The meaning of consent to medical procedures

 Pere v Central Queensland Hospital and Health Service [2017] QCA 225

Gotterson and Morrison JJA and Applegarth J

The applicant commenced proceedings in 2015 for personal injury against the respondent, his former employer, the Central Queensland Hospital and Health Service. The applicant alleged psychiatric injuries based on taking his blood without consent and witnessing him providing urine samples. The applicant appeared for himself at both the trial and the appeal.

In January 2017, the claim was dismissed by Butler DCJ, and damages were assessed at $346,038.45. In February 2017, the applicant filed a notice of appeal and in March 2017 filed a notice of cross-appeal against the assessment of damages. The application involved whether the applicant should be allowed leave to appeal. As stated by Gotterson JA, the considerations relevant to the grant of leave are:

  • Whether there is an important point of law or question of general public importance involved; and
  • Whether there is a reasonable argument that there is error in the decision under appeal which has led to a substantial injustice necessitating correction on appeal

The decision at first instance

Butler DCJ found that the applicant had failed to establish negligence against the respondent. Relevantly, the trial judge found at [33] that the applicant’s credibility was “so poor that his evidence should not be acted upon where it is in conflict with other credible accounts”. Due to the applicant’s poor credibility, the trial judge accepted the employees’ accounts, holding that the applicant had consented to the taking of the blood sample and the urine sample.

The trial judge also found that a reasonable person would not have foreseen that the requesting and taking of the blood and urine sample would cause a person psychiatric injury. In his Honour’s view, the applicant had also failed to establish causation, finding that the applicant’s prior life stressors meant that it was not shown to be more probable than not that, but for the taking of the blood and urine samples, the psychological condition of the applicant would not have existed.


Explaining the applicant’s submissions, Gotterson JA stated:

[22] … the applicant explained that the crux of his complaint against the judgment at first instance was with the finding that he had consented to both the blood test and the urine test. He submitted that for consent to be given to the tests, it had to be freely given; that as he was an employee of the respondent, there was a “power imbalance” between him and his employer such that he did not have true freedom whether to consent or not; that since he was uniformed at the time, it would have been unseemly in the public eye in the Emergency Department to have resisted undergoing the tests; and that he was too intoxicated to consent to them.

Finding that the appeal had no prospects of success, his Honour went on to explain:

[27] The question whether a person has consented to the taking of a blood or urine test is essentially one of fact. In a case to which the learned trial judge referred, Freeman v Home Office (No 2)[19] a prisoner brought an action in battery against a prison doctor for administering drugs to him by injection. He argued that he was incapable of consenting to the procedure because he was in the defendant’s custody. He failed at trial.

[28] In dismissing his appeal, both Stephen Brown LJ[20] and Sir John Donaldson MR[21] cited with approval the view expressed by McCowan J at first instance:[22]

“The right approach, in my judgment, is to say that where, in a prison setting, a doctor has the power to influence a prisoner’s situation and prospects a court must be alive to the risk that what may appear, on the face of it, to be real consent is not in fact so. I have borne that in mind throughout the case.”

[29] In their Honours’ view, the sole issue was whether there was real consent. Donaldson MR (with whom Fox LJ agreed) observed:[23]

“Real consent provides a complete defence to a claim based upon the tort of trespass to the person. Consent would not be real if procured by fraud or misrepresentation but, subject to this and subject to the patient having been informed in broad terms of the nature of the treatment, consent in fact amounts to consent in law.”

[31] It is not necessary that the words “I consent” be used to signify real consent. Real consent may be inferred from the patient’s conduct.[25]

[32] In this case, there was evidence from Dr Droulers that he explained to the applicant that he proposed that the samples be taken and that the tests needed to be done. The applicant appeared to agree to them; he did not object. Nurse Gardner’s contemporaneous note recorded the applicant’s consent to them. Furthermore, his conduct in presenting his arm and in participating in the application of the tourniquet and cleaning solution and the vein identification,[26] were overt manifestations of his consent to the blood test. His passing of urine into the sample jar manifested his consent to that test.

[33] As to intoxication, it is, of course, not the case that a person need be fully sober in order to give consent to procedures undertaken in the emergency department of a public hospital. The applicant now wishes to rely on his blood alcohol reading of ·2 grams per litre as having negated a capacity on his part to give real consent. According to Dr Droulers, the applicant’s observed behaviour was consistent with such a reading. Notwithstanding, he was observed by Dr Droulers to consent to the tests. There was no contrary evidence adduced by the applicant that, with that reading, he would have been functionally deprived of a capacity to give real consent.

For these reasons, Gotterson JA found that the applicant had no prospects of success. His Honour refused the application for leave to appeal, Morrison JA and Applegarth J agreeing with the reasons and orders proposed by Gotterson JA.

David Cormack – Brisbane Barrister & Mediator

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