“Proper Medical Purpose”: Reviewing Consent and the Medical Exemption to Offences Against the Person
| Author | Mark Thomas,Samantha Pegg |
| Published date | 01 August 2022 |
| Date | 01 August 2022 |
| DOI | http://doi.org/10.1177/00220183221115272 |
| Subject Matter | Case Notes |
“Proper Medical Purpose”:
Reviewing Consent and the Medical
Exemption to Offences Against the
Person
R v Paterson [2022] EWCA Crim 456
Keywords
Consent, medical procedure, surgery, deception, offences against the person
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 carry-
ing 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 sen-
tence 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 operation s 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.
Case Note
The Journal of Criminal Law
2022, Vol. 86(4) 281–286
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183221115272
journals.sagepub.com/home/clj
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