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Consent

 Minors and Consent:
The constitutional rights of a child under the age of reason are exercised by the choice of the parents or a legally recognised guardian.
In this jurisdiction as distinct from jurisdictions like England, there is greater emphasis placed on the rights of the family and the rights of parents to decide what is in the best interests of their children. This is derived from Articles 41 and 42 of the Constitution. There are very limited situations such as medical emergencies where the parent’s consent can be overridden. This was made clear in the Supreme Court decision of North Western Health Board v. H.W. and C.W ([2001] 3IR 628).

The Irish courts have not followed Britain in adopting the approach which originated in the case of Gillick v. West Norfolk and Wisbeck Area Health Authority 1986 AC 112 where the legal capacity of a minor to consent to medical treatment has been considered on the grounds of maturity rather than age. In this jurisdiction courts have shown no desire to follow this decision; the capacity of a minor is determined by his/her age.

Section 23 of the Non Fatal Offences against the Person Act 1997 provides that a minor over the age of 16 years can consent to surgical, medical and dental treatment. Presumably then a minor under the age of 16 cannot consent on his/her own behalf to medical treatment.

The type of treatment envisaged in this section includes any procedure undertaken for the purposes of diagnosis, and it also applies to any procedure which is ancillary to any treatment (including, in particular, the administration of an anaesthetic) as it applies to that treatment.

It is noteworthy that section 23 relates merely to treatment. It would be difficult to determine whether body modifications would fall within the remit of this section on the basis that it does not relate to treatment, diagnosis or any ancillary procedure. That being said the section does say that the treatment “includes” diagnosis leaving it open for other types of treatment. However there has been no court decision on what constitutes treatment in the context of section 23.

If body modification was to fall within the remit of treatment for the purposes of section 23, a minor would be able to give consent when he/she reaches the age of 16. All persons below that age would require the consent of a parent. If body modification was held not to fall within the ambit of section 23, parental consent would be required up to the stage when the minor acquires the age of majority which is 18 years.

Assault and Sexual Assault:
There is no specific legislation dealing with body modification. Recourse must then be had to the Non Fatal Offences Against the Person Act 1997, the Criminal Law (Amendment) Act 1935 and the Criminal Law Rape Act 1981

Assault:

The Non Fatal Offences Against the Person Act 1997 makes provision for varying degrees of assault.

In section 2 it states that

“1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly‚ÄĒ
( a) directly or indirectly applies force to or causes an impact on the body of another, or

( b ) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,
without the consent of the other.”

  1. Body modification is a form of assault but it is possible for someone to consent to an assault. A person can consent to assault but cannot consent to a serious assault. However, as already pointed out a minor does not have the capacity to consent. Unless a parent makes an informed decision on behalf of the minor, the application of force to a minor’s body which is required in the case of body modification would constitute assault.

 

Under section 3 of the 1997 Act, assault causing harm is defined as “A person who assaults another causing him or her harm shall be guilty of an offence.” In this instance it is no defence that the individual consented to the assault (different from assault under section 2). Therefore if the assault caused harm consent would not be a valid defence.

There has been no case on this issue in Ireland. However in a House of Lords decision in a sado-masochism case it ruled that no individual has a right to allow an assault on their person. It could be argued that deep body modification (i.e. piercing of nipples and genitalia) is a form of assault on the person and a body modification artist could therefore be criminally liable even if consent has been given by the client. However this would only arise in cases where the assault reaches a certain threshold and went beyond a section 2 offence. If it only reached the level of section 2 assault, consent would be a sufficient defence. This is not the case with other offences in the 1997 Act.

Sexual Assault:
A person under fifteen by virtue of section14 of the Criminal Law (Amendment) Act 1935 cannot consent to an indecent act. This section provides as follows:
It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault”.
It is on this basis that the piercing of nipples and genitalia could be regarded as indecent assault. In these cases any consent given by a person under fifteen will be treated as void.

  1.  

Indecent assault is defined in section 2 of the Criminal Law Rape Act 1981 as:
“(1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.”

Indecent assault requires some sexual element for the offence to be made out. This can only be determined by having regard to the specific facts of the individual case. A person guilty of indecent assault is liable on conviction on indictment to imprisonment for a term not exceeding 5 years. There have been cases where an intimate medical examination was considered to be an indecent act because it was not done for a proper motive.