Assault or battery case against medical staff dismissed

by | Oct 22, 2017 | Health Blog

A recent decision of the Supreme Court of Queensland, Court of Appeal, concerned the issue of whether there was an absence of a valid consent and liability for civil assault or battery.

The applicant was employed as a security officer at Gladstone Hospital. In the evening on 2 August 2012, he was observed to be acting unusually while at work and was directed by a co-worker to attend the Emergency Department. There he was seen by a nurse and a locum doctor who believed him to be either under the influence of alcohol or illicit drugs, or suffering from a medical condition that would require urgent attention.

The doctor formed the opinion that a blood test to screen for alcohol and a urine test to screen for illicit substances needed to be administered.

According to the doctor, he discussed the taking of blood and urine samples with the applicant who seemed to be in agreeance. The applicant was calm and co-operative.

The nurse took a sample of the applicant’s blood. Her evidence was that she obtained the applicant’s permission before doing so.  The applicant claimed that no consent was given and that as he was talking to the doctor, the nurse approached him from the other side with a needle syringe in her hand and poked him.

As for the urine test, the applicant alleged that the nurse observed him as he gave his urine sample. The nurse denied this.

The applicant claimed to have suffered shame and humiliation from the incident, culminating in a psychiatric injury.

At first instance, the learned primary judge found that the applicant’s credibility was so poor that his evidence should not be acted upon where it was in conflict with other credible accounts. The learned judge found that the applicant had freely consented to the taking of blood and urine samples and that the actions of the medical staff did not constitute either assault or battery.

The applicant filed an appeal against the District Court judgment.

The Court of Appeal discussed the issue of consent as follows:

[27] The question whether a person has consented to the taking of a blood or urine test is essentially one of fact. …

[30] … [T]he patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended.”

[31] It is not necessary that the words “I consent” be used to signify real consent. Real consent may be inferred from the patient’s conduct.

[32] In this case, there was evidence from [the doctor] that he explained to the applicant that he proposed that the samples be taken and that the tests needed to be done. The applicant appeared to agree to them; he did not object. [The Nurse’s] contemporaneous note recorded the applicant’s consent to them. Furthermore, his conduct in presenting his arm and in participating in the application of the tourniquet and cleaning solution and the vein identification, were overt manifestations of his consent to the blood test. His passing of urine into the sample jar manifested his consent to that test.

[33] As to intoxication, it is, of course, not the case that a person need be fully sober in order to give consent to procedures undertaken in the emergency department of a public hospital. The applicant now wishes to rely on his blood alcohol reading of .2 grams per litre as having negated a capacity on his part to give real consent. According to [the doctor], the applicant’s observed behaviour was consistent with such a reading. Notwithstanding, he was observed by [the doctor] to consent to the tests. There was no contrary evidence adduced by the applicant that, with that reading, he would have been functionally deprived of a capacity to give real consent.”

The Court of Appeal found that the appeal had no prospects of success and refused leave to appeal.

To read the decision in Pere v Central Queensland Hospital and Health Service [2017] QCA 225, click here.

Enore Panetta

Enore Panetta