BDD Radical Surgery Consent

Medical Law Review, 17, Summer 2009, pp.
149–182
doi:10.1093/medlaw/fwp001
Advance Access Publication May 6, 2009
BODY DYSMORPHIC DISORDER,

RADICAL SURGERY AND THE
LIMITS OF CONSENT
TRACEY ELLIOTT
Queen Mary University of London
I. INTRODUCTION
For most people, the idea that anyone would wish to have a perfectly
healthy leg amputated must seem bizarre. Such people exist. In 2000
there was a media furore, when it was disclosed that a Scottish
surgeon had operated upon two adult male patients reportedly suffering
from a rare form of a psychological condition known as body dys-
morphic disorder (BDD), in each case amputating a healthy leg. Since
then, the question of whether such surgery is ethically or legally permiss-
ible has been a matter of debate. The subject raises issues as to the extent
to which it is proper to treat adults with psychiatric or psychological dis-
orders with radical surgery, particularly where the appropriate diagno-
sis and treatment of the underlying disorder is uncertain or disputed; the
limitations which ought to be placed upon consent as a means of render-
ing surgery lawful and whether the criminal law ought to have a place in
controlling operations provided by qualified surgeons upon competent
adults with their consent.
II. BODY DYSMORPHIC DISORDER

A. What Is BDD?
Generally, BDD is a recognized mental disorder which has a number of
features.1 The main feature of the condition is a preoccupation with a

Lecturer, Queen Mary University of London. I am grateful to Professors Emily
Jackson, Peter Alldridge, David Ormerod and the anonymous reviewers for
their constructive comments upon earlier drafts of this article. Errors and
omissions that remain are mine.
1
This description of BDD is based upon the diagnostic criteria set out in: Amer-
ican Psychiatric Association, Diagnostic and Statistical Manual of Mental Dis-
orders (4th edn, text revision Arlington, 2000) (‘DSM-IV-TR’) 507–10. BDD
is classified as a Somatoform Disorder, in which: ‘ . . . the presence of physical
symptoms . . . suggest a general medical condition . . . not fully explained by a
general medical condition, by the direct effects of a substance, or by
another mental disorder’, at 485.
The DSM-IV-TR is a manual that provides the standard classification of
mental disorders used by mental health professionals in the USA: http://
Medical Law Review # The Author [2009]. Published by Oxford University Press; all rights reserved.
For Permissions, please email: journals.permissions@oxfordjournals.org
150 M EDICAL L AW R EVIEW [2009]
defect in appearance. This defect may be imagined, for example, a person

may imagine that some part of their body is ugly, flawed or deformed and
such imagined beliefs may range from an imagined belief that one’s hair is
thinning to a belief that one has one too many limbs.2 Alternatively, a
slight physical abnormality may be present and the sufferer’s concern
about this becomes markedly excessive. This preoccupation may be
about a minor ‘defect’ such as a spot, mark or prominent vein, or it
may be about the size or shape of any part or parts of the body, for
example, the nose, breasts or overall musculature.3
This preoccupation can be extremely distressing for the sufferer, and
individuals with BDD have described their feelings about their actual or
imagined deformity as being ‘intensely painful’, or ‘devastating’.4 It may
also have an enormous impact upon the individual’s life, leading to fre-
quent and obsessive checking of the ‘defect’ in mirrors or other reflective
surfaces, sometimes for hours everyday.5 Sufferers may try to conceal
their actual or perceived imperfections by excessive or ritualized groom-
ing,6 or may even try to modify their bodies to remove the defect,7 in
extreme cases by self-surgery, which can have disastrous results.8
Obviously, such behaviour can be extremely time-consuming and have
a tremendous impact upon the sufferer’s work, family and social life.
In severe cases the disorder may even lead to an individual becoming
very isolated, dropping out of school or work, severing or avoiding
relationships, or going to great lengths to avoid human contact entirely.
Many BDD sufferers are very depressed, which may lead to admission to
hospital for treatment or the individual may attempt or commit suicide.9
www.dsmivtr.org/ (accessed June 4 2008). It is extensively used in psychiatric

practice.
2
KA Phillips, The Broken Mirror: Understanding and Treating Body Dys-
morphic Disorder (Oxford University Press 1986) 33.
3
KA Phillips, ‘Clinical Features and Treatment of Body Dysmorphic Disorder’
(2005) III Focus 179, at 180; D Veale, ‘Body Dysmorphic Disorder’ (2004) 80
Postgraduate Medicine 67, at 67.
4
See e.g. Phillips, above n 2, at 81, 202.
5
Ibid.
6
Phillips, above n 2, at 106, has estimated that approximately one-third of
people with BDD groom excessively.
7
Sometimes this may lead to severe disfigurement or injury: e.g. Phillips refers
to one case in which a BDD sufferer picked their skin so much that they
severely damaged their facial artery, which led to substantial blood loss and
emergency surgery: ibid. at 146.
8
See e.g. the case reported by Phillips, ibid. of a person: ‘ . . . so desperate to
improve the appearance of his nose that he did his own surgery, cutting his
nose open and attempting to replace his own cartilage with chicken cartilage’.
C.f. D Veale, ‘Outcome of Cosmetic Surgery and ‘DIY’ Surgery in Patients
with Body Dysmorphic Disorder’ (2000) 24 Psychiatric Bulletin 218, at 221.
9
About a quarter of the BDD patients seen by Phillips had made a suicide
attempt and the majority of these attributed at least one of their attempts
wholly/mainly to BDD: Phillips ibid. at 151. A subsequent study by Phillips
Med.L.Rev. BDD, Radical Surgery and the Limits of Consent 151
Medical or surgical treatment may help the condition, but it may only
provide short-term relief, with the patient either re-focusing
concerns upon the perceived defect, sometimes with increased intensity
perhaps, or becoming preoccupied with a new feature of their body.10
According to approved diagnostic criteria,11 a diagnosis of BDD is
only to be made where the patient’s preoccupation with their body
cannot be better accounted for by another mental disorder, for
example, anorexia nervosa. It is not known precisely how common
BDD is within the general community, but preliminary data
suggest that BDD may affect 1 – 2% of the general population to a
greater or lesser extent.12 In the context of cosmetic surgery and derma-
tological treatment settings, rates of BDD have been reported as from 6
to 15%.13
B. Dysmorphic People and the Amputation of Healthy Limbs: The

Scottish Cases
Body dysmorphic disorder as a condition is nothing new. Phillips has
reported finding descriptions of what she regards as cases of BDD that
are over a century old, and has even suggested that Freud’s famous
patient, ‘The Wolf Man’,14 was probably a BDD sufferer.15 However,
in 2000 public and media attention was focused upon the condition
when it was revealed that two operations to amputate healthy limbs
had taken place in Scotland. Both operations had been conducted at
the Falkirk Royal Infirmary by Robert Smith, a consultant general
surgeon. In the first operation in 1997, Smith had amputated part of
and Menard concluded that BDD sufferers have high rates of suicide ideala-
tion and attempts: KA Phillips and W Menard, ‘Suicidality in Body Dys-
morphic Disorder: A Prospective Study’ (2006) 163 American Journal of
Psychiatry 1280.
10
Phillips suggests that two-thirds of BDD patients who had surgery or (non-
psychiatric) medical treatment reported that their condition was unchanged
or had deteriorated: above n 2, at 288.
11
DSM-IV-TR, above n 1, at 510.
12
Phillips, above n 2, at 21; above n 3 at 180.
13
14
Sergei Pankejeff. Discussed in S Freud The Case of the Wolf-man: From the
History of an Infantile Neurosis (Arian Press 1993).
15
Phillips, above n 2, at 19. The same may be said of healthy limb amputations:
C.f. J Johnston and C Elliott, ‘Healthy Limb Amputation: Ethical and Legal
Aspects’ (2002) 2 Clinical Medicine 431, at 431: who refer to a case
(described by Sue in 1785) of an Englishman who offered a French surgeon
100 guineas to amputate his healthy leg. When the surgeon declined, the Eng-
lishman forced him to conduct the amputation at gunpoint. Subsequently the
surgeon received payment for the operation of 250 guineas, together with a
letter in which the former patient stated: ‘You have made me the happiest
of all men, by taking away from me a limb which put an invincible obstacle
to my happiness’.
the left leg of a 39-year-old English man16, who had wished to have his
leg amputated since he was 8 because he did not feel it like a part of him,
felt unable to bear life with his left leg whole and intact, and who had
contemplated suicide.17 This was followed by a further amputation in
1999 upon a 71-year-old patient from Germany, who had felt that he
was ‘in the wrong body and . . . should have a leg amputated’18 since
the age of 14. Both patients had previously unsuccessfully sought ampu-
tation surgery at other hospitals in Europe. Both were reportedly very
pleased with the outcome of their operations.19 Robert Smith himself
described the surgery as: ‘ . . . the most satisfying operation I have ever
performed’.20
Following these two operations, Smith received further requests for
healthy limb amputation and had six people waiting for surgery, includ-
ing an American woman whose desire was to have both of her legs
amputated above the knee, and Dr Gregg Furth, a Jungian psychoana-
lyst from New York, who had wanted to have an above knee amputa-
tion on his right leg for many years21 and who had been approved for
such surgery by psychiatrists and Smith.22 However, in early 2000,
the Forth Valley Acute Hospitals NHS Trust, which had taken over
control of the Falkirk and District Royal Infirmary, refused permission
for the operation to take place at the hospital.23 A subsequent appli-
cation by Smith to conduct an amputation at a private hospital in Stir-
ling was also refused, partly because of the widespread public concern
about such surgery. 24 Robert Smith remains one of a very few surgeons
in the world who are willing to conduct healthy limb amputations, but
he has been effectively barred from conducting such operations in the
16
See e.g. P Taylor, ‘My Left Foot Was not Part of Me’ The Observer 6 Febru-
ary 2000, at 14; K Scott, ‘Voluntary Amputee Ran Disability Site’ The Guar-
dian 7 February 2000; S. English, ‘Amputee Surgeon “Was not Duped’” The
Times 7 February 2000.
17
Taylor, ibid.
18
BBC, ‘Horizon: Complete Obsession’ 17 February 2000, Programme transcript
available at http://wwwbbc.co.uk/science/horizon/1999/obsession_script.shtml
accessed 9 July 2006; c.f. Taylor, above n 17, and Melody Gilbert’s documen-
tary, ‘Whole’, (2003).
19
G Seenan, ‘Healthy Limbs Cut Off at Patients’ Request’ The Times 1 Febru-
ary 2000, p. 9. Mr Smith waived his fee for the operations, but the hospital
was paid £1,400 for the first operation and £6,600 for the second: Taylor,
above n 16.
20
G Harris, ‘Surgeon Content at Removal of Healthy Leg’ The Times
1 February 2000.
21
Dr Furth had previously seriously contemplated resorting to illegal surgery:
see People v Brown (2001) 91 Cal App 4th 256.
22
BBC, above n 18.
23
BBC News, ‘Trust Bans ‘Private’ Amputations’ 1 February 2000: http://
news.bbc.co.uk/1/hi/scotland/627183.stm accessed 27 February 2006.
24
S English, ‘Hospital Blocks Limb Surgeon’ The Times 26 August 2000.
UK, because no hospital will permit the surgery to take place on their
premises.25
C. Problems of Diagnosis: BDD or Something Else?

The topic of healthy limb amputation is fraught with diagnostic, ethical
and legal difficulties. I began by discussing the features of BDD, and
when the story about the Scottish amputations first attracted media
attention, media (including the medical press)26 discussion of the con-
dition suffered by Mr Smith’s patients was based upon the assumption
that they were suffering from a rare and extreme form of BDD.27 In
interviews in early 2000, Robert Smith described the men as suffering
from apotemnophilia, a rare psychological condition related to
BDD.28 However, since then questions have been raised as to whether
BDD is the most appropriate diagnosis and, if it is not, what the recog-
nised diagnosis for this condition ought to be.
The term apotemnophilia, Greek for ‘amputation love’,29 was first
used in medical literature in 1977 by John Money30. The suffix
‘philia’ is of great significance here, as it locates the condition within a
group of mental disorders known as ‘paraphilias’, in which there is a
strong sexual urge behind the desire or behaviour:
The essential features of a Paraphilia are recurrent, intense sexually
arousing fantasies, sexual urges, or behaviors . . . the diagnosis is
made if the behaviour, sexual urges or fantasies cause clinically sig-
nificant distress or impairment in social, occupational, or other
important areas of functioning.31
Certainly some ampotemnophiles desire to become an amputee for
sexual reasons,32 although it is difficult to assess how prevalent this
25
C Fracassini, ‘Call for NHS Amputations of Healthy Limbs’ Sunday Times
23 November 2003; R Henig, ‘At War with Their Bodies, They Seek to
Sever Limbs’ New York Times 22 March 2005.
26
C Dyer, ‘Surgeon Amputated Healthy Limbs’ (2000) 320 British Medical
Journal 332; S Ramsay, ‘Controversy Over UK Surgeon Who Amputated
Healthy Limbs’ (2000) 355 The Lancet 332.
27
See e.g. BBC Horizon, above n 18; Taylor, above n 17; S McGinty and
S Leonard, ‘Secret World of Would-Be Amputees’ Sunday Times 6 February
2000; T Stuttaford, ‘A Craving for Change Can Be Obsessive’ 3 February
2000 The Times.
28
Harris, above n 20.
29
MB First, ‘Desire for Amputation of a Limb: Paraphilia, Psychosis or a New
Type of Identity Disorder’ (2005) 35 Psychological Medicine 919, at 920.
30
J Money, R Jobaris and G Furth, ‘Apotemnophilia: Two Cases of Self
Demand Amputation as a Paraphilia’ (1977) 13 Journal of Sex Research 115.
31
32
See e.g. TN Wise and RC Kalyanam, ‘Amputee Fetishism and Genital Muti-
lation: Case Report and Literature Review’ (2000) 26 Journal of Sex &
Marital Therapy 339.
fetishism is. From personal experience and the limited medical literature
upon the topic, one might have concluded that the disorder is rare.
However, internet searches upon the topic reveal something of a com-
munity built around the subject of amputee fetishism, ranging from
information websites,33 to chat rooms,34 to sites where pornography
relating to amputees is readily available.35 This community has even
developed its own terms to categorise interested parties: ‘DPWs’ or
‘devotees’, ‘pretenders’ and ‘wannabes’. ‘Devotees’ are non-disabled
people who have a special interest in and/or are sexually attracted to
amputees.36 ‘Pretenders’ are non-disabled people who act as if they
are disabled by using devices such as wheelchairs and crutches, so
that they ‘feel’ disabled and, if such behaviour is conducted in public,
so that others will see them as being disabled.37 ‘Wannabes’ are those
who wish to become disabled, usually by becoming paraplegic or
by having a limb amputated.38 Clearly it is this last group that is
most relevant when one is considering the topic of healthy limb
amputation.
The belief that there is a link between sexual desire and the desire to
become an amputee has been contested in recent years, particularly by
Robert Smith and his associates, who argue that apotemnophilia is
not about sexual gratification, but about a desire and need to achieve
a physical body that reflects what they firmly believe to be their true
identity: a body that is ‘complete’ with an amputation.39 Smith has
33
E.g. Amputee website: http://www.amputee-online.com; OverGround: http://
www.overground.be/ accessed 5 June 2008.
34
C.f. RL Bruno, ‘Devotees, Pretenders and Wannabes: Two Cases of Factitious
Disability Disorder’ (1997) 13 Journal of Sexuality and Disability 243;
C Elliott, Better Than Well: American medicine Meets the American
Dream (WW Norton 2003) 216 –7. The internet discussion listserv which
Elliott names: ‘amputee-by-choice’, appears to have moved or to have been
closed down.
35
C.f. Wise and Kalyanam, above n 32, at 342.
36
A condition known as ‘acrotomophilia’: Elliott, above n 34, at 209–10. C.f.
Bruno, above n 34; A Kafer, ‘Amputated Desire, Resistant Desire: Female
Amputees in the Devotee Community’ (2000) Disability World June–July,
http://www.disabilityworld.org/June-July2000/Womens/SDS.htm accessed
14 August 2006.
37
Bruno, above n 34.
38
Ibid.
39
GM Furth and R Smith, Amputee Identity Disorder: Information, Questions,
Answers, and Recommendations About Self-Demand Amputation (First
Books Library 2002) 71; R Dotinga, ‘Out on a Limb’ (2000) Salon.com,
http://dir.salon.com/health/feature/2000/08/29/amputation/index.html
accessed 13 October 2003. This does not mean that, in the case of individuals
for whom identity is the motive for seeking amputation, there is no sexual
element to their wish, since sexuality is an inherrent part of identity: ‘what
you are attracted to (or not attracted to) is part of who you are’. Elliott,
above n 34.
described his patients as ‘“need-to-bes” rather than “wannabes”’.40 A

recent study of individuals who had a longstanding desire for an ampu-
tation by First41 offers some support for this view: he found that
although sexual desire was the primary motivation for a small minority
of these individuals (15%), the main aim of the majority (63%) was ‘to
match their body to their identity’.42 First contests the opinion that
apotemnophilia is an appropriate diagnosis for this majority
and suggests that ‘no DSM-IV-TR diagnosis even remotely fits’43 this
group.
So, how should these ‘wannabes’ or ‘need-to-bes’ be diagnosed?
That is still a matter of considerable dispute. Smith and Furth have,
in their book on the syndrome of self-demand healthy limb amputa-
tion, firmly concluded that the diagnosis of BDD is incorrect, upon
the basis that sufferers from this syndrome, rather than seeing the
limb that they wish to be amputated as being defective, ‘want to rid
themselves of a limb that does not belong to their body identity’.44
They see the disorder as being analogous to gender identity disorder
(GID), a disorder characterised by a strong desire to be, or an insis-
tence that one is, of the opposite sex,45 and have suggested that a
more appropriate name for the syndrome would be ‘body identity dis-
order’ (BID).46 In addition, they are seeking to have this disorder
officially recognised in the forthcoming DSM-V as a legitimate
40
S Leonard, ‘Surgeon Makes Fresh Plea on Amputations’ Sunday Times
28 January 2001.
41
Dr First, a psychiatrist at the University of Columbia, was the editor of
DSM-IV-TR and is working on the next edition DSM-V.
42
MB First, ‘Desire for Amputation of a Limb: Paraphilia, Psychosis or a New
Type of Identity Disorder’ (2005) 35 Psychological Medicine 919, at 926.
First concedes that the study sample size was small (52) and that therefore
his results can only be regarded as preliminary. It should be noted that
sexual arousal, even where not the primary motivation for the desire for
amputation, was still a relevant factor: for 52% of the subjects sexual
desire was given as a secondary reason for amputation: Ibid., at 922.
43
Ibid., at 926.
44
Furth and Smith, above n 39, at 5.
45
C.f. AA Lawrence, ‘Clinical and Theoretical Parallels Between Desire for
Limb Amputation and Gender Identity Disorder’ (2006) 35 Archives of
Sexual Behavior 263. According to DSM-IV-TR the diagnostic features of
GID are:
(A) A strong and persistent cross-gender identification (not merely a desire
for any perceived cultural advantages of being the other sex) . . .
(B) Persistent discomfort with his or her sex or sense of inappropriateness in
the gender role of that sex . . .
(C) The disturbance is not concurrent with a physical intersex condition.
(D) The disturbance causes clinically significant distress or impairment in
social, occupational, or other important areas of functioning.
Above n 1, at 581.
46
Furth and Smith, above n 39, at 87.
and separate diagnostic syndrome.47 This view of the disorder has

received support, in particular from First, who has also recognised
the similarity between this desire for healthy limb amputation and
GID:
In both conditions the individual reports feeling uncomfortable

with an aspect of his or her anatomical identity (gender in GID,
presence of all limbs in this condition) with an internal sense of
the desired identity (to be the other sex in GID, to be an amputee
in this condition).48
He provisionally suggested that the disorder be called ‘body integrity

identity disorder’ (BIID).49 This name for the condition has since been
more generally accepted by clinicians involved with the treatment of
individuals seeking healthy limb amputation (including Mr Smith),50
and by such individuals themselves.51
However, this interpretation of the condition, although highly plaus-
ible, is not universally accepted. Bensler and Paauw have suggested that
the condition is essentially an ‘erotic fantasy’ with two elements: ‘under-
going amputation of a limb, and subsequently overachieving despite a
47
Furth and Smith, ibid., at 87–9. They have drafted diagnostic criteria for this
disorder:
(A) There must be evidence of a strong and persistent disability identifi-
cation, which is the desire to be, or the insistence that one is, internally,
disabled.
(B) The disability identification must not merely be a desire for any perceived
cultural advantages of living with a disability. There must also be evi-
dence of persistent discomfort about living as an able-bodied person,
or a sense of inappropriateness in that same role.
(C) The diagnosis is not made if the condition is better explained by another
medical or psychiatric diagnosis.
(D) To make the diagnosis, there must be evidence of clinically significant
distress or impairment in social, occupational, or other important
areas of functioning.
According to this definition, both criteria A and B must be present for a diag-
nosis of BID be made. The DSM-IV’s description of GID is used as a template
for these draft criteria.
48
First, above n 42, at 926.
49
Ibid. C.f. The BIID website: http://www.biid.org/BIID%20Basics.htm
(accessed August 14 2006).
50
See e.g. the website http://www.BIID.org, set up by ‘a group of medical,
psychological and psychiatric professionals committed to increasing the
knowledge about this disorder’ accessed 4 March 2009; ED Sorene,
C Heras-Palou and FD Burke, ‘Self-amputation of a Healthy Hand: a
Case of Body Integrity Identity Disorder’ (2006) 31 Journal of Hand
Surgery 593.
51
See e.g. http://biid-info.org, a website ‘about BIID, by people who have BIID’
(accessed March 4 2009). For the purposes of this article, I will hereafter use
the term BIID as a label for the condition.
handicap’,52 while Bruno regards the disorder as a ‘factitious disability

disorder’, in which amputation is desired or sought because the individ-
ual has lacked love and attention in the past and sees amputation as
being a means of satisfying their previously unmet need for love and
attention.53 Lawrence, who has observed parallels between the desire
for limb amputation and GID, has suggested that the former condition
represents the intersection of an ‘uncommon target preference’,54
(namely attraction to amputees) and an ‘erotic target location error, in
which the individual desires to turn his body into the desired erotic
target (or a facsimile thereof ), rather than simply desiring that body con-
figuration in another person’.55 It has even been speculated that the con-
dition may be a neuropsychological disorder, rather than a psychiatric
one:56 that the body image ‘mapped’ into the sufferer’s brain
somehow does not match the physical contours of their body.57 Rama-
chandran and McGeoch58 hypothesise that BIID is caused by a ‘dysfunc-
tion of the right parietal lobe’ of the brain,59 which ‘leads to an
uncoupling of the construct of one’s body image in the right parietal
lobe from how one’s body physically is’,60 but further research would
52
JM Bensler and DS Paauw, ‘Apotemnophilia Masquerading as Medical Mor-
bidity’ (2003) 96 Southern Medical Journal 674; RM Henig, above n 25.
53
Bruno, above n 34, at 27. This diagnosis suggests that psychotherapy is an
appropriate way of treating the disorder, so that the patient can develop
awareness of their condition, acknowledge that they have not received the
love and attention that they have desired, and end their disability-related
obsessions and compulsions (at 258). C.f. A Bridy, ‘Confounding Extremi-
ties: Surgery at the Medico-ethical Limits of Self-modification’ (2004) 32
Journal of Law, Medicine & Ethics 148, at 150. Bayne and Levy suggest
that, based on the limited data available, Bruno is wrong, and the desire
for amputation is not reduced by psychotherapy: T Bayne and N Levy,
‘Amputees by Choice: Body Integrity Identity Disorder and the Ethics of
Amputation’ (2005) 22 Journal of Applied Philosophy 75, at 84.
54
Lawrence, above n 45, at 269.
55
Ibid.
56
R Smith and K Fisher, ‘Healthy Limb Amputations: Ethical and Legal
Aspects’ (2003) 3 Clinical Medicine 188.
57
See e.g. Bayne and Levy, above n 53, at 76– 7, who note that there are numer-
ous instances in which a person’s physical body and their body image may
differ. E.g. children born without a limb may experience phantom limb sen-
sations, and it has been suggested that: ‘ . . . perception of our limbs is ‘hard-
wired’ into our brain and that sensations from the limbs become mapped
onto these brain networks as we develop’. J. Cole, ‘Phantom limb pain’
(2006) Wellcome Trust website: http://wellcome.ac.uk/en/pain/microsite/
medicine2.html accessed 14 September 2006. C.f. Bridy, above n 53, at 151.
58
VS Ramachandran and P McGeoch, ‘Can Vestibular Caloric Stimulation Be
Used to Treat Apotemnophilia?’ (2007) 69 Medcial Hypotheses 250.
59
Ibid.
60
Ibid. They have suggested that parallels may be drawn between BIID and a
condition called somatoparaphrenia, which may occur following a stroke
in the right parietal region, and which leads to the patient denying ‘ownership
of a limb on the left side of his body—typically the arm’, (Ibid., at 251) and
be required to confirm this. The truth is that, although there are various
theories with regard to this condition, there is a long way to go before it
is properly understood.61 Although Smith contends that study of
patients with BIID who have undergone elective amputation indicates
that surgery is the only truly successful treatment for the condition,62
these studies are on a very small scale, and vulnerable to criticism on
the ground of bias, since the subjects may well be self-selected and
there is a lack of any control group.63 This may be contrasted with
the published studies of patients who have been diagnosed as suffering
with BDD, which suggest that surgery, although commonly sought by
such patients, is generally an unsuccessful treatment for the disorder,64
and that treatments such as cognitive behavioural therapy and the
administration of selective serotonin reuptake inhibitors65 are much
more effective.66
that the desire for amputation might temporarily be relieved by cold-water

vestibular caloric stimulation (flushing cold water into the ear canal), a treat-
ment which has provided some temporary relief to somatoparaphrenia suf-
ferers (Ibid., at 251). C.f. CJ Ryan, ‘Out on a Limb: The Ethical
Management of Body Integrity Identity Disorder’ (2009) 2 Neuroethics 21,
at 25–6.
61
Furth and Smith concede that further research is required into the condition
and its treatment: above n 40, at 85–7. C.f. Ryan, above n 60, at 25; Elliott,
above n 34, at 235:
The fact is that nobody really understands apotemnophilia. Nobody
understands the pathophysiology; nobody knows whether there is an
alternative to surgery; and nobody has any reliable data on how well
surgery might work.
62
R Smith, ‘Advice to Surgeons’ at http://www.biid.org/advice.php?page=
06&lan=en (accessed March 4 2009). C.f. Smith and Fisher, above n 56;
Furth and Smith, above n 39, at 69–72.
63
See e.g. Johnson and Elliott, above n 15, at 434; Bayne and Levy, above n 53,
at 83.
64
This is because most BDD patients are dissatisfied with the results of surgery
and report an increase in their BDD symptoms. This may lead to them under-
going repeated surgical procedures, which in turn may lead to increasing dis-
satisfaction. See e.g. CE Crerand and others, ‘Nonpsychiatric Medical
Treatment of Body Dysmorphic Disorder’ (2005) 46 Psychomatics 549; KA
Phillips and others, ‘Surgical and Nonpsychiatric Medical Treatment of
Patients with Body Dysmorphic Disorder’ (2005) III Focus 304.
65
‘SSRIs’—a group of drugs which includes Prozac and Seroxat.
66
See e.g. KA Phillips and SA Rasmussen, ‘Change in Psychosocial Functioning
and Quality of Life of Patients with Body Dysmorphic Disorder Treated with
Fluoxetine: A Placebo-controlled Study’ (2004) 45 Psychosomatics 438;
D Veale, ‘Cognitive-behavioural Therapy for Body Dysmorphic Disorder’
(2001) 7 Advances in Psychiatric Treatment 125. In contrast, in relation to
BIID, Mr Smith has concluded that ‘there are no known results reporting
success, or of any treatment with drugs’ specifically for BIID and that
‘there is no known therapy that has transformed the yearning and desire of
this powerful urge for amputation’: Furth and Smith, above n 39, at
69–70. C.f. Anon., ‘Medication strategies for BIID sufferers’, at http://
III. ARGUMENTS FOR AND AGAINST HEALTHY LIMB

AMPUTATION
A. The ‘Yuk’ Factor and Concerns about Capacity
My initial reaction, upon hearing of the Scottish operations, was not dis-
similar from that of the bioethicist Arthur Caplan, who commented: ‘It’s
meshugeneh67 – absolutely nuts. It’s absolute, utter lunacy to go along
with a request to maim somebody’.68 This emotional response of
disgust, sometimes called the ‘yuk’ factor,69 is significant, not least
because it rings alarm bells that the practice under consideration
might be unethical.70 But, as John Harris has observed, it is not necess-
arily determinative of what is morally or legally permissible:
It is perhaps salutary to remember that there is no necessary con-

nection between phenomena, attitudes or actions that make us
uneasy, or even those that disgust us, and those phenomena, atti-
tudes and actions that there are good reasons for judging unethical.
Nor does it follow that those things we are confident are unethical
must be prohibited by legislation or regulation.71
Critics of healthy limb amputations have questioned whether patients

seeking such surgery have sufficient capacity to give a valid consent to
treatment. Caplan, in particular, has questioned ‘whether sufferers are
competent to make the decision when they’re running around saying
“chop my leg off”’.72 These objections focus upon the nature of the
‘wannabes’ belief that they need to have a limb amputated, suggesting
that, because it is bizarre, irrational and obsessional, they are unable
properly to ‘weigh’ information relevant to the decision, that these
desires are not autonomous and ought not to be respected or followed.
www.biid.org/advice.php?page=04&lan=en accessed 4 March 2009. First’s

study of 52 subjects who desired healthy limb amputation found that psy-
chotherapy and medication made no change to ‘the intensity of the desire
for amputation’, although medication often improved the mood of the
subject: First, above n 42, at 7 –8.
67
Yiddish: crazy, insane. Technically a crazy or insane woman. Although this
may have been the initial response of Professor Caplan, it appears from
Dotinga’s article that Caplan’s main concerns related to the issue of capacity
and whether to perform healthy limb amputation in such circumstances
would amount to the surgeon harming the patient, which would be unethical,
above n 39.
68
Dotinga, above n 39.
69
S Lee, Law and Morals (Oxford University Press 1986) 37.
70
Bayne and Levy, above n 39, at 84.
71
J Harris, Clones, Genes and Immortality (Oxford University Press 1992) 37.
C.f. The discussion of ‘Sentimental morality’, at 55–9.
72
Given the drastic and irreversible nature of amputation surgery73 and

that these ‘wannabes’ have been diagnosed as suffering from a mental
disorder, capacity needs to be approached with care, and any doctor’s
assessment with regard to capacity ought to be confirmed by a psychia-
trist.74 However, it cannot be said that, merely because of their outré
beliefs, such patients inevitably lack capacity. When considering
whether an adult has capacity to consent to medical treatment, the start-
ing point must be that ‘a person must be assumed to have capacity until
it is established that he lacks capacity’.75 In English law, both at
common law and under the Mental Capacity Act 2005 (MCA), a func-
tional approach has been taken towards the concept of capacity. Under
this approach, the focus is upon the specific decision at issue: ‘the asses-
sor asks whether an individual is able, at the time when a particular
decision has to be made, to understand its nature and effects’.76 The
effect of this may be that ‘someone may have capacity for one
purpose but lack capacity for another purpose’.77 For example, a
person may have capacity to marry, but not to make a valid will,78 or
to have sex, but not to consent to medical treatment.79 The MCA
section 1(4) reflects the approach of the common law by making it
clear that the presumption of capacity is not displaced merely because
a person makes what may be regarded as a ‘bad’ choice: ‘a person is
not to be treated as unable to make a decision merely because he
makes an unwise decision’.80 Nor does the fact that the patient suffers
from a mental disorder necessarily mean that the presumption of
capacity is displaced:81 for example, in Re C, although the patient
73
This is significant when considering the question of capacity because the
courts have emphasised that a patient’s capacity must be ‘commensurate
with the gravity of the decision . . . The more serious the decision, the
greater the capacity required.’ Re T (Adult: Refusal of Treatment) [1993]
Fam 95 at 115 –116, per Lord Donaldson MR; c.f. Re MB (Medical Treat-
ment) [1997] 2 FLR 426 (CA) 436 –7 per Butler-Sloss LJ.
74
A Grubb, Principles of Medical Law, 2nd edn. (Oxford University Press,
2004) para. 3.81. C.f. BMA, Medical Ethics Today (2nd edn BMJ Books
2004) 94.
75
Mental Capacity Act 2005, (‘MCA’), s.1(2). This puts in statutory terms the
common law presumption of capacity: c.f. In re T (Adult: Refusal of Treat-
ment), above n 73.
76
Law Commission, No. 231, Mental Incapacity (1995) 3.5.
77
In the Matter of MM (an adult) [2007] EWHC 2003 (Fam) at [64] per
Munby J.
78
In the Estate of Park, Park v Park [1954] P 112.
79
Above, n 77.
80
See e.g. In re T (Adult: Refusal of Treatment), above n 74. C.f. Re B (Consent
to Treatment: Capacity) [2002] 1 FLR 1090; P Bartlett, Blackstone’s Guide
to the Mental Capacity Act 2005 (2nd edn Oxford University Press 2008)
33–34, 47.
81
Mental Capacity Act 2005, Code of Practice (‘CoP’), (2007), paras 4.24.10.
C.f. Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 294;
was severely mentally ill and suffering from delusions, he was still found
to have capacity to refuse to have his leg amputated,82 and patients suf-
fering from GID are nevertheless found to have capacity to consent to
gender re-assignment.83
The test for capacity laid down in the MCA, s.2(1) establishes that:
A person lacks capacity in relation to a matter if at the material time
he is unable to make a decision for himself in relation to the matter
because of an impairment of, or a disturbance in the functioning of,
the mind or brain.
Section 3(1) provides that, for the purposes of section 2, a person is
unable to make a decision for himself if he is unable:
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the
decision, or
(d) communicate his decision (whether by talking, using sign language
or any other means).84
Given this statutory test and the principles set out in section 1 MCA, it
cannot be said that the views of those seeking healthy limb amputation
are so abnormal that they must necessarily lack capacity: the decision-
making of each patient in relation to each decision to consent would
have to be carefully assessed to see whether the presumption of capacity
was rebutted, bearing in mind that one of the principles underlying the
Masterman-Lister v Brutton & Co., Jewell and Home Counties Dairies

[2002] EWCA Civ 1889.
82
[1994] 1 All E.R. 819. C.f. Re JT (Adult:Refusal of Medical Treatment)
[1998] 1 FLR 48; Secretary of State for the Home Department v Robb
[1995] 1 FLR 412. Provided that a patient is competent, it does not matter
‘whether the reasons for making that choice are rational, irrational,
unknown or even non-existent.’: Re T (Adult: Refusal of Treatment), above
n 73.
83
The same may be said of BDD sufferers and cosmetic surgery.
84
C.f. the common law test set out in Re MB (Medical Treatment), above n 73:
A person lacks capacity if some impairment or disturbance of mental
functioning renders the person unable to make a decision whether to
consent to or to refuse treatment. That inability to make a decision will
occur when:
(a) the patient is unable to comprehend and retain the information which is
material to the decision, especially as to the likely consequence of having
or not having the treatment in question;
(b) the patient is unable to use the information and weigh it in the balance as
part of the process of arriving at the decision . . .
MCA is that, where possible, positive steps should be taken to try to

facilitate the making of competent decisions.85 As for the two patients
operated upon by Mr Smith, they appear to have had capacity to
provide a valid consent to amputation surgery: they were seen by at
least two psychiatrists and a psychologist, who were satisfied that they
had capacity and were not deluded or suffering from any other serious
mental illness which might affect their capacity to consent, and the
risks of the surgery were carefully explained.86 Smith described them
as ‘probably the best informed patients’ that he had ever dealt with.87
B. Harm or Therapy?
A further objection to healthy limb amputation is that, notwithstanding
the patient’s consent, such surgery may be regarded as harming the
patient and is therefore ethically impermissible. The principle of nonma-
leficence, enshrined in the frequently used maxim, ‘Above all, do no
harm’,88 is one of Beauchamp and Childress’s four basic principles of
medical ethics,89 and, even if one does not necessarily endorse the prin-
ciplist approach,90 the duty to avoid or minimise harm to patients is
nevertheless a key concept in medical ethics.91 As the BMA have
observed:
Mutilating surgical procedures are usually seen as a last resort in
cases where a physical disease has been identified. Therefore most
doctors have an intuitive aversion to the notion of deliberately
removing healthy tissue in the absence of physical disease, even at
the patient’s request.92
Smith has indicated that he was concerned that, by amputating healthy
limbs, he was harming his patients,93 but that ultimately, he was more
concerned that these individuals would kill or seriously injure them-
selves if surgery did not take place.94 There is some justification for
85
MCA, s.1(3): ‘A person is not to be treated as unable to make a decision
unless all practicable steps to help him do so have been taken without
success’; CoP, paras 4.44–4.54.
86
C Dyer, above n 26; BBC Horizon, above n 27.
87
BBC Horizon, ibid.
88
Primum non nocere. TL Beauchamp and JF Childress, Principles of Biomedi-
cal Ethics (5th edn Oxford University Press 2001) 113. C.f. Ryan, above n 60,
at 27–8.
89
Beauchamp and Childress, above n 88, Ch. 4.
90
See e.g. K Danner Clouse and B Gert, ‘A Critique of Principlism’ (1990) 15
Journal of Medicine and Philosophy 219.
91
BMA, above n 74, at 7.
92
Ibid.
93
In M Gilbert’s film, Whole, above n 18.
94 My fear is that someone will injure themselves or kill themselves, I have
very serious concerns that they will go to an unlicensed practitioner, or
this view: some sufferers of apotemnophilia are so desperate to have a

limb amputated that they are willing to go to extreme and life-
threatening extents to achieve their wish. There are numerous examples
within the literature of apotemnophiles who have severely mutilated
themselves in an attempt to gain their desire. Furth and Smith have
described cases of self-inflicted chain saw wounds and a self-amputation
with an electric jigsaw.95 Six of the subjects in First’s study had self-
amputated a limb ‘using methods that put the subjects at risk of
serious injury or death (i.e. shotgun, chainsaw, woodchopper, and dry
ice)’.96 A further internet search of archives relating to ‘amputation by
choice’ found examples of people ‘debating the merits of industrial acci-
dents, gunshot wounds, self-inflicted gangrene, chain-saw slips, dry ice
and cigar cutters as means of getting rid of their limbs and digits’.97 Des-
perate ‘wannabes’ who are unable or unwilling to take such drastic self-
help measures may even seek to have the amputation performed by
‘underground’ unlicensed surgeons in clinics in developing countries,
where conditions may be less than sanitary.98
It might be argued that, faced with patients for whom other treatment
is ineffective, and who she believes may take the law into their own
hands and self-amputate, it is ethically proper for a surgeon to seek to
minimise harm by operating in accordance with the patient’s wishes.99
However, even if harm is minimised in such cases, this does not necess-
arily answer the question of whether such surgery is morally a correct
thing to do.100 Nor does it help with the resolution of difficult issues
relating to the assessment of which patients are suitable for this form
of treatment: how to distinguish between those who are absolutely
determined to achieve their demand and those for whom the desire
they may take the law into their own hands and go and lie on a railway
line and wait for a train, or they may take a shotgun.
C Norton, ‘Disturbed Patients Have Healthy Limbs Amputated’ The Indepen-
dent 1 February 2000.
95
Furth and Smith, above n 39, at 41–4.
96
First, above n 29, at 922.
97
Elliott, above n 34, at 216.
98
See e.g. People v Brown (2001) 91 Cal App 4th 256 (Cal C.A.).
99
Bayne and Levy, above n 53, at 79. The BMA appear to accept that that there
might be circumstances in which such surgery would be ethically acceptable
(above n 74, at 95):
Some people accept amputation as an effective form of treatment for body
dysmorphia in extreme cases where other forms of treatment such as
medication or psychotherapy have failed. In order for this to be convin-
cing, it would have to be shown that all other less invasive alternatives
had been exhausted and that the patient is expected to suffer even more
serious harm if the procedure is not carried out.
100
Cf. e.g. R Gillon, Philosophical Medical Ethics (John Wiley 1986) 25.
for amputation is transient, or one who may respond to therapy or drug

treatment.101
The strongest argument in favour of such surgery is that it is of thera-
peutic benefit and conducted in the best interests of the patients. Having
read accounts of the patients treated at the Falkirk Infirmary, it is diffi-
cult, whatever view one takes of the most appropriate diagnosis, to
gainsay the case made by Smith that these individuals suffered a good
deal as a result of their disorder. It also appears that other forms of treat-
ment, such as psychotherapy, had proved to be ineffective. What is hotly
disputed is whether amputation surgery is an appropriate method of
treating these patients.
The case in favour of amputation argues that: given that these patients
are suffering from a mental disorder which causes them considerable
distress, the failure of previous treatments to alleviate their condition,
the likelihood that amputation will relieve the patients’ suffering, and
the risk that, if the operation is not carried out, they may self-mutilate,
possibly with fatal consequences, that, provided that certain safeguards
are observed (in particular with regard to ensuring that the patient has
capacity and that informed consent is obtained), amputation is an
acceptable way of treating these patients. A comparison may be made
here with gender reassignment for those suffering with GID. As Pro-
fessor Mason has stated:
As long as you say that people can have a sex change for what is a
severe psychological disease, then it is difficult to say that you
cannot have an amputation for this form of severe psychological
disease.102
I have already referred to some of the criticisms of this form of surgery.

Further concerns broadly relate to the disabling effect of the operation;
fears that the therapeutic aims of the surgery will fail, and more general
anxieties that, by recognising BID as a disorder, and amputation as a
treatment for this disorder, the number of those seeking such radical
surgery may increase, perhaps dramatically.
101
Bayne and Levy, above n 53, at 79. An illustration of the sad consequences
which may ensue for the patient if wrong decisions are made may be found
in an ABC News item upon the subject of BIID, which referred to the case of
Karl, who had frozen both of his legs with dry ice, so that surgeons would
have to amputate them. He had also had a desire to amputate his left hand,
but this desire had disappeared following intensive therapy and drug treat-
ment. He was reportedly somewhat regretful about his condition, comment-
ing: ‘What the hell was I thinking?’: ABC News, ‘What Drives People to
Want to Be Amputees?’ 5 April 2006 http://abcnews.go.com/Primetime/
health/ accessed 14 August 2006.
102
Seenan, above n 19.
C. Making Patients Disabled?

Perhaps the strongest argument against healthy limb amputation is that
such surgery goes much further than currently accepted forms of surgi-
cal body modification, since it turns a physically normal patient into an
impaired one and this is both ethically improper and against the public
interest. As the BMA has recognised, healthy limb amputation as a treat-
ment for BDD/BID may be distinguished from surgery to treat GID
because the former: ‘ . . . is disabling and some cases may render the
patient dependent upon support from society . . . ’.103 Depending on
the extent of their disability, an amputee may be eligible for a range
of state benefits or services, from prosthetic limbs, to incapacity
benefit or disability living allowance.104 The question of whether an
amputee may be regarded as being disabled raises difficult issues
about how disability is to be construed, full consideration of which is
beyond the scope of this article.105 The amputation of a limb compro-
mises an individual’s bodily integrity, but to what extent should that
be regarded as disability?106 Putting matters briefly, there is consider-
able dispute as to whether a ‘medical’ or a ‘social’ conception of disabil-
ity should be adopted.107 The former sees any negative departure from
the ‘normal’ physical body as inevitably adversely affecting the individ-
ual’s quality of life,108 while the latter places emphasis upon society’s
negative attitude towards the individual’s physical difference.109 Which-
ever model one favours, it appears that in the case of Robert Smith’s two
patients, although we may regard them as having been disabled by the
surgery, they paradoxically felt more normal and ‘whole’, better able
to function in society and arguably less disabled afterwards. Their
bodies may have become impaired, but they did not regard themselves
as being disabled.110 Given this, I suggest that there are some
103
BMA, above n 74, at 95.
104
See e.g. http://www.direct.gov.uk/en/MoneyTaxAndBenefits/BenefitsTax
CreditsAndOtherSupport/Disabledpeople/index.htm accessed 17 March 2009.
105
See e.g. P Alldridge, ‘Locating Disability Law’ [2006] CLP 289;
T Shakespeare, Disability Rights and Wrongs (Routledge 2006);
M Corker and T Shakespeare, Disability/Postmodernity: Embodying Dis-
ability Theory (Continuum 2002).
106
Bridy, above n 53, at 152 –3.
107
Ibid.; T Koch, ‘The Difficult Appendage’ (2001) 3 AMA Virtual Mentor, http://
www.ama-assn.org/ama/pub/category/3063.html accessed 11 July 2006.
108
Bridy, above n 53, at 152 –3.
109
Ibid.
110
Above n 19 and n 20. See the comments at: http://biid-info.org/Producing_
Identity:_Elective_Amputation_and_Disability accessed 4 March 2009. C.f.
HD Kaur, ‘Producing Identity: Elective Amputation and Disability’ (2004) 1
Scan, available at: http://scan.net.au/scan/journal/display.php?journal_id=38
accessed 4 March 2009.
exceptional circumstances in which it may be permissible to take the

radical step of amputating a limb in order to treat the whole person.
D. A Misguided Treatment?
Further, it may be argued that amputation is not an appropriate treatment
for these patients in particular, and for psychological disorders in general.
Such concerns focus upon the uncertainty with regard to diagnosis and
treatment and the innovative nature of this treatment.111 As Johnston
and Elliott have reminded us, the history of psychiatry provides a caution-
ary tale, for it is littered with unhappy examples of surgery being used to
treat psychiatric problems.112 The use of lobotomy to treat psychosis113
and clitoridectomy to treat epilepsy, catalepsy and hysteria in women114
is but two examples. The fear is that, having undergone amputation
surgery, the patient will not be cured and will come to regret taking
this course. I have previously referred to the perceived similarity
between BIID and GID, and there have been cases where patients who
have undergone gender reassignment surgery have regretted their original
decision and have had to undergo several surgical procedures in an
attempt to reverse the results of the first operation.115 Such an outcome
in the case of amputation surgery, given its drastic and irreversible
nature, would be disastrous for the patient. Any surgeon ought to
proceed with great caution, with amputation being a treatment of last
resort. However, there is some, albeit very limited evidence to support
Robert Smith’s assertion that in some cases, amputation is a proper treat-
ment for BIID sufferers. In First’s recent study of ‘wannabes’, it was found
that six of the subjects had had a limb amputated in accordance with their
wishes. All of these patients reported that they had no desire to seek any
further amputation and made it clear that they had never felt better and
were happy with the outcome of their treatment.116
A further concern is not merely that surgery will not improve the
patient’s condition, but that the patient will return, seeking to have
the other leg amputated, or perhaps even to become a quadruple
111
Johnston and Elliott, above n 15, at 433– 4. C.f. Ryan, above n 60, at 28–
30.
112
Ibid. at 434.
113
E Shorter, A History of Psychiatry (John Wiley 1996) at 225 –9.
114
P Fennell, Treatment Without Consent: Law, psychiatry and the treatment
of mentally disordered people since 1845 (Routledge 1996) at 66– 7.
115
D Batty, ‘Sex-change Patient Complains to GMC: Consultant Broke Rules
for Surgery, Says Businessman’ Guardian 18 February 2004.
116
First, above n 42, at 926. First reports the following comments as having
been made by these patients: ‘I am absolutely ecstatic; I’m in possession of
myself and my sexuality’; ‘..the only regret is that I did not have it earlier;
since I had it done 5 years ago, I’ve felt the best I’ve ever felt’; ‘it finally
put me at peace . . . I no longer have that constant gnawing frustration.’, Ibid.
amputee like the eponymous heroine in the film Boxing Helena.117

There are no guarantees that this will not occur, and this was something
which particularly worried the psychiatrists working with Robert
Smith, who assessed the suitability of the individuals seeking healthy
limb amputations at the Falkirk Infirmary.118 In practice, however, it
appears that, so far as elective surgery is concerned, no reputable
surgeon would be prepared to carry out further amputation surgery.
Even doctors who are prepared to countenance the amputation of one
healthy limb balk at the prospect of further amputation, seeing it as a
mutilation too far. It is not entirely clear whether this stance is due to
ethical or clinical objections, or to a combination of the two, but the
doctors concerned are likely to be influenced by the fact that those
seeking healthy limb amputation tend to seek amputations well above
the knee,119 and patients with bilateral above-knee amputations stand
a much reduced chance of achieving good mobility with prosthetic
limbs.120 Significantly, no patient who approached Robert Smith
seeking to have both legs amputated was assessed by psychiatrists as
being suitable for surgery.121
E. Official Recognition and the Spread of Psychiatric Disorders

In addition, it has been suggested that if apotemnophilia or BIID is offi-
cially recognised as a disorder, in particular by including it within
DSM-V as a condition with identifiable diagnostic criteria, this may
lead to the spread of the disorder and an increase in the number of
patients seeking healthy limb amputation. Carl Elliott has summarised
the argument very clearly:
By regarding a phenomenon as a psychiatric diagnosis – treating it,
reifying it in psychiatric diagnostic manuals, developing instru-
ments to measure it, inventing scales to rate its severity, . . .
117
S Lynch, Boxing Helena (Orion Pictures 1993). A much-derided feature film
in which an obsessed surgeon captures a young woman (Helena), imprisons
her in his mansion and amputates first her legs, and later both of her arms.
118
BBC Horizon, above n 18.
119
See e.g. Ibid; Gilbert, above n 18.
120
See e.g. TJ Moore and others ‘Prosthetic Usage Following Major Lower
Extremity Amputation’ (1989) 238 Clinical Orthopaedics 219.
121
Ibid. During the course of the documentary Robert Smith stated that:
Certainly a number of individuals have requested having both legs ampu-
tated and that is really quite a . . . concept . . . to try and grasp. Physically
it’s perfectly feasible to do bilateral amputations, but I think from a sur-
geon’s point of view it’s really asking a bit much to expect us to take this
on. I agree there is an irrepressible logic that if you’re prepared to remove
one leg why shouldn’t you be prepared to remove two legs if the patient
has this particular problem, but to a surgeon that’s a very difficult
concept to take on board.
encouraging pharmaceutical companies to search for effective

drugs, directing patients to support groups, writing about possible
causes in journals – psychiatrists may be unwittingly colluding
with broader cultural forces to contribute to the spread of a
mental disorder.122
This risk is compounded by the fact that, whereas the law tends to see
things very much in ‘black and white’ terms,123 psychiatrists, when
making diagnoses tend to see things more in shades of grey: mental dis-
orders have ‘fuzzy’ borders, which means that they are liable to
expand.124 The idea of a mental disorder such as BIID spreading
cannot be discounted, but appears to be unlikely, partly because the
procedure itself is so radical and partly because the results of such
surgery are ‘at odds with current conceptions of the ideal body image’.125
There are, however, two particular areas of difficulty which need to be
considered. First, there is the concern that people seeking amputation for
extreme body modification or sexual purposes will conceal their true
motives and learn the classified symptoms of the disorder in order to
repeat them to doctors so that they can get what they want.126 Second,
any surgeon, or hospital, who becomes known for conducting healthy
limb amputations is likely to attract, in addition to a good deal of
unwanted publicity, considerable attention from ‘wannabes’ all over
the world, not all of whom would be considered to be appropriate candi-
dates for such surgery. One website for ‘wannabes’ has 3000
members,127 and Furth has stated that he knows of about 200 people
who wish to amputate a healthy limb.128 Would-be amputees may go
to great lengths in an attempt to force hospitals to treat them, and hospi-
tals will need to consider carefully how they are to deal with such people.
The Falkirk Royal Infirmary was forced to deal with such a case in 2005,
when a woman who had learnt of Robert Smith’s operations travelled to
Scotland from France, deliberately injured both of her legs with dry ice
and admitted herself to the Accident and Emergency Department,
seeking a double amputation. Her wish was not granted: she was
122
Elliott, above n 34, at 230. For an extended discussion of this in relation to
Multiple Personality Disorder (now Dissociative Identity Disorder), see
I Hacking, Rewriting the Soul: Multiple Personality and the Sciences of
Memory (Princeton University Press 1995).
123
For example either one has capacity to consent to medical treatment, or one
lacks it.
124
C.f. Elliott, above n 34, at 233.
125
Bayne and Levy, above n 53, at 85.
126
Elliott, above n 34, at 234, who suggests that a similar phenomenon was
experienced by gender-identity clinics in the 1970s.
127
Fracassini, above n 25.
128
treated for her injuries and repatriated by air ambulance. The hospital
then issued a firm public statement to the effect that it would not
conduct healthy limb amputations in the future.129
IV. SURGERY AND THE CRIMINAL LAW

A. Assault and Maim
Having considered some of the practical and ethical issues involved, I now
turn to the question of whether a doctor amputating a healthy limb is
breaking the law. In an article upon the subject in 2002, Johnston and
Elliott suggested that, by conducting healthy limb amputations, Smith
had committed a ‘technical crime’.130 I suggest, albeit with some misgiv-
ings, that such surgery may be lawful, provided that certain conditions are
met. I should make it clear that, in spite of the press furore surrounding
the Scottish operations, the comments of the local MSP, Denis
Canavan, that he found it ‘incredible that any reputable surgeon would
amputate a perfectly healthy limb’,131 and the previously cited opinion
of academics,132 no doctor or surgeon has been prosecuted for conduct-
ing healthy limb amputations in the UK.
In the absence of any lawful justification, a person amputating a
healthy limb would commit an offence contrary to section 18 of the
Offences Against the Person Act 1861 (OAPA):
Whosoever shall unlawfully and maliciously by any means whatso-
ever wound or cause any grievous bodily harm to any person, . . .
with intent, . . . to do some . . . grievous bodily harm to any
person, . . . shall be guilty of an offence, and being convicted
thereof shall be liable . . . to imprisonment for life . . . 133
A surgeon cutting into a person’s body to amputate a limb certainly
‘wounds’ his patient, because she breaks the whole continuity of the
skin (both epidermis and dermis).134 Alternatively, she may be said
129
S Leonard, ‘Woman Asks Falkirk Hospital to Cut Off Healthy Legs’ Sunday
Times 3 April 2005.
130
Johnston and Elliott, above n 15, at 434. The response of Smith to this
article is set out at: R Smith and K Fisher, ‘Healthy Limb Amputations:
Ethical and Legal Aspects’ (2003) 3 Clinical Medicine 188. The BMA
advises doctors to exercise ‘extreme caution’ and that ‘specific legal advice
is essential before proceeding with such a case’, above n 74, at 95.
131
C. Norton, ‘Disturbed Patients Have Healthy Limbs Amputated’ Indepen-
dent 1 February 2000.
132
Johnston and Elliott, above n 15.
133
PJ Richardson (ed), Archbold, Criminal Pleading, Evidence and Practice
(‘Archbold’) (Sweet & Maxwell 2009), para. 19–199.
134
R v M’Loughlin (1838) 8 C. & P. 635; J.C.C. (a minor) v Eisenhower [1983]
3 All E.R. 230.
to cause grievous bodily harm (GBH), or ‘really serious bodily harm’135

to her patient. Since a surgeon will generally intend to cause serious
bodily harm to her patient, albeit with the best of motives,136 the
issue in the case of such surgery is whether the ‘wound’ or GBH is
lawful or unlawful, and upon what basis.
The general rule so far as the law of criminal assault is concerned
is that consent is not a defence to the causing of actual or
GBH.137 As Lord Lane CJ stated in Attorney General’s Reference (No
6 of 1980):
. . . starting with the proposition that ordinarily an act consented to

will not constitute an assault, the question is: at what point does the
public interest require the court to hold otherwise? . . .
The answer to this question, . . . is that it is not in the public inter-
est that people should try to cause or should cause each other actual
bodily harm for no good reason.138
‘Proper medical treatment’139 and ‘reasonable surgical interference’140

are, however, regarded as forming an exception to this general rule
and as being lawful, even though they involve intentional violence
resulting in actual or sometimes serious bodily harm’.141 The precise
limits of this exception are somewhat uncertain, because there is no
specific ruling that determines the proper legal limits of medical or sur-
gical intervention.142
135
DPP v Smith [1961] A.C. 290. The CPS guidance on offences against the
person, which gives examples of what would usually be regarded as
serious harm, is set out at http://www.cps.gov.uk/.
136
C.f. Woollin [1999] A.C. 82; Re A (Conjoined Twins: Surgical Separation)
[2000] 4 All E.R. 961, per Ward and Brooke LJJ); D Ormerod, Smith &
Hogan Criminal Law (12th edn Oxford University Press 2008) 97–101.
Where the charge is wounding or causing GBH with intent to cause GBH,
the word ‘maliciously’ adds nothing since ‘any mens rea which it might
import is comprehended within the ulterior intent’: Ormerod, ibid., at
615; Mowatt [1968] 1 Q.B. 421.
137
Brown [1994] 1 A.C. 212. Assault occasioning ‘actual bodily harm’ is an
offence contrary to s.47 OAPA. ‘Bodily harm’ ‘includes any hurt or injury
calculated to interfere with the health or comfort of the prosecutor. Such
hurt or injury need not be permanent, but must . . . be more than merely tran-
sient and trifling’. Donovan [1934] 1 KB 498 at 509 per Swift J This passage
was approved in Brown at 230 and 242.
138
(1981) 73 Cr. App. R. 63, at 66. This passage was cited with approval in
Brown [1994] 1 A.C. 212, at 243 per Lord Jauncey; at 253 –4 per Lord
Lowry.
139
A-G’s Reference (No 6 of 1980) (1981) 73 Cr. App. R. 63, at 66.
140
Brown [1994] 1 A.C. 212 (HL) at 266, per Lord Mustill.
141
Ibid., at 231 per Lord Templeman.
142
M Brazier and E Cave, Medicine, Patients and the Law (4th edn Penguin
2007) 100.
Peter Skegg has suggested that the ancient common law offence of
maim or mayhem might apply to certain medical procedures.143
Maim was a common law felony and consisted of: ‘such a hurt of any
part of a man’s body whereby he is rendered less able, in fighting,
either to defend himself or to annoy his adversary . . . ’.144 Consent
apparently was not a defence to this crime.145 Skegg has argued that,
although supplanted by statutory offences, the crime of maim has not
been expressly abolished, and that there might be circumstances in
which a medical practice might amount to maim, in which case the
consent of the patient would not be a defence.146 However, I suggest
that the preferable approach is that adopted by Lord Mustill in
Brown,147 who, in a dissenting judgment, noted that there ‘was no
record of anyone being indicted for maim in modern times’, and
stated that the crime of maim was ‘obsolete’, because if Parliament
had intended to ‘perpetuate maiming as a special category of offence’,
some provision would have been made for it in the 1861 Act. This
view appears to have been accepted by Lord Lowry,148 although none
of the other law lords specifically considered the modern validity of
this ancient offence. Even if maim does still exist as an obsolescent
offence in English law, it is difficult to envisage circumstances in
which a medical practitioner would be prosecuted for maim arising
out of properly conducted medical or surgical treatment and even
more unlikely that such a prosecution would succeed.149 Most surgical
143
PDG Skegg, Law, Ethics and Medicine (Clarendon Press 1984) 43–6. The
terms maim and mayhem are interchangeable, mayhem being the old term
for the maiming of a person; DM Walker, The Oxford Companion to
Law (Oxford University Press 1980) 797, 818.
144
Hawkins’ Pleas of the Crown, 8th edn., cited in Brown [1994] 1 A.C. 212
(HL), Lord Mustill, at 262. C.f. Stephen, Digest of the Criminal Law
(1883), Article 206 (cited at p. 771); I Kennedy and A Grubb, Medical
Law, (3rd edn Butterworths 2000).
145
Stephen, ibid.: ‘Everyone has a right to consent to the infliction upon himself
of bodily harm not amounting to a maim’. However, in Brown [1994] 1
A.C. 212, Lord Mustill observed (at 262) that: ‘No reported decision or
statute was cited in support of this proposition . . . ’.
146
Skegg, above n 143, at 43, 46.
147
[1994] 1 A.C. 212 (HL) at 262. C.f. Law Commission, Consent in the Crim-
inal Law, consultation paper No 139, (1995), para 8.23. The Offences
against the Person Bill 1998, cl.23, if enacted, would purport to abolish
the offence of ‘mayhem’: http://www.nationalarchives.gov.uk/ERO/
records/ho415/1/cpd/sou/oapdb.htm.
148
[1994] 1 A.C. 212 (HL) at 247 –8.
149
See e.g. R v Owens [1976] 1 WLR 840, at 842, where the Court of Appeal
commented negatively upon the fact that the ‘obsolescent offence of embra-
cery’ had been charged and R v Rimmington, Goldstein [2006] 1 AC 459,
where Lord Bingham stated:
[30] . . . Where Parliament has defined the ingredients of an offence,
perhaps stipulating what shall and shall not be a defence, and has
procedures would not, in any event, amount to maim because they do

not permanently disable a person and render them less able to
fight.150 Even if they did, they would not amount to maim if performed
for a therapeutic purpose or other good reason.151
B. The Role of Consent

The courts have consistently recognised that, in the case of a competent
adult, ‘the principle of self-determination requires that respect must be
given to the wishes of the patient’,152 and that they have the right to
determine what is done to their body, including what medical treatment
they receive.153 As Lord Donaldson M.R. stated in Re R (Wardship) (a
Minor: Consent to Treatment) 154:
It is trite law that in general a doctor is not entitled to treat a patient
without the consent of someone who is authorised to give consent.
If he does so, he will be liable in damages for trespass to the person
and may be guilty of a criminal assault.
Generally, it is assumed that it is the patient’s consent that makes
medical treatment lawful.155 Although the patient’s consent will ordina-
rily preclude liability for the tort of trespass to the person,156 the current
position in English criminal law is not so straightforward, for questions
of policy and public interest come into play.
prescribed a mode of trial and a maximum penalty, it must ordinarily be

proper that conduct falling within that definition should be prosecuted for
the statutory offence and not for a common law offence . . . good practice
and respect for the primacy of a statute . . . require that conduct falling
within the terms of a specific statutory provision should be prosecuted
under that provision unless there is a good reason for doing otherwise.
Even if the offence still existed, a prosecution might be vulnerable to a defence
application to stay the proceedings upon the basis that it was an abuse of the
process of the court to institute a prosecution based upon the ancient charge
of maim, rather than the offence under the OAPA 1861: See e.g. Re J [2005] 1
A.C. 562 (HL).
150
Skegg, above n 143, at 45.
151
Ibid.
152
Airedale NHS Trust v Bland [1993] A.C. 789, at 864 per Lord Goff.
153
C.f. Schloendorff v Society of New York Hospital (1914) 105 NE 92 per
Cardozo J.
Every person being of adult years and sound mind has a right to determine
what shall be done with his own body.
154
[1992] Fam. 11, at 22. C.f. Re T (Adult: Refusal of Treatment) [1992] 4 All
E.R. 649, at 653 per Lord Donaldson MR.
155
E Jackson, Medical Law: Text, Cases and Materials (Oxford University
Press 2006) 181.
156
Save in the rare cases where consent is defective, either because the patient
was provided with insufficient information, or because of coercion or
undue influence: C.f. Jackson, ibid., at 184, 248 –53, Ch 5.
A strict libertarian approach would regard an individual’s claim to

autonomy as pre-eminent, and recognise consent as both a necessary
and a sufficient justification for surgery to be lawful,157 but it has
been recognised, both judicially and by the Law Commission, that
this is not the stance adopted by the criminal law.158 In Brown,
Lord Mustill recognised that consent did not provide a complete
answer to the lawfulness of surgery and suggested that special rules
applied:159
Many of the acts done by surgeons would be very serious crimes if

done by anyone else, and yet the surgeons incur no liability. Actual
consent, or the substitute for consent deemed by the law to exist
where an emergency creates the need for action, is an essential
element in this immunity; but it cannot be a direct explanation
for it, since much of the bodily invasion involved in surgery lies
well above any point at which consent could even arguably be
regarded as furnishing a defence. Why is this so? The answer
must in my opinion be that proper medical treatment, for which
actual or deemed consent is a prerequisite, is in a category of
its own.
While the Law Commission has accepted that consent does not provide
a complete justification for a doctor’s exemption from criminal
liability ‘for acts done in the course of lawful medical or surgical
157
C.f. Feinberg’s liberal approach, which suggests that: ‘..one person cannot
properly be prevented from doing something that will harm another when
the latter has voluntarily assumed the risk of harm himself through his
free and informed consent’; J Feinberg, Harm to Others (Oxford University
Press 1984) 116 (see also 35–6 and 115); J Feinberg, Harm to Others
(Oxford University Press 1987) 165 –73). C.f. T Schramme, ‘Should We
Prevent Non-Therapeutic Mutilation and Extreme Body Modification?’
(2007) 22 Bioethics 8.
158
Jackson, above n 155, at 181; G Williams, Textbook of Criminal Law (2nd
edn Stevens 1983) 577.
159
Brown [1994] 1 A.C. 212 (HL) at 266. Similar comments were made by
Lord Mustill in Airedale NHS Trust v Bland [1993] A.C. 789(HL) at 891:
Proper medical treatment. How is it that, . . . a doctor can with immunity
perform on a consenting patient an act which would be a very serious
crime if done by someone else? The answer must be that bodily invasions
in the course of proper medical treatment stand completely outside the
criminal law. The reason why the consent of the patient is so important
is not that it furnishes a defence in itself, but because it is usually essential
to the propriety of medical treatment. Thus, if the consent is absent, and is
not dispensed within special circumstances by operation of law, the acts of
the doctor lose their immunity.
See e.g. Law Commission, above n 147, para 8.3; R v Barnes [2005] 1 Cr.
App. R. 30, in which Lord Woolf CJ, at [9], described Lord Mustill as
dealing with the legal position with ‘particular clarity’.
treatment’,160 since ‘the consent of the patient to the injury may usually
be a necessary, but it is certainly not a sufficient, condition of that
exemption’.161
C. What is ‘Proper Medical Treatment’?

So what is ‘proper’ or ‘reasonable’ medical treatment? And if consent
alone does not provide the complete justification for the exemption
for medical treatment, what does? In Attorney-General’s Reference
(No 6 of 1980),162 Lord Lane referred to ‘the accepted legality of . . .
reasonable surgical interference’163 and said that this exception could
be justified as being ‘needed in the public interest’,164 but provided no
further guidance as to what might amount to unreasonable surgery,
how the public interest was engaged, or how far it extended. The legality
of most surgery is uncontroversial. Certain surgical procedures are
clearly unlawful. For instance, female circumcision even with consent,
save in certain very limited specified therapeutic circumstances,165 has
been prohibited by statute, and it has been suggested that, in addition,
it would amount to an offence under section 18 OAPA166 and at
common law.167 On the other hand, conventional surgery for a
160
Law Commission, Consent and Offences against the Person: A Consultation
Paper, Consultation Paper No.134 (HMSO 1994), para 2.4. For discussion
of the paper, see: MJ Gunn and DC Ormerod, ‘Second Law Commission
Consultation on Consent: (2) Consent – a Second Bash’ [1996] Crim L
Rev 694; P Alldridge, ‘Consent to Medical and Surgical Treatment – the
Law Commission’s Recommendations’ [1996] 4 Med L Rev 129.
161
Ibid.
162
(1981) 73 Cr. App. R. 63.
163
Ibid., at 66.
164
Ibid.
165
Female Genital Mutilation Act 2003; Archbold, above n 133, paras 19–
283 –19–285c, and previously under the Prohibition of Female Circumci-
sion Act 1985. Male circumcision is not unlawful, even if performed to
improve one’s sex life: A Grubb (ed) Principles of Medical Law (2nd edn
Oxford University Press 2004) 240; Hickey v Croydon AHA The Times
6 March 1985. C.f. Law Commission, above n 147, para 3.25. This view
has been challenged by M Fox and M Thompson: ‘A Covenant with the
Status Quo? Male Circumcision and the New BMA Guidance to Doctors’
(2005) 31 Journal of Medial Ethics 463. Feldman argues that non-
therapeutic circumcision conducted without the consent of the patient
may amount to inhuman treatment and violate Article 3 of the ECHR:
D Feldman, Civil Liberties and Human Rights in England and Wales,
(2nd edn Oxford University Press 2002) 272. C.f. H Gilbert, ‘Time to
Reconsider the Lawfulness of Ritual Male Circumcision’ [2007] EHRLR
279.
166
Jackson, above n 155, at 183.
167
RD Mackay, ‘Is Female Circumcision Lawful?’ [1983] Crim LR 717;
K Hayter, ‘Female Circumcision—Is There a Legal Solution?’ [1984]
J.S.W.L. 323; S.M. Poulter, English Law and Ethnic Minority Customs
(Butterworths 1986) at 155–6. C.f. L Bibbings, ‘Human Rights and the
Criminalisation of Tradition: The Practices Formerly Known as ‘Female
therapeutic purpose, performed by a qualified practitioner is accepted as

being lawful:168 it is in the public interest that people who need medical
treatment should receive it.169
The question of whether the amputation of a healthy limb could be
regarded as lawful surgery has been a matter of debate. It has been
suggested that if a patient were to consent to such an amputation ‘for
no good reason’, then consent would not provide a defence to a charge
of GBH.170 It may also be said that, even where one is trying to treat a
psychiatric disorder such as BDD, ‘operating to transform a non-
disabled individual into a disabled one self-evidently causes GBH, and
seems manifestly ‘unreasonable’.171 However, it may be argued that
these operations may be regarded as being analogous with organ trans-
plantation where live donors are used, gender reassignment surgery or
cosmetic surgery, all of which are now regarded as being lawful. As in
the case of healthy limb amputation, both live organ donation and
gender reassignment surgery invariably involve the removal of healthy
body parts. In cosmetic surgery and gender reassignment surgery, the
patient is also seeking to alter their physical body to fit their image of
how their body ought to be.172 In addition, while it has been argued
by some commentators that proper medical treatment ‘must serve
some therapeutic purpose’,173 live organ donation offers no therapeutic
benefits for the donor, and in the case of cosmetic surgery, any thera-
peutic purpose may be difficult, if not impossible to find.
1. Organ Transplantation
Although in the past questions were raised as to whether the removal of,
for example, a kidney from a living donor for transplantation purposes
might amount to an offence,174 it is now recognised that:
. . . there can be no doubt that, once a valid consent has been forth-
coming, English law now treats as lawful operative procedures
Circumcision’’ in P Alldridge and C Brants (eds) Personal Autonomy, The

Private Sphere and Criminal Law (Hart 2001) 139; S Sheldon and
S Wilkinson, ‘Female Genital Mutilation and Cosmetic Surgery: Regulating
Non-Therapeutic Body Modification’ (1998) 12 Bioethics 263.
168
Law Commission, above n 147, para 8.25.
169
C.f. Re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1, at 69 per Lord
Griffiths.
170
Skegg, above n 143, at 38.
171
Jackson, above n 155, at 183.
172
Ibid.
173
A Hockman, The Law of Consent to Medical Treatment (Sweet & Maxwell
2002), para 2–021. C.f. Re F [1990] 2 A.C. 1, at 55 per Lord Brandon.
174
R Ormrod, ‘Medical Ethics’ (1968) 2 Br Med J 7, at 9. C.f. Skegg, above
n 143, at 43–4; G Dworkin, ‘The Law Relating to Organ Transplantation
in England’ (1970) 33 Med L Rev 353, at 354 –64.
designed to remove regenerative tissue, and also non-regenerative

tissue that is not essential for life.175
Such transplants are regulated both by the common law and by the pro-
visions of the Human Tissue Act 2004.176 The basis upon which these
operations are regarded as lawful has not been worked out in the case
law. There is clearly no physical therapeutic benefit to the donor. The
removal of an organ or part of an organ from an individual involves
surgery under general anaesthetic and the risks to the donor’s health
are not insignificant: the removal of a liver lobe carries about a 1– 2%
risk of mortality from bleeding complications.177 While it may be
claimed that there may be other benefits to the donor, such as ‘heigh-
tened self esteem, enhanced status in the family, renewed meaning in
life, and other positive feelings including transcendental or peak experi-
ences flowing from their gift of life to another’,178 such benefits are
purely incidental—the whole purpose of organ transplantation is to
benefit the recipient.179 There is also public benefit to be obtained
from successful organ transplantation, not least because the cost of
other treatments for organ failure, particularly in the case of kidney
failure, is usually more expensive.180
2. Gender Reassignment Surgery
Gender reassignment surgery is the surgery arguably most analogous to
healthy limb amputation, since it is a major surgery which involves the
removal of healthy body parts, and is irreversible.181 However, unlike
healthy limb amputation, the legality of gender reassignment surgery
175
Law Commission, above n 147, para 8.32. The organ most commonly
donated is the kidney (690 people received a living donor kidney transplant
in 2006– 2007), although liver lobes, lung segments and portions of the
small bowel may also be donated: http://www.uktransplants.org.uk/ukt/
statistics (accessed June 4 2008).
176
See ss.32 –33, and the Human Tissue Act (Persons who Lack Capacity to
Consent and Transplants) Regulations 2006 (2006/1659). The relevant
Human Tissue Authority Codes of Practice: Code of Practice 1 – Consent
(2006) and Code of Practice 2 – Donation of Organs, Tissue and Cells
for Transplantation (2006), may be accessed at: http://www.hta.gov.uk/
guidance/codes_of_practice.cfm .
177
http://www.theregister.co.uk/ accessed 14 August 2006. C.f. Jackson, above
n 156.
178
Little v Little (1979) 576 SW (2d) 493, at 499 per Cadena CJ
179
180
All solid organ transplantation is cost-effective (except for liver transplan-
tation for alcoholic liver disease). The cost of a kidney transplant is about
£17,000 per patient per transplant, and the cost of immunosuppression
treatment is £5,000 per year. The average cost of dialysis is £21,000 per
patient per year: UK Transplant website: http://www.uktransplant.org.uk/
(accessed June 4 2008).
181
DW Meyers, The Human Body and the Law (2nd edn Edinburgh University
Press 1990) 223.
is well established.182 In Corbett v Corbett 183 in 1970, Ormrod J., com-

menting upon such operations, appeared to accept that they were lawful
if conducted for ‘genuine therapeutic reasons’:
There is obviously room for differences of opinion on the ethical

aspects of such operations but, if they are undertaken for genuine
therapeutic reasons, it is a matter for the decision of the patients
and the doctors concerned in the case.184
It is clear from this and subsequent judicial statements185 that the courts
have left the question of what are ‘genuine therapeutic reasons’ in the
hands of the treating medical practitioners, adopting a ‘hands off’
stance in relation to questions of diagnosis and the development and
use of treatments for GID. It should also be noted that this apparent
acceptance of surgical methods as being lawful to treat what was then
termed ‘transsexualism’, pre-dated the first classification of this con-
dition as a recognised disorder in the DSM by a decade.186 Since
Corbett, the legality of such surgery does not appear seriously to have
been questioned,187 and has now been put beyond doubt following a
series of cases in which those who have undergone gender reassignment
have challenged behaviour which discriminates against them on the
ground of their gender, or have asserted their human rights,188 and by
the enactment of the Gender Recognition Act 2004.189 No medical
practitioner has been prosecuted for performing gender reassignment
182
Ibid. C.f. Law Commission, above n 147, paras 8.28–8.29.
183
[1971] p. 83. The case concerned the validity of a marriage between the
model April Ashley (who had been born a man, but who had undergone
gender reassignment surgery) and another man. C.f. R v Tan, Greaves and
Greaves (1983) 76 Cr App R 300, a case in which one of the defendants,
who had been convicted of keeping a disorderly house, had undergone
gender reassignment. The Court of Appeal applied Corbett v Corbett,
making no comment on the lawfulness or otherwise of the operation.
184
Ibid, at 83.
185
Ibid.; Bellinger v Bellinger [2003] 2 AC 467, at [8], [30] per Lord Nicholls,
[8]; at [76] per Lord Hobhouse.
186
‘Transsexualism’ first appeared in the DSM-III in 1980. It was replaced by
‘Gender Identity Disorder’ (GID) in DSM-IV: Bridy, above n 53, at 150.
187
188
For example Cossey v U.K. (1990) 13 EHRR 622; Goodwin v U.K. (2002)
EHRR 18; Bellinger v Bellinger [2003] 2 AC 467; Croft v Royal Mail Group
Plc. [2003] ICR 1425; Chief Constable of Yorkshire Police v A [2005] 1
AC 1. In Bellinger, Lord Nicholls, at [30], observed that:
Recognition of transsexualism as a psychiatric disorder has been
accompanied by the development of sophisticated techniques of medical
treatment. The anatomical appearance of the body can be substantially
altered, by forms of treatment which are permissible as well as possible.
189
The Act makes provision for a ‘gender recognition certificate’ to be issued to
give recognition to a person’s acquired gender. In the case of a male– female
surgery for therapeutic purposes,190 and such treatment is provided and

funded by the NHS.191
3. Cosmetic Surgery
Cosmetic surgery is regarded as being lawful. The Law Commission was
‘unable to identify any English case in which the lawfulness of cosmetic
surgery carried out by consent has been called into question’,192 and, in
2005, the Department of Health recognised that such surgery was
lawful when it set up a ‘Cosmetic Surgery Website’ to provide infor-
mation about cosmetic procedures.193 This website provides infor-
mation and advice upon a wide variety of surgical procedures, from
‘belly button surgery194 to ‘female genital reshaping’,195 which is
clearly posited upon the basis that such treatments are lawful. Private
hospitals or clinics which provide invasive cosmetic surgery196 are
regulated by the Care Standards Act 2000,197 and are, until
transsexual, once a gender recognition certificate has been issued, that

person will be legally recognised as a woman in English law.
190
Meyers, above n 181, at 223.
191
See e.g. Goodwin v UK (2002) EHRR 18, at para.78:
. . . the applicant’s gender re-assignment was carried out by the National
Health Service, which recognises the condition of gender dysphoria and
provides inter alia, re-assignment by surgery . . . .
R v North West Lancashire Health Authority, ex parte A [2000] 1 WLR
977.
192
Above n 147, para 8.30. C.f. Lacey v Laird 139 NE 2d 25 (1956), an action
for alleged malpractice, assault and battery for performing cosmetic surgery
upon the claimant’s nose whilst she was a minor, allegedly without her
consent. Hart J stated (at 31):
Even though a surgical operation is beneficial or harmless, it is in the
absence of a proper consent to the operation, a technical assault and
battery.
193
Department of Health, Cosmetic Surgery website: http://www.dh.gov.uk/
PolicyAndGuidance/HealthAndSocialCareTopics/CosmeticSurgery/fs/en
(accessed March 4 2009).
194
Umbilicoplasty. Department of Health, Cosmetic Surgery: Information for
Patients (2006) 28.
195
Ibid., at 69.
196
Other than ear and body piercing, tattooing, the subcutaneous injection of a
substance or substances into the skin for cosmetic purposes, and the removal
of hair roots or small blemishes on the skin by the application of heat using
an electric current (Care Standards Act 2000, s.2(7), as amended by the
Private and Voluntary Health Care (England) Regulations 2001 (2001/
3968).
197
This Act has been substantially amended by, inter alia, the Health and Social
Care (Community Health and Standards) Act 2003, the Private and Volun-
tary Health Care (England) Regulations 2001 (2001/3968) and the Health
and Social Care Act 2008. For a more detailed analysis of the regulation
of cosmetic surgery see: M Latham, ‘The Shape of Things to Come: Femin-
ism, Regulation and Cosmetic Surgery’ [2008] 18 Med L Rev 437, and
1 April 2009,198 required to register with the Healthcare Commission,

which is responsible for the regulation and inspection of such
establishments.199
It may be possible in some cases to discern some therapeutic
benefit from cosmetic surgery, upon the basis that the operation will
improve the patient’s mental health, and this is usually the justification
offered by those providing such surgical procedures.200 However, this
justification has come to look increasingly thin. Cosmetic surgery
websites may suggest to potential buyers that if they ‘look great’,
they will ‘feel better’,201 but in many, perhaps most cases, these
operations are performed because the patients wants them to be
performed, rather than for any deeper therapeutic benefit. Glanville
Williams recognised the truth in relation to cosmetic surgery when he
stated that:
Therapy also gives moral support to some cosmetic surgery, but not
all. The justification for padding bosoms, chiselling noses, and
restoring hymens lost in pre-marital encounters, is that the
patient is pleased and may be socially or maritally advantaged,
rather than that the operation is a psychiatric necessity.202
In recent years, cosmetic surgery has increasingly become part of the

‘beauty industry’, with women and men going under the knife in a
quest to obtain or maintain the body beautiful. Even though cosmetic
surgery is not generally available on the NHS,203 figures suggest that
there has been a large increase in the number of people having such
surgery: The British Association of Aesthetic Plastic Surgeons204
recorded that its members carried out 22,041 procedures in 2005, an
Department of Health, Expert Group on the Regulation of Cosmetic

Surgery (2005).
198
From this date, the Healthcare Commission will be replaced by the Care
Quality Commission: Health and Social Care Act 2008, s.1; http://
www.cqc.org.uk/.
199
Further information re the role of the Healthcare Commission in this context
is provided at: http://www.healthcarecommission.org.uk.
200
For example The President-Elect of BAAPS (British Association of Aesthetic
Plastic Surgeons), Douglas McGeorge, has stated that: ‘When performed
under the right circumstances, aesthetic surgery can have a very positive
psychological impact and improve a patient’s quality of life’. BBC News,
‘Big Rise in Cosmetic surgery Ops’ (16.1.2006): http://news.bbc.co.uk/2/
hi/health/4609166.stm (accessed September 27 2006).
201
BUPA website: http://www.bupahospitals.co.uk/asp/cosmetic/index.asp
202
Williams, above n 158, at 590.
203
Department of Health, Cosmetic Surgery website: http://www.dh.gov.uk/
PolicyAndGuidance/HealthAndSocialCareTopics/CosmeticSurgery/fs/en
204
Above n 200.
increase of 34.6% upon 2004 figures.205 Cosmetic surgery is a lucrative

business, heavily promoted by its providers in newspapers and magazine
advertisements, upon internet websites,206 and at free ‘information’ or
‘open’ evenings.207 Private healthcare companies offer a wide variety
of cosmetic treatments: almost everything, it appears, can be lifted,
re-shaped or tightened. Some companies even offer cosmetic surgery
packages to obtain that ‘bikini body’ or to look ‘10 Years Younger’,
with easy credit terms.208
Given that there is no therapeutic benefit in much cosmetic surgery,
the question arises as to the basis upon which such surgery may be
regarded as lawful. It is perhaps difficult to see how an operation
upon a young woman to enlarge her breasts to enormous proportions
so that she may become a glamour model or television game show con-
testant might be said to be in the public interest. It may be argued on
feminist grounds that the promotion of this type of self-modification is
objectionable as reinforcing stereotypical and idealised views of the
female body.209 Such a criticism appears to have particular resonance
in relation to female genital cosmetic surgical procedures such as
labial reduction, for which there is said to be increasing demand.210
For example, Liao and Creighton in a study of women who had under-
gone labial reduction surgery found that they ‘uniformly’ wanted vulvas
‘similar to the prepubescent aesthetic featured in advertisements’.211
The permissive approach of the law towards cosmetic surgery in
general, and genital cosmetic surgery in particular, contrasts starkly
with the restrictive approach in relation to female genital mutilation,
which is prohibited in all forms.212 The Law Commission’s rationale
for the lawfulness of cosmetic surgery was unconvincing, relying on
an unspoken, unconscious acceptance of the legal position:
205
Ibid.
206
See e.g. Bupa cosmetic surgery website, above n 201; Harley Medical Group,
http://www.harleymedical.co.uk/; Transform Medical Group, http://
www.transforminglives.co.uk (both accessed June 4 2008).
207
Bupa and Transform Websites, ibid.
208
E.g. Transform Medical Group, above n 191.
209
Latham, above n 197, at 441 –3; Sheldon and Wilkinson, above n 167, at
274. C.f. V. Braun, ‘In Search of (Better) Sexual Pleasure: Female Genital
‘Cosmetic’ Surgery’ (2005) 8 Sexualities 407, at 418.
210
LM Liao and SM Creighton, ‘Requests for Cosmetic Genitoplasty: How
Should Healthcare Providers Respond?’ (2007) 334 Br Med J 1090
211
Ibid., at 1091.
212
Sheldon and Wilkinson, above n 167. C.f. M Berer, ‘It’s Female Genital
Mutilation and Should Be Prosecuted’ (2007) 334 Br Med J 1335, who
argues that cosmetic genitoplasty is a criminal offence under the Female
Genital Mutilation Act 2003.
. . . it may be that this is a field in which English law unconsciously

recognises that the criminal law has no acceptable place in control-
ling operations performed by qualified practitioners upon adults of
sound mind with their consent.213
If this is correct in the case of cosmetic surgery, then it is somewhat dif-
ficult to see why it should not apply to surgery in general.214 Is it appro-
priate that qualified surgeons operating upon competent adults with
consent should be at risk of being prosecuted for one of the more
serious criminal offences in the criminal calendar?
4. Surgery and the Law: A ‘Hands Off’ Approach?
Even a brief analysis of the exception to the general rule that consent is
no defence to the causing of bodily harm in the case of ‘reasonable sur-
gical interference’215 discloses that it has no clear or consistent rationale
and that its limits are uncertain. Judicial attempts to justify the legality
of surgery on the basis of public interest216 may appear satisfactory in
the case of surgery which serves an evident therapeutic purpose, or
other significant public benefit, such as saving public money or benefit-
ing another.217 However, they are much less satisfactory in the case of
cosmetic surgery, where public or therapeutic benefit may be difficult
or impossible to discern, and where the consent of a competent
patient appears in practice to be both necessary and sufficient for
surgery to be lawful. I suggest that, in reality, the law has adopted some-
thing of a ‘hands off’ approach in relation to the issue of whether
surgery is ‘reasonable’, leaving matters relating to diagnosis and treat-
ment in the hands of medical practitioner.
V. HEALTHY LIMB AMPUTATION: SOME FINAL THOUGHTS

When Robert Smith performed amputation surgery upon two of his
patients, in each case removing a healthy leg, he believed that he was
acting in their best interests and relieving their suffering. These oper-
ations generally provoke strong reactions of incredulity, disquiet and
even disgust when we learn of them, because we find it difficult to under-
stand why individuals should wish to transform normal, healthy bodies
into ones with impairments. Such patients challenge our beliefs with
regard to bodily integrity by asserting that they will not feel physically
‘whole’ until they have had a limb removed, beliefs which are so far
213
214
Williams, above n 158, at 590 –1.
215
Above n 140.
216
Attorney-General’s Reference (1981) 73 Cr. App. R. 63, at 66, per Lord
Lane CJ.
217
Above at 27–30.
removed from what we regard as the norm, that we are suspicious of

them and of their motives. Given the maiming nature of the surgery
which these ‘wannabes’ request, questions of diagnosis and treatment
must be approached with a great deal of care, and the question of
how best to treat such individuals raises a number of ethical difficulties.
I suggest that, in the case of a very few ‘wannabes’, provided that they
have capacity to consent, are properly informed about the risks of
surgery, all other treatments have proved to be unsuccessful, and a
full medical and psychiatric assessment has been undertaken, then
amputation may be an appropriate treatment to relieve their suffering.
As to the question of whether a surgeon amputating a healthy limb
would commit a criminal offence, a study of the so-called ‘medical
exception’ to the general rule that consent is not a defence to the
causing of bodily harm reveals that the limits of the exception are uncer-
tain. The courts have stated that ‘proper’ or ‘reasonable’ medical treat-
ment which is consented to by a competent adult is lawful, but have not
ruled what the proper limits of surgical intervention are. The term
‘surgery’ covers a wide variety of procedures. In most cases it will be
relatively easy to justify these procedures as being in the public interest,
since they are performed for therapeutic reasons. Given that the removal
of healthy body parts in gender reassignment surgery in order to treat a
severe psychological condition is lawful; might not healthy limb ampu-
tation be regarded as being justified upon a similar basis? However, con-
sideration of this form of surgery also raises wider questions about
whether we need this ‘medical exception’ at all. Cosmetic surgery is
lawful in spite of the fact that procedures are frequently undertaken
merely to satisfy personal vanity or increase earning potential: aesthetic
surgery has become part of a burgeoning ‘beauty’ industry, in which
‘customers’ are encouraged to take active steps to modify their bodies
to attain or maintain their ideal physical image. If the criminal law
has no place in controlling cosmetic surgery performed by qualified sur-
geons upon competent adults with their consent, why should it have any
place in controlling other forms of surgery performed in similar circum-
stances? I suggest that provided that surgery is conducted by appropri-
ately qualified medical practitioners upon adults who have capacity,
and who have consented to the procedure, the matter could be regulated
by the civil law, and by the medical profession. This would strike an ade-
quate balance between the protection of patients and the public and
respect for individual autonomy.

BDD Radical Surgery Consent

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

BDD Radical Surgery Consent

Uploaded by

Copyright:

Available Formats

Medical Law Review, 17, Summer 2009, pp.

BODY DYSMORPHIC DISORDER,

II. BODY DYSMORPHIC DISORDER

defect in appearance. This defect may be imagined, for example, a person

www.dsmivtr.org/ (accessed June 4 2008). It is extensively used in psychiatric

B. Dysmorphic People and the Amputation of Healthy Limbs: The

C. Problems of Diagnosis: BDD or Something Else?

described his patients as ‘“need-to-bes” rather than “wannabes”’.40 A

and separate diagnostic syndrome.47 This view of the disorder has

In both conditions the individual reports feeling uncomfortable

He provisionally suggested that the disorder be called ‘body integrity

handicap’,52 while Bruno regards the disorder as a ‘factitious disability

that the desire for amputation might temporarily be relieved by cold-water

III. ARGUMENTS FOR AND AGAINST HEALTHY LIMB

It is perhaps salutary to remember that there is no necessary con-

Critics of healthy limb amputations have questioned whether patients

www.biid.org/advice.php?page=04&lan=en accessed 4 March 2009. First’s

Given the drastic and irreversible nature of amputation surgery73 and

Masterman-Lister v Brutton & Co., Jewell and Home Counties Dairies

MCA is that, where possible, positive steps should be taken to try to

this view: some sufferers of apotemnophilia are so desperate to have a

for amputation is transient, or one who may respond to therapy or drug

I have already referred to some of the criticisms of this form of surgery.

C. Making Patients Disabled?

exceptional circumstances in which it may be permissible to take the

amputee like the eponymous heroine in the film Boxing Helena.117

E. Official Recognition and the Spread of Psychiatric Disorders

encouraging pharmaceutical companies to search for effective

IV. SURGERY AND THE CRIMINAL LAW

to cause grievous bodily harm (GBH), or ‘really serious bodily harm’135

. . . starting with the proposition that ordinarily an act consented to

‘Proper medical treatment’139 and ‘reasonable surgical interference’140

procedures would not, in any event, amount to maim because they do

B. The Role of Consent

prescribed a mode of trial and a maximum penalty, it must ordinarily be

A strict libertarian approach would regard an individual’s claim to

Many of the acts done by surgeons would be very serious crimes if

C. What is ‘Proper Medical Treatment’?

therapeutic purpose, performed by a qualified practitioner is accepted as

Circumcision’’ in P Alldridge and C Brants (eds) Personal Autonomy, The

designed to remove regenerative tissue, and also non-regenerative

is well established.182 In Corbett v Corbett 183 in 1970, Ormrod J., com-

There is obviously room for differences of opinion on the ethical

surgery for therapeutic purposes,190 and such treatment is provided and

transsexual, once a gender recognition certificate has been issued, that

1 April 2009,198 required to register with the Healthcare Commission,

In recent years, cosmetic surgery has increasingly become part of the

Department of Health, Expert Group on the Regulation of Cosmetic

increase of 34.6% upon 2004 figures.205 Cosmetic surgery is a lucrative

. . . it may be that this is a field in which English law unconsciously

V. HEALTHY LIMB AMPUTATION: SOME FINAL THOUGHTS

removed from what we regard as the norm, that we are suspicious of

You might also like