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Legal responsibilities:consent
in emergency treatment
Whitcher J (2008) Legal responsibilities: consent in emergency treatment. Nursing Standard. 23, 9,
35-42. Date of acceptance: February 1 2008.
Summary
The issue of consent is complex but fundamental to the provision of
medical care. Most patients who attend an emergency department
will be able to make their own decisions regarding the care they
receive. Patients who are seriously injured or have reduced or absent
capacity may have to rely on healthcare professionals to make
decisions on their behalf. Healthcare professionals must ensure that
they act as patient advocates and that medical care and treatment
are carried out in patients’ best interests. This article addresses
issues relating to consent in emergency departments.
Author
John Whitcher is practice educator, Accident and Emergency
Department, Royal Gwent Hospital, Gwent. Email: Jbwhitch@aol.com
Keywords
Consent; Emergency nursing; Medical case law; Patients’ rights
These keywords are based on the subject headings from the British
Nursing Index. This article has been subject to double-blind review.
For author and research article guidelines visit the Nursing Standard
home page at nursingstandard.rcnpublishing.co.uk. For related
articles visit our online archive and search using the keywords.
MOST PATIENTS ATTENDING an emergency
department are able to make decisions regarding
their care unassisted; however, some individuals
may not have the ability or capacity to make such
decisions, possibly as the result of an organic
disorder of the brain, poisoning, hypoxia,
hypovolaemia or head trauma. An emergency
department is an unfamiliar and hostile
environment for most patients. It is a complex and
frightening place in which patients may no longer
feel in control of the care they receive (Jones et al
2005). Patients may have to undergo invasive
tests or treatments and consent is paramount.
The provision of health care is based on the idea
of consent (Hutchinson 2005), which is a complex
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issue. Those who are unable to provide consent
will present the clinician with potential legal and
ethical dilemmas. Because of the complex nature
of medical law, the emergency department is
considered the most dangerous part of a hospital in
medico-legal terms (Knight 1992). It is therefore
imperative that healthcare professionals in this
area of practice have an up to date working
knowledge of the law.
The intricacies and relevance of consent are
often overlooked by nurses. This is because
obtaining consent was previously viewed as the
responsibility of doctors and there was little
agreement on the definition of capacity in
legislation. Before the Mental Capacity Act 2005
nursing and medical professions had to refer to
case law for guidance. The Nursing and
Midwifery Council (NMC) (2008) states that:
‘You must ensure that you gain consent before
you begin any treatment or care.’ Consent is
necessary for all aspects of nursing care and
therefore knowledge of the law in relation to
consent is essential.
The development of medical case law
In law there is no single act of parliament that sets
out the principles of consent. The courts, through
common law, have established legal rules in the
form of case law. As a result of a number of cases
that have been heard in the high courts, such as
Bolam v Friern Hospital Management Committee
[1957], Re C (adult: refusal of medical treatment)
[1994], Chester v Afshar [2004] and Chatterton v
Gerson [1981], a set of legal principles has been
established. These cases have provided legal
direction because the judgments drawn from the
facts of the case have authoritative precedent,
which means that they are generally binding and
have to be followed in future cases.
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The Mental Capacity Act 2005, which applies
to England, Wales and Northern Ireland, and the
Adults with Incapacity (Scotland) Act 2000,
outline the common law principles that relate to
capacity. The acts, as highlighted by Mason and
Laurie (2006), are based on the interpretation of
Re C (adult: refusal of medical treatment)
[1994]. The general principles are that the
patient must be able to take in and retain the
information provided, believe the information
and have the ability to assess the information and
make a decision. A slight difference in the acts
is that the Mental Capacity Act 2005 is based on
an assessment of what intervention is in the best
interest of the patient. The Adults with
Incapacity (Scotland) Act 2000 outlines that any
action or intervention must be to the benefit of
the patient. This means that the law in England,
Wales and Northern Ireland addresses the care of
those who possibly have no interest, such as the
patient in a permanent vegetative state (PVS).
The patient who is in a PVS will not usually
benefit from a treatment that prolongs life.
Scottish law is influenced by the English legal
system, European Community law and the
Human Rights Act 1998. The doctrine of
precedent – where a judgment made in one case
will have to be followed in similar cases – also
applies, and in the next few years English courts
may begin referring to Scottish cases and vice
versa for guidance. The precedent may be
binding, that is it must be followed or persuasive,
in which case the court can refer to the judgment
but does not have to follow it when issuing a
judgment on the current case.
The move away from paternalism
For many centuries the practice of medicine was
based on the paternalistic principle that the doctor
knew best and treatment was often imposed on
patients with varying levels of consent. However,
the principles of patient autonomy and the right to
have decisions respected have provided patients
with the opportunity to decide what, and when,
medical examinations or treatments take place.
This does not apply in exceptional circumstances
such as during an emergency. Brazier and Cave
(2007) suggest that not even the most paternalistic
doctors would now suggest that all patients should
be compelled to accept whatever treatment is
suggested. This right to self-determination is
supported by English law as expressed by Lord
Steyn in Chester v Afshar [2004]: ‘In modern law
medical paternalism no longer rules and a patient
has a prima facie right to be informed’.
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The case of Re B (adult: refusal of medical
treatment) [2002] highlights how some doctors
may still practise paternalistically. B was
paralysed as the result of a spinal cord
haemorrhage and was being mechanically
ventilated. B had an advanced directive that
requested the treatment to be stopped. However,
the requests of B were ignored until a High
Court ruling declared that a battery was being
committed against the patient. Dame Elizabeth
Butler-Sloss confirmed that: ‘A seriously disabled
patient has the same rights as the fit person to
respect for personal autonomy. There is a serious
danger, exemplified in this case, of a benevolent
paternalism which does not embrace recognition
of the personal autonomy of the severely disabled
patient’ (Re B (adult: refusal of medical
treatment) [2002]).
It is important that healthcare professionals
do not assume that because a patient has a
disability he or she is unable to consent to, or
refuse, treatment. It may be the case that the
patient is unable physically to enforce his or her
refusal, for example as a result of paralysis caused
by a cerebral vascular accident (CVA). However,
the healthcare professional must not treat the
individual any differently from someone who is
physically able to express his or her refusal.
Consent
Consent involves an autonomous individual who
has mental capacity giving his or her permission
for touching to take place. This touching may be
to perform an investigation or for more complex
surgery to be carried out. This definition of
consent is supported by the famous legal definition
provided by Judge Cardozo in Scholoendorff v
Society of New York Hospital [1914], which states
that: ‘Every human being of adult years and sound
mind has a right to determine what shall be done
with his own body; and a surgeon who performs
an operation without the patient’s consent
commits an assault…’
Lord Donaldson, in the case of Re W [1992],
concluded that consent serves two purposes. First,
by allowing the patient to provide or refuse
consent, the legal justification for giving or
withholding medical treatment is established.
Failure to gain consent may lead to a healthcare
professional being prosecuted following
allegations of criminal battery if the act has been
hostile; if the act was performed in the best interest
of the patient but was non-consensual, the tort of
battery may be more appropriate. A tort is a legal
term for a wrongful act or submission. This act or
omission may lead to damages being claimed in a
civil court. Second, the act of gaining consent leads
to the patient being informed regarding his or her
medical or surgical problems and helps to develop
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a trusting patient/doctor relationship. For consent
to be valid three elements must be present:
The patient must have the mental capacity to
consent.
The individual must be supplied with relevant
information to assist decision making and
whether to grant or withhold consent.
The patient must come to a decision relatively
free from any coercion or duress.
It is essential that healthcare professionals
understand that the issue of capacity underpins
the process of consent. In an emergency
department in England,Wales or Northern
Ireland a nurse may be called on to make prompt
decisions about whether or not a patient has
capacity in line with the Mental Capacity Act
2005, and such decisions will influence any
immediate care and treatment.
Capacity
The patient must have the capacity to consent to
the investigation, treatment or care to be given.
Section one of the Mental Capacity Act 2005
states that every adult must be presumed to have
mental capacity unless proven otherwise. For
capacity to be present the patient must be able to
understand, retain and evaluate information
provided to establish the advantages and
disadvantages of treatment and reach an
informed decision. This test is based on the
three-stage test as highlighted in the case of Re C
(adult: refusal of medical treatment) [1994].
The first stage questions whether the patient
is able to take in and retain the information
provided. The second stage assesses whether the
patient believes the information. The third stage
questions the patient’s ability to weigh up the
information to come to a decision. This idea was
developed further by the Court of Appeal in Re
MB (an adult: medical treatment) [1997], which
highlighted that the patient must understand the
reason for the treatment, the nature of the
treatment, and the risks associated with
accepting and refusing to undergo the proposed
treatment. Section two of the Mental Capacity
Act 2005 adds a fourth stage, which assesses the
patient’s ability to communicate his or her
decision (Box 1). Failure to demonstrate the
presence of capacity would render the patient
unable to provide valid consent. The Department
of Health (DH) (2001) Reference Guide to
Consent for Examination or Treatment makes it
clear that when the patient comes to a decision
he or she must understand the possible
consequences of accepting or refusing treatment.
It is possible that some patients may have the
capacity to consent to certain minor procedures,
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BOX 1
Key elements of capacity
The individual must demonstrate the ability to:
Understand the information provided.
Retain the information provided.
Weigh up the information provided.
Adequately communicate his or her decision.
but major procedures may require a more
in-depth evaluation of the risks, which may
be beyond the ability of the patient. It must be
stressed that all patients must be assumed to have
the capacity to consent to all procedures, even
those who are seriously ill. Procedures that carry
greater risk would require a greater level of
discussion to demonstrate that a patient truly did
have the capacity to consent to such a procedure.
This was supported by Lord Donaldson in Re T
(an adult: medical treatment) [1992], who
highlighted that when the patient made his
decision relating to the medical treatment he:
‘had a capacity which was commensurate with
the gravity of the decision which he purported to
make. The more serious the decision, the greater
the capacity required.’
The Mental Capacity Act 2005 makes it clear
that the patient’s capacity to consent must not
be presumed absent until all attempts to assist
understanding have failed. The act recommends
the use of speech, sign language or any other
means to aid this process. In practice, this means
explaining the procedure in a language at a level
that the patient will understand. This will often
be reinforced with simple diagrams and the
patient will be given time to think about the
information provided and repeated
explanations will be given, if necessary. The
patient may have an independent mental
capacity advocate – a person appointed
externally to support the patient who lacks
capacity – to act on his or her behalf. This
advocate puts the patient in the same position
as a person with capacity and allows the
individual to be treated fairly and equally.
A two-stage approach must be taken to assess
the patient’s capacity (Department for
Constitutional Affairs (DCA) 2007). Stage one
involves questioning whether there is a
disturbance of the brain or mind that would
impair functioning. If there is a disturbance,
the patient will fail stage one. If there is no
disturbance, it will be presumed that the patient
has the capacity to consent. Conditions that are
common in emergency nursing and may affect the
first-stage approach include physical or medical
conditions that cause confusion (for example,
hypovolaemic shock or cerebral hypoxia),
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decreased or loss of consciousness (for example,
CVA or problems with glycaemic control),
delirium possibly associated with alcohol
withdrawal or fever, concussion following a head
injury, and the symptoms of alcohol or drug use.
The Mental Capacity Act 2005 Code of Practice
(DCA 2007) highlights that dementia, long-term
brain injury and mental health problems may
affect the patient’s ability to pass stage one. The
second stage assesses the patient’s ability to make a
specific decision and how the disturbance of the
brain or mind affects that decision (Box 2).
Voluntary consent
Consent must be voluntary and patients must be
free from coercion and not placed under duress.
This requirement, if not met, would render any
consent invalid and subsequent touching based
on that consent would become unlawful. It is
therefore imperative that healthcare
professionals ensure that patients provide
consent of their own volition.
The issue of voluntary consent is infrequently
tested in law; however, the case of Re T (an adult:
BOX 2
Clinical scenario 1 – assessing capacity
A young man has been stabbed in the abdomen. He is conscious but has
sustained significant blood loss and requires emergency surgery.
This patient would fail stage one of the capacity assessment because
significant blood loss and hypoxia would alter his brain function. His ability
to pass stage two may fluctuate with time.
It is clear he is able to make simple decisions regarding cannulation
and blood pressure monitoring. However, when surgery is discussed
he does not understand the seriousness of his injuries as a result of
the hypovolaemic shock. Therefore, using an assessment of his capacity,
the patient fails stages one and two, so the emergency procedure is
carried out in the patient’s best interest.
BOX 3
Clinical scenario 2 – encouraging consent
A man has been attacked by a dog. The dog bite has exposed and
possibly damaged ligaments in his hand. The patient feels a dressing and
antibiotics would be appropriate. The patient may face the possibility of
long-term disability and a significant risk of serious infection if the wound
is not treated appropriately.
In this situation it may be appropriate for the doctor or nurse to use
a certain amount of persuasion to encourage the patient to consent to
having the wound explored before being discharged home. The doctor or
nurse would have a duty to engage in frank discussions with the patient,
because refusing appropriate treatment would not be in the patient’s
best interest.
38 november 5 :: vol 23 no 9 :: 2008
medical treatment) [1992] demonstrates the need
for consent to be voluntary. In the case, Miss T
was pregnant and had been involved in a road
accident. Miss T’s unborn child was to be
delivered the following day by Caesarean section.
Miss T had been brought up by her mother as a
Jehovah’s Witness but was not an official member
of that church. Following a visit from her mother
Miss T, verbally and by signing a form, refused all
blood transfusions, but agreed to alternative
measures being used. The patient had a
haemorrhage following the Caesarean section.
As a result of Miss T’s refusal to accept
treatment, the hospital felt it could not lawfully
give her a life-saving blood transfusion. Miss T’s
father and boyfriend sought a declaration from
the court authorising the administration of a
blood transfusion. The Court of Appeal
ruled that Miss T could be given the blood
transfusion. The court came to the decision
because it was felt that the mother had had an
overbearing influence on Miss T and had
subsequently influenced her decision. The
traumatic event, along with the pain and
discomfort Miss T was experiencing, allowed
her mother to influence her choice and
subsequently refuse medical treatment.
In clinical practice there may be times when
consent is not free from coercion. This was
addressed in a quote from Lord Donaldson in
Re T [1992] who suggested that doctors should
ask themselves: ‘Does the patient really mean
what he says or is he merely saying it for a quiet
life, to satisfy someone else or because the advice
and persuasion to which he has been subjected is
such that he can no longer think and decide for
himself?’ This question could apply to the patient
who has a persuasive family which is desperate
for any medical treatment to be carried out that
may prolong life.
There is also the possibility that a doctor may
use the patient to further his or her surgical
experience. The doctor may place pressure and
coerce the patient into accepting treatment so
that the doctor has the opportunity to perform
an unusual or complex procedure. There will
always be situations in clinical practice when a
doctor will to some degree influence the patient’s
decision. Patients will often ask healthcare
professionals for advice on what they would do
in their situation (Box 3).
Lord Justice Staughton, in the case of Re T
[1992], confirmed that: ‘a patient’s decision to
consent to an operation will normally be
influenced by the surgeon’s advice as to what
will happen if the operation does not take place’.
So, in practice, a certain amount of influence
may be considered acceptable as long as it does
not unduly influence the patient’s decision. In
effect the patient’s choice may to some extent
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be influenced by the healthcare professional.
However, the final decision to accept or refuse
treatment must come from the patient.
It is clear that for a patient to provide consent
freely without duress he or she must have
capacity. In the case of an unconscious patient
this capacity will be lost and the individual’s
ability to provide voluntary consent will be
absent. Medical treatment in this case is provided
under the principle of necessity, taking into
account the best interests of the patient.
‘Informed in the broad terms’
Patients must be informed before any medical
procedure or treatment is commenced in what is
considered the ‘broad terms’. This encompasses
the nature of the medical or surgical procedure
and its purpose, for example to repair a fracture or
to remove a tumour. It must be stressed that the
term ‘informed consent’ does not exist in the
English legal system (Herring 2006). The term
‘informed in the broad terms’ is the legal standard.
The term comes from the case of Chatterton v
Gerson [1981]. For consent to protect the
healthcare professional from claims of negligence,
it is not enough to inform the patient of the nature
and purpose of the procedure. Judge Thorpe, in
Re C (adult: refusal of medical treatment) [1994],
stated that the patient must also understand the
effect of the proposed treatment.
The concept of providing information was
further developed in the case of Sidaway v Board
of Governors of the Bethlem Royal Hospital
[1985]. It was confirmed that: ‘the duty of the
doctor in these circumstances, subject to his
overriding duty to have regard to the best interests
of the patient, is to provide the patient with
information which will enable the patient to make
a balanced judgment if the patient chooses to
make a balanced judgment’ (Sidaway v Board of
Governors of the Bethlem Royal Hospital [1985]).
In clinical practice it is established that the
patient should be informed of the nature of the
proposed treatment. Its purpose should be made
clear whether it be curative, investigative or
palliative. The potential effects and material
risks of the treatment should be made clear as
knowledge of these facts may discourage the
patient from providing consent, as in the case
of Chatterton v Gerson [1981]. In this case the
plaintiff received a pain controlling injection,
which left her with a numb leg. The patient had
not been informed of the risk; if she had she
would not have provided consent.
It is also important to ensure the patient is
informed of the consequences of refusing
consent, and any possible alternatives to the
proposed treatment.
The DH (2001) states patients must be
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informed of any additional procedures that
may be required while the initial treatment is
being carried out. Common law makes it clear
that only procedures required to save a life can
be carried out if it is not reasonable to wait for
the patient to regain capacity. However, it may
be necessary to give the patient a blood
transfusion if he or she experiences a serious
haemorrhage, for example. It is therefore
essential that the healthcare professional has
discussions, without prevarication, with the
patient regarding his or her religious and
cultural beliefs to ascertain whether particular
additional procedures would be permitted.
To establish how much information the
healthcare professional must provide to be
protected from accusations of negligence
pertaining to consent, the healthcare professional
must use the Bolam principle. This is the medical
profession’s accepted professional standard and
it is applied when testing whether or not a
reasonable level of skill and knowledge has been
used. In relation to consent the doctor or nurse
must ensure the information provided reaches the
same standard as another person who may be
performing a similar task. This is supported by
the dictum of the law lords who advocate the use
of Bolam in Sidaway v Board of Governors of the
Bethlem Royal Hospital [1985].
It must be made clear that the level of
information given to a questioning patient will
need to be significantly more detailed than the
information given to a non-questioning patient.
This is supported by the comments made in the
case of Sidaway v Board of Governors of the
Bethlem Royal Hospital [1985] by Lords
Diplock and Bridge, who highlighted that the
patient should receive a full and truthful answer.
To make a valid decision the competent patient
must be informed in the broad terms.
A patient with fluctuating capacity would
still require an explanation of any proposed
treatment and depending on his or her capacity
at the time may be able to consent to minor
procedures. Depending on the gravity of the
treatment the patient may need time to process
the information if circumstances permit.
For an unconscious patient, it is important
to establish whether the procedure is in the
patient’s best interest. The healthcare
professional should discuss the proposed
treatment with the individual’s family, friends or
an independent mental capacity advocate. They
should receive the same information as the
patient would have if he or she had the ability to
retain, understand and process information.
By informing relatives or friends in this way,
important aspects of the patient’s social and
religious life may become apparent.
When the patient regains consciousness it
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is important that he or she is informed of the
treatment received in the broad terms, along with
an explanation of why the procedure was carried
out while he or she was unconscious, for example
to prevent significant deterioration or to save life.
It is also important to consider the time
available in the emergency setting and whether
this permits lengthy discussions and allows
patients sufficient time to weigh up the
information given to them. From clinical
experience it is apparent that clinicians do not
have sufficient time to allow lengthy debate.
Many of the treatments performed such as
thrombolysis for myocardial infarction are
time-critical. The longer the delay the less chance
of the drug being successful. The risk of death
from cardiac arrest increases the longer the heart
muscle is without oxygen. As case law directs
healthcare professionals to inform in the broad
terms (Chatterton v Gerson [1981], Sidaway v
Board of Governors of the Bethlem Royal
Hospital [1985]), it appears it would be sufficient
to provide enough information for consent to
be valid. Jones et al (2005) point out that some
practitioners may feel this is insufficient and
that the patient has a right to receive a more
detailed explanation. A balance needs to be
struck between informing the patient fully and
providing life-saving treatment. The healthcare
professional may be able to justify limiting the
amount of information he or she provides
because thrombolysis, for example, is a
procedure that will remove the patient from
immediate danger and so could be justified
under the doctrine of necessity.
Providing consent
Generally, a competent patient will provide
verbal consent for procedures such as
cannulation and wound dressings. A patient
may imply that he or she consents to treatment
by holding out his or her arm when a nurse
approaches with a sphygmomanometer.
Montgomery (2002) suggests that a patient
rolling up his or her sleeve to receive an injection
is implied consent. However, this implied
consent may not be adequate because many
drugs that are injected pose risks to the patient,
such as thrombolytic drugs. This type of drug
has severe and life-threatening side effects such
as CVA and potential death. Healthcare
professionals should not proceed to administer
an injection on implied consent. They should
seek to obtain verbal and valid consent.
Certain clinical procedures carried out in
40 november 5 :: vol 23 no 9 :: 2008
emergency nursing may require the patient to
provide written consent. These may include:
Thrombolysis.
Chest drain insertion.
Manipulation of a limb where sedation is
required.
Exploration and closure of wounds.
Minor surgical procedures.
It is good practice to secure written consent for
procedures that carry significant risk or when
there may be accusations of battery when minor
procedures have been performed. The DH
(2001) stresses that written consent is not proof
that consent was valid, as the three key areas –
capacity, information and voluntary – may have
been absent. The process of obtaining written
consent allows the doctor to document the
proposed procedure, significant risks, side effects
and any other procedures that may need to be
carried out. The patient’s signature on the
consent form is usually evidence that he or she
has had discussions with a healthcare
professional and has agreed to the treatment.
If the patient lacks capacity the medical team
may decide on the best course of action to take
once it has discussed the treatment possibilities
with the family and has made a decision based
on the patient’s best interests. Once a decision is
made a representative of the patient will sign the
consent form to confirm that they have
discussed what may or may not be in the
patient’s best interest.
In the absence of consent
The British Medical Association (BMA) (2008)
has provided guidance to its members on
clinical decision making. The BMA (2008)
makes it clear that treatment where consent is
absent should be limited to save life or prevent
significant deterioration. It also states that
doctors must inform a patient, as soon as he or
she has recovered sufficiently, of any procedure
that was carried out and the reasons for
treatment (BMA 2008).
The Mental Capacity Act 2005, as highlighted
by Herring (2006), provides instruction on the
treatment of those who lack the mental capacity
to provide or refuse consent. The Mental
Capacity Act 2005 makes it clear that once a
proper assessment has been carried out the
individual can be provided with care that is
judged to be in his or her best interest. This care
will include life-saving treatment and restraint,
if necessary. Restraint can only be used if it is
deemed necessary to prevent further injury to the
patient. The use of restraint other than to provide
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life-saving treatment is not authorised by the
Mental Capacity Act 2005. Therefore,
healthcare professionals may be liable to
prosecution if they were to use section 5 of the
act to restrain a violent patient and protect
themselves from injury. This is important
especially in emergency departments. Patients
who are critically ill may be unco-operative as a
result of pain and hypoxia. These patients often
need to be restrained to keep them still while a
procedure such as the induction of an anaesthetic
is performed.
Implications of proceeding without consent
It has been demonstrated that the process of
consent has a legal purpose in that it protects the
patient from unwanted touching (battery) and
from acts of negligence (the failure to be
informed or a procedure being carried out
incorrectly). Consent also protects nurses or
doctors if there are criminal or civil procedings.
If a patient refuses to consent to medical
treatment (and has the capacity to refuse), and
there are no other factors that would allow the
nurse or doctor to proceed (for example under
certain sections of the Mental Health Act 2007),
the healthcare professional may be liable to civil
prosecution under the torts of trespass and
battery. They may also face charges under
criminal law of assault and battery.
Criminal implications Assault in legal terms
means that the victim fears the possibility of
being unlawfully touched; touching does not
actually have to occur. For battery to have
occurred the victim has to have been subjected
to violence. For a conviction to be secured the
actus reus (guilty act) or omission to act and
the mens rea (guilty mind) or intention to cause
harm (an example would be when a wound is
intended to cause the victim harm) have to
have been committed. The mens rea is difficult
to apply in the context of health care and the
provision of surgery. In the normal course of
surgery a wounding, for example, is usually
carried out with the patient’s consent or when
it is necessary to preserve life, and so legal
protection is provided against claims of battery.
This was further supported in the case of
Airedale NHS Trust v Bland [1993] by Lord
Mustill, who highlighted that ‘bodily invasion’
performed in the course of proper medical
treatment stands completely ‘outside the
criminal law’. It must be highlighted that the
doctor or nurse will lose their immunity from
prosecution if there is no lawful reason for
proceeding without consent.
Extreme intervention such as amputation may
be necessary. If this has been carried out for
medical reasons the doctor should be provided
NURSING STANDARD
with immunity from criminal prosecution.
There have been a few successful cases where
healthcare professionals have been found guilty
of battery such as Hamilton v Birmingham
Regional Health Authority [1969]. In this case
the defendant was found guilty of battery during
a Caesarean section procedure in which the
claimant was sterilised without her consent.
It is possible that the doctor or nurse could gain
consent to perform a legitimate procedure and
then abuse this consent while the patient is
anaesthetised or under the influence of
medication, as in the case of R v Cobb [2001].
Midazolam is routinely used to sedate patients
while undergoing manipulation of fractures or
dislocated limbs. The decreased awareness
resulting from midazolam may put the patient in a
vulnerable position. In R v Cobb [2001] a nurse
working in an emergency department carried out
routine cannulation procedures on female
patients, but also gave them midazolam while
flushing the cannula. While they were under the
influence of this drug he sexually assaulted and
raped the female patients. Before the acts of rape,
Cobb had added midazolam to an alcoholic drink
which he gave to a female colleague, who later
died. He was found guilty of manslaughter, rape
and the use of a stupefying drug and sentenced to
life imprisonment.
The decisions in Chatterton v Gerson [1981]
and Hills v Potter [1983] confirm that once
consent has been supplied the crime of battery no
longer applies. Judge Bristow, in the case of
Chatterton v Gerson [1981], concluded that:
‘Once the patient is informed in broad terms of
the nature of the procedure which is intended,
and gives his or her consent, that consent is real,
so that it affords a defence to battery.’ The
appropriate course of action for the claimant
would be to bring a civil case against the doctor
or hospital under the tort of negligence.
If allegations of assault and battery could be
proven to have occurred during the routine course
of medical treatment, and were allowed to be
pursued by the Crown Prosecution Service, it may
have a negative effect on the provision of health
care. Healthcare professionals may decide that
working in a high-risk area such as emergency
medicine places them at great risk of facing
criminal charges, which could lead to a reduction
in the number of doctors and nurses who choose
to work in a particular area such as obstetrics.
Advanced refusal to provide consent
An advanced directive gives a patient the
opportunity to decide, when competent, the level
of treatment he or she would want to receive
when he or she becomes incompetent as a result of
a medical or surgical condition. For example, the
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&
art & science legal issues
patient may decide that he or she would not want
to be resuscitated in the event of a cardiac arrest.
The Mental Capacity Act 2005 has created the
role of lasting power of attorney. A person
(donee) may give a lasting power of attorney – the
right to make decisions on his or her behalf. This
power to make decisions would come into force
when that person loses capacity to consent.
However, it must be stressed that this power
concerns decisions regarding routine healthcare
needs such as dental and problems dealt with in
primary care. As stated in section 11 of the
Mental Capacity Act 2005 the lasting power of
attorney bestows no power to make decisions
when the donee is faced with a life-threatening
BOX 4
Clinical scenario 3 – advanced refusal to
provide consent
An 85-year-old woman has been found collapsed
while out shopping. She is brought, unconscious, to the
emergency department. She is identified and her
family is contacted.
Shortly before her family arrives she has a respiratory
arrest and is manually ventilated. It is decided that she
should be mechanically ventilated. However, her family
presents a valid advanced directive stating refusal of
artificial ventilation.
In discussion with the family and in line with the
patient’s wishes, it is decided that ventilation would
be inappropriate in this situation.
problem. The ability to make those decisions rests
with nurses or doctors.
In clinical practice it is essential healthcare
professionals are made aware of any such
advanced directive early on. If the wishes of a
patient are unknown, initial emergency treatment
will always act to preserve life. However, if doctors
or nurses are aware of an advanced directive early,
then with open discussions with the patient’s family
and friends and other healthcare professionals, an
early decision can be made that would reflect the
wishes of the patient. This decision may avoid the
patient being subjected to treatment which he or
she may have refused earlier (Box 4).
Conclusion
The law in relation to the provision of treatment
of the incompetent adult in the emergency
setting is complex. Over the past few decades
case law has influenced the way in which nurses
have practised. This influence has often been
confusing as the principles of common and case
law are poorly understood by healthcare
professionals. It is imperative that nurses
working in emergency departments have a good
understanding of what treatment the law
permits in an emergency situation, as the speed
at which critically ill patients require treatment
does not necessarily allow for prolonged debate
and judicial review. Healthcare professionals
should be aware that the Mental Capacity Act
2005 directly influences the treatment they
provide and should not dismiss it as an issue
that only concerns mental health practitioners
and patients NS

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