6. Consent
Learning objectives
• 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
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