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.
