If a doctor performs medical treatment on you without your proper and lawful consent, this can give rise to a claim in battery. In medical battery cases, the question of whether lawful consent was provided to a doctor by a patient will arise because consent is the ultimate defence to a claim in battery.

There have been cases in the past where the Courts have found doctors liable for the tort of battery where they failed to obtain proper and lawful consent to medical treatment, or performed treatment that was outside the scope of what the patient gave consent to.

For example, in the case of Ljubic v Armellin, a surgeon’s actions constituted battery where a woman consented to an abdominal hysterectomy and during that surgery the surgeon also removed her ovaries.

Lawful consent

Consent can be provided in a number of manners including implied, verbal and written consent. It is paramount that consent is freely and voluntarily given without any undue influence such as bribes or misrepresentation as to the urgency or extent of the treatment. For example, a dentist was held liable in battery where he misrepresented the extent of treatment required to a patient because he knew that the patient would not consent to the unnecessary treatment.

The Medical Board of Australia provides guidelines to doctors on obtaining informed consent to medical treatment. These guidelines reiterate to medical professionals that proper practice involves clearly informing patients of the procedure, ensuring the patient comprehends the information and obtaining informed consent before conducting an examination and/or providing treatment.

Further for consent to be considered “informed” the doctor must warn the patient of the “material risks” associated with the proposed treatment.

Case example – Tinnock v Murrumbidgee Local Health Distrcit (No 6) [2017] NSWSC 1003

  • The plaintiff sued in battery arguing that she did not consent to a registrar performing her surgery.
  • The defendant argued that the plaintiff’s claim could not be satisfied as she executed a consent form which stated that another doctor may perform the procedure.
  • In determining the validity of the consent the Court considered two main questions. Firstly, whether the plaintiff was mistaken in that she believed the operation would be performed by a particular doctor and nobody else, and secondly, if that was the case, was that a mistake about the nature and character of the operation that resulted in her consent to be invalid.
  • The Court was satisfied that the plaintiff’s consent was lawful and extended to the involvement of another doctor.

Get in touch with us

At Turner Freeman we have lawyers who specialise in medical law claims. Our Sydney partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law.

We have adapted with the latest changes to the Court procedures with COVID-19 and are continuing to help many clients progress their cases on a “no win, no fee” basis so they can obtain compensation needed for treatment, aids, equipment, care and assistance.

If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered injury as a result of radical treatment, we encourage you to call us on 13 43 63 to speak with one of our medical law experts. We will treat your enquiry and all information you provide confidentially.