Updates and background for this project (Digest)
9. Complying with the new legislation
EXISTING GROUNDS OF LIABILITY
9.1 In the preceding chapters, the Commission spoke of certain “rights” which underlie the decision-making process for young people’s health care: a right to autonomy, a right to participate, a right to decide, a right to exercise parental control over your child. To some extent, discussion in this area has been shaped by the case law and commentary in other Western countries that give legal recognition to these rights.1 In Australia, there is very little constitutional or legislative recognition of human rights as legally enforceable entitlements. Instead, it has been left mainly to the common law, with modifications and additions made by legislation, to develop responses to situations where a health practitioner acts contrary to the decision of the person authorised to make a decision about the health care in question. As a consequence, the responses – and the reasoning underlying those responses – have been limited, and have been built largely on long-established common law principles, rather than on a broader and more modern consideration of the rights of those involved in the decision-making.
9.2 Currently, health practitioners who provide health care without first receiving a valid consent from the person authorised to give that consent, may face the following consequences.2
Civil liability for trespass to the person
9.3 A practitioner who provides treatment without the requisite consent may be civilly liable for trespass to the person, that is, for battery, assault or false imprisonment.
9.4 To be civilly liable for battery, it must be shown3 that one person directly caused some physical contact with another person, and that that person did not consent to the physical contact. There is no need for the touching to be accompanied or motivated by hostile intent, nor is it necessary to show that the person with whom contact was made suffered any injury as a result of the physical contact. A health practitioner who touches a person in the process of treating him or her, and mistakenly believes that a legally valid consent has been obtained, may therefore be civilly liable for battery.
9.5 A practitioner may be liable for assault if he or she causes a person to apprehend the infliction of bodily harm. Assault and battery may be committed in quick succession.
9.6 False imprisonment occurs when a voluntary act of one person directly subjects another person to total deprivation of freedom of movement, and the person restrained did not consent to the restraint. Any restraint upon the personal liberty of an individual, which is not warranted by law, is false imprisonment, provided it is total, that is, there is no alternative means of exit.4 It is not necessary that the person restrained be aware of the restraint at the time,5 nor that the act occasioning the false imprisonment be motivated by malice.6 A health practitioner who acted with a patient’s best interests in mind could still be liable for false imprisonment.
9.7 It is not necessary to prove damage in order to establish a claim for trespass. Compensation may be payable for outraged feelings, and may include aggravated damages. Exemplary damages are also awardable but where there has been no loss, damages may be nominal.7
Civil liability for negligence
9.8 A health practitioner may be civilly liable in negligence for failing to disclose all the material risks of the proposed treatment, as a result of which the person receiving the treatment suffers damage. A risk is a material risk (and therefore one that should be disclosed) if, in the circumstances of the case, a reasonable person, in the patient’s position, if warned of the risk, would be likely to attach significance to it, or if the health practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.
9.9 Negligence focuses not on the patient’s consent, and his or her competence to give that consent, but on the information that is passed on by the practitioner to the patient. However, as we mentioned in Chapter 1,8 the test for competence for young people to consent to treatment contains elements of the doctrine of negligence, in so far as it considers the extent to which a young person understands not just the general nature of the proposed treatment, but also its consequences (including, presumably, its foreseeable risks).9
9.10 Unlike trespass, a claim in negligence requires proof of injury resulting from the negligent act or omission. Part 2 of the Civil Liability Act 2002 (NSW) now limits the recovery of damages for negligence in New South Wales. The Act excludes recovery of exemplary or aggravated damages for negligence.10
Criminal liability
9.11 Just as a health practitioner may be civilly liable for trespass to the person, so may he or she be criminally liable for unauthorised physical contact, or the apprehension of unauthorised contact, or the physical deprivation of liberty. A practitioner may be liable for assault occasioning actual bodily harm under s 59 of the Crimes Act 1900 (NSW), or for assault not occasioning actual bodily harm under s 61 of the Crimes Act 1900 (NSW). A practitioner may also be liable for the common law offence of false imprisonment. Section 49 of the Minors (Property and Contracts) Act 1970 (NSW), in so far as it gives protection from “a claim for … assault and battery”, protects medical and dental practitioners from civil liability only, not from criminal liability.
Disciplinary action
9.12 A health practitioner who treats a patient without a legally valid consent may face disciplinary action either by way of a complaint made to the Health Care Complaints Commission, or to the relevant health registration authority if the practitioner is registered under a health registration Act.
9.13 The Health Care Complaints Act 1993 (NSW) provides a scheme for complaints against health practitioners to be heard and dealt with by the Health Care Complaints Commission, in addition to or instead of11 any authority that oversees the health profession of which the practitioner in question is a member (such as the Medical Board for doctors). The primary object of the Health Care Complaints Commission is to protect the health and safety of the public.12 As such, its focus is not on compensating individuals for wrongdoing done to them by health practitioners. Instead, it assesses consumers’ concerns about the provision of health services. In appropriate cases, it prosecutes practitioners before the relevant disciplinary body to ensure that those not meeting expected levels of professional conduct are dealt with by their professional body. It also investigates and sometimes makes recommendations for change to health services against which there has been a complaint.13
9.14 The Health Care Complaints Commission may respond to a complaint in a number of ways including conciliating the matter or referring it to the Director of Proceedings who may choose to prosecute the matter before a disciplinary body. There are also mechanisms for the Health Care Complaints Commission to deal with complaints against unregistered health practitioners.14 The grounds on which a complaint may be made to the Commission are very broad, and include a complaint “about the professional conduct of a health practitioner”.15 In consultation, the Health Care Complaints Commission took the view that the grounds for complaining against a health practitioner under the Health Care Complaints Act 1993 were currently broad enough to encompass a complaint against a practitioner for treating a young person without first obtaining a valid consent. It noted, however, that such complaints are extremely rare, although it is not possible to know whether this is due to the fact that such incidents seldom arise, or whether young people, their parents, and other interested people are not aware that they can complain.16
9.15 In conjunction with the mechanisms set up under the Health Care Complaints Act 1993 for making complaints against health practitioners, there is a number of Acts governing specific registered health professions which allow for complaints to be made regarding a practitioner’s conduct.17 For example, Part 4 of the Medical Practice Act 1992 (NSW) provides for complaints to be made to the Medical Board or the Health Care Complaints Commission against a registered medical practitioner. The Part sets out the grounds on which such a complaint may be made. These include a claim that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.18 “Unsatisfactory professional conduct” is defined to include conduct that is significantly below the standard reasonably expected of a practitioner of an equivalent training and experience, as well as any other improper or unethical conduct relating to the practice of medicine.19 “Professional misconduct” is defined as unsatisfactory professional conduct that is of a sufficiently serious nature to justify suspension from practising medicine or removal from the Register.20
9.16 It is clear that the grounds on which a complaint can be made either to the Health Care Complaints Commission or the relevant registration authority of a registered health profession are broad. While there is no specific ground for complaining that health care has been provided without a valid consent, notions of a practitioner’s “professional conduct” and “unsatisfactory professional conduct” appear general enough to cover situations where no valid consent for treatment has been obtained. However, in the absence of any express legislative provision which spells out the availability of this complaint mechanism for complaints relating to young people’s consent, it is possible that people are not aware that they can complain. It may also be difficult to establish that a practitioner was guilty of unsatisfactory professional conduct by not obtaining a valid consent: given the uncertain state of the current law and the widespread confusion among practitioners about what the law is, it could be difficult to establish that a particular practitioner’s conduct in relation to a young person was significantly below the standard that could be expected of a practitioner of that level of training and experience.
Young people’s health care not involving physical contact
9.17 For the most part, the grounds for civil and criminal liability for providing health care to a person without consent have been based on the premise that the health care involves physical contact of some kind. The common law developed these lines of liability based on the notion of the physical integrity of the individual, and a general prohibition against trespass to the person. An exception to this requirement for physical contact as a precondition to liability is civil liability for negligence. Negligence does not require physical contact, focusing instead on the conduct of the health practitioner in so far as this relates to the patient’s understanding of the proposed treatment.
9.18 It follows that a practitioner who treats a young person without a valid consent, where the treatment does not involve physical contact, may be uncertain as to what grounds of liability, if any, he or she potentially faces. For example, a medical practitioner who prescribes a thirteen-year-old girl the oral contraceptive Pill, where that young girl is not competent to consent to such treatment, may be unsure of the consequences, if any, that will follow. There has been no physical contact with her, and in most cases it seems unlikely that the practitioner will be found to have deprived the young patient of her freedom to the extent of being liable for false imprisonment. It is possible that he or she may be found liable in negligence, but such a claim could only succeed if it can be shown that the young girl suffered damage as a result of the practitioner’s negligent act.
Injunctive or declaratory relief
9.19 A person may apply for an injunction to stop the doing of a wrongful act or to require that a particular act be done. In the context of providing health care to a young person, for example, a parent could apply to the court for an injunction to stop a practitioner from treating a young person based on that young person’s consent, on the basis that the consent is not valid and that consent should instead be sought from the parent.
9.20 Alternatively, a declaration may be sought from a court that declares the nature of the legal rights and obligations of the parties in relation to the dispute before the court.21 For instance, in Gillick, Mrs Gillick sought a declaration as to the legality of the guidance that had been issued by the health service.
THE NEW LEGISLATIVE SCHEME
Recommendation 21
The legislation should provide for it to be a ground for complaint to the Health Care Complaints Commission and/or to the relevant health registration authority that a health practitioner acted in breach of the provisions of the legislation. The legislation should make it clear that any action available to the Health Care Complaints Commission and/or to a health registration authority under the Health Care Complaints Act 1993 (NSW) or a health registration Act (as defined in Recommendation 3), including alternative dispute resolution, is available to resolve complaints about breaches of this legislation relating to young people’s competence.
Recommendation 22
The legislation should make it clear that nothing in Recommendation 21 affects any other grounds of liability that might arise from a complaint against a practitioner for breaching the provisions of the legislation.
Recommendation 23
The legislation should provide for a defence for health practitioners from civil or criminal liability, or from a complaint made to the Health Care Complaints Commission or a health registration authority, where such action is based on a practitioner’s assessment of a young person’s competence, according to Recommendation 4 (but not where it is based on grounds other than competence, such as negligence). The defence should be available if the health practitioner reasonably but mistakenly believes that the young person is competent or incompetent, according to the criteria set out in Recommendation 4.
9.21 There are clearly a number of avenues of complaint already available against a health practitioner who may have acted without obtaining a valid consent. The possible shortcomings in the current law relate primarily to complaints involving non-touching treatment, as well as a practitioner’s refusal to treat a young person based only on the young person’s (possibly valid) consent. In the first of these situations, the most likely civil action currently lies in negligence, although liability cannot be established if there is no proof of injury. In the latter situation, there is the possibility of complaint to the Health Care Complaints Commission, or to the relevant health registration authority, but no real ground for civil liability.
9.22 In both these types of situations, the crux of the complainant’s grievance relates more to outraged feelings than to any physical injury or damage to property, something which the current law is ill-equipped to address. The Commission has debated the possibility of recommending the introduction of a separate cause of civil action to redress this shortcoming, an action that would not be linked to the need for any physical contact or injury. Ultimately, we have decided against doing this because we consider that it is more appropriate to deal with these types of grievances through the existing avenues of complaint available with the Health Care Complaints Commission and the relevant health registration authorities.
9.23 To this end, under Recommendation 21, the legislative scheme which we are recommending will include a provision expressly referring complaints for breaches of the legislation to the Health Care Complaints Commission and/or the relevant health registration authority. We concede that this recommendation is strictly unnecessary, in so far as the existing legislation is broad enough already to include treatment without a valid consent as a ground for complaint. Nevertheless, it is worthwhile to state this expressly as a ground in legislation dealing specifically with the provision of health care to young people, legislation that is aimed, among things, at making the law in this area more readily understood and more easily applied. Recommendation 22 makes it clear that any provision referring complaints to the Health Care Complaints Commission or to a health registration authority is not intended to affect any other ground of liability that might arise from breaches of the recommended legislation. In turn, Recommendation 23 provides for a defence to practitioners who make an honest but reasonable mistake in their assessment of a young person’s competence.
Breach of a statutory duty?
9.24 If, following on from this report, legislation is enacted to regulate the assessment of young people’s competence and the responsibilities of practitioners to obtain a valid consent, then civil liability may possibly arise from a failure to comply with the legislation. A practitioner in this situation may be liable in tort for a breach of a statutory duty. To establish liability on this ground, it would need to be shown that, in enacting the legislation, the legislature created a duty intended to protect a specified class of people, and the rights of a person within that class had been infringed.22 Crucial to establishing a statutory duty is proof that Parliament intended to protect a specified class of people and intended to create a private right of action for breach of the duty.23 Parliament’s intention can be most readily shown by an express provision in the legislation creating a private right of action, but this is not essential to establishing a statutory duty. The legislation as a whole must be considered, including the policies that underlie it. The tort of breach of a statutory duty has traditionally arisen from breaches of legislation relating to industrial safety, where it has been found that a private right of action arises from breach of a legislative provision prescribing a specific precaution for the safety of others in matters where a person owes a duty of care under the general law of negligence.24 Factors which may indicate that there was no intention to create a statutory duty include the provision of a remedy other than a tortious remedy, the availability of an alternative to provide compensation, and the provision of a penalty. Once established, a breach of a statutory duty requires proof of damage by way of personal injury or damage to economic or property interests. Damage to other interests, such as outraged feelings or privacy, is not compensable.25
9.25 In the context of our proposed legislation, there are certainly grounds for arguing that tortious liability could arise from its breach on the basis of a breach of a statutory duty. The legislation could be described as creating an obligation on practitioners to provide a service to young people only after obtaining a consent in a manner prescribed by the legislation and that the aim of these provisions is to protect young people as a specified class of people. A private right of action could be found to lie against practitioners who breach their obligations under the recommended legislation in situations where they otherwise owe a duty of care under general negligence law. On the other hand, the existence of alternative remedies or complaint mechanisms, such as referral to the Health Care Complaints Commission or professional body, may argue against the existence of a private right of action, although as noted in paragraph 9.13, the focus of these complaint processes is not so much compensating the complainant as protecting the health and safety of the public by ensuring that practitioners comply with an expected standard of professional conduct. In short, while there are grounds for arguing that tortious liability will arise from breach of the recommended legislation, this will depend on whether or not the courts are willing to ascribe a legislative intention to do so, assuming that the legislation does not itself contain an express provision to this effect. We have decided against going so far as to recommend express provision in the legislation for the creation of a statutory duty, the breach of which may give rise to a cause of action. There may be very limited practical benefit in such an action in situations where there has been no physical injury caused by the breach, but more injury to feelings.
FOOTNOTES
1. See para 1.13-1.17.
2. The practitioner will not be liable where consent is not a prerequisite to treatment: see Chapter 7.
3. For battery, assault and false imprisonment, the civil standard of proof is required, that is, the plaintiff’s case must be proven on the balance of probabilities.
4. See Bridgett v Coyney (1827) 1 Man & Ry 211, 215-216.
5. Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44; Murray v Ministry of Defence [1988] 2 All ER 521.
6. See Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714.
7. See Law Book Company, Laws of Australia, vol 33 (at 3 August 2007) [33.10.230].
8. See para 1.11-1.12.
9. This is not affected by the Civil Liability Act 2002 (NSW).
10. See Civil Liability Act 2002 (NSW) s 21.
11. Section 14 of the Health Care Complaints Act 1993 (NSW) provides that a health registration authority must not take any action in relation to a complaint while it is the subject of an investigation by the Health Care Complaints Commission. Section 39(1)(c) provides that the Health Care Complaints Commission may take action against a complaint which it has investigated by (among other things) referring it to the health registration authority involved (if any) in order for the authority to consider taking action under the relevant health registration Act.
12. Health Care Complaints Act 1993 (NSW) s 3(2).
13. See NSW, Health Care Complaints Commission, Annual Report 2007-2008, 2, 10.
14. See Health Care Complaints Act 1993 (NSW) Part 2 Division 6A.
15. See Health Care Complaints Act 1993 (NSW) s 7(1).
16. See NSW, Health Care Complaints Commission, Consultation.
17. See Chiropractors Act 2001 (NSW); Dental Technicians Registration Act 1975 (NSW); Medical Practice Act 1992 (NSW); Nurses and Midwives Act 1991 (NSW); Optical Dispensers Act 1963 (NSW); Optometrists Act 2002 (NSW); Osteopaths Act 2001 (NSW); Pharmacy Act 1964 (NSW); Physiotherapists Act 2001 (NSW); Podiatrists Act 2003 (NSW); Psychologists Act 2001 (NSW).
18. Medical Practice Act 1992 (NSW) s 39.
19. Medical Practice Act 1992 (NSW) s 36.
20. Medical Practice Act 1992 (NSW) s 37.
21. Law Book Company, Laws of Australia, vol 15 (at 1 July 1998) [15.5.1].
22. Law Book Company, Laws of Australia, vol 33 (at 3 August 2007) [33.5.140].
23. The other three elements of this tort are: that the plaintiff was a person within the class of persons intended to be protected, the defendant was a person whose conduct fell within the statutory prescription; that the obligation imposed by the statute was breached; and that the plaintiff suffered damage as a result of the breach. See Law Book Company, Laws of Australia, vol 33 (at 3 August 2007) [33.5.160]; Downs v Williams (1971) 126 CLR 61, 75 (Windeyer J).
24. See O’Connor v SP Bray (1937) 56 CLR 464.
25. See JD Bell (Calool) Pty Ltd v Shortland County Council (1991) 74 LGRA 398, 401; Pickering v Liverpool Daily Post and Echo Newspapers [1991] 2 AC 370. See Law Book Company, Laws of Australia, vol 33 (at 1 August 2007) [33.5.260].
