Tag: Consent

Burrell v Harmer [1967]: Exploring Consent and Criminal Liability

Case Name: Burrell v Harmer

  • Citation: [1967] Crim LR 169
  • Court: High Court of Justice (England and Wales)
  • Year: 1967
  • Area of Law: Criminal Law – Consent; Assault Occasioning Actual Bodily Harm (ABH)

Burrell v Harmer [1967] Crim LR 169 is an important English criminal law case that examines the limits of consent, particularly in relation to minors.

Key Facts (Burrell v Harmer)

The defendant, a tattoo artist, tattooed two boys aged 12 and 13. Although the boys had agreed to the process, the defendant was charged with assault occasioning actual bodily harm under Section 47 of the Offences Against the Person Act 1861.

Legal Issue

The main question was whether the boys’ consent to the tattooing constituted a valid legal defence to the assault accusation.

Judgment in Burrell v Harmer

The court held that the boys’ consent was invalid. It determined that the minors lacked the capacity to comprehend the nature and consequences of receiving a tattoo, rendering their consent ineffective. Consequently, the defendant’s conviction was upheld. The actions amounted to assault.

Legal Significance

This judgement established the fact that consent cannot be used as a legitimate defence in assault proceedings unless the individual has the capacity to comprehend the nature of the act.  In the case of minors, this means they must be mature enough to understand the consequences of their consent.  The ruling stressed that simply agreeing is insufficient; the consenting person must have the mental capacity to make an informed decision.

List of references used:

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Burton v Davies [1953]: False Imprisonment in Tort Law

Burton v Davies [1953] St R Qd 26 is a landmark Australian tort law decision from the Supreme Court of Queensland that addresses the tort of false imprisonment.

Court: Supreme Court of Queensland

  • Judge: Townley J
  • Citation: [1953] St R Qd 26
  • Legal Issue: Whether the defendant’s actions constituted false imprisonment of the plaintiff
  • Decision: Yes; the defendant was found liable for false imprisonment

Facts (Burton v Davies)

The plaintiff met the defendant at a party and accepted his offer to drive her home. Instead of stopping at her residence, the defendant drove past it at high speed, made unwanted sexual advances, and refused to let her exit the vehicle. Eventually, the defendant stopped briefly, allowing the plaintiff to get onto the running board of the truck. However, he resumed driving, causing her to fall from the moving vehicle.

Legal Issue

The primary legal question was whether the defendant’s actions constituted false imprisonment since they unjustly restricted the plaintiff’s liberty without providing a reasonable means of escape.

Judgment

Townley J ruled that the defendant’s actions constituted false imprisonment.  By driving at a fast pace and refusing to stop, the defendant effectively prohibited the plaintiff from exiting the vehicle, leaving her with no safe or reasonable way out.  The court emphasised that a risky escape that poses a risk of injury, such as jumping from a moving car, is not considered reasonable.

Legal Significance

This case reinforces the principle that false imprisonment involves a total restraint of a person’s liberty without lawful justification. It underscores that the absence of a reasonable means of escape is a critical factor in establishing such a claim. The decision aligns with the precedent set in Bird v Jones (1845) 7 QBR 742, which differentiates between total and partial restraint.

Takeaways from the Case (Burton v Davies)

Complete Restraint: Partial obstruction is insufficient for false imprisonment; total restriction of movement is essential.

Means of Reasonable Escape: A means of escape is not considered reasonable if it puts the person’s safety in jeopardy.

Consent: Giving permission to enter a car at first does not mean giving permission to be detained against one’s will for an extended period of time.

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Murray v McMurchy [1949]: Informed Consent in Medical Law

Case Name & Citation: Murray v McMurchy [1949] 2 DLR 442

  • Court: British Columbia Supreme Court
  • Judge: Macfarlane J.
  • Decision Date: February 1, 1949

Facts (Murray v McMurchy)

Following extended labour and failed forceps delivery attempts, the plaintiff had a Caesarean section.  During the procedure, the doctor (defendant) identified several fibroid tumours in her uterus.  The doctor tied the plaintiff’s Fallopian tubes (a sterilisation technique) without her prior consent, assuming that a future pregnancy might pose health hazards.  The plaintiff eventually filed a lawsuit seeking damages, saying that the sterilisation was illegal and violated her bodily autonomy.

Key Legal Issue

Was the surgeon legally permitted to execute the sterilisation without the patient’s consent, based on a projected future health risk?

Court’s Reasoning

While the fibroids could pose a future risk, there was no acute & immediate medical issue that required sterilisation during the Caesarean section. The court emphasised the right of patients to agree to medical procedures. Sterilisation decisions must be left to the patient, even if medically advisable. The husband’s signing on a generic consent form did not authorise sterilisation, nor did it relieve the surgeon of the duty to get particular consent. The court recognised that sterilisation deprived the petitioner of a fundamental right—the ability to produce children—without any requirement or emergency.

Judgment in Murray v McMurchy

The sterilization was an unauthorized trespass to the person.

The court awarded $3,000 in damages to the plaintiff.

However, it did not award punitive damages, as the surgeon acted with good intentions, albeit wrongly.

Legal Principle Established

The case of Murray v McMurchy [1949] 2 DLR 442 is a landmark Canadian case that has had a significant impact on the medical fraternity, particularly concerning the intervention of doctors.

Informed consent is required for non-emergency medical procedures, particularly those with lasting repercussions (such as sterilisation). Even if the doctor believes it is in the patient’s best interests, the decision is ultimately up to the patient, unless there is an obvious and imminent emergency.

References:

https://www.canlii.org/en/bc/bcsc/doc/1949/1949canlii220/1949canlii220.pdf

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