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Consent and Absence of Consent to Medical Treatment Malette v Shulman (1990) 67 DLR (4th) 312 1. Material Facts: Malette was seriously injured in a car accident and is unconcious. Under Dr. Shulman’s assessment, blood transfusion was necessary to preserve her life. A nurse finds a Jehovah’s witness card, which indicates under no circumstances is Malette to be given a blood transfusion. Dr. Shulman administers the blood transfusion anyway. Malette recovered fully from the accident and brought action against Dr. Shulman, the hospital, its executive director and four nurses for damages caused by negligence, assault, battery and religious discrimination. The court of first instance imposed liability on Dr. Shulman only on grounds of battery and awarded Malette damages of $20,000. Dr. Shulman now appeals to this court, and Malette cross-appeals the judge’s dismissal of the action against the hospital and his order with respect to costs. 2. Factual Issue: Did Malette refuse to consent to blood transfusion? Legal Issue: What is the legal effect of the Jehovah’s witness card for Malette? 1. Can Dr. Shulman lawfully treat Malette given the refusal of consent 2. Whether there was a valid refusal 3. Appeal was dismissed, trial judgment upheld DOCTRINE OF INFORMED CONSENT: The Robins JA recognises common law principle of “the right of a person to control his or her own body”, where tort of battery means to protect the interest in bodily security from unwanted physical interferences. No exception is to be made for medical care, other than in emergency situations. Thus, a doctor touching the body of a patient without their consent constitutes a battery. This doctrine of informed consent also encompasses the right to refuse medical treatment. Robins JA reinforces the recognition and protection of the patient’s right of selfdetermination by citing Justice Cardozo in Schloendorff v Society of New York Hospital “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 his patient’s consent commits an assault, for which he is liable in damages” A competent adult is entitled to reject a specific treatment or all treatment, even if the decision may incur serious risks, such as death. Although this was a case of an emergency, patient’s advance care instructions on the card made it clear that the respondent would not consent to blood transfusion in any circumstances. Malette’s refusal to blood transfusion expressed through the Jehovah’s card negates the prima facie assumption of consent in an emergency situation. The law supports the right of competent adults to make decisions concerning their own health care and it does not prohibit a patient from withholding

consent to emergency medical treatment. The disregard for respondent’s request renders the blood transfusion a tortious invasion of Malette’s bodily integrity, and is thus a violation of the respondent’s right over her own body constituting to battery. 6. The Jehovah’s witness card on an unconscious patient. It was an emergency situation, where the patient was unconscious and the only care directive provided by the patient was through a “Jehovah’s witness card”. However, the patient’s decision to refuse blood was made prior to and in anticipation of the emergency. Thus, the patient’s decision to refuse blood transfusion is exercisable through advanced care directive expressed on the Jehovah’s card. 7. Other patients found in situations similar to this instance - Jehovah’s witness card, unconscious. But also, those with specific instructions rejecting certain medical procedures. 8. Obiter: State’s interest in preserving the life or health of a patient, as well as the integrity of the medical profession, are secondary to the patient’s interest in directing the course of their life. DAMAGE AWARDED on grounds of BATTERY: Reinforces the court’s provision of award for damages for ‘mere’ emotional distress, in an action for serious invasion of privacy. The court recognised that an award of general compensatory damages may serve the purpose of have the effect of vindicating Malette’s right. In this case, damage was awarded as a vindication of Malette to the public and as consolation to her for a wrong done  Dr. Shulman doubting Malette’s card representing her true wishes.

X v Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 1. Material Facts: This is a case of appeal following a decision of the NSW Supreme Court. The court of first instance authorised the Sydney Children’s Hospital to administer blood to a 17 years old cancer patient, referred to as X. X now appeals to this court against that decision. The applicant and his parents refused to consent to the administration of blood, based on their religious beliefs. 2. Factual Issue: Is X a mature minor competent to make his own decisions to medical treatments? Legal Issue: Whether the principles of Gillick restricts court’s jurisdiction. Whether a Gillick competent minor is able to refuse medical procedures. 1. Can X or parents consent? 2. Can court exercise parens patriae jurisdiction?

3. The court considers the scope of its jurisdiction in cases where a minor is able to lawfully consent to his/her own treatment. S49 acts as a defence for medical practitioner. STILL NEED TO CONSIDER GILLICK’S COMPETENCY OF MINOR The scope of the parens patriae jurisdiction is described as “unlimited and incapable of definition” in Marion’s Case. The guiding principle for decision-making in scope of the jurisdiction should be made in respect of the child based on the welfare of the individual  in best interest of the child. Basten JA considers a number of Commonwealth cases concerning minors who have sought to refuse medical treatment that deemed necessary for the preservation of life or the deterioration of health and were allowed to do so in the power of parens patriae jursidiction. E.g K v Minister for Youth and Community Services – K was allowed to undergo abortion considering she is a competent minor to make her own decision to medical treatment and her decision being in the best interest of K according to the court. The orders made in K was in the exercise of court’s jurisdiction. If prior proposition that whenever a child has legal capacity to give an effective consent to medical treatment, that jurisdiction cannot be invoked were true, the orders made in K would be inconsistent. The concept of a “gillick competent minor” should presumably be undertaken in the parens patriae jurisdiction. The applicant also argued how s 174 of the Care and Protection Act provides statutory authority for treatment without consent in cases where the practitioner belied it to be necessary, as a matter of urgency. He argues, as there is no requirement to obtain court authority in his case, thus would be inconsistent to permit the court to deny authority to the young person to consent. The court notes that the statutory provision means to protect medical practitioners from tortious liability, if they were to be sued to operating in an emergency without consent (Helsham CJ in K’s case with respect to s49 of the Property and Contracts Act). Furthermore, Basten JA notes that the statutory provision was silent concerning the issue of minors refusing to consent to treatment that is deemed in best interest of the child. He distinguishes the consequences that may incur with consent given treatments to those with refusal to a treatment. The court is thus entitled to exercise its jurisdiction concurrent with the principle of “gillick’s competency”. The court acknowledges that, without the order of first judge, the proposed treatment would have constituted a battery upon the applicant (Marions’ Case). The order was made, and the fact that the applicant is a few months away from reaching the age of majority is redundant. The appellant would be, as an adult in a few months’ time, be entitled to refuse any further treatment for his condition. 4. Other important aspects: 1. This decision elucidates the court’s primary consideration where the parens patriae jurisdiction is invoked, which is to make an assessment of the welfare of

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the minor. This is the guiding principle for court’s decision-making, even in cases where the minor is very close to reaching the age of majority. Basten JA emphasises the balance of the minor’s welfare, and it will normally tilt towards the preservation of life. He says, “the dignity of the individual is as much an aspect of the broader interest to be protected by the court as is the sanctity of life”. These principles are to be weighed up “in their application to an individual” rather than in the context of the broader public interest. Principles of autonomy and the sanctity of life in conflict. Basten JA denotes the notion of vulnerability of children and young people in cases where the minor’s decision conflicts with the view of appropriate carers. He raises Marion’s Case to exemplify such concerns, where the power of the court is mandated to provide an independent view as to the best interest or welfare of the child in cases where the risk of such vulnerability has materialised. Although the appeal was dismissed, the applicant’s wishes were not completely irrelevant to the court’s assessment. It was sated, that the welfare assessment is dependent upon the range of different factors. The appropriateness of an order is not to be judged solely according to the view the court forms as to the best medical treatment. Although individual’s religious beliefs are fundamental to individual’s autonomy, with which the state cannot interfere and should not disregards, such beliefs could not be determinative to the welfare assessment.

State of QLD v B [2008] 2 Qd R 562 1. Material Facts: B is 12 years old and pregnant. Wants termination via administration of a drug. Procedural History: Case of first instance. Hospital sought authorisation of lawful administration of drug. 2. Key Issues: a. Could B’s parents consent to termination of her pregnancy? b. Whether the court could lawfully order the termination of the pregnancy. - Question the provisions of the criminal code 3. Court’s Decision: s 286 : Duty of Care Court held that in this case, the definition of health includes “mental health” and so abortion was seen as necessary to preserve the mental health of B.  Lawful Parents are generally allowed to consent on behalf of their child, who is not Gillick competent. However, this case presents a treatment that requires court’s authorisation drew on the test in Marion’s Case, where the treatment is irreversible. Court authorisation is thus required for B’s abortion....