CIRCUMCISION OF MALE INFANTS RESEARCH PAPER,
Queensland Law Reform Commission, Brisbane.
December 1993.


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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).

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(File revised 27 December 2001)

http://www.cirp.org/library/legal/QLRC/