Law Of Tort On Trespass/ Assault/ Battery In Relation Patietnt Autonomy

Outline the law of tort on trespass/assault/battery and discuss one in relation to patient autonomy.

Introduction:

It is said that nurses hold a certain power over patients, which makes the nurse-patient relationship unequal and takes independence away from the patient. In order to allow the patient more independence and freedom of choice, the law has come up with the concept of patient autonomy. This provides the patient with a chance to voice their own opinion and the power to consent to or to refuse medical treatment and it is a legal right of the patient. This is grounded in the constitution as stated in Article 40.3 (1)

Ð''The state guarantees in its laws to respect, and, as far as practicable,

by its laws to defend and vindicate the personal rights of the

citizen.'

Law of tort on trespass:

The type of trespass examined is the trespass of the defendant against a plaintiff's body. The tort of trespass to the person is described as direct and intentional acts of interference by the defendant with the person of the plaintiff. Consent is an accepted defence to the tort of trespass. Trespass consists of three acts which are: assault, battery and false imprisonment. These torts have common characteristics which are:

The wrongful or unlawful act that is the cause of the complaint must have been a voluntary act by the defendant and they must have been in conscious control of their actions when performing the act. For example if a nurse gives a patient an overdose, they may have intentionally given them the medication which caused harm to the patient but they did not realise that it was going to do any harm. The act which is the cause of harm to the patient must be intentional but, unlike criminal law, it is not relevant to prove that the nurse intended to injure the patient. Instead, the focus is on proving that the nurse intended to commit the act which caused the harm to the patient (as apposed to causing the harm itself). The tort of trespass is known as a tort actionable per se. This means that the plaintiff does not need to prove that they suffered any consequences from the defendant's actions but the wrongful conduct is considered so serious that it must be penalised regardless.

Law of tort on assault:

In civil law, assault is the threat of or attempt to apply force to another person that puts them in reasonable apprehension that they are about to be harmed. Therefore if an ordinary person was faced with a loaded gun or a shaking fist they would feel frightened and anxious whether or not this was accompanied by threatening words or gestures. The tort of assault is tested by looking at what the reasonable person would do or think if they were to be put in that specific situation. If there is reasonable apprehension of the use of immediate violence then assault is proven. A nurse performing professional duties is not likely to be sued for assault unless the patient can prove that they felt fear because of the nurse's actions or words and did not consent to something. For example if they did not consent to an injection and they were in reasonable apprehension about having the injection but the nurse said they were going to give them one.

Law of tort on battery:

Battery involves the touching of another person without the consent of the person being touched. There are two forms of battery: direct or indirect. Direct battery involves touching, prodding or rubbing another person without consent and examples of indirect battery are throwing water at someone or tipping over a bed which causes the person to fall out. The plaintiff does not have to prove that they received any injury when suing for battery, it is sufficient to prove that the defendant touched them without permission. What is being penalised is the conduct and not the consequences of the conduct. The defendant must have been in conscious control when committing the act of battery. Some argue that touching would only be a battery if it was with hostile intent, however modern law states that the only thing necessary for battery to occur is the unauthorised touching. The intention or motive behind the touching may be grounds for defence but it does not change the fact that the battery occurred.

Law of tort on battery in relation to patient autonomy:

Patient autonomy is the right of patients to make their own decisions about their medical care without the nurse or doctor influencing their decision. Although the concept of patient autonomy allows the nurse/ doctor to educate the give the patient required information, it does not allow them to make decisions for the patient.

Medical treatment without consent is considered battery as it is not respecting patient autonomy. The doctor has a duty to explain the treatment or procedure to the patient and any risks or side effects that can occur. It is the nurse's role to act as an advocate to the patient and ensure hat they fully understand what the doctor has told them. As the nurse usually has the most contact with the patient they are usually in the best position to assess the capacity of the patient to understand the information given to them. For consent to be valid the patient must have the capacity to make decisions, they must be informed of the nature, benefits and risks of the treatment and the doctor or nurse must not put pressure on them to make a certain choice. Some patients may decide to refuse treatment and this is their right even though it may seem strange to do so. If they have the mental capacity to understand their decision and they are an adult (over the age of 18) there is nothing that the health professional can do. There are a few exceptions to this however which are: necessity, lawful authority and self defence. Necessity is a legal defence against trespass in emergency medicine. It looks at the concept of using one evil to protect against a worse evil eg. providing CPR to an unconscious patient. If the nurse or doctor waited for consent, the patient could die. Lawful authority is also recognised as a defence against the tort of battery. An example of this is taking a blood sample from someone who is being accused of driving while intoxicated. Self defence is another defence against battery as it is legal to repel force with force provided that no unnecessary force was used. This is not apparent in nursing unless the nurse is attacked by a patient.

Mentally incapacitated adult patients

Many people are diagnosed as having mental and intellectual