R v Richardson

Facts

Richardson was a dentist who had been suspended from practice by the General Dental Council. She continued to treat patients, who did not know of the suspension and would not have consented had they known. She carried out ordinary dental treatment on them.

History

She was charged with assault occasioning actual bodily harm on several patients. At trial the judge ruled that the consent of the patients was vitiated by her deception, and she was convicted. She appealed to the Court of Appeal.

Issue

Whether consent to touching and treatment was vitiated by a deception about the qualifications and status of the person giving the treatment, so that the treatment amounted to an assault, or whether only deception as to the nature of the act or the identity of the person could do so.

Held

Appeal allowed and the convictions quashed. Deception about a qualification or professional status is not deception about identity, so the consent of the patients to the treatment was not negatived and no assault was committed.

Ratio

• Consent to a touching or treatment is vitiated by fraud only where the fraud relates to the nature of the act or the identity of the person doing it. A false belief about the attributes, including the qualifications or professional status, of the person is not a deception about identity and does not negative consent.

Key reasoning

• The common law rule limited fraud vitiating consent to cases of deception as to the nature of the act or the identity of the other person, and the authorities on consent to sexual intercourse treated the same limit as applying.
• Identity in this sense means who the person is, and not what the person is, so claiming to be qualified when suspended is a lie about attributes.
• The court was not prepared to extend the recognised exceptions so as to treat deception about qualifications or professional status as negating consent.

Where it fits in the module

In the Non-Fatal Offences topic the case sets the limits of consent as a defence to battery and assault occasioning actual bodily harm, and lies behind the debate on whether deception that affects choice should negate consent. It should be read with Dica, which accepted that concealment of a known infection could affect consent, and with Tabassum, where deception about medical qualifications was treated as negating consent for another reason, and with later sexual offences cases such as Assange and McNally on conditional consent.

Criticisms

• The distinction between identity and attributes is formal and does not track the real reason why the consent was given, since the patients would plainly not have agreed had they known the truth, so the decision protects the autonomy of patients less than a rule based on informed consent would.
• The limit is hard to defend alongside the rule in Tabassum, where patients agreed to examination by someone who falsely claimed medical training, and the distinction between the two cases is difficult to explain in principle.
• The result leaves serious breach of trust by professionals to be dealt with by regulatory law or by fraud offences, and critics argue that criminal law should respond to the harm done to patient autonomy.