When the Exception is the Rule: Rationalising the 'Medical Exception' in Scots Law

Citation

Brown J (2020) When the Exception is the Rule: Rationalising the 'Medical Exception' in Scots Law. Fundamina: A Journal of Legal History, 26 (1), pp. 1-41.

Abstract
No physician who performs a legitimate medical operation on a patient commits a criminal offence or a delict. This is so in spite of the fact that to infringe the bodily integrity of another person is plainly both a crime and a civil wrong. Notwithstanding the fact that the patient may desire the operation, the 'defence' of consent cannot possibly justify the serious injuries intentionally inflicted in the course of, (say) an amputation, since this procedure is highly invasive and effects irreversible changes to the patient's physicality. The 'medical exception' is consequently invoked to preclude prosecution of medical practitioners who carry out procedures which involve serious wounding. Quite where the justification for the medical exception lies remains controversial. The exception has long been justified axiomatically, by reference to the existence of surgery as a profession, or has otherwise been held to be of sui generis character. Herein, however, it is submitted that its basis in Scots jurisprudence, can be found in the etymology of the term 'injury'. At its core, the crime/delict of injury served to preserve and uphold boni mores – good morals. Conduct which contumeliously affronted the dignity of a person could clearly be classified contra bonos mores, but it is apparent that iniuria may be effected even in instances in which there could be no subjective affront to the individual person. This provides a rationalisation for the medical exception: 'Proper medical treatment' is not contra bonos mores and so cannot be said to amount to injury or assault. Hence, the framing of the medical exception as such in Scots law is incorrect. The so-called exception is, rather, a necessary consequence of the conceptual understanding of the terms “assault” and “real injury” in Scottish jurisprudence.

Keywords
Delict; iniuria; injury; Scotland; assault; criminal law; boni mores; public policy

Journal
Fundamina: A Journal of Legal History: Volume 26, Issue 1

• Accepted Manuscript