Law Report: 3 April 1998: Suspended dentist did not assault her patients

Regina v Richardson; Court of Appeal (Criminal Division) (Lord Justice Otton, Mr Justice Turner and Mr Justice Dyson) 25 March 1998

WHERE patients had consented to treatment by a dentist, in ignorance of the fact that she had been suspended from practice, the dentist was not guilty of assault.

The Court of Appeal allowed the appeal of Diana Richardson against her conviction of six counts of assault occasioning actual bodily harm.

The appellant had been a registered dental practitioner until 30 August 1996, when she had been suspended from practice by the General Dental Council. Whilst still suspended, she had carried out dentistry on a number of patients. The mother of two of those patients had complained to the police, not because of the suspension, but because the appellant had appeared to be under the influence of drink or drugs. The police had discovered she had been practising whilst disqualified, resulting in the charges.

The appellant had changed her pleas to guilty following a ruling by the judge that there had been fraud which had vitiated the patients' apparent consent to treatment.

Caroline Bradley (Registrar of Criminal Appeals) for the appellant; Peter Walmsley (Crown Prosecution Service) for the Crown.

Lord Justice Otton said that the argument on appeal had concentrated on the issue of consent. The general proposition which underlay that area of the law was that the human body was inviolate, but that there were circumstances which the law recognised where consent might operate to prevent conduct which would otherwise be classified as an assault from being so treated.

Reasonable surgical intervention was clearly such an exception. The question then arose as to the effect on the validity of consent if the true nature of the status of the person who, in the guise of performing a reasonable surgical procedure, subsequently inflicted bodily harm was concealed from the complainant.

Counsel for the appellant had argued that in the present case the complainants had been deceived neither as to the nature or quality of the act nor as to the identity of the person carrying out the act.

The Crown had expressly disavowed reliance upon the nature or quality of the act, and had submitted that the patients had been deceived into consenting to treatment by the representation that the appellant was a qualified and practising dentist, and not one who was disqualified. There was no distinction to be drawn between the unqualified dentist and one who was suspended, and on that basis there had been a mistake as to the true identity of the appellant.

The court was unable to accept that argument. The common law was not concerned with the question whether the mistaken consent had been induced by fraud on the part of the accused or had been self-induced. It was the nature of the mistake which was relevant, and not the reason why the mistake had been made. There was an assault only where there was consent to actions on the part of a person in the mistaken belief that he or they were other than they truly were.

The Crown had contended that the concept of the identity of the person should be extended to cover the qualifications or attributes of the dentist on the basis that the patients had consented to treatment by a qualified dentist and not a suspended one. That submission had to be rejected. In all the charges brought against the appellant the complainants had been fully aware of her identity. To accede to the submission would be to strain or distort the everyday meaning of the word identity.

The gravamen of the appellant's conduct was that the complainants had consented to treatment from her although their consent had been procured by her failure to inform them that she was no longer qualified to practice. That was clearly reprehensible and might well found the basis of a civil claim for damages, but it was not a basis for finding criminal liability in the field of offences against the person.

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