Confounding extremities: Surgery at the medico-ethical limits of self-modification

Journal of Law, Medicine and Ethics

Volumn 32, Issue 1, 2004, Pages 148-158

  Bridy, Annemarie ^a,b  

^a TEMPLE UNIVERSITY   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

AMPUTATION; APOTEMNOPHILIA; BEHAVIOR THERAPY; BODY DYSMORPHIC DISORDER; BODY IMAGE; CLINICAL FEATURE; COGNITIVE THERAPY; DISABILITY; ELECTIVE SURGERY; GENDER IDENTITY DISORDER; HUMAN; MEDICAL ETHICS; MEDICAL PROFESSION; NEUROLOGY; PSYCHIATRIC DIAGNOSIS; PSYCHIATRIC TREATMENT; REVIEW; SEXUAL DEVIATION; TRANSSEXUALISM; DISABLED PERSON; ETHICS; HEALTH CARE AND PUBLIC HEALTH; INFORMED CONSENT; LEGAL ASPECT; LIMB; PSYCHOLOGICAL ASPECT; SEXUAL DYSFUNCTION; SOMATOFORM DISORDER;

HEALTH CARE AND PUBLIC HEALTH;

AMPUTATION; DISABLED PERSONS; ETHICS, MEDICAL; EXTREMITIES; HUMANS; INFORMED CONSENT; SEXUAL DYSFUNCTION, PHYSIOLOGICAL; SOMATOFORM DISORDERS;

EID: 2942662114     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2004.tb00460.x     Document Type: Review

References (109)

1. C. Dyer, "Surgeon Amputated Healthy Legs," British Medical Journal 320 (2000): 332.
2. I b i d.
3. S. Ramsay, "Controversy Over UK Surgeon Who Amputated Healthy Limbs," The Lancet 355 (2000): 476. See also Dyer, supra note 1, at 332 (stating that patients were "assessed and counseled by psychiatrists and a psychologist beforehand" and quoting surgeon as saying "[the patients] were delighted with their new limbs").
4. Ramsay, supra note 3, at 476.
5. R. Dotinga, "Out on a Limb," Salon.com, at 〈http://dir. salon.com/health/feature/2000/08/29/amputation/index.html?sId=974674〉 (last visited January 27, 2004).
6. Id. The politician in question, Dennis Canavan, represents Falkirk, the region in which the hospital that allowed the amputations is located.
7. The paradoxical logic of apotemnophilia is exemplified in the incongruous statements that apotemnophiles make to describe their unwanted limbs. See, e.g., Dotinga supra note 5 (quoting one man as saying, "It's about becoming whole, not becoming disabled."); C. Elliott, "A New Way to Be Mad," The Atlantic Monthly 286, no. 6 (2000): 76 (quoting a woman as saying that she "will never feel truly whole with legs" and an amputee as saying that "[his] left foot was not part of [him]"); Complete Obsession (BBC documentary, Feb. 17, 2000) (interviewing the same woman quoted above, who says that "at best [her] legs seem extraneous ... as if they're not a part of [her]").
8. The paradoxical logic of apotemnophilia is exemplified in the incongruous statements that apotemnophiles make to describe their unwanted limbs. See, e.g., Dotinga supra note 5 (quoting one man as saying, "It's about becoming whole, not becoming disabled."); C. Elliott, "A New Way to Be Mad," The Atlantic Monthly 286, no. 6 (2000): 76 (quoting a woman as saying that she "will never feel truly whole with legs" and an amputee as saying that "[his] left foot was not part of [him]"); Complete Obsession (BBC documentary, Feb. 17, 2000) (interviewing the same woman quoted above, who says that "at best [her] legs seem extraneous ... as if they're not a part of [her]").
9. See People v. Brown, 91 Cal. App. 4th 256 (2001) (upholding unlicensed surgeon's conviction on counts of second degree murder and unlawful practice of medicine).
10. G.M. Furth and R. Smith, Apotemnophelia: Information, Answers, Questions, and Recommendations About Self-demand Amputation (Bloomington, IN: 1stBooks Library, 2000): at iii n. 1; Elliot, supra note 7.
11. Elliot, supra note 7.
12. I b i d.
13. Furth and Smith, supra note 9, at 13.
14. Id. at iii n.1.
15. Id. at 13. See also Dotinga, supra note 5 (quoting Gregg Furth, who insists that "[i]t's not about sex, it's not about getting off with someone"); Elliot, supra note 7 (reporting that Furth contested the premise of the question when asked whether his desire for amputation was "a matter of sex or a matter of Identity").
16. See, e.g., Dyer, supra note 1, at 332; Ramsay, supra note 3, at 476.
17. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Washington, D.C.: American Psychiatric Association, 1994): at 466.
18. A. Tasman, J. Kay, and J. Lieberman, eds., Psychiatry (Philadelphia: Saunders, 1997): at 1148 (1st ed. 1997).
19. K.A. Phillips and R.D. Crino, "Body Dysmorphic Disorder," Current Opinion in Psychiatry 14, no. 2 (2001): 113.
20. American Psychiatric Association, supra note 16, at 466.
21. I b i d.
22. H. Ashraf, "Surgery Offers Little Help for Patients with Body Dysmorphic Disorder," The Lancet 355 (2000): 2055 (reporting results of retrospective study of twenty-five BDD patients conducted by researchers at the Royal Free and University College of Medical School, London, UK, finding that BDD patients surveyed after surgery were still "significantly handicapped" by newfound complaints about their appearance). However, researchers have emphasized the need for prospective studies, see Id. (quoting a Stanford psychiatrist who said that "a prospective, and controlled study with long-term follow-up of BDD subjects contemplating surgery is a good Idea") and Phillips and Crino, supra note 18, at 113 (asserting that prospective studies assessing the efficacy of surgery for BDD patients are needed).
23. Furth and Smith, supra note 9, at 5.
24. Furth, a practicing psychotherapist, is himself an apotemnophile seeking surgical amputation. Smith is the Scottish surgeon who performed the amputations discussed in the opening paragraph of this article.
25. Furth and Smith, supra note 9, at 5.
26. Id. at 87-88.
27. Id. at 89.
28. American Psychiatric Association, supra note 16, at 532-533.
29. Elliott, supranote 7, at 5.
30. See generally K. MIdence and I. Hargreaves, "Psychosocial Adjustment in Male-to-Female Transsexuals: An Overview of the Research Evidence," Journal of Psychology 121, no. 6 (1997): 602 (setting number of centers in the Western hemisphere administering hormone and surgical treatment to transsexuals at forty).
31. Complete Obsession, supra note 7.
32. Elliott, supra note 7, at 5.
33. American Psychiatric Association, supra note 16, at 471.
34. R.L. Bruno, "Devotees, Pretenders, and Wannabes: Two Cases of Factitious Disability Disorder," Journal of Sexuality and Disability 15 (1997): 257.
35. Id. Bruno Identifies behavioral therapy and psychotherapy as viable therapeutic options. Id. at 258.
36. P.T. Cohen-Kettenis and L.J.G. Gooren, "Transsexualism: A Review of Etiology, Diagnosis and Treatment," Journal of Psychosomatic Research 46 (1999): at 316.
37. Ibid. Id.
38. Ibid. Id.
39. Ibid. Id.
40. Ibid. Id.
41. K. Fisher and R. Smith, "More Work Is Needed to Explain Why Patients Ask for Amputation of Healthy Limbs." British Medical Journal 320 (2000): at 1147.
42. Ibid. Id.
43. I b i d.
44. O. Sacks, A Leg To Stand On (New York: Summit Books, 1984): at 79-82.
45. Id. at 80.
46. Ibid. Id.
47. S. Gilman, Making the Body Beautiful: A Cultural History of Aesthetic Surgery (Princeton: Princeton University Press, 1999): at 10.
48. Id. at 12.
49. Ibid. Id.
50. Id. at 6 (putting the total number of cosmetic surgery procedures in the United States in 1996 at 1.9 million, up from 1.3 million in 1994).
51. Gilman, in a list presented as illustrative but not exhaustive, Identifies twenty-four kinds of commonly performed cosmetic surgery procedures. Id. at 6-7.
52. See generally A.R. Favazza and B. Favazza, Bodies Under Siege: Self-Mutilation in Culture and Psychiatry (Baltimore: Johns Hopkins University Press, 1987) (discussing myriad forms of body modification, all of which the authors categorize as "self-mutilation," including ritual finger amputation among West African Xhosa, Hottentots, Dugum Dani tribe of New Guinea, and North American Indians); J. Myers, "Nonmainstream Body Modification: Genital Piercing, Branding, Burning and Cutting," Journal of Contemporary Ethnography 21 (1991): 267 (reporting and analyzing results of a two-year ethnographic study of body modification in various West Coast cities, predominantly San Francisco).
53. See generally A.R. Favazza and B. Favazza, Bodies Under Siege: Self-Mutilation in Culture and Psychiatry (Baltimore: Johns Hopkins University Press, 1987) (discussing myriad forms of body modification, all of which the authors categorize as "self-mutilation," including ritual finger amputation among West African Xhosa, Hottentots, Dugum Dani tribe of New Guinea, and North American Indians); J. Myers, "Nonmainstream Body Modification: Genital Piercing, Branding, Burning and Cutting," Journal of Contemporary Ethnography 21 (1991): 267 (reporting and analyzing results of a two-year ethnographic study of body modification in various West Coast cities, predominantly San Francisco).
54. E. Haiken, Venus Envy: A History of Cosmetic Surgery (Baltimore: Johns Hopkins University Press, 1997): at 1.
55. Ibid. Id.
56. T. Koch, "Disability and Difference: Balancing Social and Physical Constructions," Journal of Medical Ethics 27 (2001): 370.
57. Ibid. Id.
58. Ibid. Id.
59. Id. at 371.
60. Id. at 372. Koch quotes one commentator who asserts that because disability is "inherently harmful," the disabled individual "has a strong rational preference not to be in such a condition." Id.
61. Dotinga, supra note 5.
62. Koch, supra note 54, at 370. "To use the language of Goffman, proponents of a clinical model ... are perceived by their critics as focusing on the 'stigmata,' the appearance of physical difference, one presumed to be unaesthetic and undesirable." Id.
63. See generally H. Teff, Reasonable Care: Legal Perspectives on the Doctor-Patient Relationship (Oxford: Clarendon Press, 1994). Exploring the evolution of patients' rights doctrine in common-law legal systems, Teff cites Justice Cardozo's formulation in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 128 (1914), that "every human being of adult years and sound mind has a right to determine what shall be done with his own body." Teff, at 131. Teff points out that Cardozo's formulation had been anticipated in earlier decisions containing strong dicta about the individual's right to bodily integrity. Among these cases is Pratt v. Davis, 118 Ill. App. 161, 166 (1905), which declared that "the free citizen's first and greatest right, which underlies all the others - the right to the inviolability of his person, in other words, his right to himself." Teff, at 132.
64. Dotinga, supra note 5. Caplan uses the term "maiming" in its conventional sense, and not as a legal term of art. But examining the legal meaning of "maiming" is one way of beginning to understand how the state might characterize its interest in preserving the bodily integrity of apotemnophiles.
65. See State v. Johnson, 58 Ohio 417, 423 (1898) (stating that "[t]here is no question ... but that 'maim' as a noun, and 'mayhem' are equivalent words, or that 'maim' is but a newer form of the word 'mayhem').
66. Ibid. Id.
67. W.R. LaFave and A.W. Scott, Criminal Law (St. Paul, MN: West Publishing Co., 1986): at § 7.17(a) (describing relevant English statutes enacted in 1403, 1545, and 1670).
68. Ibid. Id.
69. Ibid. Id.
70. Id., at § 7.17(b). Some other states define crimes such as aggravated battery and aggravated assault in similar terms. Id.
71. Ibid. Id.
72. Ibid. Id.
73. Id., at § 7.17(e), n.27. See also E.R. Milhizer, "Maiming as a Criminal Offense under Military Law," Army Law (May 1991): 8. A notable exception is State v. Bass, 255 N.C. 42, 52 (1961) (upholding the conviction of a physician who was found to have acted as an accessory to the felony maiming of man who cut off his fingers to collect insurance money). In State v. Bass, there was no claim of any therapeutic basis, psychological or physiological, for the amputation in question; the defendant physician's motive was purely fraudulent.
74. See A. Campbell and K. Cranley Glass, "The Legal Status of Clinical and Ethics Policies, Codes, and GuIdelines in Medical Practice and Research," McGill Law Journal 46 (2001): 476. Campbell and Glass point out that although the state is the central regulatory authority for professional groups such as physicians, a key characteristic of such groups has been and continues to be their power to control professional conduct privately. Id.
75. 274 Cal. App. 2d 737, 748 (1969) (holding that voluntary non-therapeutic surgical sterilization is legal in California).
76. Id. at 745.
77. Id. at 747.
78. Dotinga, supra note 5.
79. Complete Obsession, supra note 7.
80. Ibid. Id.
81. Ibid. Id.
82. Caplan questions the competence of apotemnophiles, whom he characterizes as "running around saying 'Chop my leg off.'" Dotinga, supra note 5. The issue of competence to consent is a crucial one, given the importance of informed consent to both the practice of medicine and the law of medical malpractice. It is with respect to this issue that Smith and Furth's campaign to have apotemnophilia formally recognized as a psychiatric disorder could actually present an obstacle to elective amputation. The argument that apotemnophiles suffer from a debilitating mental disorder is difficult to square with Smith's contention that apotemnophiles are fully mentally competent to consent to the amputations they seek. It is a well-settled rule, however, that the law regards patients as presumptively sane and competent to consent. R. H. Lockwood, Annotation, Mental Competency of Patient to Consent to Surgical Operation or Medial Treatment, 25 A.L.R. 3d 1439 (2001). This presumption has been held to be unaffected by the sole fact that the patient is being treated for a mental condition. Id. Even patients whose mental illness is sufficiently severe to justify involuntary commitment are presumed competent to elect or to decline treatment unless there has been a judicial determination of incompetency. Mills v. Rogers, 57 U.S. 291 (1982); Rivers v. Katz, 495 N.E.2d 337 (N.Y. 1986) (upholding the right of institutionalized mentally ill patients to refuse forced treatment with antipsychotic drugs).
83. See text accompanying note 72, supra.
84. Campbell and Glass, supra note 72, at 486.
85. K.M. Gatter, "The Continued Existence and Benefit of Medicine's Autonomous Law in Today's Health System," Dayton Law Review 24 (1999): 220. Gatter borrows the term "autonomous lawmaking" from Weyrauch and Bell. Id. at 223. Writing approvingly of the medical profession's culture of self-regulation, Gatter argues that "[c]ourts, legislatures and others ought to recognize that the prohibitive characteristics of medicine's rule against medical malpractice benefit patients and the administration of health care generally." Id. at 282.
86. Campbell and Glass, supra note 72, at 475.
87. 464 F.2d 772, 786 (D.C. 1972) (rejecting the notion that "the prevailing fashion within the medical profession" defines the scope of the physician's duty to disclose).
88. Id. at 784.
89. In terms of the deference historically shown by the legal system to the medical profession in matters concerning the treatment of patients, the United Kingdom does not differ greatly from the United States. According to H. Teff, "the instincts of the [British] judiciary and their actual decisions reveal a marked preference for leaving the medical world to its own devices." Parliament tends to be similarly non-interventionist: ... [T]hough some statutory developments undoubtedly have an effect on the way doctors treat patients, Parliament has rarely sought to interfere directly in medical relationships and dictate the terms. As far as the civil liability of the medical profession is concerned, over many centuries it has been the law's lack of engagement with medicine which is most noteworthy. Teff, supra note 61, at 34.
90. The state's expert witness (a plastic and reconstructive surgeon) in People v. Brown, 91 Cal. App. 4th 256, 262 (2001), testified that performing elective amputations constitutes a breach of the professional standard of care. "No competent physician," he asserted, "would amputate a healthy leg for no medical reason." Id.
91. See text accompanying note 6, supra.
92. Dotinga, supra note 5.
93. G.J. Agich, "Ethics and Innovation in Medicine," Journal of Medical Ethics 21 (2001): 295.
94. Ibid. Id.
95. Ibid. Id.
96. Ibid. Id.
97. Ibid. Id.
98. Agich, supra note 91, at 295.
99. Dyer, supra note 1, at 332.
100. Agich, supra note 91, at 295 (quoting paragraph 30 of the Declaration of Helsinki).
101. Ibid. Id.
102. See Fisher and Smith, supra note 40, at 1147.
103. J. Johnston and C. Elliott, "Healthy Limb Amputation: Ethical and Legal Aspects," Clinical Medicine 2 (2002): at 431-435.
104. C.E. Margo, "When is Surgery Research? Towards an Operational Definition of Human Research," Journal of Medical Ethics 27 (2001): at 42.
105. Ibid. Id.
106. Complete Obsession, supra note 7. See also Dotinga, supra note 5.
107. Johnston and Elliott, supra note 101.
108. T.N. Wise and R.C. Kalyanam, "Amputee Fetishism and Genital Mutilation: Case Report and Literature Review." Journal of Sex and Marital Therapy 26 (2000): at 339-340.
109. See People v. Brown, 91 Cal. App. 4th 256 (2001), at 260. The surgeon who performed the amputation on Philip Bondy for a fee of $10,000.00 had twice failed to qualify for board certification in general surgery and was unlicensed at the time of the surgery, having had his medical license revoked by the State of California for gross negligence. Id.