A more recent version of these Trespass To Person notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Medical Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Trespass to Person 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 (i) competent (ii) sufficiently informed (understands in broad terms nature & purpose) o Chatterton v Gerson-P warned of numbness in 1st operation, not in 2nd, 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) (iii) not subject to coercion or undue influence
- Rare b/c difficult to demonstrate o 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 o 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) o 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 (i) Objective - what would reasonable P do (ii) Subjective - what would this P do (iii) 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 o 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 o 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 (a) Parents/persons w/parental resp. can also consent (b) Court order under s8 Children Act 1989 or court's inherent jurisdiction (c) Defence of necessity - urgent treatment (trumps parental objections) Disagreements
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