TWC NUR3002

Ethical & Legal Aspect in Health Care 2022

Lecture Week 9

CONTENT
I Tort Law
II Consent to Treatment
III Medical Negligence

I Tort Law

1. Introduction to the Law of Tort

 A tort is a form of wrongful conduct that results in a harmful consequence, normally

personal injury or property damage
 The word “wrong” is used to mean a breach of duty
 The remedies are usually through an order for compensation
 Hong Kong tort law derives from case law and legislation

2. Classification of Tort

A. Trespass to person
(i) Assault
 The act of putting another person in reasonable fear or apprehension of
immediate physical violence on him.
 It is an intentional act.
 Actionable even the person suffers no harm
Example:
- pointing a gun at a person
- holding a fist in front of a person’s face
- a doctor holding a needle who approaches a patient intending to give
him an injection without his consent

(ii) Battery
 An application of force to another person without lawful justification
 Even if the amount of force is trivial
 Injury need not be resulted
 Good intention on the part of the tortfeasor is irrelevant
 Even the person suffers no harm
Example: touching someone without consent is a battery

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(iii) False Imprisonment

 Wrongful and intentional application of restraint upon a person
 Restricting the person’s freedom of movement
 Use of force or not is not conclusive
 No reasonable means of escape to the plaintiff
 Injury need not be resulted
 Knowledge of confinement is not essential
 Without lawful justification

(iv) Defence to Assault, Battery and False Imprisonment

a. Assumption of Risk (Volenti non fit injuria)
- Participants in sport activities voluntarily undertake to run the lawful
risk in the game
- A person consents to the commission of a tort on him, i.e. a patient
consents to treatment

b. Self-defence
Reasonable defence of oneself, one’s spouse and family, one’s property.
One must not use more force than necessary.

c. Statutory authority
It is a defence to an action to show that a legislation authorizes the alleged
tort.

B. Trespass to the Property / Land

Two elements:
(i) Wrongful entry onto another’s land
 unlawfully enters or remains on another person's land
 place or throw object upon another person's land
 a wrong against possession

(ii) Wrongful interference with the possession of another’s land

C. Wrongs to Reputation: Defamation

Defamatory statements are words which tend to lower the plaintiff in the
estimation of right-thinking members of society generally.

In order to take an action for defamatory statement, the plaintiff must prove that
the statement complained of was defamatory, referred to the plaintiff and
published to a third party. A defamatory statement can be in the form of
words, pictures, visual images, and gestures. It must signify a meaning.
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Types of defamation
(i) Slander: non-permanent defamatory statement in words or gesture
(ii) Libel: defamatory statement in permanent form e.g. writing, broadcasting on
radio, painting

Defences to defamation
(i)
Justification
- the words spoken are true

(ii)
Absolute Privilege
- when the words were spoken on an absolutely privileged occasion
For example: words spoken during judicial proceedings, Legislative
Council, no action for it will succeed even if the statement was made with
malice.

(iii)
Fair comment on the affair of public interest
- available only for statements of opinion, not of fact

Remedies to defamation
(i)
Damages
(ii)
An injunction may be granted so as to prevent the publication of defamatory
materials if there is a forthcoming threat to someone’s reputation.

II Consent to treatment

1. The Importance of obtaining consent to treatment

Any treatment given to a patient without his/her consent constitutes assault and
battery. The patient may sue the hospital and/or health care professional for the
tort of trespass to person and claim damages.

The court will uphold the legal principle that ‘every human being of adult year and
sound mind has a right to determine what shall be done with his own body’.

Malette v Shulman (1991)

Dr. S administered blood transfusion to M despite the direction on the card found
in her wallet that she be given no blood transfusion under any circumstances
because she was a Jehovah’s Witness. M sued Dr. S for battery on the basis that
she had withheld consent for blood transfusion. The court upheld M’s claim on the
basis that he had violated M’s rights over her body.

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2. Adult and Consent

 Any person over 18 of sound mind is legally capable of giving consent to any
treatment.
 Treatment without consent for adult patient

A. Necessity – The authority can act in the best interests of the patient.

Marshall v Curry (1949)

The doctor, during the operation to repair hernia, removed a diseased testicle for
the patient because he believed the testicle was a danger to the patient’s life.
The court held that no battery, in an emergency a doctor may act without
consent to save life or preserve their health.

Two requirements must be met: (a) there must be a necessity to act in a situation
where obtaining patient’s consent is impossible; (b) to act in the best interest of
the patient,

B. If a patient is compulsory detained under the MHO, they may be given

treatment for their medical condition without their consent.

3. Children and Consent

 Age of Majority Ordinance:

A person of 18 or above is of full age
A person below 18 is a minor

Q: Can a child give consent for treatment?

Common law allows a child to give valid consent to treatment if he / she

understands the nature and consequences of the proposed treatment. The
common law does not apply a specific age cut-off point for children to give
consent for treatment.

Q: Can a five year old boy give consent? How to determine whether a child
can consent to medical treatment?

Gillick Test. The test is laid down in the English case Gillick v West Norfolk
and Wisbeck AHA. The court held that a child under 16 could give a valid
consent to medical treatment in certain circumstances without their parents’

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consent provided that the child reaches ‘a sufficient understanding and

intelligence’ to be able to make up his own mind.

Q: How about those young children who are not Gillick competent to make up
their own mind for treatment?

Parental consent is required. But the right of parents to consent to

treatment for their child must be exercised in the best interests of the child.

4. Situations where consent of a child or parental consent is not required

Emergency situation

Where the child is unconscious or seriously ill and the situation calls for immediate
treatment in order to save life. Treatment may be given without consent under the
principle of necessity.

5. Refusal of treatment

A. By a minor

Q: Can a Gillick competent child refuse treatment?

Can anyone consent on behalf of him/her?
Can a doctor obtain consent to treatment from the child’s parents?

Re W (A Minor)(Medical Treatment)(1992)

W was a 16 year old girl staying in a residential home. Her doctor wanted to
move her to a special hospital but she refused. The court held that any child
under 18 refuses treatment, consent may be given by a parent or the court.

No minor of whatever age, has power, by refusing consent to treatment, to

override consent to treatment by someone who has parental responsibility for the
minor and consent by court.

B. By a parent

Q: What if the parents refuse to consent to medical treatment for their child
who is too young to give consent?

Re R (A Minor)(Blood transfusion)
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R’s parents, who were Jehovah’s Witnesses, refused for blood transfusion be
given to their child. The local authority sought declaration from court. The
court said that the main consideration was the welfare of the child. The court
could override the parent’s decision, as it was not in the best interests of the
child.

C. By an adult patient

Q: Can a competent patient refuse treatment even if he/she knows that doing
so will lead to his/her death?

In Re T (Adult: Refusal of Medical Treatment)(1992), the CA said that a

competent adult had the choice to accept or refuse treatment. The ethical
principle of autonomy requires the wished of patient to be followed.

6. Elements of a valid consent

 Consent is freely and voluntary given by the patient

 Consent given is informed
 The person given consent has the legal capacity to give such consent

The ways in which consent can be given are:

(i) impliedly
(ii) verbally
(iii) in writing – in standard form, as documentary evidence that a consent was
given.

7. Advance directive

Q: Can a patient make decision, when competent, not to be treated if he/she

develops certain conditions e.g. stroke?

Malette v Shulman is an example of how an AD works. M was carrying a card

which stated that she was Jehovah’s Witness and did not want a blood transfusion.
Dr. S disregarded her instruction stated in the card and gave blood transfusion to
save her life. The doctor was liable for the tort of battery.

The English courts have accepted the idea of such AD. Some commentators called
it “living will”. Lord Donaldson in the case R:T (1992) stated that ‘if clearly
established and applicable in the circumstances, they would bind the doctors’.

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The Guidance for HA Clinicians on Advance Directives in Adults issued by the

Hospital Authority on 10 June 2014 states that ‘AD is recognized under common
law in Hong Kong’.

III Medical negligence

1. Introduction

The civil wrong that is of most important to all professional groups is negligence.
The legal principles that apply in this area are essentially the well established
common law principles which have been developed by the courts over the
centuries.

2. Elements

Three requirements for a successful claim in negligence Donoghue v Stevenson

(1932):
(i) the defendant owed the claimant a duty of care;
(ii) the defendant breached that duty of care; and
(iii) the defendant’s breach of duty caused the damage to the claimant.

A. Duty of Care

(i) The claimant must establish that the defendant doctor (nurse) owes
the claimant (patient) a duty of care.

(ii) The neighbour principle laid down in Donoghue v Stevenson

(1932), “Each of us owed a duty of care, in law, to our neighbour.

Q: Who is my neighbour?

Persons who are so closely and directly affected by my act that I ought
reasonably to have had them in my contemplation as being likely to be
damaged by my acts or omissions.

Q: Who is a nurse’s neighbour?

Proving that a duty is owed does not usually cause any problem, as the duty
of a doctor (or other medical health staff) to a patient is well established.
i.e. the normal doctor-patient relationship gives rise to a duty of care in tort.

B. Breach of Duty of Care

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(i) The usual standard used in the tort of negligence is the standard of
the “reasonable man”, which is an objective standard.

(ii) As a nurse, we are concerned to know what the law expects of us in

carrying out our professional duties.

(iii) In Bolam v Frien HMC (1957), the claimant was mentally ill and
was given electro-convulsive therapy. At the time, patients having this
treatment were given relaxant drugs or were physically restrained, or
neither of these. The claimant was given treatment without drugs or
restraints and, as a result, broke his hip. The court said that a doctor was
not negligence if he acted in accordance with “a responsible body of
medical men” and, as he had done this he was not liable.

(iv) In the case of nursing profession, a nurse will be judged by the

ordinary reasonable nurse. What the reasonable nurse would have done in
that particular situation?

Q: Who and what determines the standard expected of nurses?

(a) Expert witness

If it is necessary to establish what would be considered reasonable or

necessary for a nurse to have done in any situation, evidence is
obtained from the nurse’s professional peers deemed to be experts in
that field of nursing.
She gives her views, on what the ‘ordinary reasonable’ or ‘average’
nurse should have done in that particular situation.

(b) Professional standards of practice

Professional standards documents would, where relevant, clearly

provide objective evidence of an expected reasonable standard of
professional conduct in a given clinical situation.

(c) Employer policy and procedure directives

Often a failure by a nurse to abide by a particular policy or procedure

directive may provide supportive evidence of an allegation of a breach
of her duty of care in a given situation. It would place her in breach of
her general duty of care to her patient because she failed to observe
proper standards of care and safety in carrying out nursing procedures.

C. Breach caused Damage

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(i) The claimant must prove that the defendant’s breach caused the damage.
Two matters must be proved:
(a) the defendant’s breach caused the claimant’s loss as a matter of fact;
and
(b) the damage was not too remote.

(ii) There must be a direct relationship between the breach of duty of

care and the damage suffered by the claimant.

(iii) The courts use the “but for” test to determine whether the D caused
the loss. Barnett v Chelsea Hospital (1969)

(iv) It may be difficult to prove causation in medical cases because there

may be a number of causes for illnesses and the claimant has to prove his
case on the balance of probabilities. Wilsher v Essex AHA (1988)

3. Contributory negligence

It could arise in medical cases, e.g. if a patient discharged himself from hospital
against medical advice and suffered harm as a result.

4. Vicarious Liability

An employer is liable for the torts of employees which are committed in the course
of employment. The patient can sue hospital using the principle of vicarious
liability rather than suing the individual member of staff for negligence.

To establish vicarious liability, it must be shown that the tort was committed by an
employee and in the course of employment.

The employer is not liable for the torts committed by his independent contractors.

Reading / References
1. Guides to Good Nursing Practice
http://www.nchk.org.hk/filemanager/en/pdf/Guides_to_Good_Nursing_Practice_Sep_2017
for_Website.pdf
2. Guidance for HA clinicians on Advance Directives in Adults.
http://www.ha.org.hk/haho/ho/psrm/EngcopyAD.pdf
3. Medical treatment: Consent and Withdrawal
http://www.clic.org.hk/en/topics/Medical_treatment_consent_and_withdrawal/Consent/index.shtml
4. Medical Negligence
http://www.clic.org.hk/en/topics/medicalNegligence/all.shtml

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