Consenting to Health and Medical Treatment

In 1914 a famous American judge said “Every human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body”.  This has been quoted many times by Australian judges and so forms part of Australian law.

The law recognises that if a doctor administers medical treatment without the consent of the patient, they have committed a battery.  When there has been consent, the consent has the effect of making the physical contact lawful. Often the phrase used is ‘informed consent’, but technically, all that is required is consent. If there is an issue about what information the doctor gave to the patient beforehand, then the doctor’s standard of care in negligence is in question, not whether there has been consent.

The law presumes that every adult has capacity to consent to treatment.  Minors, persons who do not have capacity (whether they have never had it or have lost it), and some special classes of person are subject to special rules.  For example, mental health laws in the ACT and NSW provide for medical treatment to be administered in certain circumstances despite the patient refusing the treatment.

Remember that the law presumes an adult has capacity to consent to treatment.  Providing the adult has been advised in broad terms of the nature of the treatment, they may consent to it in writing, or orally or by action.  An example of consent by action would be when you hold out your arm to have blood taken.

When there are circumstances which indicate a person may not have capacity to consent, then the law requires there be further scrutiny of the person’s capacity and the proposed treatment.  Here, the focus is on whether that person may have an impairment in their mental functioning making them incapable of:

1. Holding and understanding information material to deciding whether to have the treatment or not, including the consequences of having or not having it; or
2. Being able to make use of material information in order to weigh and process it.

The question of capacity is very complex and relies on medical evidence.  The law recognises that generally a person’s capacity is task and time specific. 

How is it that hospitals are able to administer lifesaving treatment to people who are unconscious?

Well, the law recognises that:

1. When it is not practical for a doctor or nurse to obtain consent from a person; and
2. When a person’s life would be in danger if the treatment is not provided, then treatment may be administered without any consent being first obtained.

However, just because these two requirements are met does not mean that any treatment can be provided.  The treatment provided must be reasonably necessary for the person and it must be treatment that a reasonable doctor or nurse would administer. 

Administering treatment without consent has criminal and civil consequences.  In civil law, it constitutes what’s called a trespass to person, specifically a battery.  A person may claim for damages from the person who committed the battery.  If there are issues about the quality of the consent, such as what information you were told prior to consenting, then an action in negligence is the appropriate avenue.  Battery only arises when there has been no consent.

• A patient had consented to a hysterectomy procedure (removal of her uterus – but not ovaries). The surgeon thought that she had also consented to removal of her ovaries, and removed them during the procedure.  However the patient had not consented to this.  The surgeon performed the surgery competently and they believed they had consent from the patient.  Regardless, as there was no consent the removal of her ovaries was a battery and the Court awarded $170,200.00 in damages.
• A dentist performed 53 filling and root canal treatments to a person who sustained an injury to their mouth while at work. It was found that the treatment was not provided for any therapeutic purpose but rather to generate income for the dentist.  On this basis the patient had not actually consented to the treatment provided, and so a battery was established and the Court awarded $1,743,000.00 in damages.

Both cases show the consequences of not obtaining consent.  In the first, the surgeon had the patient’s consent to perform a type of surgery, but not one of the types they performed.  In the second, the consent was not valid and therefore the treatment was actually a battery.