Body dysmorphic disorder, radical surgery and the limits of consent

Medical Law Review

Volumn 17, Issue 2, 2009, Pages 149-182

  Elliott, Tracey ^a  

^a QUEEN MARY UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; BODY IMAGE; ESTHETIC SURGERY; GENERAL SURGERY; HUMAN; INFORMED CONSENT; LEGAL ASPECT; PSYCHOLOGICAL ASPECT; SOMATOFORM DISORDER;

BODY IMAGE; COSMETIC TECHNIQUES; GENERAL SURGERY; HUMANS; INFORMED CONSENT; SOMATOFORM DISORDERS;

EID: 67649491259     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwp001     Document Type: Article

References (335)

1. This description of BDD is based upon the diagnostic criteria set out in: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edn, text revision Arlington, 2000) ('DSM-IV-TR') 507-10.
2. BDD is classified as a Somatoform Disorder, in which: '... the presence of physical symptoms ... suggest a general medical condition ... not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder', at 485.
3. The DSM-IV-TR is a manual that provides the standard classification of mental disorders used by mental health professionals in the USA: http://www.dsmivtr.org/ (accessed June 4 2008). It is extensively used in psychiatric practice.
4. KA Phillips, The Broken Mirror: Understanding and Treating Body Dysmorphic Disorder (Oxford University Press 1986) 33.
5. KA Phillips, 'Clinical Features and Treatment of Body Dysmorphic Disorder' (2005) III Focus 179, at 180
6. D Veale, 'Body Dysmorphic Disorder' (2004) 80 Postgraduate Medicine 67, at 67.
7. See e.g. Phillips, above n 2, at 81, 202.
8. Ibid.
9. Phillips, above n 2, at 106, has estimated that approximately one-third of people with BDD groom excessively.
10. Sometimes this may lead to severe disfigurement or injury: E.g. Phillips refers to one case in which a BDD sufferer picked their skin so much that they severely damaged their facial artery, which led to substantial blood loss and emergency surgery: ibid. at 146.
11. See e.g. the case reported by Phillips, ibid. of a person: '... so desperate to improve the appearance of his nose that he did his own surgery, cutting his nose open and attempting to replace his own cartilage with chicken cartilage'.
12. C.f. D Veale, 'Outcome of Cosmetic Surgery and 'DIY' Surgery in Patients with Body Dysmorphic Disorder' (2000) 24 Psychiatric Bulletin 218, at 221.
13. About a quarter of the BDD patients seen by Phillips had made a suicide attempt and the majority of these attributed at least one of their attempts wholly/mainly to BDD: Phillips ibid. at 151.
14. A subsequent study by Phillips and Menard concluded that BDD sufferers have high rates of suicide idealation and attempts: KA Phillips and W Menard, 'Suicidality in Body Dysmorphic Disorder: A Prospective Study' (2006) 163 American Journal of Psychiatry 1280.
15. Phillips suggests that two-thirds of BDD patients who had surgery or (non-psychiatric) medical treatment reported that their condition was unchanged or had deteriorated: Above n 2, at 288.
16. DSM-IV-TR, above n 1, at 510.
17. Phillips, above n 2, at 21
18. above n 3 at 180.
19. DSM-IV-TR, above n 1, at 509.
20. Sergei Pankejeff. Discussed in S Freud The Case of the Wolf-man: From the History of an Infantile Neurosis (Arian Press 1993).
21. Phillips, above n 2, at 19. The same may be said of healthy limb amputations: C.f. J Johnston and C Elliott, 'Healthy Limb Amputation: Ethical and Legal Aspects' (2002) 2 Clinical Medicine 431, at 431: Who refer to a case (described by Sue in 1785) of an Englishman who offered a French surgeon 100 guineas to amputate his healthy leg. When the surgeon declined, the Englishman forced him to conduct the amputation at gunpoint. Subsequently the surgeon received payment for the operation of 250 guineas, together with a letter in which the former patient stated: 'You have made me the happiest of all men, by taking away from me a limb which put an invincible obstacle to my happiness'.
22. See e.g. P Taylor, 'My Left Foot Was not Part of Me' The Observer 6 February 2000, at 14
23. K Scott, 'Voluntary Amputee Ran Disability Site' The Guardian 7 February 2000
24. S. English, 'Amputee Surgeon "Was not Duped"' The Times 7 February 2000.
25. Taylor, ibid.
26. BBC, 'Horizon: Complete Obsession' 17 February 2000, Programme transcript available at http://www.bbc.co.uk/science/horizon/1999/ obsession_script.shtml accessed 9 July 2006
27. c.f. Taylor, above n 17, and Melody Gilbert's documentary, 'Whole', (2003).
28. G Seenan, 'Healthy Limbs Cut Off at Patients' Request' The Times 1 February 2000, p. 9.
29. Mr Smith waived his fee for the operations, but the hospital was paid £1,400 for the first operation and £6,600 for the second: Taylor, above n 16.
30. G Harris, 'Surgeon Content at Removal of Healthy Leg' The Times 1 February 2000.
31. Dr Furth had previously seriously contemplated resorting to illegal surgery: See People v Brown (2001) 91 Cal App 4th 256.
32. BBC, above n 18.
33. BBC News, 'Trust Bans 'Private' Amputations' 1 February 2000: http://news.bbc.co.uk/1/hi/scotland/627183.stm accessed 27 February 2006.
34. S English, 'Hospital Blocks Limb Surgeon' The Times 26 August 2000.
35. C Fracassini, 'Call for NHS Amputations of Healthy Limbs' Sunday Times 23 November 2003
36. R Henig, 'At War with Their Bodies, They Seek to Sever Limbs' New York Times 22 March 2005.
37. C Dyer, 'Surgeon Amputated Healthy Limbs' (2000) 320 British Medical Journal 332
38. S Ramsay, 'Controversy Over UK Surgeon Who Amputated Healthy Limbs' (2000) 355 The Lancet 332.
39. See e.g. BBC Horizon, above n 18
40. Taylor, above n 17
41. S McGinty and S Leonard, 'Secret World of Would-Be Amputees' Sunday Times 6 February 2000
42. T Stuttaford, 'A Craving for Change Can Be Obsessive' 3 February 2000 The Times.
43. Harris, above n 20.
44. MB First, 'Desire for Amputation of a Limb: Paraphilia, Psychosis or a New Type of Identity Disorder' (2005) 35 Psychological Medicine 919, at 920.
45. J Money, R Jobaris and G Furth, 'Apotemnophilia: Two Cases of Self Demand Amputation as a Paraphilia' (1977) 13 Journal of Sex Research 115.
46. DSM-IV-TR, above n 1, at 566.
47. See e.g. TN Wise and RC Kalyanam, 'Amputee Fetishism and Genital Mutilation: Case Report and Literature Review' (2000) 26 Journal of Sex & Marital Therapy 339.
48. E.g. Amputee website: http://www.amputee-online.com; OverGround: http://www.overground.be/ accessed 5 June 2008.
49. C.f. RL Bruno, 'Devotees, Pretenders and Wannabes: Two Cases of Factitious Disability Disorder' (1997) 13 Journal of Sexuality and Disability 243
50. C Elliott, Better Than Well: American medicine Meets the American Dream (WW Norton 2003) 216-7. The internet discussion listserv which Elliott names: 'amputee-by-choice', appears to have moved or to have been closed down.
51. C.f. Wise and Kalyanam, above n 32, at 342.
52. A condition known as 'acrotomophilia': Elliott, above n 34, at 209-10.
53. C.f. Bruno, above n 34
54. A Kafer, 'Amputated Desire, Resistant Desire: Female Amputees in the Devotee Community' (2000) Disability World June-July, http://www.disabilityworld.org/June-July2000/Womens/SDS.htm accessed 14 August 2006.
55. Bruno, above n 34.
56. Ibid.
57. GM Furth and R Smith, Amputee Identity Disorder: Information, Questions, Answers, and Recommendations About Self-Demand Amputation (First Books Library 2002) 71
58. R Dotinga, 'Out on a Limb' (2000) Salon.com, http://dir.salon.com/ health/feature/2000/08/29/amputation/index.html accessed 13 October 2003.
59. This does not mean that, in the case of individuals for whom identity is the motive for seeking amputation, there is no sexual element to their wish, since sexuality is an inherrent part of identity: 'what you are attracted to (or not attracted to) is part of who you are'. Elliott, above n 34.
60. S Leonard, 'Surgeon Makes Fresh Plea on Amputations' Sunday Times 28 January 2001.
61. Dr First, a psychiatrist at the University of Columbia, was the editor of DSM-IV-TR and is working on the next edition DSM-V.
62. MB First, 'Desire for Amputation of a Limb: Paraphilia, Psychosis or a New Type of Identity Disorder' (2005) 35 Psychological Medicine 919, at 926.
63. MB First concedes that the study sample size was small (52) and that therefore his results can only be regarded as preliminary. It should be noted that sexual arousal, even where not the primary motivation for the desire for amputation, was still a relevant factor: For 52% of the subjects sexual desire was given as a secondary reason for amputation: Ibid., at 922.
64. Ibid., at 926.
65. Furth and Smith, above n 39, at 5.
66. C.f. AA Lawrence, 'Clinical and Theoretical Parallels Between Desire for Limb Amputation and Gender Identity Disorder' (2006) 35 Archives of Sexual Behavior 263. According to DSM-IV-TR the diagnostic features of GID are: (A) A strong and persistent cross-gender identification (not merely a desire for any perceived cultural advantages of being the other sex) ... (B) Persistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex ... (C) The disturbance is not concurrent with a physical intersex condition. (D) The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
67. Above n 1, at 581.
68. Furth and Smith, above n 39, at 87.
69. Furth and Smith, ibid., at 87-9. They have drafted diagnostic criteria for this disorder: (A) There must be evidence of a strong and persistent disability identification, which is the desire to be, or the insistence that one is, internally, disabled. (B) The disability identification must not merely be a desire for any perceived cultural advantages of living with a disability. There must also be evidence of persistent discomfort about living as an able-bodied person, or a sense of inappropriateness in that same role. (C) The diagnosis is not made if the condition is better explained by another medical or psychiatric diagnosis. (D) To make the diagnosis, there must be evidence of clinically significant distress or impairment in social, occupational, or other important areas of functioning. According to this definition, both criteria A and B must be present for a diagnosis of BID be made. The DSM-IV's description of GID is used as a template for these draft criteria.
70. First, above n 42, at 926.
71. Ibid. C.f. The BIID website: http://www.biid.org/BIID%20Basics.htm (accessed August 14 2006).
72. See e.g. the website http://www.BIID.org, set up by 'a group of medical, psychological and psychiatric professionals committed to increasing the knowledge about this disorder' accessed 4 March 2009
73. ED Sorene, C Heras-Palou and FD Burke, 'Self-amputation of a Healthy Hand: A Case of Body Integrity Identity Disorder' (2006) 31 Journal of Hand Surgery 593.
74. See e.g. http://biid-info.org, a website 'about BIID, by people who have BIID' (accessed March 4 2009). For the purposes of this article, I will hereafter use the term BIID as a label for the condition.
75. JM Bensler and DS Paauw, 'Apotemnophilia Masquerading as Medical Morbidity' (2003) 96 Southern Medical Journal 674
76. RM Henig, above n 25.
77. Bruno, above n 34, at 27.
78. This diagnosis suggests that psychotherapy is an appropriate way of treating the disorder, so that the patient can develop awareness of their condition, acknowledge that they have not received the love and attention that they have desired, and end their disability-related obsessions and compulsions (at 258).
79. C.f. A Bridy, 'Confounding Extremities: Surgery at the Medico-ethical Limits of Self-modification' (2004) 32 Journal of Law, Medicine & Ethics 148, at 150.
80. Bayne and Levy suggest that, based on the limited data available, Bruno is wrong, and the desire for amputation is not reduced by psychotherapy: T Bayne and N Levy, 'Amputees by Choice: Body Integrity Identity Disorder and the Ethics of Amputation' (2005) 22 Journal of Applied Philosophy 75, at 84.
81. Lawrence, above n 45, at 269.
82. Ibid.
83. R Smith and K Fisher, 'Healthy Limb Amputations: Ethical and Legal Aspects' (2003) 3 Clinical Medicine 188.
84. See e.g. Bayne and Levy, above n 53, at 76-7, who note that there are numerous instances in which a person's physical body and their body image may differ. E.g. children born without a limb may experience phantom limb sensations, and it has been suggested that: '... perception of our limbs is 'hardwired' into our brain and that sensations from the limbs become mapped onto these brain networks as we develop'.
85. J. Cole, 'Phantom limb pain' (2006) Wellcome Trust website: http://wellcome.ac.uk/en/pain/microsite/medicine2.html accessed 14 September 2006.
86. C.f. Bridy, above n 53, at 151.
87. VS Ramachandran and P McGeoch, 'Can Vestibular Caloric Stimulation Be Used to Treat Apotemnophilia?' (2007) 69 Medcial Hypotheses 250.
88. Ibid.
89. Ibid. They have suggested that parallels may be drawn between BIID and a condition called somatoparaphrenia, which may occur following a stroke in the right parietal region, and which leads to the patient denying 'ownership of a limb on the left side of his body-typically the arm', (Ibid., at 251)
90. and that the desire for amputation might temporarily be relieved by cold-water vestibular caloric stimulation (flushing cold water into the ear canal), a treatment which has provided some temporary relief to somatoparaphrenia sufferers (Ibid., at 251).
91. C.f. CJ Ryan, 'Out on a Limb: The Ethical Management of Body Integrity Identity Disorder' (2009) 2 Neuroethics 21, at 25-6.
92. Furth and Smith concede that further research is required into the condition and its treatment: Above n 40, at 85-7.
93. C.f. Ryan, above n 60, at 25
94. Elliott, bove n 34, at 235: The fact is that nobody really understands apotemnophilia. Nobody understands the pathophysiology; nobody knows whether there is an alternative to surgery; and nobody has any reliable data on how well surgery might work.
95. R Smith, 'Advice to Surgeons' at http://www.biid.org/ advice.php?page=06&lan=en (accessed March 4 2009).
96. C.f. Smith and Fisher, above n 56
97. Furth and Smith, above n 39, at 69-72.
98. See e.g. Johnson and Elliott, above n 15, at 434
99. Bayne and Levy, above n 53, at 83.
100. This is because most BDD patients are dissatisfied with the results of surgery and report an increase in their BDD symptoms. This may lead to them undergoing repeated surgical procedures, which in turn may lead to increasing dissatisfaction. See e.g. CE Crerand and others, 'Nonpsychiatric Medical Treatment of Body Dysmorphic Disorder' (2005) 46 Psychomatics 549
101. KA Phillips and others, 'Surgical and Nonpsychiatric Medical Treatment of Patients with Body Dysmorphic Disorder' (2005) III Focus 304.
102. 'SSRIs' - a group of drugs which includes Prozac and Seroxat.
103. See e.g. KA Phillips and SA Rasmussen, 'Change in Psychosocial Functioning and Quality of Life of Patients with Body Dysmorphic Disorder Treated with Fluoxetine: A Placebo-controlled Study' (2004) 45 Psychosomatics 438
104. D Veale, 'Cognitive-behavioural Therapy for Body Dysmorphic Disorder' (2001) 7 Advances in Psychiatric Treatment 125.
105. In contrast, in relation to BIID, Mr Smith has concluded that 'there are no known results reporting success, or of any treatment with drugs' specifically for BIID and that 'there is no known therapy that has transformed the yearning and desire of this powerful urge for amputation': Furth and Smith, above n 39, at 69-70.
106. C.f. Anon., 'Medication strategies for BIID sufferers', at http://www.biid.org/advice.php?page=04&lan=en accessed 4 March 2009.
107. First's study of 52 subjects who desired healthy limb amputation found that psychotherapy and medication made no change to 'the intensity of the desire for amputation', although medication often improved the mood of the subject: First, above n 42, at 7-8.
108. Yiddish: Crazy, insane. Technically a crazy or insane woman. Although this may have been the initial response of Professor Caplan, it appears from Dotinga's article that Caplan's main concerns related to the issue of capacity and whether to perform healthy limb amputation in such circumstances would amount to the surgeon harming the patient, which would be unethical, above n 39.
109. Dotinga, above n 39.
110. S Lee, Law and Morals (Oxford University Press 1986) 37.
111. Bayne and Levy, above n 39, at 84.
112. J Harris, Clones, Genes and Immortality (Oxford University Press 1992) 37.
113. C.f. The discussion of 'Sentimental morality', at 55-9.
114. Dotinga, above n 39.
115. This is significant when considering the question of capacity because the courts have emphasised that a patient's capacity must be 'commensurate with the gravity of the decision ... The more serious the decision, the greater the capacity required.' Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 115-116,
116. per Lord Donaldson MR;
117. c.f. Re MB (Medical Treatment) [1997] 2 FLR 426 (CA) 436-7 per Butler-Sloss LJ.
118. A Grubb, Principles of Medical Law, 2nd edn. (Oxford University Press, 2004) para. 3.81.
119. C.f. BMA, Medical Ethics Today (2nd edn BMJ Books 2004) 94.
120. Mental Capacity Act 2005, ('MCA'), s.1(2). This puts in statutory terms the common law presumption of capacity: c.f. In re T (Adult: Refusal of Treatment), above n 73.
121. Law Commission, No. 231, Mental Incapacity (1995) 3.5.
122. In the Matter of MM (an adult) [2007] EWHC 2003 (Fam) at [64] per Munby J.
123. In the Estate of Park, Park v Park [1954] P 112.
124. Above, n 77.
125. See e.g. In re T (Adult: Refusal of Treatment), above n 74.
126. C.f. Re B (Consent to Treatment: Capacity) [2002] 1 FLR 1090
127. P Bartlett, Blackstone's Guide to the Mental Capacity Act 2005 (2nd edn Oxford University Press 2008) 33-34, 47.
128. Mental Capacity Act 2005, Code of Practice ('CoP'), (2007), paras 4.24.10.
129. C.f. Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 294
130. Masterman-Lister v Brutton & Co., Jewell and Home Counties Dairies [2002] EWCA Civ 1889.
131. [1994] 1 All E.R. 819.
132. C.f. Re JT (Adult:REfusal of Medical Treatment) [1998] 1 FLR 48
133. Secretary of State for the Home Department v Robb [1995] 1 FLR 412.
134. Provided that a patient is competent, it does not matter 'whether the reasons for making that choice are rational, irrational, unknown or even non-existent.': Re T (Adult: Refusal of Treatment), above n 73.
135. The same may be said of BDD sufferers and cosmetic surgery.
136. C.f. the common law test set out in Re MB (Medical Treatment) above n 73: A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when: (a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequence of having or not having the treatment in question; (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision ...
137. MCA, s.1(3): 'A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success'; CoP, paras 4.44-4.54.
138. C Dyer, above n 26
139. BBC Horizon, above n 27.
140. BBC Horizon, ibid.
141. Primum non nocere. TL Beauchamp and JF Childress, Principles of Biomedical Ethics (5th edn Oxford University Press 2001) 113. C.f. Ryan, above n 60, at 27-8.
142. Beauchamp and Childress, above n 88, Ch. 4.
143. See e.g. K Danner Clouse and B Gert, 'A Critique of Principlism' (1990) 15 Journal of Medicine and Philosophy 219.
144. BMA, above n 74, at 7.
145. Ibid.
146. In M Gilbert's film, Whole, above n 18.
147. My fear is that someone will injure themselves or kill themselves, I have very serious concerns that they will go to an unlicensed practitioner, or they may take the law into their own hands and go and lie on a railway line and wait for a train, or they may take a shotgun. C Norton, 'Disturbed Patients Have Healthy Limbs Amputated' The Independent 1 February 2000.
148. Furth and Smith, above n 39, at 41-4.
149. First, above n 29, at 922.
150. Elliott, above n 34, at 216.
151. See e.g. People v Brown (2001) 91 Cal App 4th 256 (Cal C.A.).
152. Bayne and Levy, above n 53, at 79.
153. The BMA appear to accept that that there might be circumstances in which such surgery would be ethically acceptable (above n 74, at 95): Some people accept amputation as an effective form of treatment for body dysmorphia in extreme cases where other forms of treatment such as medication or psychotherapy have failed. In order for this to be convincing, it would have to be shown that all other less invasive alternatives had been exhausted and that the patient is expected to suffer even more serious harm if the procedure is not carried out.
154. Cf. e.g. R Gillon, Philosophical Medical Ethics (John Wiley 1986) 25.
155. Bayne and Levy, above n 53, at 79. An illustration of the sad consequences which may ensue for the patient if wrong decisions are made may be found in an ABC News item upon the subject of BIID, which referred to the case of Karl, who had frozen both of his legs with dry ice, so that surgeons would have to amputate them. He had also had a desire to amputate his left hand, but this desire had disappeared following intensive therapy and drug treatment. He was reportedly somewhat regretful about his condition, commenting: 'What the hell was I thinking?': ABC News, 'What Drives People to Want to Be Amputees?' 5 April 2006 http://abcnews.go.com/Primetime/health/ accessed 14 August 2006.
156. Seenan, above n 19.
157. BMA, above n 74, at 95.
158. See e.g. http://www.direct.gov.uk/en/MoneyTaxAndBenefits/ BenefitsTaxCreditsAndOtherSupport/Disabledpeople/index.htm accessed 17 March 2009.
159. See e.g. P Alldridge, 'Locating Disability Law' [2006] CLP 289
160. T Shakespeare, Disability Rights and Wrongs (Routledge 2006)
161. M Corker and T Shakespeare, Disability/Postmodernity: Embodying Disability Theory (Continuum 2002).
162. Bridy, above n 53, at 152-3.
163. Ibid.
164. T Koch, 'The Difficult Appendage' (2001) 3 AMA Virtual Mentor, http://www.ama-assn.org/ama/pub/category/3063.html accessed 11 July 2006.
165. Bridy, above n 53, at 152-3.
166. Ibid.
167. Above n 19 and n 20.
168. See the comments at: http://biid-info.org/ Producing_Identity:_Elective_Amputation_and_Disability accessed 4 March 2009.
169. C.f. HD Kaur, 'Producing Identity: Elective Amputation and Disability' (2004) 1 Scan, available at: http://scan.net.au/scan/journal/ display.php?journal_id=38 accessed 4 March 2009.
170. Johnston and Elliott, above n 15, at 433-4.
171. C.f. Ryan, above n 60, at 28-30.
172. Ibid. at 434.
173. E Shorter, A History of Psychiatry (John Wiley 1996) at 225-9.
174. P Fennell, Treatment Without Consent: Law, psychiatry and the treatment of mentally disordered people since 1845 (Routledge 1996) at 66-7.
175. D Batty, 'Sex-change Patient Complains to GMC: Consultant Broke Rules for Surgery, Says Businessman' Guardian 18 February 2004.
176. First, above n 42, at 926.
177. First reports the following comments as having been made by these patients: 'I am absolutely ecstatic; I'm in possession of myself and my sexuality'; '...the only regret is that I did not have it earlier; since I had it done 5 years ago, I've felt the best I've ever felt'; 'it finally put me at peace ... I no longer have that constant gnawing frustration.', Ibid.
178. S Lynch, Boxing Helena (Orion Pictures 1993). A much-derided feature film in which an obsessed surgeon captures a young woman (Helena), imprisons her in his mansion and amputates first her legs, and later both of her arms.
179. BBC Horizon, above n 18.
180. See e.g. Ibid; Gilbert, above n 18.
181. See e.g. TJ Moore and others 'Prosthetic Usage Following Major Lower Extremity Amputation' (1989) 238 Clinical Orthopaedics 219.
182. Ibid. During the course of the documentary Robert Smith stated that: Certainly a number of individuals have requested having both legs amputated and that is really quite a ... concept ... to try and grasp. Physically it's perfectly feasible to do bilateral amputations, but I think from a surgeon's point of view it's really asking a bit much to expect us to take this on. I agree there is an irrepressible logic that if you're prepared to remove one leg why shouldn't you be prepared to remove two legs if the patient has this particular problem, but to a surgeon that's a very difficult concept to take on board.
183. Elliott, above n 34, at 230.
184. For an extended discussion of this in relation to Multiple Personality Disorder (now Dissociative Identity Disorder), see I Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory (Princeton University Press 1995).
185. For example either one has capacity to consent to medical treatment, or one lacks it. C.f. Elliott, above n 34, at 233.
186. Bayne and Levy, above n 53, at 85.
187. Elliott, above n 34, at 234, who suggests that a similar phenomenon was experienced by gender-identity clinics in the 1970s.
188. Fracassini, above n 25.
189. Dotinga, above n 39.
190. S Leonard, 'Woman Asks Falkirk Hospital to Cut Off Healthy Legs' Sunday Times 3 April 2005.
191. Johnston and Elliott, above n 15, at 434.
192. The response of Smith to this article is set out at: R Smith and K Fisher, 'Healthy Limb Amputations: Ethical and Legal Aspects' (2003) 3 Clinical Medicine 188.
193. The BMA advises doctors to exercise 'extreme caution' and that 'specific legal advice is essential before proceeding with such a case', above n 74, at 95.
194. C. Norton, 'Disturbed Patients Have Healthy Limbs Amputated' Independent 1 February 2000.
195. Johnston and Elliott, above n 15.
196. PJ Richardson (ed), Archbold, Criminal Pleading, Evidence and Practice ('Archbold') (Sweet & Maxwell 2009), para. 19-199.
197. R v M'Loughlin (1838) 8 C. & P. 635
198. J.C.C. (a minor) v Eisenhower [1983] 3 All E.R. 230.
199. DPP v Smith [1961] A.C. 290. The CPS guidance on offences against the person, which gives examples of what would usually be regarded as serious harm, is set out at http://www.cps.gov.uk/.
200. C.f. Woollin [1999] A.C. 82
201. Re A (Conjoined Twins: Surgical Separation) [2000] 4 All E.R. 961, per Ward and Brooke LJJ)
202. D Ormerod, Smith & Hogan Criminal Law (12th edn Oxford University Press 2008) 97-101. Where the charge is wounding or causing GBH with intent to cause GBH, the word 'maliciously' adds nothing since 'any mens rea which it might import is comprehended within the ulterior intent'
203. Ormerod, ibid., at 615
204. Mowatt [1968] 1 Q.B. 421.
205. Brown [1994] 1 A.C. 212. Assault occasioning 'actual bodily harm' is an offence contrary to s.47 OAPA. 'Bodily harm' 'includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must ... be more than merely transient and trifling'. Donovan [1934] 1 KB 498 at 509 per Swift J This passage was approved in Brown at 230 and 242.
206. (1981) 73 Cr. App. R. 63, at 66.
207. This passage was cited with approval in Brown [1994] 1 A.C. 212, at 243 per Lord Jauncey; at 253-4 per Lord Lowry.
208. A-G's Reference (No 6 of 1980) (1981) 73 Cr. App. R. 63, at 66.
209. Brown [1994] 1 A.C. 212 (HL) at 266, per Lord Mustill.
210. Ibid., at 231 per Lord Templeman.
211. M Brazier and E Cave, Medicine, Patients and the Law (4th edn Penguin 2007) 100.
212. PDG Skegg, Law, Ethics and Medicine (Clarendon Press 1984) 43-6.
213. The terms maim and mayhem are interchangeable, mayhem being the old term for the maiming of a person; DM Walker, The Oxford Companion to Law (Oxford University Press 1980) 797, 818.
214. Hawkins' Pleas of the Crown, 8th edn., cited in Brown [1994] 1 A.C. 212 (HL), Lord Mustill, at 262.
215. C.f. Stephen, Digest of the Criminal Law (1883), Article 206 (cited at p. 771)
216. I Kennedy and A Grubb, Medical Law, (3rd edn Butterworths 2000).
217. Stephen, ibid.: 'Everyone has a right to consent to the infliction upon himself of bodily harm not amounting to a maim'. However, in Brown [1994] 1 A.C. 212, Lord Mustill observed (at 262) that: 'No reported decision or statute was cited in support of this proposition...'.
218. Skegg, above n 143, at 43, 46.
219. [1994] 1 A.C. 212 (HL) at 262. C.f. Law Commission, Consent in the Criminal Law, consultation paper No 139, (1995), para 8.23.
220. The Offences against the Person Bill 1998, cl.23, if enacted, would purport to abolish the offence of 'mayhem': http://www.nationalarchives.gov.uk/ERO/records/ho415/1/cpd/sou/oapdb.htm.
221. [1994] 1 A.C. 212 (HL) at 247-8.
222. See e.g. R v Owens [1976] 1 WLR 840, at 842,
223. where the Court of Appeal commented negatively upon the fact that the 'obsolescent offence of embracery' had been charged and R v Rimmington, Goldstein [2006] 1 AC 459, where Lord Bingham stated:
224. [30]... Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and a maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence ... good practice and respect for the primacy of a statute ... require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is a good reason for doing otherwise. Even if the offence still existed, a prosecution might be vulnerable to a defence application to stay the proceedings upon the basis that it was an abuse of the process of the court to institute a prosecution based upon the ancient charge of maim, rather than the offence under the OAPA 1861: See e.g. Re J [2005] 1 A.C. 562 (HL).
225. Skegg, above n 143, at 45.
226. Ibid.
227. Airedale NHS Trust v Bland [1993] A.C. 789, at 864 per Lord Goff.
228. C.f. Schloendorff v Society of New York Hospital (1914) 105 NE 92 per Cardozo J. Every person being of adult years and sound mind has a right to determine what shall be done with his own body.
229. [1992] Fam. 11, at 22. C.f. Re T (Adult: Refusal of Treatment) [1992] 4 All E.R. 649, at 653 per Lord Donaldson MR.
230. E Jackson, Medical Law: Text, Cases and Materials (Oxford University Press 2006) 181.
231. Save in the rare cases where consent is defective, either because the patient was provided with insufficient information, or because of coercion or undue influence: C.f. Jackson, ibid., at 184, 248-53, Ch 5.
232. C.f. Feinberg's liberal approach, which suggests that: '..one person cannot properly be prevented from doing something that will harm another when the latter has voluntarily assumed the risk of harm himself through his free and informed consent'
233. J Feinberg, Harm to Others (Oxford University Press 1984) 116 (see also 35-6 and 115)
234. J Feinberg, Harm to Others (Oxford University Press 1987) 165-73).
235. C.f. T Schramme, 'Should We Prevent Non-Therapeutic Mutilation and Extreme Body Modification?' (2007) 22 Bioethics 8.
236. Jackson, above n 155, at 181; G Williams, Textbook of Criminal Law (2nd edn Stevens 1983) 577.
237. Brown [1994] 1 A.C. 212 (HL) at 266. Similar comments were made by Lord Mustill in Airedale NHS Trust v Bland [1993] A.C. 789(HL) at 891: Proper medical treatment. How is it that, ... a doctor can with immunity perform on a consenting patient an act which would be a very serious crime if done by someone else? The answer must be that bodily invasions in the course of proper medical treatment stand completely outside the criminal law. 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 within special circumstances by operation of law, the acts of the doctor lose their immunity.
238. See e.g. Law Commission, above n 147, para 8.3
239. R v Barnes [2005] 1 Cr. App. R. 30, in which Lord Woolf CJ, at [9], described Lord Mustill as dealing with the legal position with 'particular clarity'.
240. Law Commission, Consent and Offences against the Person: A Consultation Paper, Consultation Paper No.134 (HMSO 1994), para 2.4.
241. For discussion of the paper, see: MJ Gunn and DC Ormerod, 'Second Law Commission Consultation on Consent: (2) Consent - a Second Bash' [1996] Crim L Rev 694
242. P Alldridge, 'Consent to Medical and Surgical Treatment - the Law Commission's Recommendations' [1996] 4 Med L Rev 129.
243. Ibid.
244. (1981) 73 Cr. App. R. 63.
245. Ibid., at 66.
246. Ibid.
247. Female Genital Mutilation Act 2003; Archbold, above n 133, paras 19-283-19-285c, and previously under the Prohibition of Female Circumcision Act 1985.
248. Male circumcision is not unlawful, even if performed to improve one's sex life: A Grubb (ed) Principles of Medical Law (2nd edn Oxford University Press 2004) 240
249. Hickey v Croydon AHA The Times 6 March 1985.
250. C.f. Law Commission, above n 147, para 3.25.
251. This view has been challenged by M Fox and M Thompson: 'A Covenant with the Status Quo? Male Circumcision and the New BMA Guidance to Doctors' (2005) 31 Journal of Medial Ethics 463. Feldman argues that nontherapeutic circumcision conducted without the consent of the patient may amount to inhuman treatment and violate Article 3 of the ECHR: D Feldman, Civil Liberties and Human Rights in England and Wales, (2nd edn Oxford University Press 2002) 272.
252. C.f. H Gilbert, 'Time to Reconsider the Lawfulness of Ritual Male Circumcision' [2007] EHRLR 279.
253. Jackson, above n 155, at 183.
254. RD Mackay, 'Is Female Circumcision Lawful?' [1983] Crim LR 717
255. K Hayter, 'Female Circumcision - Is There a Legal Solution?' [1984] J.S. W.L. 323
256. S.M. Poulter, English Law and Ethnic Minority Customs (Butterworths 1986) at 155-6.
257. C.f. L Bibbings, 'Human Rights and the Criminalisation of Tradition: The Practices Formerly Known as 'Female Circumcision" in P Alldridge and C Brants (eds) Personal Autonomy, The Private Sphere and Criminal Law (Hart 2001) 139
258. S Sheldon and S Wilkinson, 'Female Genital Mutilation and Cosmetic Surgery: Regulating Non-Therapeutic Body Modification' (1998) 12 Bioethics 263.
259. Law Commission, above n 147, para 8.25.
260. C.f. Re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1, at 69 per Lord Griffiths.
261. Skegg, above n 143, at 38.
262. Jackson, above n 155, at 183.
263. Ibid.
264. A Hockman, The Law of Consent to Medical Treatment (Sweet & Maxwell 2002), para 2-021.
265. C.f. Re F [1990] 2 A.C. 1, at 55 per Lord Brandon.
266. R Ormrod, 'Medical Ethics' (1968) 2 Br Med J 7, at 9.
267. C.f. Skegg, above n 143, at 43-4
268. G Dworkin, 'The Law Relating to Organ Transplantation in England' (1970) 33 Med L Rev 353, at 354-64.
269. Circumcision" in P Alldridge and C Brants (eds) Personal Autonomy, The Private Sphere and Criminal Law (Hart 2001) 139
270. S Sheldon and S Wilkinson, 'Female Genital Mutilation and Cosmetic Surgery: Regulating Non-Therapeutic Body Modification' (1998) 12 Bioethics 263.
271. Law Commission, above n 147, para 8.25.
272. C.f. Re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1, at 69 per Lord Griffiths.
273. Skegg, above n 143, at 38.
274. Jackson, above n 155, at 183.
275. Ibid.
276. A Hockman, The Law of Consent to Medical Treatment (Sweet & Maxwell 2002), para 2-021.
277. C.f. Re F [1990] 2 A.C. 1, at 55 per Lord Brandon.
278. R Ormrod, 'Medical Ethics' (1968) 2 Br Med J 7, at 9.
279. C.f. Skegg, above n 143, at 43-4
280. G Dworkin, 'The Law Relating to Organ Transplantation in England' (1970) 33 Med L Rev 353, at 354-64.
281. Law Commission, above n 147, para 8.32.
282. The organ most commonly donated is the kidney (690 people received a living donor kidney transplant in 2006-2007), although liver lobes, lung segments and portions of the small bowel may also be donated: http://www.uktransplants.org.uk/ukt/statistics (accessed June 4 2008).
283. See ss.32-33, and the Human Tissue Act (Persons who Lack Capacity to Consent and Transplants) Regulations 2006 (2006/1659). The relevant Human Tissue Authority Codes of Practice: Code of Practice 1 - Consent (2006) and Code of Practice 2 - Donation of Organs, Tissue and Cells for Transplantation (2006), may be accessed at: http://www.hta.gov.uk/guidance/codes_of_practice.cfm.
284. http://www.theregister.co.uk/ accessed 14 August 2006.
285. C.f. Jackson, above n 156.
286. Little v Little (1979) 576 SW (2d) 493, at 499 per Cadena CJ
287. Law Commission, above n 147, para 8.36.
288. All solid organ transplantation is cost-effective (except for liver transplantation for alcoholic liver disease). The cost of a kidney transplant is about $17,000 per patient per transplant, and the cost of immunosuppression treatment is £5,000 per year. The average cost of dialysis is £21,H00 per patient per year: UK Transplant website: http://www.uktransplant.org.uk/ (accessed June 4 2008).
289. DW Meyers, The Human Body and the Law (2nd edn Edinburgh University Press 1990) 223.
290. Ibid. C.f. Law Commission, above n 147, paras 8.28-8.29.
291. [1971] p. 83. The case concerned the validity of a marriage between the model April Ashley (who had been born a man, but who had undergone gender reassignment surgery) and another man.
292. C.f. R v Tan, Greaves and Greaves (1983) 76 Cr App R 300, a case in which one of the defendants, who had been convicted of keeping a disorderly house, had undergone gender reassignment. The Court of Appeal applied Corbett v Corbett, making no comment on the lawfulness or otherwise of the operation.
293. Ibid, at 83.
294. Ibid.; Bellinger v Bellinger [2003] 2 AC 467, at [8], [30] per Lord Nicholls, [8]; at [76] per Lord Hobhouse.
295. 'Transsexualism' first appeared in the DSM-III in 1980. It was replaced by 'Gender Identity Disorder' (GID) in DSM-IV: Bridy, above n 53, at 150.
296. Law Commission, above n 147, para 8.29.
297. For example Cossey v U.K. (1990) 13 EHRR 622
298. Goodwin v U.K. (2002) EHRR 18
299. Bellinger v Bellinger [2003] 2 AC 467
300. Croft v Royal Mail Group Plc. [2003] ICR 1425
301. Chief Constable of Yorkshire Police v A [2005] 1 AC 1. In Bellinger, Lord Nicholls, at [30], observed that: Recognition of transsexualism as a psychiatric disorder has been accompanied by the development of sophisticated techniques of medical treatment. The anatomical appearance of the body can be substantially altered, by forms of treatment which are permissible as well as possible. The Act makes provision for a 'gender recognition certificate' to be issued to give recognition to a person's acquired gender. In the case of a male-female transsexual, once a gender recognition certificate has been issued, that person will be legally recognised as a woman in English law.
302. Meyers, above n 181, at 223.
303. See e.g. Goodwin v UK (2002) EHRR 18, at para. 78: ... the applicant's gender re-assignment was carried out by the National Health Service, which recognises the condition of gender dysphoria and provides inter alia, re-assignment by surgery .... R v North West Lancashire Health Authority, ex parte A [2000] 1 WLR 977.
304. Above n 147, para 8.30.
305. C.f. Lacey v Laird 139 NE 2d 25 (1956), an action for alleged malpractice, assault and battery for performing cosmetic surgery upon the claimant's nose whilst she was a minor, allegedly without her consent. Hart J stated (at 31): Even though a surgical operation is beneficial or harmless, it is in the absence of a proper consent to the operation, a technical assault and battery.
306. Department of Health, Cosmetic Surgery website: http://www.dh.gov.uk/ PolicyAndGuidance/HealthAndSocialCareTopics/CosmeticSurgery/fs/en (accessed March 4 2009).
307. Umbilicoplasty. Department of Health, Cosmetic Surgery: Information for Patients (2006) 28.
308. Ibid., at 69.
309. Other than ear and body piercing, tattooing, the subcutaneous injection of a substance or substances into the skin for cosmetic purposes, and the removal of hair roots or small blemishes on the skin by the application of heat using an electric current (Care Standards Act 2000, s.2(7), as amended by the Private and Voluntary Health Care (England) Regulations 2001 (2001/3968).
310. This Act has been substantially amended by, inter alia, the Health and Social Care (Community Health and Standards) Act 2003, the Private and Voluntary Health Care (England) Regulations 2001 (2001/3968) and the Health and Social Care Act 2008.
311. For a more detailed analysis of the regulation of cosmetic surgery see: M Latham, 'The Shape of Things to Come: Feminism, Regulation and Cosmetic Surgery' [2008] 18 Med L Rev 437, and Department of Health, Expert Group on the Regulation of Cosmetic Surgery (2005).
312. From this date, the Healthcare Commission will be replaced by the Care Quality Commission: Health and Social Care Act 2008, s.1; http://www.cqc.org.uk/.
313. Further information re the role of the Healthcare Commission in this context is provided at: http://www.healthcarecommission.org.uk.
314. For example The President-Elect of BAAPS (British Association of Aesthetic Plastic Surgeons), Douglas McGeorge, has stated that: 'When performed under the right circumstances, aesthetic surgery can have a very positive psychological impact and improve a patient's quality of life'. BBC News, 'Big Rise in Cosmetic surgery Ops' (16.1.2006): http://news.bbc.co.uk/2/hi/health/4609166.stm (accessed September 27 2006).
315. BUPA website: http://www.bupahospitals.co.uk/asp/cosmetic/index.asp (accessed June 4 2008).
316. Williams, above n 158, at 590.
317. Department of Health, Cosmetic Surgery website: http://www.dh.gov.uk/ PolicyAndGuidance/HealthAndSocialCareTopics/CosmeticSurgery/fs/en (accessed June 4 2008).
318. Above n 200.
319. Ibid.
320. See e.g. Bupa cosmetic surgery website, above n 201
321. Harley Medical Group, http://www.harleymedical.co.uk/; Transform Medical Group, http://www.transforminglives.co.uk (both accessed June 4 2008).
322. Bupa and Transform Websites, ibid.
323. E.g. Transform Medical Group, above n 191.
324. Latham, above n 197, at 441-3
325. Sheldon and Wilkinson, above n 167, at 274.
326. C.f. V. Braun, 'In Search of (Better) Sexual Pleasure: Female Genital 'Cosmetic' Surgery' (2005) 8 Sexualities 407, at 418.
327. LM Liao and SM Creighton, 'Requests for Cosmetic Genitoplasty: How Should Healthcare Providers Respond?' (2007) 334 Br Med J 1090
328. Ibid., at 1091.
329. Sheldon and Wilkinson, above n 167.
330. C.f. M Berer, 'It's Female Genital Mutilation and Should Be Prosecuted' (2007) 334 Br Med J 1335, who argues that cosmetic genitoplasty is a criminal offence under the Female Genital Mutilation Act 2003.
331. Law Commission, above n 147, para 8.30.
332. Williams, above n 158, at 590-1.
333. Above n 140.
334. Attorney-General's Reference (1981) 73 Cr. App. R. 63, at 66, per Lord Lane CJ.
335. Above at 27-30.