Battery—No Consent
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 a harmful or offensive touching 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. Thus forcing beneficial care on an unwilling patient would be battery. The classic statement of a physician’s duty to get the patient’s consent is Justice Cardozo’s opinion in Schoendorff v. Society of New York Hospital: [Schoendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914) ]
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. 1
Yet even this statement is hedged. The strong language mandating consent for every person is qualified with the right to treat a person without consent in an emergency. In fact, battery is only an issue in very limited circumstances where there is a complete failure of consent and no other legal justifications for treating the patient without consent. In most circumstances, where a patient voluntarily seeks treatment, the patient will be found to have implied his or her consent to the treatment by merely submitting to the treatment. Only consent is implied, however, not informed consent.
Battery is a legal threat in three situations. If the patient has been lied to about the treatment or there is other fraud in the informed consent, then the entire consent is invalid. The second situation is when the patient is incompetent to consent and receives improper care. The most likely scenario is the third: the patient has refused care and the care is forced on him or her, typically in an involuntary setting. As discussed later, a patient who refuses care may not be treated without the authorization of a court. This can support a civil lawsuit for battery. Yet even when a patient has refused care, the physician is unlikely to be charged with the crime of battery 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.