Reeves v. The Queen

Appellant doctor Reeves, a gynecologist, saw CDW, his patient, for treatment of a pre-cancerous lesion on her left labia minora. Reeves performed a “simple vulvectomy” which entailed the removal of CDW’s entire vulva, including her labia and clitoris. CDW filed suit, and provided evidence that she had only agreed to removal of a small flap of skin containing the lesion. Expert evidence at trial supported that this was not the appropriate treatment for CDW’s condition and that the simple vulvectomy was largely outmoded. Reeves held that CDW had provided consent for the surgery, understanding that it entitled removal of the entire vulva.

Two issues were central to the original trial, [1] whether the applicant performed the surgery knowing it was not proper surgery for CDW’s benefit (the “unwarranted surgery case”) and [2] whether the applicant honestly believed that he has CDW’s consent to the surgery (“the consent case”). Though the trial judge was not convinced of Reeve’s guilt in the unwarranted surgery case, he found that Reeve’s performed the surgery knowing that he did not have CDW’s consent. The District Court sentenced Reeves to a two and a half year prison term, with a one year non-parole period.

Reeves appealed, but the Court of Criminal Appeals confirmed his conviction. The Court of Criminal Appeals found that the “informed consent” instruction given to the jury was in error due to its provision that the medical practitioner must explain possible major consequences and alternative treatments. The Court of Criminal Appeals held that was is sufficient that a patient consents to the procedure having been advised in “broad terms of its nature”. Despite recognizing this error, the Court of Criminal Appeals found that, in the context of Reeve’s trial, the error had not led to a substantial miscarriage of justice. The Court of Criminal Appeals simultaneously upheld an appeal by the Director of Public Prosecutions (the Director) against the inadequacy of Reeve’s sentence, and the court accordingly resentenced Reeves.

Reeves then applied for special leave to the High Court on several grounds: first, that the Court of Criminal Appeals formulated and applied an incorrect test of liability (Ground 2.1); secondly, that the Court of Criminal Appeals erred in its application of the proviso in s 6(1) of the Criminal Appeal Act 1912, which holds an appeal should be allowed on the grounds that a miscarriage of justice occurred (Ground 2,2); thirdly, that the Court of Criminal Appeals erred by allowing the appeal by the Director without considering the residual discretion (Ground 2.3); fourthly, that the Court of Criminal Appeals erred in its treatment of evidence of the applicant’s psychiatric condition, and in its failure to acknowledge the discretionary nature of sentencing (Grounds 2.4 and 2.5).

The Court found that the Court of Criminal Appeal did formulate the correct test for consent to surgery (Ground 2.1). The Court held that in the context of this trial, no meaningful distinction could be drawn between showing that CDW was informed of the “broad terms” of the nature of the procedure, and showing the CDW was informed of the “nature and extent” of the procedure. In this context the use of the phrase “informed consent” did not lead the jury to reason incorrectly in regards to the main issue of consent, whether CDW had been informed that the procedure included removal of her entire vulva.

The Court also held that the Criminal Court of Appeals’ analysis of the evidence, Reeves’ guilt was established by evidence that was properly admitted at trial, despite the wrong direction of the “informed consent” instruction. Thus the misdirection had not in fact led to a substantial miscarriage of justice. Additionally, the Court found that the Court of Appeals properly fulfilled its requirement to dismiss appeals when the court finds no actual miscarriage of justice has occurred (Ground 2.2).

Regarding Ground 2.3, the Court held that the Court of Criminal Appeals erred in its failure to consider the exercise of residual discretion with respect to considerations of the applicant’s ille health and expiration of his non-parole period, a finding conceded by the Director. Finally the Court found that neither Ground 2.4 nor 2.5, both challenging the Court of Criminal Appeals’ conclusion that the sentencing judge’s discretion failed, justified a grant of special leave.

Accordingly the Court held that special leave should be refused on Grounds 2.4 and 2.5; special leave should be granted for 2.1 and 2.2 but the appeal should be dismissed. Finally the Court granted special leave for Ground 2.3,remitting the appeal to the Court of Criminal Appeal for consideration of the residual discretion.

“The Court of Criminal Appeal found, correctly, that it was an error to direct the jury in terms of "informed consent". Specifically, it was an error to direct that a medical practitioner must explain the "possible major consequences of the operation" together with "options" and "alternative treatments" before the patient's consent to the procedure will afford the medical practitioner lawful cause or excuse for performing it. The nature of the consent to a medical procedure that is required in order to negative the offence of battery is described in the joint reasons in Rogers v Whitaker. It is sufficient that the patient consents to the procedure having been advised in broad terms of its nature.” [Para. 35.]

“There was no error in concluding, in the context of this trial, that the phrase "informed consent" and the reference to possible major consequences and alternative treatments did not distract the jury from determining the one issue presented with respect to CDW's consent. This was whether the prosecution had excluded beyond reasonable doubt that CDW had been informed that the surgery involved the removal of her vulva, including her labia and clitoris. The Court of Criminal Appeal did not err in holding that the misdirection did not actually occasion a substantial miscarriage of justice.” [Para. 58]

“There will not be lawful cause or excuse for the surgery performed by the [applicant] if the Crown proves beyond reasonable doubt that the [applicant] did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation including removal of the labia and clitoris." [Para. 56, citing jury instruction during the District Court Trial]