CURRENT LEGAL PROBLEMS LECTURE SERIES 2011-12: 

The Medical Exception

by
Professor Penney Lewis, King's College London

Chaired by
The Rt Hon Lord Justice Ward 

on Thursday 26 January 2012, from 6-7pm

Venue:
UCL Law Faculty
Bentham House, Endsleigh Gardens
London WC1H 0EG

Accredited with 1 CPD hour by the
Solicitors Regulation Authority and the Bar Standards Board (Pending)

About this lecture:
At common law, medical practice is regulated by the criminal law in two main ways. First, by the law governing serious offences against the person or serious assault. Second, by the crime of maim or mayhem, which is a common law crime in some jurisdictions, and a statutory offence in others. Either at common law or in statute, a ‘medical exception’ exists which takes most medical treatment outside of both strands of criminal law regulation. In order to qualify for the medical exception, two elements must be present: the patient’s consent; and some form of public policy justification. Different versions of this public policy justification focus variously on the patient, the public, and the medical profession.

Most medical procedures are therapeutic and fall easily into the patient-focused narrowest version of the medical exception. Some controversial procedures have historically been separately regulated by the criminal law—abortion and euthanasia are the most prominent examples. In this paper Professor Lewis consider those new and controversial medical procedures (NCMPs) which are not separately regulated but fall to be dealt with by the criminal law. They are controversial because they may be considered non-therapeutic. Thus, whether they fall within the medical exception is or has been the subject of some controversy. These include: cosmetic surgery; contraceptive sterilisation; organ donation; non-therapeutic research; gender reassignment surgery; and amputation for body dysmorphia disorder (BDD) or body integrity identity disorder (BIID). Formal legal change—judicial decisions or legislation—on NCMPs is rare. More commonly, legal change occurs informally, and legality is acknowledged retrospectively via state funding for some or all patients, or by inference from civil or public law claims in which the underlying legality is assumed or from government regulation. This paper will consider the critique of the medical exception as reactive and dysfunctional, and examine the appropriate role of the criminal law in this context.

About the speaker:
Penney Lewis studied mathematics, law and philosophy in the United States, Canada and the United Kingdom. She clerked for Mr. Justice Iacobucci at the Supreme Court of Canada and is qualified as a Barrister and Solicitor in Ontario. She is Professor of Law at King’s College London where she teaches Medical Law and Law at the End of Life in the Centre of Medical Law and Ethics and the School of Law. In the area of medical law, her research focuses on end of life issues including advance decision-making and refusal of treatment. She is the author of a number of articles on assisted dying and her monograph Assisted Dying and Legal Change was published in 2007 by Oxford University Press. Her current research explores the relationship between the criminal law and medical practice by focusing on non-therapeutic and controversial medical procedures. She has also published articles and chapters dealing with a wide range of medical law topics, including wrongful life, medical treatment of children and medical procedures which are against the interests of incompetent adults, such as organ donation and non-therapeutic research. She is a member of the UK Donation Ethics Committee, Vice-Chair of the King’s College London Research Ethics Committee and a member of the Clinical Ethics Committee of St Christopher’s Hospice.