Medicine as Battery

Question 0

What are the elements of Battery?

Answer 0

1. It must be an intentional injury (not that harm was intended, but that the tortfeasor’s actions are voluntary)
2. Application of force must be direct - Reynolds v Clark
3. Application of force no longer need to be hostile (Re F).
4. Lack of consent

Question 1

Why is battery a cause of action?

Answer 1

Because of the concept of bodily inviolability: that the law should protect a person’s right to choose what he/she wants done to his/her body

Question 2

Do you have to prove damage in battery to claim damages?

Answer 2

No, all trespass is actionable per se. You will get nominal damages. If you can prove damage, you may get more compensation.

Question 3

What is the main question in battery in the medical context?

Answer 3

Whether or not the patient gave valid consent.

Question 4

What are the three elements of a valid consent?

Answer 4

1. Volition (decision to consent must be a free one)
2. Information (patient must be provided with certain information about the treatment in order to make the treatment decision).
3. Capacity (patient must possess sufficient age and intelligence such as to give a valid consent)

Question 5

Factor 1: Volition

In which case do you find the modern approach?

Answer 5

Beausoleil v Sisters of Charity.

Freeman v Home Office

Question 6

Factor 1: Volition

What are the facts of Beausoleil v Sisters of Charity

Answer 6

1. Lady had to have operation to get disk in back
2. Specifically said no spinal anaesthetic. Wanted general anaesthetic.
3. Was sedated, brought into op room, and the chief anaesthetist was brought in to convince her to get spinal anaesthetic. She agreed under sedation
4. Surgeon came in and found out spinal anaesthetic had been given. Carried out op
5. Woman became paralysed from waist down.

Held: She gave consent when she was already sedated and was effectively beaten into it. The consent was not real. An action in battery followed.

Question 7

Factor 1: Volition

What is Beausoleil v Sisters of Charity also authority for in regards to vulnerability?

Answer 7

It is not enough that the patient is merely in a vulnerable position.
It must actually be the case that the patient’s freedom to consent has been OVERBORNE.

Question 8

Factor 1: Volition

Freeman v Home Office

Answer 8

Man in prison resisted treatment, was held down on several occasions and given medication. He argued non consensual.

Held: He did not have capacity to give consent and that the medicine was administered in his best interests.

Law that the court put forward: Just because someone is a prisoner being offered treatment by prison doctor, doesn’t mean that you may presume the consent has been overborne.

Question 9

What is the second factor of consent?

Answer 9

Information

Question 10

What cases are important regarding Information?

Answer 10

1. Chatterton v Gerson

2. D v S

Question 11

Factor 2: Information

What are the facts of Chatterton v Gerson?

Answer 11

Lady suffered pain post operative on a scar.
Sent to specialist who recommended a procedure.
The special explained the possible side effect but not the one that subsequently developed.
After procedure, pain got much worse in the area of the scar

She sued claiming he failed to advise her of risk meaning he didn’t give sufficient info. Thus, she hadn’t given valid consent and hence battery.

Question 12

Factor 2: Information

What was the decision in Chatterton v Gersen?

Answer 12

Held: Battery would fail.
As per Bristow J: once patient is informed in broad terms of the nature of a procedure and gives consent to it, that consent is real Appropriate action would be negligence.

Exceptions:

1. If consent obtained by fraud
2. Where different procedure to which was consented to, is carried out.

Question 13

Factor 2: Information

What are the facts of D v S?

Answer 13

The woman took pride in her appearance.
Had back pain went to see Defendant. He suggested reducing size of bust to help with pain. He explained procedure. No mention of the conditions which developed as side effects.
Horrible job done, one breast bigger than the other and also very painful.

She sued for battery saying consent she gave resulted from false representations and from D failing to warn her of side effects.

Question 14

Factor 2: Information

What was held in D v S?

Answer 14

Held: D should have told P there would be incisions and they would require stitching scarring, itching, drips etc. D told her none of these things, so it was breach of duty.

“I am satisfied that if she had been told all these things, she would not have consented to the operation”.

All actions succeeded (in negligence, assault and battery).

Furthermore, if serious risks of treatment’s weren’t advised, this could give rise to an action in battery. (This case is authority).

Question 15

Factor 2: Information

When else can information give rise to liability?

Answer 15

1. When the treatment is experiment and you’re not told it’s experimental. Consent to treatment is different than to what was carried out
2. Where you receive something different from what you thought you would be given Usually where medication has more than one side effect.

Question 16

What is the third element of Consent?

Answer 16

Capacity

Question 17

Factor 3: Capacity

What is the presumption regarding capacity?

Answer 17

That all adults are competent to consent to his/her own treatment.

Question 18

Factor 3: Capacity

How do they judge capacity in modern times?

Answer 18

A person’s competency to consent is judged not upon their status, but upon how well they can function and achieve certain tasks.

Question 19

Factor 3: Capacity

What is the correct test for capacity?

Answer 19

“Understanding THAT”

Question 20

Factor 3: Capacity

What does “understand that” mean?

Answer 20

This includes a personal belief that something is going to happen. You believe it to be true.

Contrast this with: “understand what” (I understand what you are saying, but..) which means that you can make sense of something, but do not necessary believe it to be true.

Question 21

What are the two circumstances in which consent can be invalid?

Answer 21

1. Where what was carried out is different to what was consented to.
2. Where patient has no capacity to consent, anything done to patient would be battery.

Question 22

What is a major limitation in a battery action?

Answer 22

The broad nature of the treatment is what you consent to. If you’re complaining about associated risks (As in Chatterton v Gersen), then unlikely to get action in Battery. Better in negligence.

Question 23

What is an exception to the fact that an action in Battery will fail if you’re complaining about associated risks?

Answer 23

As in D v S - where risks and nature of operation were so series that they essentially changed nature of treatment.

Question 24

What is the rule of Emergency in battery cases?

Answer 24

Long been considered a patient can be given emergency treatment because it is a matter of implied consent. In Re F, Lord Goff explained view in a case of Collins v Wilcock - implied consent was not the reason. It was because "the treatment falls within one of the actions which are acceptable in ordinary life as not amounting to battery"

Question 25

What is an important condition for Emergency treatment?

Answer 25

It must be NECESSARY and not merely convenient.

Question 26

What are the authorities for the concept that emergency treatment must be necessary not merely convenient?

Answer 26

1. Murray v McMurchy 2. Marshall v Curry 3. Malette v Shulman 4. Qumsieh

Question 27

What are the facts of Murray v McMurchy?

Answer 27

Patient underwent C section, surgeon took opportunity to tie her Fallopian tubes and remove some growths. Held: It was merely convenient for surgeon to do so, not necessary. He should have waited until after surgery, waited until she recovered and discussed medical procedure to get her consent. Surgeon guilty of battery.

Question 28

What are the facts of Marshall v Curry?

Answer 28

Patient operated upon for purpose of hernia repair. Doctor noted that patient had diseased testicle and removed it. In such circumstances, postponing removal could lead to blood poisoning. Held: surgeon was justified on the grounds of emergency. It was necessary to remove the testicle.

Question 29

What are the facts of Malette v Shulman?

Answer 29

Woman in car accident. Got to hospital, she had a card saying she's a Jehovah's Witness and under no circumstances is she to be given a blood transfusion including death. Doctor gives blood transfusion anyway. Held: From implied consent view, there is none! P's decision would be operative upon her falling into unconsciousness and the doctor's conduct would be unauthorised. Giving her blood transfusion would be contrary to her instructions, which would violate her right to control her own body and show disrespect for religious values. Doctor liable.

Question 30

How are damages calculated in Malette v Shulman because the position the P would be in before the tort occurred would be death?

Answer 30

The courts gave her minimal damages to indicate her legal rights are recognised and to pay for her legal fees.

Question 31

What are the facts of Qumsieh?

Answer 31

Woman was also a Jehovah's Witness. She was admitted to hospital for the birth of her child. She signed consent to treatment form but noted no blood transfusion under any circumstances. Also signed advance medical directive for no blood transfusion. Gave birth to a healthy baby boy, but her state deteriorated rapidly. She was on high levels of sedation for her pain and was unable to consent. They had a chance to give her a guardian under the NSW act. They assigned guardianship to husband as she was not able to make any (even reasonable) judgements regarding her medical circumstnacecs Husband consented to blood transfusion. She survived and sought rescission of board's guardianship order and to get damages. Order was over anyway and courts refused to give damages.