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THE NATURE AND SIGNIFICANCE OF THE RIGHT TO BODILY INTEGRITY

Abstract
Abstract

This article seeks to explain and explore the concept of bodily integrity. The concept is often elided with autonomy in the case law and the academic literature. It argues that bodily integrity is non-reducible to the principle of autonomy. Bodily integrity relates to the integration of the self and the rest of the objective world. A breach of it, therefore, is significantly different to inteference in decisions about your body. This explains why interference with bodily integrity requires justification beyond what will suffice for an interference with autonomy. It also explores how this understanding of bodily integrity assists in understanding disability, gender and separated bodily material.

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Corresponding author
Address for Correspondence: Exeter College, Oxford, OX1 3DP, UK. Email: jon.herring@exeter.ox.ac.uk.
Address for Correspondence: Faculty of Law, University of Otago, PO Box 56, Dunedin, New Zealand. Email: jesse.wall@gmail.com.
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Exeter College, Oxford.

**

Faculty of Law, University of Otago.

Footnotes
References
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1 R. (on the application of Justin West) v The Parole Board [2002] EWCA Civ 1641; [2003] 1 W.L.R. 705, at [49], per Hale L.J. in her dissenting judgment.

2 Parkinson v St. James NHS Trust [2001] EWCA 530; [2002] Q.B. 266.

3 Wicks Although E., The State and the Body (Oxford 2016), ch. 1 and Wall J., Being and Owning: The Body, Bodily Material and the Law (Oxford 2015) provide very helpful analysis of the understanding of the body in medical thought.

4 Foster C., Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law (Oxford 2009), ch. 1.

5 Other reasons, such as the need to ration health care resources, are at play here.

6 R. (on the application of Burke) v GMC [2005] EWCA Civ 1003; [2006] Q.B. 273, at [51].

7 Re A (Conjoined Twins) [2001] Fam. 147, at 258, per Walker L.J.

8 Feldman D., Civil Liberties and Human Rights in England and Wales, 2nd ed. (Oxford, 2002), 241 .

9 Ibid., at p. 241.

10 Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 1 A.C. 1430.

11 Ibid., at para. [87].

12 NHS Trust A v M; NHS Trust B v H [2001] Fam. 348, at [41], quoted with apparent approval in Re Y and Z (Children) [2013] EWHC 953 (Fam).

13 Evans v Amicus Healthcare Ltd. [2004] EWCA Civ 727; [2005] Fam. 1.

14 Ibid, at para. [108].

15 R. (on the application of Nicklinson) v Ministry of Justice [2013] EWCA Civ 961; [2015] 1 A.C. 657 (upheld on appeal: [2014] UKSC 38; [2015] A.C. 657).

16 Ibid., at para. [50].

17 Connolly v Croydon Health Services NHS Trust [2015] EWHC 1339 (QB).

18 Ciarlariello v Schacter [1993] 2 SCR 119, at [136].

19 The Mental Health Trust v DD [2015] EWCOP 4.

20 Ibid., at para. [5].

21 Ibid., at para. [5(iii)].

22 Airedale NHS Trust v Bland [1993] A.C. 789 (HL).

23 Ibid., at p. 883, per Lord Browne-Wilkinson.

24 Ibid., at p. 809.

25 Sexual Offences Act 2003, s. 79(2).

26 R. v Kalam [2013] EWCA Crim 452.

27 Ibid., at para. [13].

28 R. v Rodgers [2006] 1 S.C.R 554, at [39].

29 In Ashley v Chief Constable of Sussex Police [2008] UKHL 25; [2008] 1 A.C. 962, at [60], it was stated in obiter that for the purposes of battery there is no need to show that the victim “suffered anything other than the infringement of [their] right to bodily integrity”.

30 JCC v Eisenhower [1984] Q.B. 331.

31 R. v Brown [1994] 1 A.C. 212.

32 An extended discussion of this case can be found in Herring J., “R. v Brown (1993)” in Handler P., Mares H. and Williams I. (eds.), Landmark Cases in Criminal Law (Oxford, 2017).

33 The case could also be seen as a debate over the relationship between autonomy and dignity, a topic which requires a more extensive discussion than is possible here.

34 XCC v AA [2012] EWHC 2183 (COP), at [72].

35 The offence of inflicting injury without a weapon under s. 20 of the Offences Against the Person Act 1861 has a seven-year maximum sentence. The offence wounding with intent to do grievous bodily harm under s. 18 carries a maximum sentence of life.

36 YLA v PM and MZ (2003) 35 EHRR 1, at [157].

37 McFarlane v Tayside Health Board [2000] 2 A.C. 59 (HL), 107G, per Lord Millett.

38 Re A (Conjoined Twins) [2001] Fam. 147.

39 Ibid., at p. 184, per Ward L.J.

40 Ibid., at p. 189, per Ward L.J.

41 Ibid., at p. 249, per Walker L.J.

42 Ibid., at p. 258, per Walker L.J.

43 Ibid., at p. 259, per Walker L.J.

44 R. (on the application of DJ) v Mental Health Review Tribunal [2005] EWHC 587 (Admin), at [132].

45 Nottinghamshire Health NHS Trust v RC [2014] EWHC 1136 (COP); B v Responsible Medical Officer, Broadmoor Hospital [2005] EWHC 1936 (Admin), at [75]; NHS Trust A v M; NHS Trust B v H [2001] Fam 348.

46 Pretty v UK ECHR 2002-III 155, at [61], citations omitted.

47 YF v Turkey (Application no. 24209/94) (ECtHR, 22 July 2003).

48 Price v UK ECHR 2001-VII 153, 169, per Judge Greve.

49 Art. 3 of the EU Social Charter is even more explicit in protecting bodily integrity: “Everyone has the right to respect for his or her physical and mental integrity.”

50 Gäfgen v Germany [2010] ECHR 759 (Application no. 22978/05); (2010) 52 EHRR 1 (1 June 2010).

51 (1999) 27 EHRR 611.

52 See e.g. Beauchamp T.L. and Childress J.F., Principles of Biomedial Ethics, 7th ed. (Oxford 2013), 101–02; K. 1, “Autonomy and the Subjective Character of Experience” (2000) 17 J.Appl.Philos. 71; Mackenzie C. and Rogers W., “Autonomy, Vulnerability and Capacity: A Philosophical Appraisal of the Mental Capacity Act” (2013) 9 Int.J.Law Context 37, at 42; Christman J., “Autonomy, Self-Knowledge, and Liberal Legitimacy” in Christman J. and Anderson J. (eds.), Autonomy and the Challenges to Liberalism: New Essays (Cambridge 2005), 330, 332–36.

53 Raz J., The Morality of Freedom (Oxford 1986), 373 .

54 Powers T.M., “The Integrity of Body: Kantian Moral Constraints on the Physical Self” in Cherry M.J. (ed.), Persons and Their Bodies: Rights, Responsibilities, Relationships (Amsterdam 1999), 213 .

55 Merleau-Ponty M., Phenomenology of Perception (first published 1945, English ed. first published 1962, trans. Smith C., Abingdon 2002), 84 : “Where it was desired to insert the organism in the universe of objects … it was necessary to translate the functioning of the body into the language of the initself and discover, beneath behaviour, the linear dependence of stimulus and receptor, receptor and Empfinder” (emphasis added).

56 Carman T., Merleau-Ponty (Abingdon 2008), 83 ; see also Husserl E., Philosophy. Second Book: Phenomenological Investigations on the Constitution: Husserliana IV (Hague 1952), 161 ; Carman T., “The Body in Husserl and Merleau-Ponty” (1999) 27(2) Phil. Topics 205, at 206.

57 Wall, Being and Owning, pp. 57–66.

58 See e.g. Donner W., “A Millian Perspective on the Relationship Between Persons and Their Bodies” in Cherry Mark J. (ed.), Persons and Their Bodies: Rights, Responsibilities, Relationships (Dordrecht 1999), 61 .

59 See e.g. Foster C., Human Dignity in Bioethics and Law (Oxford 2011), 15 .

60 Mackenzie C., “Relational Autonomy, Normative Authority and Perfectionism” (2008) 39 J.Soc.Philos. 512 ; Nedelsky J., “Reconceiving Autonomy: Sources, Thoughts and Possibilities” (1989) 1 Yale J.L. & Feminism 7 ; Oshana M.A.L., “Personal Autonomy and Society” (1998) 29(1) J.Soc.Philos. 81 ; Mackenzie C. and Stoljar N. (eds.), Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (Oxford 2000).

61 Dempsey M. Madden, “Victimless Conduct and the Volenti Maxim: How Consent Works” (2013) 7 Crim. Law and Philos. 11, at 20: “This is B's decision. He's an adult and can decide for himself whether he thinks the risk is worth it. In considering what to do, I will assume that his decision is the right one for him. After all, he is in a better position than I to judge his own well-being.”

62 Carman, Merleau-Ponty, p. 81: “But suppose body and experience are not just causally connected, but identical.”

63 Kant I., Lectures on Ethics (first published 1920, trans. Louis I., London 1963), 147–48: “… our life is entirely conditioned by our body, so that we cannot conceive of a life not mediated by the body and we cannot make use of our freedom except through the body”.

64 Weiss D. and Lang F.R.‘They’ Are Old But ‘I’ Feel Younger: Age-Group Dissociation as a Self-Protective Strategy in Old Age” (2012) 27 Psychol. Aging 153 .

65 Merleau-Ponty, Phenomenology of Perception, p. xii: “… there is no inner man, man is in the world, and only in the world does he know himself”.

66 Carman, Merleau-Ponty, p. 141: “Merleau-Ponty's alternative account rests on a recognition of the bodily medium of social perception, a medium common to myself and others, and which always already constitutes us as a community prior to our application of concepts such as mind and consciousness, which abstract from the bodily character of the person they describe” (emphasis added); Wall, Being and Owning, pp. 63–64.

67 C.f. Harris J.W., Property and Justice (Oxford 1996), 160 ; Penner J.E., The Idea of Property in Law (Clarendon 1997), 71 ; see Wall, Being and Owning, pp. 121–22.

68 Nedelsky J., “Law, Boundaries and the Bounded Self” (1990) 30 Representations 162, at 167.

69 Wall, Being and Owning, pp. 145–55. See p. 149: “To succeed in a claim for assault, battery, or unlawful detention, it is sufficient to show that there was the threat or the application of force to the body or the deprivation of the free movement of the body. The interference with the right to bodily integrity is itself sufficient for an action, without having to show a loss derived from the interference.”

70 Re A (Conjoined Twins) [2001] Fam. 147, 258, per Walker L.J.

71 Feldman, Civil Liberties, p. 241.

72 This may also explain the difficulty in handling cases of deception in relation to sexual acts. See J. Herring, “Mistaken Sex” [2005] Crim.L.R. 511; contrast H. Gross, “Rape, Moralism and Human Rights” [2007] Crim.L.R. 220. In part the difficulty is that there is a vast arrays of understanding a sexual act that there no clear reference point in determining whether a deception goes to the “nature of the act” or is additional information. While the distinction might be widely accepted, what constitutes the nature of a sexual act is much more problematic.

73 Montgomery [2015] UKSC 11; [2015] 1 A.C. 1430, at [87].

74 Ibid.

75 Mental Health Trust v DD [2015] EWCOP 4.

76 We recognise there is some debate over whether a person who has lost capacity can still retain autonomy. We will not enter that debate here.

77 XCC [2012] EWHC 2183 (COP), at [72].

78 R. (on the application of Nicklinson) [2013] EWCA Civ 961; [2015] 1 A.C. 657, at [50].

79 Shakespeare T., Disability Rights and Wrongs (Abingdon 2006) provides a helpful introduction to the extensive literature on the nature of disability.

80 Solomon A., Far from the Tree: Parents, Children, and the Search for Identity (Scribner 2012), ch. 2.

81 Morland I., “Intimate Violations: Intersex and the Ethics of Bodily Integrity” (2008) 18 Fem.Psychol. 425, at 426.

82 Ibid., at p. 428.

83 Ibid., citing Angier N., “New Debate over Surgery on Genitals”, New York Times, New York, 13 May 1997, C1.

84 Ibid.

85 Herring J., “The Law and the Symbolic Value of the Body”, in van Klink B., van Beers B. and Poort L. (eds.), Symbolic Legislation Theory and Developments in Biolaw (Dorecht 2016).

86 We have in mind here a face removed for transplant.

87 Price ECHR 2001-VII 153, 169, per Judge Greve.

88 Clark A. and Chalmers D., “The Extended Mind” (1998) 58 Analysis 10–23, at 23.

89 R. (on the application of Justin West) [2002] EWCA Civ 1641; [2003] 1 W.L.R. 705, at [49], per Hale L.J. in her dissenting judgment.

* Exeter College, Oxford.

** Faculty of Law, University of Otago.

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