The question was whether a dentist whose right to practice had been suspended was guilty of assault because the apparent consent of a number of patients was vitiated by mistake about her status as a dentist. The dentist had failed to disclose that her right to practice had been suspended. The prosecution argued that the operative mistake was a mistake about the identity of the person performing the act. It was argued that there was no distinction to be drawn between an unqualified person impersonating a dentist and an otherwise qualified dentist whose right to practice had been suspended.
Held: A dentist who was no longer qualified to practice, but who obtained consent of patients to treatment, in ignorance of that loss of qualification, did not thereby commit the offence of assault on the patient even though it was professionally reprehensible.
There was: ‘no basis for the proposition that the rules which determine the circumstances in which consent is vitiated can be different according to whether the case is one of sexual assault or one where the assault is non-sexual. The common element in both these cases is that they involve an assault, and the question is whether consent has been negatived. It is nowhere suggested that the common law draws such a distinction. The common law is not concerned with the question whether the mistaken consent has been induced by fraud on the part of the accused or has been self-induced. It is the nature of the mistake that is relevant, and not the reason why the mistake has been made. In summary, either there is consent to actions on the part of a person in the mistaken belief that he was other than he truly is, in which case it is assault or, short of this, there is no assault.
In essence, the Crown 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 consented to treatment by a qualified dentist and not a suspended one. We must reject that submission. In all the charges brought against the defendant the complainants were fully aware of the identity of the defendant. To accede to the submission would be to strain or distort the everyday meaning of the word identity, the dictionary definition of which is ‘the condition of being the same”.
Citations:
Gazette 29-Apr-1998, Times 06-Apr-1998, [1999] QB 444
Statutes:
Offences against the Person Act 1861 47
Jurisdiction:
England and Wales
Cited by:
Cited – Monica, Regina (on The Application of) v Director of Public Prosecutions Admn 14-Dec-2018
Deception as to identity did not undermine consent
The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
Held: Her claim failed. Case . .
Lists of cited by and citing cases may be incomplete.
Health Professions, Crime
Updated: 25 November 2022; Ref: scu.88595
