Consent to treatment

RDN-004 - Resource 4 Consent to treatment (Including the right to withhold consent, not for resuscitation orders, and the right to detain and restrain patients without their consent) Assault and the defence of consent This subject is often referred to, particularly in the health field, simply as consent. This is largely because the word 'consent' is more readily identified as relevant to the health area when considering the question of patients' consent to treatment. The principles covering this area of the law are based on common-law principles, which have been extended by individual State or Territory legislation in some areas, particularly in relation to children. Putting consent into its proper legal perspective, it is a defence to what otherwise would be the civil wrong of assault or, as it is sometimes referred to, trespass to the person. Assault can also be, and is most often contemplated as, a criminal offence. However, as far as nurses and other staff working in the health field are concerned, assault as a crime does not have general application in any consideration of this subject. The criminal offence of assault would not only consist of the application of force to another person without his or her consent, but would include the actual intent to cause harm to the person assaulted or a very high degree of reckless indifference to the probability of harm occurring to the person assaulted. It would be a rare situation indeed where such an intention or attitude of mind prevailed among nurses or any other health personnel. As far as the criminal law is concerned, there is also the technical distinction to he made between assault and battery, although for all practical purposes no such distinction is made and the word assault is used to embrace both actions. To continue the technical distinction, an assault can he committed merely by putting a person in fear for his or her physical wellbeing; for example, shaking a fist in front of a person's face and threatening to punch the person could well constitute an assault. If such a threat were to he carried out, the actual application of the blow to the person's body would constitute the technical offence of battery. Why is consent important? Any treatment given to a patient without the patient's consent, or the consent of a person entitled to give such consent on behalf of the patient constitutes an assault for which the patient is entitled to he compensated by an award of damages. It is a well-established legal principle, which the courts will uphold, that 'every human being of adult years and sound mind has a right to determine what shall be done with his own body'.' There are some exceptions to that statement, which have largely been created by statute and which will be dealt with later in this chapter. John Bailey 2009 Page Sequence: Page 1 of 8

CHC 30102 Certificate III in Aged Care Work Relevance of consent generally Consent as a defence in law has relevance far beyond the area of treatment to patients in hospitals or health centres. For example, in the criminal law, the charge of aggravated sexual assault essentially comprises two elements: 1. that sexual intercourse took place; 2. that intercourse was without the complainant's consent. Clearly, it is the absence of consent which renders an otherwise legitimate act a crime. Consent as a defence also arises for consideration in relation to civil negligence, where it is otherwise known as the defence of volenti... Although such a defence has little or no application in hospitals and health matters, it is nevertheless another example of the application of consent as a defence in a variety of legal situations, both criminal and civil. Negligence must be distinguished Any consideration of the absence or otherwise of consent to treatment must not be confused with negligence. In other words, negligence and assault are two distinct and separate civil wrongs and it is not necessary for a negligent act to precede an assault in order that the civil action alleging assault will succeed. As far as any treatment given to a patient is concerned, it is quite possible that such treatment was competently given, that the patient suffered no harm and recovered completely, yet the patient can stilt have been legally assaulted if he or she has not consented to the treatment given. As mentioned previously, the exceptions to that statement will he dealt with later in this chapter. Obviously the main reason why patients undergo any form of medical treatment is their belief that their complaint will be alleviated by the treatment given. Reality indicates that, if that happens, most patients do not know or care that they may have been technically assaulted in the process. As a general rule, it is only when something goes wrong and patients suffer damage that they start asking questions. On occasions something has gone wrong because somebody has been negligent. On other occasions all the most prudent precautions and competence will still not prevent unforeseen problems arising. Nevertheless, when something does go wrong, invariably the patient will want to know what happened, why, who did what and when, or perhaps who failed to do it. Depending on the facts and circumstances, and more often than not influenced by the degree of damage that has occurred, the patient will seek legal advice about the likelihood of suing the doctor and/or hospital and any other party the patient feels may have been responsible for the damage that has occurred. When that happens the legal action that may be contemplated will generally revolve around three potential legal considerations: 1. professional negligence; 2. assault in the absence of a valid consent; 3. breach of contract. John Bailey 2009 Page Sequence: Page 2 of 8

The two most likely areas of potential litigation will invariably arise from actions alleging professional negligence or assault, or both. Where the two potential causes of action of negligence and assault often overlap and therefore can confuse the layperson is in relation to the issue of informed consent, as it is generally known. That is, while the question of adequately informing a patient is critical to the issue of obtaining a valid consent, the failure of a medical practitioner to inform a patient adequately about the treatment he or she is to undergo, including the risks involved and likely outcome of any proposed treatment, can and has been determined by the courts to be negligence. In other words, such a failure will, more often than not, be deemed to be a breach of the doctor's duty of care to the patient. That important distinction, together with the relevant cases and the views expressed by the courts, is set out in Chapter 2. Remember that, in any allegation of negligence, the patient must prove all the necessary elements, including damage. As far as any action in assault is concerned, the patient does not have to prove damage, but merely the absence of consent to the treatment given. The amount of compensation awarded by a court in such a situation may he nominal when compared to the compensation awarded if the patient could prove negligence. Nevertheless, it is possible for a patient to bring an action seeking compensation for assault in the absence of any negligence on the part of the person concerned and solely on the basis that consent was not given. A case precisely on this point arose in Canada in 1991. Although the decisions of Canadian courts are not binding on Australian courts they would be considered as persuasive precedent. The case is particularly interesting because it demonstrates the distinction between an action in negligence and assault and at the same time it reinforces the right of a person to withhold consent to treatment - in this case a blood transfusion. The relevant facts of the matter are set out below. Mrs Malette was seriously injured in a motor vehicle accident in which her husband was killed. She was taken by ambulance to hospital. She had severe head and facial injuries and was bleeding profusely. She was initially transfused with intravenous glucose and Ringers Lactate. On admission a nurse discovered a card in Mrs Malette's purse which identified her as a Jehovah's Witness and in which she requested, on the basis of her religious convictions, that she be given no blood transfusions under any circumstances. The nurse advised Dr Shulman, the doctor on duty, of the existence of the card and its contents. Shortly after admission Mrs Malette's condition deteriorated sharply and she was critically ill. Dr Shulman decided that a blood transfusion was necessary to replace Mrs Malette's lost blood and preserve her life and health. He personally administered blood transfusions to her despite the directions on the card found in her purse and a request by Mrs Malette's daughter who had subsequently arrived at the hospital, that the transfusions be discontinued. When Mrs Malette recovered from her injuries she sued Dr Shulman for assault on the basis that she had specifically withheld her consent to blood transfusions as evidenced by the card in her purse, and in treating her contrary to that express request Dr Shulman had assaulted her. Mrs Malette's action against Dr Shulman was in no way undermined by the fact that Dr Shulman had not been negligent in any way. Indeed as the judgment states (at p. 163): I should perhaps underscore the fact that Dr Shulman was not found liable for any negligence in his treatment of Mrs Malette... he had acted promptly, professionally and was well motivated throughout and his management of the case had been carried out in a competent, careful and conscientious manner in accordance with the requisite standard of care. John Bailey 2009 Page Sequence: Page 3 of 8

CHC 30102 Certificate III in Aged Care Work His decision to administer blood in the circumstances confronting him was found to be an honest exercise of his professional judgment which did not delay Mrs Malette's recovery, endanger her life or cause her any bodily harm. Indeed... the doctor's treatment of Mrs Malette may well have been responsible for saving her life. Despite the above comments the court upheld Mrs Malette's claim against Dr Shulman on the basis that he had violated Mrs Malette's `right,~ over her own body by acting contrary to the Jehovah's Witness card and administering blood transfusions that were not authorised' (at p. 163). It is worthwhile pointing out that the court awarded Mrs Malette $20,000 damages but declined to make any award of costs - in other words Mrs Malette would have had to pay her own legal costs out of the damages awarded. Compared with the amount of damages awarded by courts today for negligence actions, Mrs Malette's damages of $20,000 for assault would certainly be considered nominal, particularly as she had to pay her own legal costs. The above case is referred to again later in this chapter to illustrate situations where an adult person's refusal to have blood transfusions cannot be overridden by health care practitioners. Very often employers will have in place, for the assistance of health personnel including nursing staff, protocols and guidelines in relation to the obtaining of a patient's consent to treatment. For example, in New South Wales the Department of Health has issued extensive guidelines titled 'Consent to Medical Treatment'.' Undoubtedly other States, Territories and employers have done likewise. It is always advisable for nursing staff to acquaint themselves with any such employer guidelines in place in relation to this and other relevant matters. What kind of consent must be given? When considering the question of consent, it is generally stated that it is necessary for a patient to give a valid consent. The use of the term `valid consent' simply denotes the necessity to ensure that any consent that is given comprises certain elements, otherwise the consent will be invalid. Equally, the elements that comprise a valid consent apply regardless of the way in which consent is given. The ways in which a consent can be given are: impliedly; verbally; in writing. Implied consent to treatment can be given in a variety of ways and is most often used as the method of giving consent to a simple procedure of common knowledge. For example, a request by a nurse to a patient to hold out his or her arm for an injection or to roll over preparatory to being given an injection in the buttocks and the patient's compliance with such a request would normally imply a consent to that treatment. Verbal consent is probably the most common form of consent occurring in relation to treatment in hospitals and health centres. What this means is that in the great majority of cases a conversation takes place between the doctor and the patient concerning the patient's condition and/or medical history. The conversation is usually accompanied by a medical examination and/or some preliminary tests. At the conclusion of the conversation the medical practitioner will advise the patient about his or her condition, what treatment the patient John Bailey 2009 Page Sequence: Page 4 of 8

should have, what medication should be taken and/or whether admission to hospital or other treatment is required. Almost inevitably the patient accepts the doctor's advice and agrees (that is, consents) to undergo the treatment suggested by the doctor. What is happening, of course, is that the patient is verbally consenting to treatment. No form has been signed, nor need it be when consent is given in such circumstances. In saying that, it must be recognised that a verbal consent forms the basis of the third way in which consent is given, that is the written consent. A consent in writing, in the form of the standard written consent form, is generally nothing more than documentary evidence of what has already been consented to verbally by the patient. In many ways the function served by a written consent form parallels the function of a contract reduced to writing. It is quite possible to create a legally binding contract between two parties by verbal agreement without recourse to a document, as long as the elements of a simple contract exist. In general terms, therefore, the main function that a written contract fulfils is to express in writing what has been verbally agreed to between the parties. There is no general legal principle which states that consent forms must exist and be signed before a patient can be treated. However, the one thing that the written consent form does is to provide, on the face of it, documentary evidence that a consent was given should a dispute arise over that point. A written consent in no way guarantees that the consent given is a valid one - that is another issue completely. John Bailey 2009 Page Sequence: Page 5 of 8

CHC 30102 Certificate III in Aged Care Work What are the elements of a valid consent? The validity of any consent, however given, will only be satisfied if the three elements that constitute a valid consent can be established. Those elements are: 1. that any consent given is freely and voluntarily given; 2. that any consent given is informed; 3. that the person giving consent has the legal capacity to give such a consent. That any consent given is freely and voluntarily given What is meant here is that any consent given by a patient must be given without any duress or coercion being applied by the medical practitioner or other member of staff in order to obtain the patient's consent. As a general rule, medical and nursing staff do not deliberately seek to apply coercive measures on patients to obtain their consent, but can do so unwittingly in a variety of ways, for example: if a medical practitioner or a nurse advises a patient that he or she must have a particular form of treatment or else he or she will be discharged; the authoritative role of the medical practitioner may introduce an element of coercion into the consent procedure on the basis of `I know what's best for you'. If it can be established that any coercion or duress was brought to bear on a patient in order to obtain his or her consent, that consent will be invalid. That any consent given is informed It is this element that probably gives the greatest concern to nursing staff, largely because of the problems that arise in relation to written consent forms. The much used expression 'informed consent' loses a lot of its mystery when considered in general commonsense terms. On a day-to-day basis people make decisions on a whole variety of issues which affect their daily lives - whether it be to buy a house or a new car, take an overseas holiday or change jobs. In making a decision on such issues, people obtain relevant information which will help them to decide whether or not to go ahead with a particular proposal; for example, cost, finance available, repayments, access to public transport and schools, career opportunities and so on. A person will then assess the various alternatives available before coming to a final decision on the matter. In other words it is the gathering together of the information needed in order to arrive at the most appropriate decision that constitutes the informed element of the consent process. It is much the same situation medical treatment. Obviously the consequences of making a decision about health care are far more serious than deciding whether or not to take a skiing holiday in New Zealand or Falls Creek. Nevertheless, the principle is the same. The phrase 'informed consent' can be traced to early American decisions that acknowledged that 'a patient needed adequate information about the nature of proposed treatment, its risks and feasible alternatives in order to make an intelligent choice about whether or not to undergo it'.' If it is recognised that John Bailey 2009 Page Sequence: Page 6 of 8

information is required to he given to a patient when he or she is being asked to consent to a treatment, two questions clearly arise for determination. 1. How much information must he given to a patient? 2. Who is responsible for giving sufficient information to a patient? How much information must be given to a patient? In other words, how much information is considered to be sufficient information to satisfy the element that a patient's consent should be informed? At this point it is necessary to restate that, invariably, when this issue is considered it is done within the context of negligence, having regard to the perceived duty of the doctor to inform the patient adequately about any proposed treatment, and readers should refer to the cases on this issue in Chapter 2. That is not to suggest that an action in assault cannot or should not he pursued. It simply reflects the views expressed by the courts in Australia and elsewhere, particularly in England, on this issue. Indeed the decision of the High Court of Australia in Rogers v Whitaker makes it quite clear that actions against medical practitioners alleging inadequacy of information about a proposed treatment should properly be considered as part of the medical practitioner's duty of care within the context of an action in negligence.' The facts of Rogers v Whitaker are set out in Chapter 2 of this text and should be referred to. In unanimously dismissing Dr Rogers' appeal the High Court made the following comment on the issue of informed consent (at p. 633):... In this context nothing is to be gained by reiterating the expressions used in American authorities such as 'the patient's right of self-determination' or even the oft-used and somewhat amorphous phrase 'informed consent'. The right of self determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise,, the phrase 'informed consent' is apt to mislead as it suggest- a test of the validity of the patient's consent. Moreover consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only be found an action of negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed. [emphasis added) The increasing emphasis that this issue is having in the legal and health care fields is evidenced by the General Guidelines issued by the National Health and Medical Research Council (NH&MRC) in 1993. On the question of giving or withholding information by medical practitioners the discussion paper guidelines read as follows: Giving information 9. Doctors should normally discuss the following information with their patients. It may be helpful to convey the information in more than one session, and to vary the sequence to suit the circumstances: John Bailey 2009 Page Sequence: Page 7 of 8

CHC 30102 Certificate III in Aged Care Work 9.1 the possible or likely nature of the illness or disease; 9.2 the proposed approach to investigation, diagnosis and treatment: 9.2.1 what the proposed approach entails, 9.2.2 the expected benefits, 9.2.3 the common side effects and material risks, 9.2.4 whether the intervention is conventional or experimental, 9.2.5 who will undertake the intervention, their expertise and qualifications; 9.3 other options for investigation, diagnosis and treatment; 9.4 the degree of uncertainty of diagnosis and therapeutic outcome; 9.5 the likely consequences of not choosing the proposed diagnostic procedure or treatment, or not having any procedure or treatment at all; 9.6 any significant long-term physical, emotional, mental, social, or sexual outcomes which may be associated with a proposed intervention; 9.7 the time involved; 9.8 the need to consider areas of substantial cost. Informing patients of risks 10. The doctor should give information about risks, especially those that are likely to influence the patient's decisions. Reasonable judgement will be influenced by: 10.1 the seriousness of the patient's condition: for example if the patient were gravely ill, the giving of information might need to be modified; *Staunton, P. and Wyhburn, B. 1997. Consent To treatment, In Nursing and the Law, 4 th Edition, W.B.Saunders, Sydney, 93-101 John Bailey 2009 Page Sequence: Page 8 of 8