#3537 - Trespass To Person - Medical Law

Law

• Health professional who intentionally/recklessly touches P w/out consent commits battery + tort of negligence and/or tort of person if has no legal ‘flak jacket’

• P’s consent

• Consent of authorised person on P’s behalf

• Defence of necessity

• Who can consent

• Competent adults

• Incompetent adults – must be in best interests

• Gillick competent kids – parents/adults w/parental resp.

• Incompetent children – parents/parental resp., court authorisation or necessity

• What is consent

• Must show

1. competent

2. sufficiently informed (understands in broad terms nature & purpose)

• Chatterton v Gerson–P warned of numbness in 1^st operation, not in 2^nd, paralysis resulted; held: informed in broad terms of nature & purpose, = no trespass, sue in negligence (battery only where consent’s negated by misrep/failure to inform)

3. not subject to coercion or undue influence

• Rare b/c difficult to demonstrate

• Freeman v Home Office (No2) – prisoner claimed coercion b/c even if consented to admin of drugs, it wasn’t real b/c a prisoner. Held: informed in broad terms of nature & purpose, the fact he felt he had no option isn’t decisive

• ReT (Refusal of Treatment)– woman Jehovah witness refused transfusion after seeing her mother, her father & brother successfully claimed consent wasn’t real b/c her will was overborne. Key: if outside influence caused her to depart from own wishes to such extent as to be regarded undue by the law

• NB: shows there’s a higher hurdle where P refuses than where she consents (Feldman)

• Reibl v Hughes (Canada) – D didn’t inform P of risks b/f operating narrowing artery in his nexk, suffered paralysis, held: P consented to basic nature & character of operation.

• 3 consent approaches

1. Objective – what would reasonable P do

2. Subjective – what would this P do

3. Modified objective – what would reasonable P w/some of this P’s characteristics (age, sex etc) do

• Form of consent

• None in particular, unless no true consent

• Positive – whether consented, not whether failed to object

• St George’s Healthcare Trust v S–social workers & doc successfully applied to disperse w/C’s consent to C section b/c otherwise would die; held to be wrong b/c adult of sound mind can refuse consent even where life depends on it. although pregnancy increased her resp. It didn’t diminish her entitlement to decide, even if decision was repugnant.

• Precision

• No clear guidance

• Best to get for each operation/treatment, unless there’s necessity

• Consent of Children

1. 16/17– can consent to treatment only (Family Reform Act 1969): diagnosis + ancillary procedures

• otherwise only if Gillick competent

2. Gillick competent – sufficient maturity to decide/understanding & intelligence must understand issues, effects, consequences of treatment + consent to particular issue

• Gillick v West Norfolk Health Authority–provision of contraception advice to 16y/old girls is lawful if they are Gillick competent (understand main issues, effects & consequences)

3. Generally

1. Parents/persons w/parental resp. can also consent

2. Court order under s8 Children Act 1989 or court’s inherent jurisdiction

3. Defence of necessity – urgent treatment (trumps parental objections)

• Disagreements

1. Doc v parent/child – can’t require doc to do something he doesn’t think is appropriate

2. Child v parents – Gillick competent child’s consent, court order or necessity trump parents’ objections doc needs one flak jacket only

• R (Axon) v Sec of State for Health – once child becomes Gillick competent, parent loses any right to respect for family life under HRA 1998 in so far as pertains to making decisions for him

3. Parent v parent – should consult on serious issues but otherwise one’s consent is fine

4. Court v parents – court can override their wish if not in acc w/child’s welfare

• NB: Hoffman: where parents spend a great deal of time w/child, their views may be of particular value b/c they know him but court must keep in mind they might be coloured w/emotion

• Treatment to which can’t consent

1. That which doc doesn’t think right to provide

2. For reasons of public policy (e.g. R v Brown)

• E.g. BDD: removal of health limbs pursuing to disorder should allow or not?

• Tort of False Imprisonment

1. Mandatory treatment for mental disorders – although taking P, autistic male who lived w/carers but got agitated at day centre to the hospital against his will = detention (i.e. in absence of justification, a tort of false imprisonment is committed) b/c P was kept in an unlocked ward meant there was no detention in fact (R v Bournewood Trust ex parte L)

2. Mandatory treatment for addiction –parenspatriae jurisdiction can be exercised by the court only after birth, so court order to detain a glue sniffer to protect her unborn child couldn’t be issued b/c not a legal person & can possess legal rights until born & viable (Winnipeg Child & Family Services v G – Canada Supr. Court)

• MCA 2005

• P lacking competence can be provided w/treatment in his best interests only

• Competence

• Definition – 3 aspects (Thorpe J in ReC)

1. Comprehension& retention treatment info

2. Belief in that info

3. Ability to weigh it in the balance

• Low threshold!

• Issue specific

• Rebuttable presumption in favour of competence (s1(2)) – burden on doc

• P is not competent if at material time can’t decide b/c of impairment/ disturbance in functioning of mind or brain

• If no impairment or disturbance = capacity, no matter how impaired the reasoning itself (s2(1)) or b/c decisions appear irrational/not wise (s1(4))

• P is unable to decide if can’t (s3(1))

1. Understand related info/retain it – info to be given in appropriate means (s2(2))

2. Use the info/weigh it up

3. Communicate his decision by any means

• Competence can’t be established by ref to appearance, age, condition, aspects of behaviour alone but these can be taken into acc (s2(3))

• Advance Decisions

• P must be 18 or over

• Negative only – refuse treatment

• Refusing life saving treatment in writing, signed & witnessed by TPs

• Can’t refuse basic care

• Invalid if

1. P withdrew it

2. P created LPA

• Sufficiently precise – specifies particular treatment

• Defences (s26(2))

1. Doc was satisfied AD exists/applies

2. Doc withdrew treatment believing there was a valid AD

• LPA (s9)

• Donee can decide re general welfare + some med issues, based on what he believes to be in P’s best interests

• No power to consent to/refuse life saving treatment unless LPA specifically provides for it

• Can appoint more than one + revoke at any time

• Deputies (s16)

• Court can decide itself or appoint a deputy (former preferred) – powers conferred to latter as reasonably ltd as dictated by circumstances

• Deputy can’t act if knows/reasonably believes P has capacity to act on that issue

• Must act in P’s best interests

• Can’t refuse life saving treatment

• Can appoint more than one/revoke

• Independent Mental Capacity Advocate (s35)

• Used where there’s no person other than professional carer to consult re P’s best interests + for providing support to P/ascertaining his wishes

• Can challenge med decision re capacity

• Court’s Decision re Best Interests

• Take into acc (s4)

1. P’s potential capacity in relation to deciding re that particular matter

2. P’s current views – decision maker must

1. permit, encourage P to participate, so far as practicable, as fully as possible (ss4)

2. consider P’s past & present wishes, as far as ascertainable (ss6)

3. if P opposes, weigh med benefits against distress/the need to use force

3. P’s past views

• Donnelly – current wishes should prevail in absence of clear assessment

• Herring – could argue past decisions made by a different person, essentially

• Brudney – make a decision authentic to the life which P has led (consider values underpinning it)

4. Views of relatives/carers – how much weight should be placed

1. Only as far as assist in ascertaining best interests

2. But few would actually be content to know that in event of their losing capacity decision could be made causing harm to his loved ones (Herring)

• HR

• Where incompetent P refuses treatment, Arts 3&8 may apply (i.e. require state to protect P from torture, inhumane & degrading treatment

• NB: generally, treatment of therapeutic necessity can’t qualify as degrading but court must ensure there was med necessity

• A Local Authority v Mrs A & Mr A–b/c P lacked capacity (2 kids, low reasoning ability) didn’t enquire what her understanding of bringing kids up was nor whether they are likely to be removed at birth; enough to satisfy itself that her relationship w/Mr A placed her under grave pressure

• Re MM– P schizophrenic w/learning disabilities not allowed to live w/K b/c not in her best interests (focus on appraisal of her welfare, incl. ethical, social, moral considerations + where various factors pull in different directions prepare a “balance sheet” to assist w/weighing up)

• RT & LT v A LA – 23 y/old P lacked capacity to decide where she should live/how much contact should have w/family – if incapable to understand info, then also incapable of retaining it – capacities in s3(1) aren’t cumulative

• Use of Force

• Treatment necessary to protect P from harm + in her best interests

• D must believe

1. P lacks capacity re that issue

2. It’s in P’s best interests

3. Necessary to prevent harm

4. Act is a proportionate response to the likelihood/seriousness of harm

• Court may issue Decl. authorising it but normally reluctant to do so

• ReC – LA successfully applied to court for Decl. to detain a 16y/old girl until treatment from anorexia b/c her welfare’s a paramount consideration

• DH NHS Foundation...