Today’s correspondent asks:
In light of Covid 19 and the increase of non medical professionals or reliance on first aiders undertaking diagnostic testing on members of the public or workplaces on employees, what are the legal obligations surrounding consent?
I note some testing is done either non-contact (infrared device) or contact (in ear thermometer)
Is there a difference in consent and skill level required between the two?
In Rogers v Whitaker (1992) 175 CLR 479 the High Court (Mason CJ, Brennan, Dawson, Toohey and, McHugh JJ at ) said:
… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended’.
The critical issue with consent is that it converts an unlawful touching – a battery – into something lawful. Older cases on sexual assault say that effective consent to sexual intercourse requires ‘a perception as to what is about to take place, as to the identity of the man and the character of what he is doing’ but fraud eg a claim that the offender is a movie director that can make the victim famous, does not mean there is no consent even if the perpetrator is not a movie director, but a liar (Papadimitropoulos v The Queen (1957) 98 CLR 249). That may no longer be good law when it comes to sexual assault (given significant reforms to sexual assault law since 1957), but it does give meaning to the statement in Rogers about what being informed in broad terms means.
If you attend a clinic and someone approaches you and you cooperate with letting them put a thermometer in your ear then provided you understood that this person was going to put that device in your ear, your cooperation would be evidence of implied (as exposed to express) consent to that. The fact that they are or are not a nurse or a doctor or anyone else is irrelevant. The person who you expected to put a thermometer in your ear put a thermometer in your ear. And if they say ‘do you mind if I put this in your ear’ and you agree, there is an express consent.
Where it is a non-contact thermometer the issue of consent becomes even less clear as there is no touching (battery). But even so, if consent is required your cooperation – standing still and waiting whilst they point the thermometer at you would be consent.
Consent is relevant to the law of assault and battery. If there are risks in the procedure ie if you could actually harm someone with an in ear thermometer and the person using the thermometer does then the issue would be one of negligence, not battery.
To be fair I’m not sure I really understand the question, but from what I can make of it the legal obligation for consent is that you need consent before you touch someone. If someone knows what you are going to do and they cooperate, and you do exactly what they were expecting, whether that’s giving an injection (O’Brien v. Cunard S.S. Co., 154 Mass. 272) or putting a thermometer in their ear, then consent is established and the legal obligation for consent has been met.