4. THE LEGALITY OF CIRCUMCISION
Because the vast majority of circumcisions of males in Australia
take place within the first few days of life, the question of
whether or not the child consents to the procedure rarely
arises. If circumcision is suggested for child who is old
enough to understand the nature and consequences of the
procedure, then it is apparent that his consent should be
sought.38
For infants, the parents or guardian have traditionally been
considered as the most appropriate parties to consent or refuse
to consent to the procedure taking place.
The overriding qualification to a parent or guardian's ability
to consent to any medical procedure being performed on their
child is that the procedure has to be in the child's best
interests.39
Obviously, if a child is circumcised against the wishes of his
parents or guardians, or against the child's wishes if he is
mature enough to understand the procedure, in other than an
emergency situation, those performing the operation and those
associated with it may be criminally or civilly liable for
assault. They may also be liable for damages resulting from
any negligence in the procedure.
Any voluntary touching of another person is generally unlawful
unless the other person has consented to that touching. Without
consent, even the slightest degree of physical contact may give
rise to a civil claim (eg for assault) or to a criminal assault
charge.40
Under the criminal law, a person can consent to what would
otherwise be a simple assault but consent does not remove
criminal responsibility for more serious injuries such as
wounding being done to that person by another. However, a
doctor would not be criminally liable for grievous bodily harm
(such as the removal of an organ or the amputation of a limb) if
the procedure was for the patient's benefit and was reasonable
"having regard to the patient's state at the time and to all the
circumstances" (Queensland Criminal Code section 282).
In addition to the requirement that medical procedures cannot,
except in emergency situation be carried out on individuals
without consent, such consent must be "real" consent. Consent
is not real consent if it has been obtained by fraud or by
misrepresentation as to the nature of the procedure and/or where
the patient has not been informed in broad terms of the nature
of the proposed procedure before giving consent.41
The `real' consent of a person to the touching by another,
relieves that other from civil liability even though the other
may be criminally liable for his or her actions. Consent is
intended to ensure protection for the patient against
unauthorised interference with his or her right to bodily
integrity and, for the health-care provider, against possible
legal action. There are certain statutory exceptions to a
health-care provider's liability for treating a patient without
his or her consent - for example, when the procedure is to be
performed on a person in an emergency situation in circumstances
where the person is unable to consent.
In the absence of `real' consent, circumcision of male infants
would fall within the definition of assault under section 245 of
the Queensland Criminal Code. It might also be an offence
endangering life or health. A number of criminal offences may
be committed depending on the circumstances of the case, such
as:
* It could be seen as intended to cause grievous bodily
harm42 and be punishable under section 317 of the Criminal
Code.
Any person who, with intent to maim, disfigure, or
disable, any person, or to do some grievous bodily
harm to any person ... [u]nlawfully wounds or does
any grievous bodily harm to any person by any means
whatever ... is guilty of a crime. [maximum sentence
of imprisonment for life]
Circumcision may result in disfigurement (detracting from
personal appearance), disablement (creating a permanent
disability), maiming (permanent injury).43 To constitute a
"wounding" the true skin must be broken,44 which is an
obvious result of circumcision.
* Assault occasioning bodily harm on indictment under section
339 of the Criminal Code (with a maximum sentence of
imprisonment with hard labour for 3 years). "Bodily harm" is
defined in section 5 of the Code as any bodily harm with
health or comfort. Alternatively, it may be appropriate to
try the matter summarily before a magistrate as an assault
occasioning bodily harm under section 343A of the Criminal
Code (with a maximum sentence of a fine of one thousand
dollars and in default 2 years imprisonment or two years
imprisonment in the first instance).
* Grievous bodily harm without intent is also an offence under
section 320 of the Criminal Code:
Any person who unlawfully does grievous bodily harm
to another is guilty of a crime [maximum sentence
of imprisonment for 14 years].
* Wounding without intent is a misdemeanour under section 323
of the Criminal Code:
Any person who -
(1) unlawfully wounds another is guilty of a
misdemeanour, and is liable to imprisonment
with hard labour for seven years.
A person who wounds another or causes bodily harm to another may
be excused for his or her conduct under section 282 of the
Queensland Criminal Code:
Surgical operations. A person is not criminally
responsible for performing in good faith and with
reasonable care and skill a surgical operation
upon any person for his benefit, or upon an unborn
child for the preservation of the mother's life, if
the performance of the operation is reasonable having
regard to the patient's state at the time and to all
the circumstances of the case.45
Whether or not circumcision would be for the benefit of the
particular child, and whether or not it would be reasonable
having regard to the child's state at the time and to all the
circumstances of the case, would need to be assessed on a
case-by-case basis.
In Queensland there is no statutory definition of surgical
operations, nor is there a statutory restriction on whom can
perform a surgical operation.
A person cannot hold an appointment in Queensland as a
physician, surgeon or medical officer in any public or private
hospital or other institution or society for affording medical
relief in sickness, infirmity, or old age, or as a medical
inspector, medical officer of health, or health officer
unless he or she is a registered medical practitioner.46
However, there is nothing in the criminal law preventing any
person performing surgical procedures on others, provided that
they are performed "in good faith and with reasonable care and
skill ... for the other's benefit ... if the performance of the
operation is reasonable having regard to the patient's state at
the time and to all the circumstances of the case."47
Whether or not medically qualified, a person performing a
circumcision on a child in Queensland would be under a duty to
have reasonable skill and to use reasonable care in doing such
an act.48 The person will be held to have caused any
consequences which result to the life or health of the child by
any reason of any omission to observe or perform that duty.
Notes:
38 See Secretary, Department of Health and Community Services v JMB
and SMB (1992) 175 CLR 218 and Gillick W West Norfolk and
Wisbech Health Authority and Department of Health and Social
Security [1986] 1 AC 112.
39 Secretary, Department of Health and Community Services v JWB and
SMB (1992) 175 CLR 218.
40 Collins v Willcock (1984) 3 All ER 374; Secretary, Department of
Health and Community Services v JWB and SMB (1992) 175 CLR 218.
41 Chatterton v Gerson (1981) 1 QB 432, 443; Sidaway v Board of
Governors of Bethlem Royal Hospital [1984] 1 QB 493, 511 (CA).
42 S.1 of the Criminal Code defines `Grievous bodily harm' as:
Any bodily injury of such a nature as to endanger or
be likely to endanger life, or to cause or be likely
to cause permanent injury to health.
43 See 1 Hawk c15 s.2 where it is stated:
And therefore the cutting off or weakening of a man's
hand or finger or striking out his eye or fore-tooth
or castrating him are said to be maims; but the cutting
off of his ear or nose etc are not esteemed maims
because they do not weaken, but only disfigure him.
44 A break in the outer skin would not be sufficient and an injury
is unlikely to be a `wound' unless it bleeds. R v Devine (1983)
2 A Crim R 45.
45 Note also s.52 of the Medical Act 1939 (Qld) where the procedure
is considered by the medical officer to save or prolong the
child's life and where a relation of the person is not
reasonably available to consent to the surgical procedure: the
hospital or institution's medical superintendent or the medical
practitioner with responsibility for patients in the hospital or
institution can consent.
46 Medical Act 1939 (Qld) s. 382.
47 Criminal Code (Qld) s.282.
48 Criminal Code (Qld) s. 288. There would also be a duty imposed
by reason of having control of a dangerous thing (scapel or
other instrument used for circumcision) under s.289 Criminal
Code (Qld).
Cite as:
http://www.cirp.org/library/legal/QLRC/