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In 1914 in Schoendorff v. Society of New York Hospital, Justice Cardozo wrote the classic judicial statement of a person's right to consent to medical care:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. This is true except in cases of emergency, where the patient is unconscious and where it is necessary to operate before consent can be obtained.

Historically, consent meant no more than getting the patient's permission before commencing treatment. This permission required only that the patient be told what would be done, not the risks or alternatives to treatment.

Medical care, especially surgical care, is the most intrusive private action that may be done to a free person. Society may imprison or execute, but one private citizen may not cut or medicate another without permission from the intended patient and a license from society. A person's right to consent to medical treatment has always been an important part of medical care. It was not a topic of general interest until the war crimes trials at Nuremberg shocked the world medical community with revelations about the experiments carried out by physicians in the death camps. Blurring the line between experimentation and torture, these experiments moved the discussion of consent to medical care from the philosophical to the practical.

As a pure legal issue, forcing treatment on an unwilling person is no different from attacking that person with a knife. The legal term for touching a person without permission is battery. Battery is a criminal offense, and it can also be the basis of a civil lawsuit. The key element of battery is that the touching be unauthorized, not that it be intended to harm the person. Battery requires a complete failure of consent. In medical care situations, the patient has usually implicitly authorized some treatment by voluntarily seeking medical care. This implied consent would prevent a claim of battery in most medical care situations.

Battery is a legal threat only when the patient is either technically incompetent to consent to care or when the patient has refused care. As discussed later, a patient who refuses care may not be treated without the authorization of a court. Yet even when a patient has refused care, the physician is unlikely to be charged with a crime if the treatment was meant to be beneficial. This is not an endorsement for acting against a patient's will. It is a recognition that the criminal law is reticent to punish physicians unless it is clear that they intended to cause harm.

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