the established facts demonstrate that (at [33]): the patients were deceived about the true position by the applicant, who dishonestly and for an improper collateral purpose misrepresented the position to them, thus vitiating their purported consent to the procedures he then carried out
P was therefore on less firm ground in submitting that there had been no deception as to the nature of the act. Doubtless, consent had been given by the complainants to specific acts, to particular surgical procedures, and these were the acts that had been carried out. Although this matter was not considered in any detail by the Court, their concluding comments clearly indicate they would not be prepared to accept such a narrow interpretation of the nature of the act. In R v Lawrance, to which the court was referred to in written submissions, Lord Burnett CJ in the Court of Appeal stated that a ‘but for’ test was not sufficient to vitiate consent (at [34]). The deception had to go to the physical nature of the act, not a subsidiary issue or the consequences of it. Resultantly, consent could not be vitiated by a lie about whether one is fertile (as in Lawrance), wealthy, or unmarried. Such a narrow interpretation of the nature of the act may be necessary when sexual offences are in question (particularly as they raise a conclusive presumption) but are entirely unsuited to the consideration of consent to medical procedures. Nature has typically been construed by the courts to focus upon whether consent has been given to the act done (Tabassum [2000] 2 Cr App R 328) – and, more controversially, whether consent has been given to the quality of the act.
In the instant case, the complainants had given consent to the excision of breast tissue solely for therapeutic purposes; consent was given to these surgical procedures in order to halt the spread of cancer, not for some other, undisclosed, ‘collateral purpose’ (at [33] of Paterson). If the court in Tabassum were using the term ‘quality’ to describe an essential matter going to the heart of the nature of the act, we may say that, though consent had been given to the physical nature of the operation, consent had been procured through a deception as to its quality.
Conclusion
The Court of Appeal found P to have deceived the complainants as to the true purpose of the medical procedures undertaken; the consent of the complainants being vitiated as a result. However, it is questionable whether P's liability existed only because of the deception, or whether the Court of Appeal could have found liability to exist by other means. Specifically, the lack of proper purpose in the medical procedure, and the lack of sufficient information to allow the complainants to give informed consent. Whilst the outcome remains the same, this is not a settled area of the law and it is one that would benefit, as Dame Victoria Sharp P recognises, from a full discussion of the principles by an appellate court.