Medical Interventions and the Criminal Law:
Lawful or Excusable Wounding?
Margaret A. Somerville*
One difficulty in dealing with the concept of medical treatment
in Canadian criminal law is to reconcile some of the dictates of the
Criminal Code,” which have ancient origins, with the reality of
modern medicine. Such a situation arises when we ask whether a
surgical operation is prima facie legal or illegal. This may be con-
sidered a rather narrow and esoteric question, but it has and will
become increasingly important with the development of modern
medical technology. The initial presumption of legality or illegality
may determine the final characterization of a given medical interven-
tion as lawful or unlawful. This is particularly important in such
areas as non-therapeutic human medical research and live-donor
organ transplantation.
This enquiry explores the present situation in Canadian criminal
law with respect to the legality of medical interventions and makes
some recommendations for change.
I. The theoretical issue
Ask the average man in the street whether he thinks that a
surgical operation is prima facie legal or prima facie a criminal
offence. His answer will almost intuitively be that it is legal, because
this answer accords with the reality that innumerable surgical
interventions take place each day, and it is an extremely rare
occurrence to see a physician arraigned in a criminal court. Now,
ask a judge the same question. He may reply that medical interven-
tions are prima facie illegal when they fall within the provisions of
the Criminal Code, such as causing bodily harm with intent (section
228), assault (section 244); but that the physician will probably
have a defence based on section 45 of the Code.2 This section
provides:
*Of
the Faculty of Law and the Faculty of Medicine, McGill University.
Solicitor of the Supreme Court of New South Wales, Australia.
‘Criminal Code, R.S.C. 1970, c. C-34, as am.
2 For an example of a judge adopting such an approach, see the reasons of
(1979) 7 C.C.L.T.
Desch~nes CI. in Cataford v. Moreau [1978] C.S. 933, 936;
241, 253 [hereinafter cited to C.S.].
1980]
MEDICAL INTERVENTIONS AND THE CRIMINAL LAW
83
Everyone is protected from criminal responsibility for performing a
surgical operation upon any person for the benefit of that person if (a)
the operation is performed with reasonable care and skill, and (b) it
is reasonable to perform the operation, having regard to the state of
health of the person at the time the operation is performed and to all
the circumstances of the case.
The judge’s reasoning is also consistent with the traditional
approach taken by the common law. The Canadian Criminal Code
is based on the common law, which enforced a prohibition against
the maiming of oneself or another. Maim was defined as follows
in Stephen’s Digest:
A maim is bodily harm whereby a man is deprived of the use of any
member of his body, or of any sense which he can use in fighting, or
by the loss of which he is generally and permanently weakened; but
a bodily injury is not a maim merely because it is a disfigurement.3
Hence, on the whole, any more than de minimis wounding was
prima facie illegal, but some woundings could be justified.
Such justification could have had the effect of preventing the
initial designation of the wounding as illegal, or it could have
operated by way of a defence which, at a second and later stage,
rebutted the primary characterization of illegality. Stated more
specifically in relation to medical interventions, it may be that the
effect of a defence, for example under section 45, is to negate the
prima facie illegality of a surgical intervention, that is, to render
such intervention lawful.4 Alternatively, section 45, or its equivalent
at common law, may be a true defence in the sense that the absence
of the defence need not be proved by the prosecution in order to
establish all the necessary elements of an offence. According to this
reasoning, proving the presence of the defence makes any putative
offence excusable. One consequence of accepting the latter analysis
is that all surgical interventions will be illegal until justified. More-
over, the burden of proof of the applicability of a justification, such
3 Stephen, A Digest of the Criminal Law (1878) [hereinafter referred to as
Stephen’s Digest], art. 206, p. 145.
4 It would seem that Stephen, in Part V of his Digest, ibid., probably
adopted this approach: see Chapter XXI, which is entitled “Cases in which
Infliction of Bodily Injury is not Criminal”. Art. 196 creates exceptions to
the rest of Part V, which contains all provisions for offences against the
person: “The contents of Part V. are to be taken to be subject to the pro-
visions contained in this chapter”. This chapter contains the provisions
allowing persons to consent to surgical operations and the provision on
which s. 45 was based, which justifies surgery when consent is impossible
to obtain.
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as that in section 45, will rest with the physician claiming its pro-
tection.5
One way of avoiding the discussion as to whether surgical inter-
ventions are prima facie legal or illegal at common law would be to
propose that any prima facie presumption of illegality has been
reversed in Canada by the Criminal Code. Such a proposition de-
rives from section 198 of the Code, which provides:
Everyone who undertakes to administer surgical or medical treatment
to another person or to do any other lawful acts that may endanger
the life of another person is, except in cases of necessity, under a legal
duty to have and to use reasonable knowledge, skill and care in so doing.
If this section is construed in such a way as to qualify the phrase
“surgical or medical treatment” by the words “lawful act”, that is,
that medical or surgical treatment is just one example of lawful
acts dangerous to life, the prima facie presumption would be one
of legality. The difficulty with such an interpretation is that the
forerunners of section 198 were, first, Stephen’s Digest and then
section 212 in the first Canadian Criminal Code,1 and there is no
indication that these provisions were meant to alter the substantive
law as it then stood. Rather, in all probability, they merely formu-
lated the standard of care required in order to avoid criminal
liability where persons undertook acts requiring special skill or
knowledge8 which were of “a dangerous character”. Thus, it may
be argued that the prima facie legality or illegality of any such act
was not contemplated by these provisions, and remained to be
determined by a separate enquiry.
However, this argument does not quite explain the terms used
in section 198. It is arguable that the word “lawful” only refers to
“other … acts” and not to “surgical or medical treatment”, if one
proposes that the reason for including the word “lawful” is to
preclude any presumption arising that an unlawful act would not
be unlawful or criminal if a sufficient standard of care were
observed. But this does not indicate the function of the word
“other”. There are two possible explanations. On one view, the
5The Supreme Court of Canada, in Morgentaler v. The Queen [1976J 1
S.C.R. 616, clearly regarded s. 45 as a true defence. Although, according to
different judges, the defence may or may not be available in the case of
abortion, it would, in any event, require the physician relying on it to bring
evidence upon which the defence could be left to the jury.
oSupra, note 3, art. 217.
7The Criminal Code, 55-56 Vict., c. 29, s. 212.
sSupra, note 3, art. 217.
9Ibid.
1980)
MEDICAL INTERVENTIONS AND THE CRIMINAL LAW
85
word has no purpose except to include “surgical or medical treat-
ment” within the description of lawful acts of a dangerous character.
The alternative view is that surgical or medical treatment may be
lawful or unlawful and that section 198 only refers to the standard
of care required in relation to lawful treatment. The word “lawful”
is referred back to modify “surgical or medical treatment” by use
of the word “other”. This qualification of lawfulness is necessary
to rebut any presumption that unlawful treatment could be rend-
ered lawful by a sufficient standard of care. Pursuant to such an
interpretation, section 198 is silent as to whether treatment is prima
facie lawful or unlawful; it simply provides that where treatment
is, or becomes, otherwise lawful, a certain standard is required
to maintain legality.
Thus there is room for argument, both at common law and under
Canadian criminal law, as to which analysis *of the prima facie
legality or illegality of surgical interventions is more correct legally
and, further, which is more desirable, taking into account the
wider ramifications of each approach. The debate is not entirely
academic, as apart from legal considerations such as burden of proof
and ultimate liability, it certainly makes a psychological difference
whether or not one initially regards all surgical interventions as
putative criminal offences. Further, this initial designation as to
1pgality, although almost irrelevant when therapy is involved, may
be important in the regulation of which non-therapeutic medical
interventions will be allowed by the law.
Although it may seem ludicrous today to regard all surgery as
prima facie criminal, it must be remembered that relatively safe
and effective surgery is a very recent phenomenon. The aim of the
common law of crimes and of the Criminal Code is protection of
the person, and at the time these rules were developed, a person
may well have been better protected by a prohibition against sur-
gery, unless some justification were shown. Justifications were to
be determined according to the concept of public policy, which at
therapeutic benefit. 10
common
General provisions of the Canadian Criminal Code were similarly
interpreted. For example, section 7(3), which retains the common
law defence of necessity and hence could be relevant to all medical
interventions, and section 45, which may sometimes function as
a particular application of the defence of necessity to a surgical
law included a requirement of
10 Dworkin, The Law Relating to Organ Transplantation in England (1970)
33 M.L.R. 353, 356.
McGILL LAW JOURNAL
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intervention, or in other instances may justify surgery which would
not be justifiable under a doctrine of necessity,” were construed
as requiring therapeutic benefit before they became effective de-
fences in medical situations.
In fact, section 45 of the Criminal Code has often been treated
as codifying this requirement of therapeutic benefit. Moreover, it
has generally been treated as setting out the minimum requirements
that must be present to justify, and hence legalize, any particular
surgical operation. This approach has caused courts some difficulty
which, on occasion, has led to innovative interpretations of section
45. One such example is found in the judgement of Chief Justice
Desch~nes in Cataford v. Moreau. The provision in section 45, that
it be “reasonable to perform the operation, having regard to the
state of health of the person at the time the operation is performed
and to all the circumstances of the case”, was used to extend the
notion of what constitutes a benefit within the meaning of that
section. The learned Chief Justice held that
[d]ans le prdsent cas, compte tenu de l’Age des parties, du nombre de
leurs enfants, de leur situation dconomique et sociale, il fait peu de
doute que “toutes les autres circonstances de
‘espbce”, pour citer le
langage de Particle 45 C. cr., conduiraient h la conclusion que l’inter-
vention a 6 pratiqude “pour le bien” de la demanderesse.12
With respect, it is submitted that, both from an historical point of
view and as a matter of construction, this is a misinterpretation of
section 45. This provision enacts an additional requirement over
and above that of therapeutic benefit before a defence under section
11 In Morgentaler v. The Queen there are various statements showing that,
depending on the circumstances, the defence of necessity may be narrower
or wider than the defence codified in s. 45: see supra, note 5, 647, 651, 653.
S. 45 would have a wider operation than the defence of necessity in cir-
cumstances where the latter defence could not apply because there was no
emergency. On the other hand, the defence of necessity could have a wider
operation than s. 45 would appear to allow, if, as Laskin C.J. suggests, the
test for determining whether it applies were a subjective one, based on the
honest belief and good faith of the surgeon, whereas the test of reason-
ableness for performing an operation under s. 45 “raise[s] only an objective
question”: ibid., 647. This means, for instance, that a surgeon could sub-
jectively believe an operation was urgent when the defence of necessity
would apply, and yet a reasonable surgeon would not have thought
it
reasonable to perform that surgery when s. 45 would not be available. The
Chief Justice makes the point that to the extent that this reasoning
is
based on R. v. Bourne [1939] 1 K.B. 687, it may be applicable only to certain
cases of abortion. Certainly it must be asked whether such a subjective test
would be applied more generally in determining whether the defence of
necessity were available.
1 Supra, note 2, 936.
1980J
MEDICAL INTERVENTIONS AND THE CRIMINAL LAW
87
45 is available. Its purpose is to ensure that a person who undergoes
an operation is not put at greater risk through having it than not
having it. In current medical-law parlance, the provision enacts a
risk/benefit criterion which will take all relevant circumstances into
account, and which must be positive on the side of overall benefit.
Yet the question remains as to which factors may be taken into
account as relevant circumstances. However, even if the scope of
the criteria were extended to include wider considerations, such
as socio-economic factors, as Deschbnes C.J. suggests, this does not
obviate the traditional requirement of therapeutic benefit. The very
fact that benefit is expressly mentioned in section 45 indicates that
this use of the word must have a specific purpose if it is not to be
superfluous, and that purpose must be to require an aim of thera-
this construction is especially compelling when,
peutic benefit:
under the broad interpretation adopted by the Chief Justice, the
Court will already have considered the prospects of general benefit,
pursuant to the provision that “all the circumstances of the case…
be considered”.
It should be noted that Chief Justice Desch~nes’s interpretation
of section 45 has already been adopted in an unreported case, Re
“Eve”,’8 which was an application to the Prince Edward Island
Family Court for approval of the sterilization of a mentally retarded
woman. Mr Justice McQuaid held, on the basis of the Cataford case,
that
the “benefit” referred to in Section 45 was thereby extended to include
not only the health of the patient but as well socio-economic and other
considerations with the result that surgery might be employed not
only to preserve and protect health, but as well to preserve the quality
of life in a broader non-medical sense.’ 4
Despite the use of this wide criterion, the learned judge refused
to authorize the particular sterilization procedure.
An alternative method for a court to reach a decision which it
feels to be appropriate, without having to adopt such a strained
interpretation of section 45 as that adopted in the two cases just
mentioned, would be to treat section 45 as merely one example
of a wider range of public policy justifications which are available
to authorize medical interventions. 5 More pointedly, we might well
13P.E.I. Family Ct, No. FDS-37, June 14, 1979. See the report of judgement
in Ontario Interministerial Committee on Medical Consent, Options on
Medical Consent (September 1979).
14 Ibid., 44.
‘1 In Morgentaler v. The Queen, supra, note 5, all mfembers of the Supreme
Court of Canada imply that s. 45 is not a complete code of the defences avail-
McGILL LAW JOURNAL
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ask whether it is still the law in 1980 that therapeutic aim is re-
quired in order to legalize a surgical intervention. The answer
depends on an analysis of both the content of current public policy
concerning medical interventions and the operation of section 45.
II. The practical reality
Whether non-therapeutic medical interventions are lawful has
become a matter of increasing importance, as such procedures have
been more frequently undertaken and are even regarded as com-
monplace. The question of their legality first arose with the in-
creasing availability and cffectiveness of cosmetic surgery. The
courts stretched the law a little by asserting that these operations
were within the traditional concept of therapeutic benefit because
there was psychological benefit present. The problem became even
more acute with live-donor organ transplants and, after initial use
of the psychological benefit test, most courts faced the reality that
in many cases there was no therapeutic benefit to the donors. 1’
However, even before the enactment of legislation authorizing such
donation,’17 the operation was not in practice considered illegal,
at least when performed on a competent consenting adult.
Similarly, non-therapeutic sterilization of consenting adults and
non-therapeutic medical experimentation are frequent, indeed daily
events in our society that do not foment court actions by the mere
fact of their performance. With respect to the latter practice, it is
worth noting that in Halushka v. University of Saskatchewan,8 one
of the earliest modern cases involving non-therapeutic medical re-
search, the question of the illegality of the intervention itself was
not raised. How can this de facto legalization of non-therapeutic
interventions be reconciled with the legal precedents which have
been outlined? A solution depends on determining how public
policy and section 45 act and interact to legitimize medical inter-
ventions.
able to a surgeon. The questions not addressed in this case are whether
the defence of necessity could ever apply where there was no therapeutic
benefit present, or whether even wider justifications of surgery are possible.
16 See, e.g., Strunk v. Strunk 445 S.W. 2d 145 (Ky Ct App. 1969); Hart v.
Brown 289 A. 2d 386 (Conn. Super. Ct 1972): for further discussion, see Baron,
Botsford & Cole, Live Organ and Tissue Transplants from Minor Donors in
Massachusetts (1975) 55 Boston U. L. Rev. 159.
17 E.g., The Human Tissue Gift Act, S.O. 1971, c. 83.
18 (1966) 53 D.L.R. (2d) 436 (Sask. CA.).
1980]
MEDICAL INTERVENTIONS AND THE CRIMINAL LAW
89
III. Possible reconciliations
A. Public policy
It is suggested that certain non-therapeutic interventions are
not considered illegal because they are not regarded as contraven-
ing public policy. In relation to the use of public policy as a justi-
fication of non-therapeutic medical interventions, it is important
to remember that the law has always recognized public policy as
a doctrine of changing content.19 In general terms, public policy
requires protection of the individual for his own sake and for the
benefit of the community. When these individual and community
interests came into conflict with respect to a proposed medical
intervention, public policy was traditionally to the effect that the
individual’s interest, as he perceived it, could prevail, but only if
the intervention were for his therapeutic benefit. It is this latter
requirement that, it is suggested, has changed. A broader range of
individual interests may now outweigh the interests of the com-
munity, and these community interests have likewise changed in
content. Hence, the balance struck in ‘the resolution of any conflict
is open to constant modification.
B. Criminal Code, section 45
1. Historical approach
If section 45 legislates a requirement of therapeutic benefit in
order to legitimize any surgical intervention, then clearly it would
not be arguable that certain non-therapeutic interventions are law-
ful. But, from an historical point of view, section 45 may only need
be applied to justify a medical intervention where the person on
whom the procedure is to be performed is incapable of giving con-
sent. Section 45 is based on article 205 of Stephen’s Digest and
Stephen’s annotations to this section make it clear that this is what
he intended:? A further reason in support of this interpretation
19 See Evanturel v. Evanturel (1874) 1 Q.L.R. 74 (P.C.); Lloyd, Public Policy:
A Comparative Study in English and French Law (1953), especially at 113 and
the cases cited in n. 3 therein.
20 See Starkman, Preliminary Study on Law and the Control of Life, an
unpublished paper prepared for the Law Reform Commission of Canada,
Aug. 23, 1974: after examining various editions of Stephen’s Digest, the
author concludes that “[in light of the above [analysis], it would appear
that section 45 of the Criminal Code was intended to deal with the situation
where the patient is not capable of consenting. If the patient is not capable,
the person performing the operation is protected from criminal liability
McGILL LAW JOURNAL
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of section 45 is that the section makes no mention of any require-
ment of consent in order to legalize a surgical operation.
If it is true that section 45 is inapplicable except where the
person cannot consent for himself, then the legality of a non-
therapeutic intervention on a person capable of consent is deter-
mined according to the general provisions of the Criminal Code
and will ultimately depend on current public policy: but this changes
and, consequently, so may be the legality of a particular surgical in-
tervention.2 1 For instance, in a nineteenth century colonialist society,
reduction of family size might be regarded as inimical to the com-
munity’s welfare, but the same would not be true in an over-
populated twentieth century community. Moreover, since the safety
of the surgical intervention required for sterilization has increased
dramatically during this period, the acceptability of non-therapeutic
sterilization could well change. This change can be demonstrated
by comparing two cases. Dicta handed down in 1954 by Lord Denning
in Bravery v. Bravery 2 reflect the old approach that non-therapeutic
sterilization was prohibited by the dictates of public policy. Yet, in
1979, Chief Justice Desch6nes clearly stated the contrary in Cataford
v. Moreau.
To take the example of non-therapeutic sterilization a little
further, there may be no perceived threat to other individual or
provided the patient’s condition necessitates surgery for the preservation of
life or limb. If these conditions are met, the surgeon is protected even if
the patient resists treatment. Support for this interpretation of section 45
is obtained from editions of the Digest published after the Draft Code, which
state that article 67 of the Draft Code, which is now section 45 of the
Criminal Code, is based on article 205 of the Digest” (pp. 5-6). For the
contrary view, see Morgentaler v. The Queen, supra, note 5, 643, where Laskin
C.J states that “Stephen’s Digest of the Criminal Law (5th ed. 1894) at p. 164
shows that s. 67 was deemed by him to apply both to consensual and non-
consensual surgery. Certainly, there is no limitation in s. 45 or anywhere
else in the Criminal Code to suggest that s. 45 is confined to situations
where an unconscious or disabled person is the subject of the surgical
operation and is unable to give a consent”.
Compare Dickson J. in Morgentaler (ibid., 676): “Section 45 may be
available as an answer to a charge arising out of a surgical operation per-
formed on an unconscious patient but it is not, in my view, available as
an answer to a charge of procuring an abortion contrary to s. 251” [emphasis
added].
21While the Code itself reflects public policy, the manner of its practical
application is also a matter of public policy. For instance, even serious injury
suffered in sport may not be prosecuted as a criminal assault.
22 [1954] 3 All E.R. 59 (C.A.).
1980]
MEDICAL INTERVENTIONS AND THE CRIMINAL LAW
91
community values when such sterilizations are performed on con-
senting adults. The situation may be entirely different when in-
competent persons unable to consent for themselves are involved.
The latter interventions may be contrary to public policy while
the former may not be. Thus, even apart from the fact that the
requirements of section 45 (including that of therapeutic benefit)
would apply to medical interventions on incompetent persons, the
doctrine of public policy may also prohibit the performance on them
of non-therapeutic procedures.
Yet another, slightly different, analysis to determine which non-
therapeutic interventions will be permitted under a doctrine of
public policy is possible. In the case of minors able to consent for
themselves, this analysis may arrive at a different result from the
general approach outlined above. But, as far as competent adults
and all incompetent persons are concerned, the conclusion as to
whether or not an intervention is allowed by the law will be the
same as on the previous analysis. If, as is suggested below, personal
consent and benefit are alternative validating criteria of a medical
intervention, is the consent of a “mature minor” (one whose con-
sent is recognized by the law as valid) as effective to validate a non-
therapeutic intervention on him as it would be if he were a com-
petent adult? One may argue that it is not and justify this stance on
the basis of public policy. It is also possible to adopt a more con-
ceptually pleasing approach and arrive at the same conclusion.
The full extent of the dissimilarity between non-therapeutic and
therapeutic interventions, as far as the law is concerned, may not
always be recognized, because the circumstances surrounding these
two types of intervention are factually similar, except for the one
aspect of therapeutic aim. Hence, it is usually assumed that any
legally significant difference in the way that the law deals with
interventions must depend en-
therapeutic and non-therapeutic
tirely on this difference in aim. More explicitly, if two similar in-
terventions with different aims are to be treated similarly, the
difference must be rationalized or found legally irrelevant. Con-
versely, if two such interventions are to be treated differently by
the law, the difference in aim will be used as the justification of the
dissimilar treatment.
It may be, however, that the justification of legally dissimilar
treatment of therapeutic and non-therapeutic interventions only
depends partly on this difference in aim. For instance, it is arguable
that the ability to give the necessary consent to -a non-therapeutic
McGILL LAW JOURNAL
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intervention is a legal incident of competent adulthood 23 That is,
where a non-therapeutic intervention is otherwise legal, consent to
it will be ineffective unless given by a person who is both com-
petent and adult. By contrast, the ability to consent to therapeutic
interventions at common law or under le droit commun may de-
pend on the individual’s factual capacity and power of discernment:
in the absence of legislation to the contrary, the minor who is
capable of discernment may consent to therapeutic interventions.
This suggested distinction accommodates the problem of explain-
ing why a minor’s consent is ineffective in non-therapeutic cir-
cumstances where an adult’s is effective, although that minor can
consent to therapy to the same extent as a competent adult. Such
a distinction and its consequential difference in result may be
desirable.
Therefore, therapeutic aim distinguishes a class of procedures
to which certain persons may give legally effective consent. Non-
therapeutic aim likewise distinguishes a class of procedures
to
which a narrower group of these same persons may give legally
effective consent, provided that these procedures are not otherwise
contrary to public policy. Thus, it is not therapeutic aim which
directly justifies a procedure; rather, this aim is relevant to identi-
fying the persons who may validly consent to it.
2. “Presumption-alternative” approach
The second possible approach to reconciling the performance of
non-therapeutic medical interventions and the provisions of the
Criminal Code does not require the proposition that section 45 is
inapplicable to these procedures. Rather, the argument is that
section 45 requires benefit, and benefit is presumed when personal
consent is present. The basis for this argument is that it will nor-
mally be assumed that individuals act self-protectively and hence,
at least in relation to themselves, promote the Code’s fundamental
purpose of protecting persons. Thus, if valid consent is obtained,
one may presume the necessary benefit. Such an approach means
that consent and benefit are viewed as alternative, not cumulative,
23 See Dickens, Medico-Legal Aspects of Family Law (1979), 33, who cites
the statutory right to consent to “live-organ donation”, when this is re-
served by law to adults, as an example of such a restriction. The decision
that reserves
to competent adults can only be
rationalized on the basis of public policy, apart from express legislation to
this effect. Thus, a decision based on public policy cannot be avoided;
merely the content of the public policy underlying the decision differs from
that previously invoked.
this right of consent
19802
MEDICAL INTERVENTIONS AND THE CRIMINAL LAW
93
validating criteria of a medical intervention. This is probably what
has occurred in practice: for instance, before there was legislation
dealing with live-donor organ transplants, authorization of a court
was not sought in relation to donation by competent consenting
adults, which indicates that their consent was being treated as a
sufficient validation.
However, there are limits to the right to consent to the infliction
of harm on oneself; and, again, these limits are a matter of public
policy. In general, it may be stated that the two most important
factors in determinating what is allowed are the degree and nature
of the harm inflicted, and the purpose of the intervention 4 But to
the extent that consent is a validating factor in the absence of
therapeutic benefit, and to the extent that the interest promoted by
consent has changed from being one of self-protection (or, as has
been explained, therapeutic benefit) to one of self-determination
or autonomy, some non-therapeutic interventions may be justified
in law by consent alone, within the limits set by public policy.
3. Cumulative approach
The other possible approach here is to retain the notion that
consent and benefit are cumulative requirements for the lawfulness
of a medical intervention, but in doing so to give a very wide
definition of benefit.2 5 There are two problems in such an approach
which are avoided under either of the other approaches to section
45 just outlined.
First, it distorts the notion of benefit for all purposes, so that
section 45 fails to perform its protective function where it is most
needed, that is, when the person is not capable of consent. This
occurs because it is apparently inconsistent to argue that it can
be beneficial, within the terms of section 45, to carry out non-
therapeutic sterilization on a competent consenting adult but not
on an incompetent person. The result will be that the presence of
sufficient benefit can more readily be found in all cases.26 But for
24 See Somerville, Consent to Medical Care (1979), 107-9.
25 See Cataford v. Moreau, supra, note 2, and the discussion, supra, at
pp. 86-7. Also see Fortin, Jodoin & Popovici, Sanctions et r6paration des at-
teintes au corps humain en droit qudbdcois (1975) 6 R.D.U.S. 150, 180.
20It should be noted that sufficient benefit will still not necessarily be
found in all cases. This can be seen from the fact that, even though the wide
definition of “benefit” within s. 45 by Chief Justice Desch6nes in Cataford
v. Moreau was adopted by McQuaid J. in Re “Eve”, supra, note 13, such
that it included “socio-economic and other considerations”, sufficient benefit
to the mentally incompetent woman to legalize and hence authorize the
McGILL LAW JOURNAL
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the incompetent there is not then the further protection of the
requirement of personal consent, with its correlative right of
personal refusal of the procedure. As already noted, section 45
does not mention consent, and thus the general law would apply
with respect to what is required for consent to medical inter-
ventions on an incompetent person. As far as third party or “proxy”
consent or authorization 27 is concerned, this requires that the inter-
vention be beneficial to the patient before the authorization be-
comes legally effective. Again, in this context benefit has tradition-
ally been interpreted as therapeutic benefit. But it would seem
rather inappropriate to require a potential of therapeutic benefit
for a valid consent to the intervention, but not for the application
of section 45 to protect the doctor who performs the operation.
Hence it is possible that, due to a desire for consistency, the result
of broadening the notion of benefit within section 45 will be to
widen considerably the notion of what constitutes a sufficient
nature or degree of benefit for effective third-party authorization
on behalf of those incapable of consent. This could have far-reach-
ing ramifications: for example, there is the controversial issue of
whether persons incapable of consent should participate in medical
research. One limitation on such participation is the requirement of
therapeutic benefit, which can be used to prohibit the involvement
of such persons in non-therapeutic research. This control would be
severely compromised under an extended notion of benefit.
The second reason why it is suggested that benefit and consent
should not be retained as cumulative criteria concerns the doctor-
patient relationship and the patient’s right to self-determination.
Although personal autonomy deserves the highest respect, there
are and should be limits to what even a mentally competent person
can effectively consent to have inflicted on himself. Such limits
sterilization operation on her was not found to be present in the cir-
cumstances of the latter case. In contrast, sufficient benefit to the competent
woman who underwent sterilization was held to be present in Cataford v.
Moreau. In effect, the wider notion of benefit gives competent persons, or
a court which is approached in the case of an incompetent person, a wider
discretion as to what medical interventions are allowed or, perhaps more
accurately, are not prohibited by law. It should be noted that McQuaid J.
expressly allows consideration of the “preservation and protection of
quality of life”.(p. 44) [emphasis added] as among the factors to be con-
sidered in exercising this discretion, that is, in assessing benefit.
is suggested that the word “consent” be reserved for personal con-
sent, in order to distinguish clearly this situation from the one where
authorization
involves
different considerations. See Somerville, supra, note 24, 81.
intervene on another person, which
27It
is given
to
1980]
MEDICAL INTERVENTIONS AND THE CRIMINAL LAW
95
must be determined according to public policy (that is, theo-
retically, by the community as a whole) and certainly not by just one
other person, even a physician. The latter is a possibility, if it be
accepted that benefit is a requirement for the legality of a medical
intervention and that such benefit is established in law, not simply
according to the patient’s predilections concerning himself (as
long as these do not contravene public policy), but also by the
doctor, because section 45 requires that the doctor make an in-
dependent judgement 8 as to whether the operation is “really for
…
the good [of the patient]”?” This judgement may be more
restrictive in its assessment of the degree and nature of benefit
comprised in undertaking any particular medical procedure than
either the patient’s or the community’s. To this extent, the patient’s
autonomy is denied and his wish to have the procedure performed
frustrated, without the usual justification being present, namely,
that to respect his wish would be contrary to public policy.Y
Finally, it is to be remembered that section 45 only applies to
“surgical operation[s]”. Consequently, to the extent that the re-
quirement of therapeutic benefit is restrictive of what interventions
are legally valid, it would not apply to purely medical procedures
such as the use of drugs or ionizing radiation. It may be incon-
gruous, in terms of the type and degree of harm risked, to require
therapeutic benefit in order to justify a surgical intervention, but
not these other procedures. The legality of the latter interventions
will clearly be governed by public policy, which will include con-
siderations of both consent and therapeutic benefit. But it is sub-
mitted that such policy should not and does not state that both
consent and therapeutic benefit are always required: either alone
may sometimes suffice. Similarly, these criteria should be treated,
in the circumstances and within the limits suggested, as alternative
validating criteria of surgical interventions.
Conclusion and recommendations
It is necessary for the law to recognize and accommodate three
realities in the context of medical interventions. First, medical inter-
2SR. v. Morgentaler (No. 5) (1974) 14 C.C.C. (2d) 459, 461 (Q.B., Crown Side)
per Hugessen A.CJ.
29 Ibid.
30 This is to assume that the only reason that the physician refused the
intervention was his decision that it was not beneficial to the patient. Apart
from the fact that a physician is generally not bound to enter a doctor-
patient relationship, there are other reasons, such as a physician’s own moral
McGILL LAW JOURNAL
[Vol. 26
ventions are not regarded in practice as prima facie illegal. Second,
some non-therapeutic interventions are accepted by our society.
Third, those unable to consent for themselves need increased pro-
tection. It is proposed that the most satisfactory approach to such
an accommodation is to regard therapeutic interventions as prima
facie legal and to retain the present criteria of prima facie illegality
with respect to non-therapeutic medical procedures.3 1 Then, at a
second stage of the analysis of the legality of any particular medical
intervention, therapeutic benefit and personal “informed” consent
should be treated as necessary, but not always sufficient, alternative
validating requirements within the limits set by public policy.
Under such a scheme, the prima facie presumption of illegality
of any non-therapeutic intervention on those incapable of consent
could not be rebutted without statutory authorization of that pro-
cedure. In comparison, the personal “informed” consent of at least
a competent adult ‘m would rebut this presumption where to do so
was not contrary to public policy. In the therapeutic situation, the
use of therapeutic benefit and consent as alternative validating
criteria must be subject to the proviso that where the person is
capable of consenting, his consent must be obtained if the interven-
tion is not to constitute a criminal offence. That is, the prima facie
presumption of the legality of therapeutic interventions would be
rebutted in such circumstances by the absence of consent.
or ethical beliefs, which would allow him to refuse to perform a particular
medical procedure.
31 This is the approach which has been recommended by the Law Reform
Commission of Canada in Medical Treatment and Criminal Law (1980), 61.
321 leave open for discussion the extent to which the suggested approach
should, or arguably does under the present law, apply to minors capable
of discernment and hence of giving or refusing consent to medical procedures.
