MLL213 Study Guide - Final Guide: Fallopian Tube, False Imprisonment, Fiduciary
24 May 2018
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4a Defences to Intentional Torts
CONSENT:
Intentional Torts
Onus rests on D to prove. MARIONS CASE.
D must inform P in board terms of the nature pf the interference. The consent must be
obtained voluntarily and without fraud as the nature of the interference.
Medical Treatment Cases
D liable in battery if the treatment exceeds the limits of consent, or is administered without
consent.
D must explain in broad terms the nature and effect of the treatment, but does not need to
describe all details or material risks.
Mistake as to whether consent as been given or not. Reeves v The Queen. Exception to
consent requirement: necessity (where the patient incapable of providing consent). But
necessity does not override valid a refusal of consent.
Hart v Herron:
• P went through Deep Sleep Treatment and Electro Convulsive Therapy.
• It was held that even tho P had voluntarily admitted himself, this did not imply consent to the
treatment. P was successful in suing for false imprisonment.
Norberg v Wyrib:
• P was using D for her pain killer addiction. In return he asked for sexual favours. Action for
sexual harassment.
• Held that it was a fiduciary obligation and he had a duty of care not to touch her w/o consent.
R v Williams (1923):
• 16 yo girl agreed to have sex with singing teacher, thinking it was an operation that would
help with her singing.
• Held: fraud. Teacher did not inform girl actual nature of the act.
Murray v McMurchy:
• Doctor during child delivery tied patiets fallopia tues after fidig tuours i all of
uterus.
• Held: not necessary, could have postponed operation and gotten consent.
•
Rogers v Whitaker:
• P was almost blind in one eye. Accepted miracle surgery from D, but left her with blindness in
other eye. Initially awarded damages.
• Appeal dismissed.
Reeves v The Queen:
• D was convicted for a variety of assaults and malicious treatment.
• Claimed was mentally ill. Charges remain after appeal.
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Refusal of Consent
Common Law
An adult of sound mind is entitled to refuse medical treatment, even life saving or
life sustaining treatment.
Dr a oly oerride oset if patiets apaity to deide adersely affeted y illess,
medication or influenced by duress. If P incapable of giving/refusing consent, an advance
directive is sufficient as a refusal. Malette v Shulman.
Legislation:
- Medical Treatment Act 1988
o Provides procedures for a formal refusal of treatment certificate (s 5). But
does not preclude other forms of advanced directives (s 4(1)).
o Exception re: palliative care (care to alleviate pain while a patient is dying but
not cure)
o P cannot refuse food or water or administration of pain relief
Medical Consent for a Minor
Decisions for a young or incompetent child to be made by parents/guardians
NOTE: refusal of consent for life saving blood transfusions can be overridden (two
medical practitioners must agree re necessity) Human Tissue Act 1982, s24
Family Court and Supreme Court have jurisdiction to override a parental decision where
necessary in the best interests of the child.
If the treatment is non-therapeutic (example, a sterilisation on an intellectually disabled
female) a court order must e otaied. Therapeuti proedures mean treatet of soe
malfunction or disease.
A minor without sufficient maturity and intelligence can consent, or refuse consent, to
treatment.
Malette v Shulman:
• Consent expressly withheld as patient was Jehovahs Witness and would not have blood
transfusion.
• Doctor went ahead and court held trespass of person.
St. George’s Healthcare NHS Trust v S:
• Refused C section on personal view.
• Doctor went to judge and received judicial consent for life saving treatment.
•
Airedale v HS Trust v Bland:
• B in vegetative state for three years after being caught in a crush. No hope of recovery, so
parents gave consent to file for turning off his life support.
• Granted. No prospect of improvement so treatment was futile, therefore, not euthanasia.
Marions Case:
• parents wanted to sterilise intellectually disabled child, using their consent.
• Held: it cannot be presumed that i.d. child is incapable of giving consent, the capacity is
depedet o eah idiiduals deelopet. Thus, parents cannot give consent, which
is ot therapeuti ad learly i hilds iterests.
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find more resources at oneclass.com
Document Summary
P went through deep sleep treatment and electro convulsive therapy. It was held that even tho p had voluntarily admitted himself, this did not imply consent to the treatment. P was successful in suing for false imprisonment. D must inform p in board terms of the nature pf the interference. The consent must be obtained voluntarily and without fraud as the nature of the interference. P was using d for her pain killer addiction. Action for sexual harassment: held that it was a fiduciary obligation and he had a duty of care not to touch her w/o consent. 16 yo girl agreed to have sex with singing teacher, thinking it was an operation that would help with her singing: held: fraud. Teacher did not inform girl actual nature of the act. D liable in battery if the treatment exceeds the limits of consent, or is administered without consent.
