SECTION B
Dr Dixon will be liable to Phillip for battery if no valid consent was provided for any of the
treatment received. Consent is valid if the patient has the capacity and consent is free,1 specific,2
informed and current. A battery is committed if by a voluntary and direct act Dixon intentionally or
negligently caused bodily contact with Phillip without lawful justification.3
I. BLOOD TRANSFUSION/OPERATION
A. Phillip’s Refusal
Dixon will be liable for battery if Phillip’s refusal to the operation was valid. A competent
adult is able to refuse medical treatment even if it will result in death. 4
1. Capacity
It is evident that Phillip may have lacked the capacity to refuse treatment on the basis that he
has a moderate intellectual disability. Expert evidence on the effect that his disability has on
his capacity to consent to, or refuse, treatment is required. The facts also suggest that Phillip
may have temporarily lost capacity on the basis that he hit his head, however, expert
evidence would be required to determine this. If it is found that Phillip lacked capacity to
refuse treatment, the Guardianship Act 1987 (NSW) is used to determine the 'person
responsible’ for giving consent on the patient’s behalf.
2. Consent
1 R v Williams [1923] 1 KB 340.
2 Murray v McMurchy [1949] 2 DLR 442.
3 Guardianship Act 1987 (NSW) s 35.
4 Airedale NHS Trust v Bland [1993]; Malette v Shulman [1991] 2 Med LR 162.
, It is evident that Phillip’s refusal of treatment was given freely5 and that the refusal was
informed and specific6 to the operation as Phillip was aware of the likely consequences.
However, it is not clear whether his refusal was current.7 Consent or refusal will continue
until it is withdrawn by the patient or the patient’s circumstances materially change.
Subsequently, it is evident that by Phillip losing consciousness this may support an argument
that his circumstances had materially changed and thus his refusal may not have validly
continued on the basis that it was not current. It is also unclear whether his Jehovah’s
Witness card was current, given the statements made by Samantha.
B. Samantha’s Consent
Pursuant to section 36 of the Guardianship Act,8 Samantha may have been able to give
consent as the ‘personal responsible’ as she is, presumably, the de facto partner of Phillip.9
As there is evidence to suggest that Phillip may not have had the capacity to refuse or
consent to treatment, Samantha’s consent may be used.
1. Capacity
There is no evidence to suggest that Samantha lacked capacity to provide consent to the
operation.
2. Consent
There is no evidence to suggest that Samantha’s consent was not free,10 informed or
specific11 to the medical treatment. Her consent was current as it was given at the time of
5 R v Williams [1923] 1 KB 340.
6 Murray v McMurchy [1949] 2 DLR 442; Hunter New England Area Health Service v A (2009) 74 NSWLR 88.
7HE v A Hospital NHS Trust [2003] EWHC 1017.
8 Guardianship Act 1987 (NSW) s 36.
9 Ibid s 33A(4)(b).
10 R v Williams [1923] 1 KB 340.
11 Murray v McMurchy [1949] 2 DLR 442.
Dr Dixon will be liable to Phillip for battery if no valid consent was provided for any of the
treatment received. Consent is valid if the patient has the capacity and consent is free,1 specific,2
informed and current. A battery is committed if by a voluntary and direct act Dixon intentionally or
negligently caused bodily contact with Phillip without lawful justification.3
I. BLOOD TRANSFUSION/OPERATION
A. Phillip’s Refusal
Dixon will be liable for battery if Phillip’s refusal to the operation was valid. A competent
adult is able to refuse medical treatment even if it will result in death. 4
1. Capacity
It is evident that Phillip may have lacked the capacity to refuse treatment on the basis that he
has a moderate intellectual disability. Expert evidence on the effect that his disability has on
his capacity to consent to, or refuse, treatment is required. The facts also suggest that Phillip
may have temporarily lost capacity on the basis that he hit his head, however, expert
evidence would be required to determine this. If it is found that Phillip lacked capacity to
refuse treatment, the Guardianship Act 1987 (NSW) is used to determine the 'person
responsible’ for giving consent on the patient’s behalf.
2. Consent
1 R v Williams [1923] 1 KB 340.
2 Murray v McMurchy [1949] 2 DLR 442.
3 Guardianship Act 1987 (NSW) s 35.
4 Airedale NHS Trust v Bland [1993]; Malette v Shulman [1991] 2 Med LR 162.
, It is evident that Phillip’s refusal of treatment was given freely5 and that the refusal was
informed and specific6 to the operation as Phillip was aware of the likely consequences.
However, it is not clear whether his refusal was current.7 Consent or refusal will continue
until it is withdrawn by the patient or the patient’s circumstances materially change.
Subsequently, it is evident that by Phillip losing consciousness this may support an argument
that his circumstances had materially changed and thus his refusal may not have validly
continued on the basis that it was not current. It is also unclear whether his Jehovah’s
Witness card was current, given the statements made by Samantha.
B. Samantha’s Consent
Pursuant to section 36 of the Guardianship Act,8 Samantha may have been able to give
consent as the ‘personal responsible’ as she is, presumably, the de facto partner of Phillip.9
As there is evidence to suggest that Phillip may not have had the capacity to refuse or
consent to treatment, Samantha’s consent may be used.
1. Capacity
There is no evidence to suggest that Samantha lacked capacity to provide consent to the
operation.
2. Consent
There is no evidence to suggest that Samantha’s consent was not free,10 informed or
specific11 to the medical treatment. Her consent was current as it was given at the time of
5 R v Williams [1923] 1 KB 340.
6 Murray v McMurchy [1949] 2 DLR 442; Hunter New England Area Health Service v A (2009) 74 NSWLR 88.
7HE v A Hospital NHS Trust [2003] EWHC 1017.
8 Guardianship Act 1987 (NSW) s 36.
9 Ibid s 33A(4)(b).
10 R v Williams [1923] 1 KB 340.
11 Murray v McMurchy [1949] 2 DLR 442.
