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consent: reducing conflicts with patients through dissipating unreasonable expectations.
A. 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.
B. Exceptions to the Requirement for Consent
There are two well-recognized exceptions to the need for consent to medical treatment.
The more common is a medical emergency, in which an unconscious or delirious
patient cannot consent. The second is less common and involves certain court-ordered
treatments or treatments and tests mandated by law. It is important to note that these
are exceptions to the need for any consent at all, not just exceptions to the need for
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