QLRC: Circumcision of Male Infants

Queensland Law Reform Commission Research Paper (Queensland Law Reform Commission, Brisbane), December 1993.

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]./p>
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.

References

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.
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.
Collins v Willcock (1984) 3 All ER 374; Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.
Chatterton v Gerson (1981) 1 QB 432, 443; Sidaway v Board of Governors of Bethlem Royal Hospital [1984] 1 QB 493, 511 (CA).
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.
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.
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.
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.
Medical Act 1939 (Qld) s. 382.
Criminal Code (Qld) s.282.
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:

Circumcision of Male Infants Research Paper. Queensland Law Reform Commission. Brisbane 1993.

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