Week 3. Consent and trespass to the person

Informed Consent

• Consent must be given freely and voluntarily 

• Consent must be informed and for a specific procedure/treatment 

• The person giving consent must have legal capacity 

Legal Capcity

It emphasizes that the person giving consent must have legal capacity, which is essential to ensuring valid consent.

Material Risk

Material risks are those risks which the patient would attach significance to or if the doctor believes that a reasonable person in that position is likely to attach significance to the risks 

Gillick Competence - Consent in minors

minors may authorize their own treatment if they demonstrate sufficient understanding of the procedure and its implications.

• 14 years or over – where the individual consents to medical treatment this will defeat any subsequent claim of battery by the individual 

• However, A child under 16 cannot refuse medical treatment 

Confidentiality - Consent in minors

mature minors are entitled to confidentiality, mirroring the rights of adult patients, which is key in ethical practice.

Legal Guardians - Consent in minors

For intellectually disabled minors or those lacking capacity, a legally appointed guardian is necessary, ensuring protection of their rights.

Voluntary and Involuntary Admission - Consent and Mental Health

• Consent for a person who is a voluntary mental health patient is per the terms of any legislation under which they are currently subject, if at all 

• It can be the same criteria as for a person who is not in in a Mental Health Facility 

• While a person is detained as a, “mentally ill person‟ or a, “mentally disordered person‟, they cannot be given treatment without their consent even if they are a referral person, unless they are subject to an involuntary treatment order or in an emergency. 

Trepass to ther Person

Trespass to the person entails the torts of: 

• Assault 

• Battery 

• False Imprisonment 

Assault

Assault happens when someone makes a direct and intentional threat that makes another person reasonably believe they are about to be physically harmed, either by the person making the threat or by something under their control.

Battery

A battery is a voluntary act, done with the intention of causing contact with another, that directly causes that contact. 

False Imprisonment

An intentional, total and direct restraint on a person’s liberty, without consent or authority. Can be physical or verbal. 

Consent may be given in either of 3 ways 

1. Implied

2. Oral 

3. Written 

Minors - Gillick competence/Mature minor test 

• Minor may authorise medical treatment when they are old enough and mature enough to decide for themselves, provided they are capable of understanding what is proposed and of expressing own wishes 

• 14 years or over – where the individual consent to medical treatment this will defeat any subsequent claim of battery by the individual 

• However, a child under 16 cannot refuse medical treatment