Consent

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6. Consent

Learning objectives

This chapter aims to introduce you to the potential legal consequences in circumstances in which a medical practitioner or medical student undertakes a procedure, treatment or surgical intervention without obtaining a legally valid consent. While reading this chapter you should focus on:

• identifying the types of consent applicable in a healthcare context

• identifying and understanding the elements that must be addressed in obtaining a valid consent; that is:

▪ the voluntariness of the consent

▪ the capacity of the patient or client to give a consent

▪ the amount of information you are required to give a patient or client

▪ the requirement that the consent obtained covers the specific procedure

• identifying the issues particularly relevant to obtaining a consent from a child/minor or a person with an intellectual disability

• understanding the issues raised when an adult of sound mind refuses treatment

• identifying the elements of false imprisonment and the criteria relevant to a decision by a medical practitioner to physically or chemically restrain a patient.

Trespass to the Person

It is a cultural expectation and social norm that a person is not touched without indicating either verbally or non-verbally that they consent to or invite such touching. It would therefore be considered, as a general principle, that obtaining the consent of a patient prior to commencing a procedure or treatment is respectful and should be undertaken as a matter of course by all health professionals. In addition, it is also a legal requirement that all health professionals obtain a legally valid consent from patients prior to any form of physical contact or medical intervention. Obtaining a patient’s consent before touching them converts what would otherwise amount to an assault or battery into lawful touching. The law in this area is constantly becoming more complex in response to the changing attitudes of society towards the provision of healthcare services, the responsibility of health professionals in the provision of those services and the rapid increase in the scope of medical technology to offer new forms of treatment.

Medical practitioners are required, as part of their role in the provision of care and treatment, to come into physical contact with their patients and clients. The character of the physical contact will vary depending on the patient, the severity and presentation of the illness or injury and the specific work to be carried out by a medical practitioner. In all circumstances (other than those covered by the exceptions such as emergency treatment), the expectation is that a legally valid consent will be obtained from the patient prior to any medical intervention or touching being initiated.

It is obvious, therefore, that the law in relation to obtaining a valid consent is relevant to the practice of medical practitioners and part of the legal obligation requires that the medical practitioner respects the autonomous wishes of their patients. The law thereby seeks to protect the right of patients and clients to choose what is done to their body, through specific legislation in each jurisdiction, and actions such as negligence and trespass to the person (which includes assault, battery and false imprisonment). ¹ Civil actions in assault and battery, though rare, may potentially be brought against a medical practitioner who fails to obtain a valid consent before touching their patients or clients. The legal requirement for a valid consent by the patient prior to any interference applies regardless of whether or not the patient would benefit from the treatment or be harmed by refusing the procedure. ² All medical practitioners should therefore be mindful that they are legally prohibited, unless there is a lawful excuse, from doing anything to a patient without the patient’s consent, or continuing with treatment after the consent has been revoked. ³

The general principle

It is a basic legal principle that all people have a legal right to determine what is done to their person. As stated by Justice Cardozo in Schloendorff v Society of New York Hospitals: ⁴

Every human being of adult years and sound mind has a right to determine what will be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.

This legal principle is reinforced through the various Codes of Ethics and Codes of Conduct that have been adopted nationally by medical regulatory authorities. The Good Medical Practice: A Code of Conduct for Doctors in Australia, developed by a working party of the Australian Medical Council on behalf of the Medical Boards of the Australian states and territories in 2009, identifies the professional obligation on medical practitioners in ‘[e]ncouraging and supporting patients to be well informed about their health and to use this information wisely when they are making decisions’. ⁵ At s 3.3 of this national Code of Conduct for Doctors the effectiveness of communication between a medical practitioner and their patient includes a requirement that the medical practitioner inform ‘patients of the nature of, and need for, all aspects of their clinical management, including examination and investigation, and giving them adequate opportunity to question or refuse intervention and treatment’. The provisions expressly recognise the significance to a patient of being provided with all the information pertinent to their particular condition, disease or injury as the basis upon which to exercise their right to be an autonomous decision-maker in relation to their medical care and treatment.

Assault

The intentional tort of assault involves the creation in the mind of another the fear of imminent, unwanted physical contact. The threat does not need to involve any actual touching, nor does it need to be explicitly communicated. It is sufficient if the patient believes, from the behaviour or conduct of the medical practitioner, that they will be touched against their wishes, or be subjected to some form of treatment or conduct to which they have not consented. That is, in facilities where the patients and clients are elderly or difficult to manage, it is an assault to threaten to medicate a patient if he or she does not comply with the medical practitioner’s request. For example, where the medical practitioner raises their voice and shouts at the patient that if the patient does not stop wandering about in the garden they will prescribe high doses of a tranquilliser that will ensure the patient remains in their bed.

The allegation of assault is made out when the plaintiff proves that he or she had a reasonable belief that the defendant intended to carry out the threat and had the means to do so. As noted by Wallace, even though the action in civil assault involves ‘subjective interpretation of conduct or behaviour’, the test is based on what a reasonable person with the characteristics of the patient would believe. ⁶ As stated by Bray CJ in Macpherson v Beathwould: ⁷

The reasonableness of the apprehension [of immediate and unlawful physical contact] may or may not be necessary … [I]f the defendant intentionally puts in fear of immediate violence an exceptionally timid person known to him to be so then the unreasonableness of the fear may not be necessary.

Battery

Battery, the actual physical contact with the person of another, does not require that the plaintiff prove that such contact was harmful or offensive. ⁸ As in the example given above, if the medical practitioner then prescribed and administered the tranquillisers to the aged care patient without the patient’s consent that constitutes the battery. Unlike negligence, where the damage is the ‘gist’ of, or fundamental to, the action, there is no requirement that the plaintiff sustain any injury as a result of the unlawful touching. It is the actual touching of the person without his or her consent which is unlawful and forms the basis of the action. It is unlikely, however, that the plaintiff would receive anything more than nominal damages where no injury has been sustained.

Intention required

The touching of the patient must be intentional. The requirement of intention serves to distinguish the deliberate action from the accidental physical contact that occurs as a part of everyday life and which would not constitute an action in battery. It is not, however, a defence for the medical practitioner to claim that he or she touched the patient for the purpose of bestowing some benefit. That the intentions of the medical practitioner are in the patient’s best interest does not operate as a defence to the claim by the patient that he or she did not consent to the unlawful touching. This situation is most likely to occur where a medical practitioner forms the opinion that he or she knows what is in the best interests of the patient and proceeds to undertake treatments or procedures without obtaining prior consent. ⁹

The patient does not need to be aware

While the touching must be intentional, the patient does not need to be aware at the time that they were touched. The patient may be asleep, comatose or anaesthetised when the unlawful touching occurs. There are common law and legislative provisions which deem consent in cases where the patient is unconscious or requires treatment as an emergency measure. All healthcare workers involved in implementing the therapeutic intervention without consent are equally liable. Thus, the medical practitioner who extends an operative procedure beyond that consented to by the patient and the nurse who participates in the extended operative procedure, knowing the patient has not given consent, may be equally liable.

Types of Consent

Consent to medical treatment or intervention may be given in one of the following forms:

• implied consent

• verbal consent, and/or

• written consent.

Implied consent

In the normal daily activities of medical practitioners, consent by patients is most often implied rather than explicit. Consent to treatment is implied through the actions and postures of patients where, for example, they roll up their sleeve for an injection or turn to a position suitable for an examination. Consent by the patient to routine care interventions such as regular physical examination and the administration of medications is often implied to the medical practitioner through the patient’s behaviour. ¹⁰

However, there are obvious difficulties in relying on non-verbal communication as a method of obtaining consent where there is a possibility for confusion. Situations where it would be unwise for a medical practitioner to rely solely on the behaviour of the patient as indicative of consent include:

• at the initial presentation in an emergency department

• when the patient is a new admission to the clinical unit

• when the patient is anxious, in pain or distressed

• when the patient is from a different cultural or ethnic background from the medical practitioner.

In circumstances where the patient has not undergone a procedure or treatment previously, it is good practice to seek a very clear direction from the patient that they are indeed communicating their consent. Medical practitioners in clinical practice must ensure that their understanding of what the patient has consented to is consistent with the understanding of the patient.

The mere fact that the patient presents to a hospital or healthcare facility does not in itself provide a valid consent for medical practitioners to initiate diagnostic procedures or treatments. The attendance of the patient will not amount to an implied consent for medical intervention. In the case of Hart v Herron, ¹¹ the plaintiff attended the admission unit of a psychiatric hospital in an agitated state. He was seeking information from his medical practitioner as to a procedure he was to undergo. The plaintiff alleged he had been offered a medication to ‘calm him down’ and later had undergone narcosis (deep sleep) treatment and electroconvulsive therapy without his consent. He sued both the hospital and the psychiatrist in negligence, assault, battery and false imprisonment. The hospital argued that the plaintiff, through his presentation to the admission unit, had consented to the treatment. Fisher J rejected the argument that attendance at the hospital constituted consent to the treatment.

Verbal (oral) consent

A more frequent and meaningful form of consent occurs when agreement to treatment is orally stated by the patient. In the clinical situation, medical practitioners obtain the consent by explaining to the patient what is about to occur and allowing the patient to consider the information before orally (verbally) agreeing or refusing. Ideally, this should occur in most communications between a medical practitioner and their patient. In relation to more invasive procedures, verbal consent generally takes place in the physician’s or surgeon’s rooms or outpatients’ department prior to admission. The medical practitioner will discuss the procedure and the patient has the option to refuse or to agree to undergo the specified form of treatment. Where the procedure is invasive, this type of exchange is commonly followed by the completion of a written consent form.

Written consent

As part of a health department or hospital policy, a consent to invasive procedures may be required to be obtained in writing and witnessed. Where this is the case, it is the responsibility of the medical practitioner carrying out the procedure to ensure that a valid consent is obtained. That is, the medical practitioner may obtain the consent himself or herself, or may delegate the activity to another medical practitioner (the registrar or intern) or a registered nurse. The written consent form that has been signed by the patient and witnessed is a significant piece of evidence. The written consent is most important when non-routine treatments or procedures that have risks and complications attached to them are to be carried out. The benefit of having the consent in writing lies in the fact that it provides documentary evidence of the consent. Thus, a written consent makes proof of consent easier to establish. However, the existence of a written consent is not to be equated with a process of obtaining consent. If the process is defective, the consent will be held to be invalid or non-existent. Therefore, even when patients have signed the consent form, they are not precluded from initiating an action in assault, battery or negligence if they were insufficiently informed, did not understand the content or did not have the risks explained. The need for a written consent and its superiority over implied or oral (verbal) consent is questionable.

Consent Forms

The most important function of a consent form is that it provides documentary evidence that consent has been given for a treatment to proceed. Generally speaking, the more extensive, invasive, specific and risky a procedure is, the more important it is to be able to establish that consent has been obtained. However, the documentation of consent does not necessarily establish that the consent given is legally valid and the consent can be withdrawn at any time, verbally or in writing. Consent forms also do not usually indicate the process by which the patient has been sufficiently informed. Evidence of this should be available from some other source; for example, in the progress notes of the patient’s medical or nursing history. Blanket consents and ‘catch all’ clauses¹² within consent forms are of limited legal value and their use should be avoided. ¹³

It is important to recognise that it is legally dubious and unsafe to assume that signing a consent form establishes that a valid consent has been obtained. It is also legally unsafe to assume that consent for one person to perform a procedure automatically permits another person to carry out the procedure (for example, permission for a consultant physician or surgeon to perform a procedure does not necessarily allow his or her registrar or resident medical officer to carry out the procedure). ¹⁴

Elements of a Valid Consent

Obtaining a legally valid consent from a patient prior to undertaking a medical treatment or intervention is a defence to an action in trespass to the person (civil assault/battery). The elements of a legally valid consent are:

• it is voluntarily given

• it covers the specific procedure

• it is based on the requisite amount of information

• the person consenting has the legal capacity to do so.

Voluntarily given

First, the consent must be freely and voluntarily given. All medical practitioners are obliged to ensure that the patient’s consent is not obtained through coercion, duress, misrepresentation or fraud. The voluntariness of a consent may be challenged on the basis either that the patient felt there would be unpleasant consequences following on from a refusal or where the consent was obtained because of the patient’s level of fatigue or stress. In the Beausoleil case, ¹⁵ the patient had specifically refused a spinal anaesthetic prior to receiving her premedication. Her consent was obtained after the premedication was administered and in response to pressure from the anaesthetists. The court held that the consent was not voluntary and was therefore invalid in the circumstances. Medical practitioners must be mindful not to give patients the impression that if they do not consent to a particular treatment or procedure their care will alter. That is, it would be inadvisable to suggest to patients that if they do not consent to the operation they will be discharged. Though this may be the clinical reality, particularly with the high demand for beds, it may be interpreted by the patient as a threat. The medical practitioner must not ‘promise’ an outcome from a procedure or treatment; for example, that the patient will be ‘pain free’ after the surgery. The patient who is not ‘pain free’ after the procedure may well allege that his or her consent was obtained through a misrepresentation.

Covers the procedure

The consent for one procedure does not extend to the carrying out of a different procedure. Where a medical practitioner is obtaining a consent from a patient, the specifics of the treatment or procedure must be discussed. Should the medical practitioner consider that it is necessary to undertake a different procedure, the consent requirement will only be waived where the circumstances indicate that the action was necessary to save the patient’s life. That it was convenient to carry out the procedure at the time will not suffice: Candutti v ACT Health an Community Care and Murray v McMurchy. ¹⁶ In Candutti’s case, the plaintiff was admitted to the hospital for a laparoscopic tubal ligation. She had consented to a laparotomy only if an emergency arose during her surgery. Due to some difficulty inflating the plaintiff’s abdomen the surgeon proceeded to undertake the tubal ligation by way of a laparotomy. The plaintiff sued the medical practitioner in trespass to the person on the grounds that she had not consented to this more invasive procedure. The court, in upholding the plaintiff’s claim, determined that the particular circumstances did not amount to an emergency and therefore the procedure was performed without the patient’s consent. In Murray v McMurchy, the plaintiff consented to a caesarean section. During the procedure, the surgeon noted that the plaintiff had uterine fibroids which he considered could, at a later time, cause difficulties with future pregnancies. On this basis, the surgeon performed a tubal ligation without the consent of the plaintiff. The plaintiff successfully sued in assault and battery. The court was clear in indicating that the fact that it was convenient to undertake the surgery at the time was not enough to defend the action.

The issue of medical practitioners exceeding the scope of the consent was considered in Walker v Bradley. ¹⁷ In this case, the plaintiff underwent a laparotomy for the removal of an ovarian cyst. Though initially diagnosed as having uterine fibroids, an ultrasound confirmed the presence of an ovarian cyst and the plaintiff consented to having it removed. Prior to the surgery the gynaecologist recommended a hysterectomy. However, the plaintiff refused to consent to the removal of her uterus unless there was evidence of cancer. The plaintiff signed the consent form which read ‘laparotomy, left ovarian cystectomy and ? hysterectomy’. During the operation, the uterus was found to be enlarged but symmetrical, with a cyst on the left ovary approximately five centimetres in diameter. The gynaecologist removed both the cyst from the ovary and the uterus. The court held that the doctor had exceeded the scope of the consent in performing a procedure for which the plaintiff had not given her consent. Based on the evidence, it was found that the question mark on the consent form was ‘window dressing’ and that the gynaecologist had determined to proceed with the surgery based on his initial diagnosis. He had done this, it was found, regardless of the fact that the plaintiff had expressly refused.

Requisite amount of information

Generally, the medical practitioner will be in breach of the duty of care if he or she fails to warn the patient of the ‘material and significant’ risks associated with treatments and procedures or fails to comply with the legislative provisions addressing the failure of the medical practitioner to warn (refer to Chapter 5, negligence). There is a distinction between a lack of consent prior to performing a procedure, which may open the way for an action based on assault or battery to the person, and obtaining a consent which is not adequately informed in relation to material risks which could give rise to a negligence action. ¹⁸

Historically, the legal position in relation to ‘how much’ information was required was unclear. The majority judgment of the Full Court of the High Court of Australia in Rogers v Whitaker has, to a large extent, clarified this situation. ¹⁹ In this case, a woman underwent surgery to improve the appearance, and possibly the sight, of her eye in which she had been almost totally blind since the age of 9 years. The evidence indicated that she had ‘incessantly’ questioned the surgeon as to adverse consequences associated with the surgery. The surgeon did not warn her of the risk of developing sympathetic ophthalmia.

The occurrence rate of this condition following eye surgery was assessed at 1:14 000. The surgery was performed without negligence. However, the sight was not restored to the injured eye and the condition of sympathetic ophthalmia developed in the sighted eye, leading to blindness in that eye (refer discussion in Chapter 5, negligence). The court held: ²⁰

The law should recognise that a doctor has a duty, subject to therapeutic privilege, to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person if warned of the risks, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

For the purpose of a defence to an action in assault and battery (not an action in negligence), that the medical practitioner has informed the patient in ‘broad terms’ of the nature of the procedure would appear to suffice for a valid consent. In the case of Chatterton v Gerson, Bristow J stated: ²¹

In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real and the cause of action on which to base a claim for failure to go into risks and implications is negligence, not trespass. In this case … she is under no illusion as to the general nature of what an intrathecal injection of phenol solution nerve block would be and in the case of each injection her consent was not unreal.

When making decisions about how much information to give the patient it is incumbent on the medical practitioner to ensure that, prior to obtaining consent, the patient understands the nature and effect of the information that has been given. In circumstances in which the patient does not have fluency in the English language, where there are particular communication needs, or an explanation of the medical procedure that involves the use of highly technical language, the medical practitioner must ensure the information that is given is understood. This may be achieved by engaging the services of a government-approved interpreter, providing more information or giving the patient a longer period of time to make a decision. In addition to, or in combination with, the foregoing there is also the possibility that a patient or client may not understand because they lack the capacity to do so.

Legal capacity

An adult of sound mind is said to have ‘capacity’ or to be legally ‘competent’ to provide a valid consent or to refuse to consent to treatment. As discussed, once a patient with legal capacity makes a decision as to his or her treatment, it is an assault for the medical practitioner to do other than that for which the consent has been given. However, when a patient is not capable of giving a valid consent, this does not automatically mean that the medical practitioner may initiate treatment regardless. It will not be a defence to an action in assault that the patient was incompetent. The legal capacity to consent is defined in various ways by statutes which have been codified to cover specific situations (for example, Mental Health Acts, various Guardianship and Administration Acts protecting the rights of intellectually disabled citizens, blood alcohol legislation and statutory protection for children at risk where the state may act on their behalf) and common law decisions. The law makes provision for substitute decision-makers where the patient by reason of age, mental or intellectual incapacity may not be considered competent to provide a valid consent.

The following discussion addresses the specific exceptions to the general rules that apply to obtaining a consent from an adult of sound mind.

Impaired intellectual decision-making capacity

Patients with an intellectual impairment (including an intellectual disability, dementia, acquired brain injury) have varying abilities to comprehend information and make decisions as to what is in their best interests. There is legislation in all Australian jurisdictions which addresses the issue of consent to medical and dental treatment, or health and lifestyle decisions, for persons with an intellectual disability. However, this legislation only applies when the person is not capable of understanding what it is that they are being asked to consider in terms of treatment or care. It may well be that in relation to some decisions, for example taking an X-ray or applying a plaster cast, the person with the intellectual disability or reduced intellectual capacity will be able to give a valid consent. However, in relation to more medically technical and complicated procedures, a substitute decision-maker may be required. A patient’s competence, or capacity, to make a legally valid decision about their healthcare may not be constant. The question is whether this particular patient has capacity to make this particular decision at this particular time.

The threshold test of capacity, which is the determinative factor as to whether a substitute decision-maker is required, is whether the adult is able to understand the nature and effect of their decision, make that decision voluntarily and of their own free will, and communicate the decision to others. ²² This section will provide an overview of the relevant legislation in each of the jurisdictions.

Australian Capital Territory

Where a person has an impaired decision-making capacity, a health attorney or guardian will be the person from whom the medical practitioner obtains consent prior to treating the ‘protected person’. In circumstances in which a health attorney refuses to consent, the decision must be referred to the Public Advocate. The health attorney for a ‘protected person’ may be their domestic partner, a carer, or a close friend or relative who does not receive remuneration or payment: s 32D. The guardian appointed by the ACT Civil and Administrative Tribunal (ACAT) under the Guardianship and Management of Property Act 1991 may also give consent to medical procedures and other treatments. ‘Prescribed medical procedures’ require the consent of the ACAT: s 70, and are defined under s 69 to mean:

• abortion

• reproductive sterilisation, hysterectomy

• a medical procedure concerned with contraception

• removal of non-regenerative tissue for transplantation to a living person

• treatment for mental illness, electroconvulsive therapy or psychiatric surgery (which a covered under the Mental Health (Treatment and Care) Act 1994 (ACT)

• any other medical or surgical procedure prescribed for this definition.

The ACAT may consent if it is satisfied the procedure is lawful, the person is not competent to give consent, the procedure will be in the ‘protected person’s’ best interest and notice of the procedure has been given to the person, their guardian and any other person the ACAT considers should be notified: s 70. Where a medical practitioner treats a person with impaired decision-making capacity without knowledge that they are subject to an order, and has acted in good faith in the belief that the person was capable of giving a valid consent, there can be no action.

New South Wales

Under the Guardianship Act 1987 a Guardian may be appointed for a person who, ‘because of a disability, is totally or partially incapable of managing his or her person’. The appointment takes effect at the time identified by the adult person making the appointment or at the time the adult person is ‘in need’ of the Guardian. The functions of an Enduring Guardian include making decisions about where the person is to live and the healthcare and personal services the person is to receive. The Enduring Guardian is also able to give consent under Part 5 of the Act which deals with medical and dental treatment. Section 33A (under Part 5 of the Act) identifies the hierarchy of ‘person responsible’ for an adult, who is not under the care of the Director-General: the person’s guardian, their spouse with whom they have a close and continuing relationship, a person who has care of the adult person, or a close friend or relative. The ‘responsible person’ thereby has the legal authority to consent to major and minor medical and dental treatment of the person who has lost their capacity to consent on their own behalf. The medical practitioner or dentist may carry out treatment if they consider the medical or dental treatment necessary as a matter of urgency, to save the patient’s life, to prevent serious damage to the person’s health and, except in cases of special treatment, ²³ to prevent the person from suffering or continuing to suffer significant pain or distress. Minor treatment²⁴ may also be carried out if there is no ‘responsible person’, the ‘responsible person cannot be contacted or they are unwilling or unable to make a choice’. The tribunal may also give consent to the medical and dental treatment of a person who has lost their capacity.

Northern Territory

Healthcare that is in the best interests of the person who is under a full or conditional guardianship order is consented to by a guardian appointed under the Adult Guardianship Act 1988. Under s 21 of the Adult Guardianship Act 1988 a medical practitioner or person with the right to practice under the Health Practitioners Act (NT) must not carry out any ‘major’ medical procedure on a represented person without the consent of the court. A major medical procedure is defined by the legislation as:

• a procedure which does not remove an immediate threat to the person’s health and is generally accepted by medical and dental professions as a major procedure

• medical procedures relating to contraception and termination of a pregnancy.

Prior to consenting on behalf of the represented person, (if the court considers they are capable of giving or refusing to consent) the court will seek direction from the individual as to whether he or she wishes to undergo the major medical procedure.

Queensland

In Queensland, the Powers of Attorney Act 1998 provides for the appointment of an Enduring Power of Attorney for ‘personal decisions’ and for ‘financial decisions’: s 32. The legislation also creates a Statutory Health Attorney who assumes the decision-making power for a person (referred to as the principal) who has not created an Enduring Power of Attorney or who is legally incapable of giving a valid consent in their own right or nominating an Enduring Power of Attorney. The person, therefore, who has an intellectual impairment significant enough to render them incapable of making health decisions, will have a suitable person nominated under the legislation to take responsibility for their decisions. This person is referred to as the ‘substitute decision-maker’. This role will be assumed by a person who is over the age of 18 years and of sound mind and will usually be his or her spouse or next-of-kin, the person who has the voluntary (unpaid) role of primary carer or a close friend. For the medical practitioner this is the person from whom consent is obtained prior to initiating treatments or undertaking procedures on the intellectually impaired person. While the Statutory Health Attorney has power to make decisions about most matters that impact on the physical and mental condition of the person, they have no authority to make decisions on purely lifestyle matters or ‘special health matters’ such as (Sch 2):

• tissue donation

• sterilisation

• pregnancy termination

• participation in special medical research or experimental healthcare, or

• electroconvulsive therapy or psychosurgery.

In a situation where there is a dispute between those who are equally entitled to make decisions as the Statutory Health Attorneys of a person, the ‘Adult Guardian’ has the power to intervene. Where a person may not have anyone who could act as their Statutory Health Attorney, the legislation provides for an Adult Guardian who is an independent officer appointed by the government ‘to protect the interests of people with decision-making disabilities’. ²⁵

The Guardianship and Administration Act 2000 (Qld) allows for the appointment of a Guardian for personal matters (of which health is a sub-set) and an Administrator for financial matters, in the event that the person lacks capacity, and there is a need for a decision: s 12. Sections 62 to 65 of the Guardianship and Administration Act 2000 (Qld) deal with a health provider undertaking ‘healthcare’ (not ‘special healthcare’) without consent in situations in which the adult patient has lost their capacity to make a healthcare decision and the substitute decision is not available.

South Australia

A person with a mental incapacity is one who has ‘an inability to look after his or her own health, safety and welfare or manage his or her own affairs’ as a result of damage to themselves, illness, disorder, imperfect development, impairment or deterioration of the brain or mind or any physical illness or condition that renders the person unable to communicate their intention or wishes: s 3. The person may have a consent to treatment provided on their behalf by a relative, a person appointed under the Guardianship and Administration Act 1993 as a guardian or by the guardianship board itself. Only the board is empowered, under the legislation, to consent to ‘prescribed’ medical treatments and procedures such as the termination of a pregnancy and sterilisation.

Tasmania

The Guardianship and Administration Act 1995 states that a person may apply to the Guardianship and Administration Board (the board) for an order appointing a full or limited guardian in respect of a person with a disability who is of, or over, the age of 18 years. The term ‘disability’ is defined to mean ‘any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner’. A guardian may be appointed under a guardianship order or as an enduring guardian in an instrument of appointment. Medical or dental treatment may only be given without consent if the medical practitioner or dentist considers the treatment is necessary as a matter of urgency to save the person’s life, prevent serious damage to the person’s health or, except in cases of ‘special treatment’, to prevent the person from suffering or continuing to suffer significant pain or distress: s 40. The board may consent to medical or dental treatment where it is satisfied the treatment is otherwise lawful, the person is incapable of giving consent and the medical or dental treatment is in the person’s best interest. The consent of the board is required prior to undertaking ‘special treatment’ which is defined in s 3 as:

• treatment intended or reasonably likely to render the person permanently infertile

• termination of pregnancy

• removal of non-regenerative tissue for purposes of transplantation

• any other medical or dental treatment declared by regulations to be a special treatment.

Victoria

In Victoria, the Guardianship and Administration Act 1986 provides for the appointment of a guardian when an adult has a ‘disability’. Disability is broadly defined and includes an intellectual impairment, mental illness, brain damage, physical disability or dementia. The legislation provides that a ‘person responsible’: s 37, may consent to treatment of a person who is not competent to do so if they are available, and willing to make the decision. The hierarchy of ‘persons responsible’ is as follows:

• a person appointed under s 5A of the Medical Treatment Act 1988

• a person appointed by the Victorian Civil and Administrative Tribunal

• a person appointed under a Guardianship Order

• a person appointed as the enduring guardian

• a patient’s spouse or domestic partner

• a patient’s primary carer

• a patient’s nearest relative.

Consent to ‘special procedures’ is from an order of the Victorian Civil and Administrative Tribunal: s 39. ‘Special procedures’ are covered in Division 4 and are defined to include: procedures intended or reasonably likely to result in the person being permanently infertile, termination of a pregnancy, removal of tissue for the purpose of transplantation to another, and any other medical or dental treatment prescribed by the regulations.

Western Australia

Under the Guardianship and Administration Act 1990, the State Administrative Tribunal will appoint a guardian where it is satisfied that a person in respect of whom an order is sought has attained the age of 18 years, is incapable of looking after his or her own health and safety, is unable to make reasonable judgments relating to their person or are in need of oversight, care or control for their protection or the protection of others and is in need of a guardian: s 43. On declaring a person in need of a guardian the tribunal may appoint a ‘plenary’ or’ limited’ guardian. The authority of a plenary guardian is, subject to Division 3 to consent to any treatment of healthcare of the represented person: s 45. Section 119 which covers medical and dental treatment provides that where a person cannot give consent the person who can consent on their behalf is determined based on the following hierarchy:

• the guardian

• the spouse or de facto partner

• a person who, on a regular basis provides or arranges for domestic services or support to the person on an unpaid basis

• a person who is the nearest relative who maintains a close relationship with the person

• any other person who maintains a close relationship with the person.

If, in the opinion of a medical practitioner, a person is in need of urgent treatment, is incapable of consenting to the proposed treatment or is, at the time of presentation, a person for whom a guardian could be appointed, the medical practitioner may provide the treatment without consent.

Commonwealth

The Family Law Act 1975 (Cth) confers on the Family Court the power to make orders authorising a person to carry out medical treatment on an intellectually disabled person who is the ‘child of a marriage’ even where the treatment is not authorised by the state or territory guardianship Act. ²⁶ This position is consistent with the Constitution (s 109) which serves to strike down state and territory legislation to the extent that it is inconsistent with federal legislation.

Children

General principles

As a general principle, a parent or legal guardian is capable of consenting to the medical and dental treatment of his or her child. Persons who are caring for children on a casual basis, however, such as babysitters, friends, relatives and schoolteachers, have no such authority. Where a parent or guardian is not able to be located and a child requires emergency treatment it may be given without a consent being obtained or, if it is only minor first aid which is required, the child will be legally capable of giving a valid consent to, for example, the application of a band aide on their foot. As will be discussed, the authority of the parent is not absolute and may be overridden by the courts or through legislative provisions.

Once persons have reached the age of 18 years, they are considered at law to have full legal capacity. ²⁷ Prior to this age, particular legislation specifies the age at which the consent will be taken as valid at law. In a number of Australian jurisdictions, the legislation distinguishes between a child and a young person. In New South Wales, the Children and Young Persons (Care and Protection) Act 1998 defines a child (for purposes other than employment) as a person under the age of 16 years and a young person as being 16 to 18 years. ²⁸ Similarly in the ACT, the Children and Young People Act 1999 defines a child as being under the age of 12 years and a young person as being aged 12 to 18 years. ²⁹ In Tasmania the Children, Young Persons and their Families Act 1997 defines a young person as either 16 or 17 years of age. It is clear from the decision in K v Minister for Youth and Community Services, ³⁰ litigated against the background of the Minors (Property and Contract) Act 1970 (NSW), that such legislation which stipulates the age for consenting to medical treatment operates to protect medical and dental practitioners treating persons who might, but for the Act, be considered minors. In this case, the protection was held to extend to the treatment of minors over the age of 14 years where their prior consent had been obtained. Under the age of 14 years, the consent of the parent or guardian is necessary. It is appropriate therefore to consider the legislative and common law indicators of the age at which a child will be capable or legally competent to give a valid consent.

The common law

The common law is silent on a specified age at which a child (also referred to as a minor) is competent to give a valid consent. The common law incorporates the notion of understanding and comprehension. Is the individual of sufficient intelligence and at an age where they are able to understand the consequences of their decision? Are they legally competent for the purposes of consent? This is referred to as ‘Gillick competency’ and is based on the English House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority. ³¹ The case involved a 15-year-old female who had been prescribed contraceptives by the local medical practitioner without the consent of her parents. The issue for consideration was whether the contraceptive advice and treatment could be given lawfully to a girl under the age of 16 years without parental consent. The majority of the House of Lords held that the authority of the parent decreases, as the child becomes increasingly competent. ³² Lord Scarman stated:

I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminated if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances. ³³

The competence of the child to consent was therefore determined on the basis of the child’s capacity to understand the nature of the treatment. The High Court of Australia approved the Gillick test as to capacity in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case). ³⁴

While the foregoing addresses the capacity of a person under 18 years to give a legally valid consent to medical and dental treatment, the capacity of the child to refuse to consent to treatment may be overridden by the court. In the case of Re W (A Minor) (Medical Treatment), ³⁵ it was held that even though W was ‘Gillick competent’, the inherent power of the court under the parens patriae jurisdiction enabled the overriding of the wishes of a person under the age of 18 years. In this case, the minor was suffering with anorexia nervosa. The court found that she had an understanding of her condition but nonetheless had refused to be treated at the time recommended by her medical practitioner. The court stated that although there was authority for the right of a minor who had the requisite level of understanding to consent to treatment, this did not give a corresponding absolute right to refuse treatment.

The decision of Johnson J in R v M³⁶ highlights the legal and ethical dilemmas associated with situations where minors refuse what would be considered as life-saving treatment or procedures. M was a 15-and-a-half-year-old girl who suffered from sudden onset heart failure requiring a heart transplant to save her life. Though M’s mother consented to the transplant operation, M refused to consent to the surgery. As time was of the essence and no other treatment was capable of saving M’s life, the hospital applied to the court for permission to carry out the operation despite her refusal. M’s objection to the heart transplant was based on the following reasons:

• she felt depressed at the thought of having to take tablets for the rest of her life

• she preferred to die rather than undergo a transplant operation, and

• she did not want someone else’s heart in her body.

Johnson J held that the hospital surgeons were authorised to transplant a donor heart into the body of M. The decision recognised the right of the court to override the refusal of treatment by even ‘Gillick competent’ minors. While the child’s refusal was considered an important issue, it was held that the best interests of the child would be served by the decision that would save her life. Johnson J stated: ³⁷

M will live with the consequences of my decision, in a very striking sense … There is the risk too that she will carry with her for the rest of her life resentment about what has been done to her.

Legislation

In all jurisdictions, legislation exists which authorises the emergency treatment of a child without the consent of their parent or guardian. ³⁸ In most cases the legislation applies to treatment which is ‘necessary to save the child’s life’ or required as ‘a matter of urgency’, or specifically applies to the transfusion of blood.

In New South Wales, the Minors (Property and Contract) Act 1970 states that a child 14 years and over can consent to medical and dental treatment. The effect of the consent is the same as if the child was an adult. The legislation also provides for emergency medical and dental treatment carried out where the doctor or dentist believes the treatment is necessary ‘as a matter of urgency … in order to save the child’s life or prevent serious damage to the child’s health’. ³⁹ Section 175 of the Children and Young Persons (Care and Protection) Act 1998 requires that treatment identified as ‘special medical treatment’ may not be carried out by a medical practitioner unless the medical practitioner is of the opinion the treatment is necessary as a matter of urgency to save the child’s life or to prevent serious damage to the child’s health, or the Guardianship Tribunal gives consent. ‘Special medical’ treatments are identified in the legislation and within the Children and Young Persons (Care and Protection) Regulations 2000 as:

• treatment that results in permanent infertility

• administration of long acting injectable contraceptives

• administration of drugs of addiction (other than those administered for the purpose of treating cancer) over 10 days in any 30 days

• sterilisation

• any medical treatment that involves the administration of a psychotropic drug to a child in out-of-home care for the purpose of controlling his or her behaviour, and

• experimental procedures that are outside government guidelines.

A child under the age of 16 years may also undergo an examination without the consent of the parent or guardian where the medical practitioner is of the opinion that the child has been the victim of abuse. ⁴⁰

In South Australia, any person 16 years and over may consent to medical or dental treatment under s 12(b) of the Consent to Medical Treatment and Palliative Care Act 1995. If the child consents, the medical practitioner believes the child is able to ‘understand the nature, consequences and risks of the treatment’, the ‘treatment is in the best interests of the child’s health and wellbeing’ and another medical practitioner has examined the child prior to the treatment and gives written support for the opinion, it will be a defence to a charge of assault and battery.

In the Northern Territory, there is no legislation that specifically addresses the rights of the minor to give consent or to refuse consent to treatment. The Medical Services Act (NT), however, provides that females under the age of 16 years will require the consent of a parent or guardian before the termination of a pregnancy will be carried out. ⁴¹

Authority of the parent or guardian

Bennett notes that the child’s capacity to consent does not mean that the parent has lost the power to refuse to consent. ⁴² In some circumstances, there may well be a disagreement between the parent and the child as to the treatment which the child is, or is not, going to undertake. In the event of conflict between parents or guardians and a child, the courts may exercise a general supervisory role to act to protect the best interests of the child: Dalton v Skuthorpe, ⁴³Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case). ⁴⁴

In Marion’s case, the parents of a 14-year-old intellectually disabled child applied to the Family Law Court for an order permitting a hysterectomy and ovariectomy to be carried out on their child or a declaration that they could lawfully consent to the surgical procedure. The issue before the court was whether the parents of the child had the legal authority to consent to their child’s sterilisation. ⁴⁵ The majority of the Full Court of the Family Court held that the parents could lawfully consent to the sterilisation of their child. However, on appeal to the High Court, the majority determined that the procedure required the authority of the court. The majority adopted the approach of Lord Scarman in the Gillick case and applied it to minors with intellectual disabilities: ⁴⁶

[I]t is important to stress that it cannot be assumed that an intellectually disabled child is, by virtue of his or her disability, incapable of giving consent to treatment. The capacity of the child to give informed consent to medical treatment depends on the rate of development of each individual.

It is important to note that the High Court expressly stated that the performance of a sterilisation procedure was a ‘special case’ which took the decision outside what would be considered as the ordinary scope of a parent’s authority to consent. ⁴⁷

This would also be the case in relation to other non-therapeutic medical interventions involving children; such as removal of bone marrow and gender reassignment. Where the type of medical intervention sought is non-therapeutic, it would be for the Supreme Court in the individual jurisdiction, or the Family Court to make a decision as to consent.

Where the parents of a child are separated or divorced medical practitioners may assume that either of them can give a valid consent to the medical treatment of their child. This would be the case unless a Family Court order was in place which identified one parent as the decision-maker to the exclusion of the other. In such a situation the medical practitioner is required to sight the Family Court order and have a copy placed in the child’s medical record. Similarly, where a child is under the care of the state, the medical practitioner must request a copy of the order to ensure the appropriate adult is consenting on the child’s behalf. For example, a child may be the subject of a Child Protection Order giving custody of the child to the chief executive of the Department of Child Safety (or equivalent government department). Where the order is one giving custody only, the biological parent retains the legal authority to consent to the treatment of their child. If, however, the order identifies the chief executive as the guardian of the child, then the parent no longer has the legal authority to consent.

Emergencies

When a patient requires emergency treatment, and is so incapacitated as to be incapable of giving a valid consent, the medical practitioner may initiate treatment which he or she honestly believes is reasonable and necessary in the circumstances, under the common law ‘doctrine of emergency’. This may also be referred to as the ‘doctrine of necessity’ though it has been suggested that the ‘necessity principle is separate from that of emergency and is wider in application’. ⁴⁸ The doctrine effectively provides the medical practitioner with a defence to an action in assault and battery for the treatment given at the time. There are, however, important criteria which must be satisfied before such a defence is available. The first is that the situation must be an emergency. Though the term ‘emergency’ has not been defined at common law, it is described as a treatment necessary ‘to save life’ or to ‘prevent serious injury to their health’. ⁴⁹ As discussed in the case of Murray v McMurchy, ⁵⁰ the circumstances must indicate that the treatment is necessary and not that it is merely convenient. The second requirement is that the medical practitioner takes only ‘such steps as good medical practice demands’. ⁵¹

In Queensland, the Northern Territory and South Australia, legislation applicable to emergency situations permits the treatment of patients by medical practitioners without their consent. ⁵² In some jurisdictions, the authorisation applies only to doctors, while in others it also covers a more diverse group of health professionals such as ambulance officers and honorary ambulance officers.

The lawful authority to treat children in an emergency is very similar to that which applies to adults. If the parent of the child, or the legally responsible adult, is not contactable and the treatment is necessary to save the child’s life, or prevent serious harm, then the medical practitioner may proceed with the medical intervention without consent. There are also provisions which serve to override the refusal to consent by a parent when the treatment is necessary to save a child’s life. Table 6.1 provides an overview of the legislative provisions authorising medical intervention for children and young people.

**Table 6.1** Medical intervention for children and young people
ACT	Transplantation and Anatomy Act 1978 s 23
NSW	Guardianship Act 1987 s 37, Children and Young Persons (Care and Protection) Act 1998 s 174
NT	Emergency Medical Operations Act 1973 ss 2, 3
Qld	Transplantation and Anatomy Act 1979 s 20
SA	Consent to Treatment and Palliative Care Act 1995 s 13
Tas	Human Tissue Act 1985 s 21
Vic	Human Tissue Act 1982 s 24
WA	Human Tissue and Transplantation Act 1982 s 21

Unconscious patients

Where a patient is in an unconscious state or due to his or her condition is incapable of consenting, the common law will deem a consent for the treatment given provided that it was necessary, reasonable and given in good faith.

Transfer to hospital

Where a patient has sustained significant injuries in an accident and requires an emergency transfer to a hospital, he or she is not required to provide a consent. This presumption of consent to obtain treatment immediately has been considered an exception to the general requirements. ⁵³

Refusal of treatment in an emergency

It is important to distinguish the legal position in an emergency situation where the patient is unconscious or not capable of consenting due to the severity of the injuries, from the situation where an adult person of sound mind refuses emergency treatment. Where the latter is the case, it is an assault to initiate or continue treatment once the person has refused to consent. In the case of Malette v Shulman, ⁵⁴ the plaintiff was seriously injured and taken to hospital. Though unconscious and unable to communicate her wishes verbally, she was carrying an unsigned and unwitnessed card stating she was a Jehovah’s Witness who refused blood transfusions. Her condition deteriorated significantly due to the large volume of blood loss from her injuries. The medical practitioner commenced a blood transfusion. Ms Malette sued the medical practitioner who defended the action claiming that as Ms Malette was unconscious and incapable of giving an informed refusal, he had proceeded with emergency treatment in the form of a blood transfusion under the doctrine of emergency or doctrine of necessity. The trial court found for the patient. On appeal, the court held that the card represented a valid restriction on the nature of treatment for which the plaintiff was willing to give her consent. The court held that it was not for the doctor to determine the reasonableness of the wishes of the patient, provided the wishes in the form of the refusal was legally valid.

The dilemma for medical practitioners highlighted in the Malette case is far from resolved. On the one hand, it is fundamental to the medical practitioner–patient relationship that the autonomy of the patient is respected and his or her decisions adhered to. However, there is also the countervailing argument that the treatment to which the patient objects may involve minimal clinical risk and would most probably save his or her life. This issue was raised in the Supreme Court of Victoria Court of Appeal decision, handed down in the matter of Qumsieh v Guardianship and Administration Board. ⁵⁵

An issue not yet raised in the Australian courts is the legal position when the adult refusing life-saving emergency treatment has young dependents or is pregnant. In the United States the decisions, grounded in the particular facts of each case, have not given any clear line of authority as to how the issue is to be resolved. In Raleigh Fitkin-Paul Memorial Hospital v Anderson, ⁵⁶ the court held that the woman could not refuse a blood transfusion because she owed a duty to her unborn child. In the case of Re S (Adult: Refusal of Medical Treatment), ⁵⁷ the courts in the United Kingdom made a declaration that a woman in labour, who had refused a caesarean section on religious grounds, was to undergo the procedure and any consequential treatment. The reasoning of the court was based on the medical evidence that the procedure was necessary to save the lives of the mother and unborn child.

Refusal to Consent

As stated, adults of sound mind have the legal capacity not only to consent to the treatment recommended by the health professional but also to withhold their consent. The patient has the legal right, even after giving a valid consent, to withdraw it and refuse to continue to undergo the procedure. ⁵⁸ Provided the patient is competent, he or she has the right to refuse all treatment regardless of whether the refusal will result in permanent physical injury or death. (Refer to Chapter 7, End of life decisions.)

Consent by Relatives

Though it is common for some institutions to require the consent from a spouse or next-of-kin in an emergency situation, as a general principle this has no legal foundation. Other than the situation where there are specific legislative provisions which authorise a substitute decision-maker, no person has the legal ability to consent to the treatment of another adult.

Obtaining Consent

All health professionals need to obtain consent for procedures carried out by them on patients. In the vast majority of circumstances, consent to care by a patient is implied or oral (verbal). The health professional who is to undertake the procedure is responsible for obtaining the patient’s consent. Thus, obtaining consent for medical treatment, including surgical procedures carried out by the medical practitioner, is a medical responsibility as the legal relationship or contract is set up between the medical practitioner and the patient.

All health professionals may witness the signing of the consent form by a patient. The health professional’s signature, however, does not represent a validation of the process of obtaining the consent by the medical practitioner who is to carry out the procedure. It is evidence only that the health professional witnessed the patient providing their signature.

The patient is always free to alter the consent form prior to signing the form and obtaining the signature of the treating physician or surgeon. The impact of this is similar to altering the terms on any contract prior to the agreement by the parties bound by it. It is noteworthy that the medical practitioner may, once the patient has made alterations to the consent form, refuse to continue any further with that line of treatment. Such may be the case, for example, where the patient makes it clear to the surgeon that he or she will not consent to the transfusion of blood or blood products. At that point the surgeon is at liberty to suggest some other procedure or recommend the patient to another medical practitioner on the basis that he or she is unwilling to proceed under the terms or conditions established by the patient (usually in relation to denying a blood transfusion).

After the consent is completed the patient may, at any time, and without penalty, withdraw the consent. In this circumstance, any health professional made aware of the revocation of the consent should ensure all reasonable attempts are made to notify the medical practitioner of the withdrawal of the consent. The health professional initially notified, or the medical practitioner, should note the withdrawal of consent by the patient in the patient’s records and indicate time, date, context and action taken. The immediate superior should be informed of the patient’s decision and an entry made in the patient’s records indicating this has been done and the action taken by his or her superior. If the medical practitioner or any other health professional is aware that a patient has withdrawn or not given consent for treatment, he or she should not participate in administering that treatment. A failure to do this may constitute a trespass to the patient.

Consent to Research

Any research that requires contact with the subjects will necessitate the researcher obtaining the consent of the participants prior to the commencement of the study or project. Where research is conducted without a legally valid consent, it gives rise to the possibility of a subject suing in negligence or civil assault. While the courts have not considered the precise depth and extent of the information necessary to obtain a valid consent for research purposes, it is accepted that the extent of the information is greater than that required in the treatment situation. ⁵⁹ In the Canadian case of Halushka v Saskatchewan, ⁶⁰ the court held the researcher must give ‘full and frank’ disclosure. It is also important within the healthcare context that health professionals clearly identify and explain to patients the distinction between the role of clinician and that of researcher. That is, where health professionals are seeking participants in research projects from their patient and client load, they must identify prior to obtaining a consent that participation or non-participation will not alter the therapeutic relationship that already exists. The National Statement on Ethical Conduct in Research Involving Humans states: ⁶¹

1 The ethical and legal requirements of consent have two aspects: the provision of information and the capacity to make the voluntary choice. So as to conform with ethical and legal requirements, obtaining consent should involve:

a. provision to participants, at their level of comprehension, of information about the purpose, methods, demands, risks, inconveniences, discomforts, and possible outcomes of research (including the likelihood and form of publication of research results)

b. the exercise of voluntary choice to participate

c. where a participant lacks competence to consent, a person with lawful authority to decide for that participant must be provided with that information and exercise that choice.

2 A person my refuse to participate in a research project and need give no reasons nor justification for that decision.

3 Where consent to participate is required, research must be so designed that each participant’s consent is clearly established, whether by a signed form, return of a survey, recorded agreement for interview or other significant means …

4 The consent of a person to participate in research must not be subject to any coercion, or to any inducement or influence which may impair its voluntary character.

False Imprisonment

All adults of sound mind have the right not to be unlawfully detained against their will. Where a patient alleges that a health professional has interfered with his or her freedom of movement, the action is referred to as false imprisonment. False imprisonment is defined as the unlawful, intentional and complete application of restraint upon a person which restricts his or her freedom to move from one place to another ‘or causing them to be confined to a place against their will’. ⁶² No physical contact is required, it being sufficient if the patient fears some harm should he or she refuse to remain.

The restriction on the freedom of movement must be total. That is, there must be no means by which the patient can exit. This is a significant factor, in that the presence of an exit that is not known to the patient, or not reasonable for the patient to attempt to use, still amounts to a restraint on movement for which the patient will have a cause of action. There is no need for the patient to know, at the time, that he or she has been detained. Thus the decision in Hart v Herron⁶³ is of great significance for health professionals working in intensive care units or other high dependency areas. In this case a patient, who had undergone deep sleep therapy at the Chelmsford Hospital, initiated action in the New South Wales Supreme Court alleging that he had been falsely imprisoned during the time he had undergone the treatment for which he had not given his consent. The court held that the patient had been falsely imprisoned even though he had no recollection of his time in the hospital, or that he had been detained.

Therefore, any action of a health professional that unlawfully restricts the freedom of movement of a patient and to which the patient does not consent, clearly places the health professional at risk of defending a claim for damages. Such action may relate to preventing patients leaving their bed or ward areas or the hospital. It may also relate to simple acts such as applying wheelchair brakes to prevent a patient moving from one place to another or to the application of therapeutic devices such as intravenous fluid therapy, and the attendant machinery that goes with it, for no purpose other than to prevent the patient’s freedom of movement. Actions to restrict the freedom of movement of patients may also include the administration of drugs prescribed deliberately to control and restrict the freedom of the patient. These include sedatives and tranquillisers prescribed outside recommended therapeutic guidelines and administered to restrict the patient’s freedom of movement. Most hospitals and healthcare facilities have clear policies on the application of physical or chemical restraint on patients. These will include express requirements as to the ordering of the restraint of a patient, the review of that order and the management of a patient during the period of the restraint. Some important inclusions are that:

• The medical practitioner or health professionals designated by the policy to care for the patient authorise the application of a restraint. Prior to the ordering of a restraint, the health professional is obliged to carry out a full assessment of the patient to determine the cause of the patient’s behaviour and ensure that restraint is the only option. This must be the case whether the patient is being physically or chemically restrained.

• The restraint of a patient occurs only in circumstances where he or she is a danger to himself or herself, other patients or the staff.

• The patient has regular and frequent observations to monitor his or her condition.

• The restraints, if physical, are released at regular intervals.

• The next-of-kin is notified of the application of physical, or initiation of chemical, restraint.

• The restraint decision be reviewed frequently and at pre-determined intervals. This review must include a full assessment of the patient.

The defences applicable within the hospital setting to an action of false imprisonment are available at common law and through the various provisions of legislation in each state and territory. The courts view the deprivation of any individual’s freedom of movement as a very serious issue. The application of common law defences is, therefore, restricted to clearly defined circumstances. Decisions to apply restraints to a patient must be made in accordance with hospital guidelines and protocols. Legislation which makes provision for the legal detention of individuals includes crimes legislation permitting police powers of arrest and restraint, mental health legislation where a person can be made an ‘involuntary patient’, the Quarantine Act 1908 (Cth) and, in some instances, public health legislation. ⁶⁴

SCENARIO AND ACTIVITY

The medical student attending clinical practicum has been requested by the consultant to obtain a blood sample from the patient for the purpose of undertaking a pre-operative screening.

• What issues should the medical student consider in relation to obtaining the patient’s consent?

To ensure that you have identified and understood the key points of this chapter please answer the following questions.

1 How is an action assault distinct from an action in negligence?

2 What are the elements of a valid consent?

3 How much information is required for a consent to be valid? Is this different from an action based on the breach of the duty of care for failing to warn/disclose risks?

4 What are the types of consent?

5 Describe what you understand by the term ‘autonomy’ or autonomous decision of a patient.

6 How would a patient exercise his or her right to be autonomous?

7 Explain what you understand by ‘Gillick competency’ in relation to a child.

8 Describe the common law doctrine of emergency.

9 Identify within your own state or territory the criteria for ‘capacity’ in the context of making a healthcare decision.

10 Identify the legislation in your state or territory which provides the legal authority for a substitute decision-maker where the patient has lost capacity to give a valid consent to healthcare or treatment.