Law of Tort on Trespass

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) ?

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 disabilities and this can sometimes impede on their capacity to make decisions. However not everyone who has these disabilities are unable to understand what their procedure may involve and they may be quite capable of giving informed consent. This was seen with the case In the matter of C (an adult) (refusal of medical treatment) F. D. [1994] where a schizophrenic patient needed a lower leg amputation in order to save his life but he refused the treatment.

The hospital intended to override his decision but he was granted a court injunction as he was seen as having the mental capacity to refuse treatment even though he had schizophrenia. People may also have specific incapacity to make a decision without having a history of mental illness or intellectual disability. An example of this is someone suffering a specific phobia of needles such as in the case of In the matter of MB [1997]. A pregnant woman refused an epidural for a caesarean section because of her needle phobia but the surgeon overrode her refusal and gave it to her anyway. The surgeon was proven right to do so in court as she was rendered mentally incapacitated because of her phobia.

If someone does not have the capacity to make any decisions regarding their medical treatment then this becomes a complicated matter. If it is in the case of an emergency then the doctor or nurse acts in the best interest of the patient and provides necessary treatment. The defence of necessity is used against any claims of battery against the nurse or doctor. The patient may also become a ward of court and any decisions needed to be made for the patient are made by the president of the high court or the circuit court (usually on the advice of a wardship committee).

However this is complicated and expensive and is not always used. Accordingly most people who are mentally incapacitated are in a legal limbo as they do not have legally recognised representatives on their behalf. In this case the family usually make the decisions for the patient. a leading Irish case dealing with issues regarding a ward of court and the family wanting to refuse medical treatment given to a woman in a permanent vegetative state is In the matter of a ward of court (withholding medical treatment) [1995].

Children A minor is a human being who is under the age of eighteen and has never been married. Minors have limited ability to enter into a contract however the law allows minor to contract for necessaries such as necessary and beneficial medical treatment. The English law since the Gillick v West Norfolk and Wisbech Area Health Authority [1985] case seems to recognise the right of minors to consent to medical treatment without the assistance of their parents, provided that they are mature and competent.

However if the minor refuses treatment then the court will probably overrule their decision if they think it is in the best interest of the child. Irish courts have a different view however as the Irish constitution protects the rights of the family and parents before the interests of the child. Article 41 of the constitution states: ? THE FAMILY ARTICLE 41 1. 1° The state recognises the family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. 1.

2° The state, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the nation and the state. Where parents refuse to consent to medical treatment, even if this does not seem to be in the best interest of the child, the Irish courts give the parents the constitutional right to do so, unless the decision shows them to be unfit parents. This is a matter of degree rather than principle. The Non Fatal Offences Act 1997 allows a sixteen year old to consent to medical and treatment, but this provision leaves many questions unanswered.

Conclusion: The tort of trespass to the person can be broken down into three categories of assault, battery and false imprisonment. People working in the health care field must be aware that in order to carry out any medical treatment they must respect patient autonomy and obtain informed consent from the patient. The failure to do so may result in them being sued for battery. Some people may not have the capacity to give consent to or refuse treatment and this means that the decision must be made for them.

This decision is made either by the court, their family, the hospital (in an emergency) or their parents if they are a minor. This is an issue which has caused much controversy over the years.

References: ?Article 40. 3 (1) ?In the matter of C (an adult) (refusal of medical treatment) F. D. [1994]. ?In the matter of MB [1997]. ?In the matter of a ward of court (withholding medical treatment) [1995]. ?Gillick v West Norfolk and Wisbech Area Health Authority [1985]. ?Article 41. 1 (1) (2) ?The Non Fatal Offences Act (1997).