7.2.2 Treating in an emergency where no consent can be obtained
There may be some situations in which it is lawful for the nurse to go ahead and
treat a patient without obtaining her consent ,most notably in an emergency
situation as in the patient brought bleeding and unconscious into casualty. In such
situations treatment can be given on the basis of necessity. In addition ,if a patient
has given initial consent to an operation but then ,later ,during the operation it is
discovered that she is suffering ,for example ,from a life-threatening condition
such as a cancerous tumour then this may be removed. But while necessity may
justify the performance of a medical procedure in an emergency ,exactly what is
necessary is a matter of degree ?Deviv.West Midlands HA?1981)). The nurse
should ask herself if this particular procedure is immediately necessary or could it
be postponed until the patient recovers consciousness and can make her own
decision.
7.2. 3Consent and refusal
The patient has the right both to consent and to refuse medical treatment. An
action in battery may be brought if treatment is given in the face of an explicit
refusal of consent. A well known case often quoted as a warning to those who may
be tempted to treat in the face of refusal is the Canadian case ofMalettev.Schu-
mann?1988). The claimant was brought into hospital following a road accident. A
nurse found a card in her pocket which identified her as being a Jehovah's Witness
and which requested that she was never to be given a blood transfusion. Despite
the card the doctor performed the transfusion. On recovering her health the
patient brought an action in battery. She succeeded and was awarded $20 000
damages. A further reason why a patient may argue that their decision to refuse
treatment should be upheld is because this is a fundamental human right ,one
which is now safeguarded under the Human Rights Act 1998. A number of the
rights contained in the European Convention of Human Rights may be relevant in
this context; for example ,Article 3 ,because imposition of treatment upon a
competent patient against their wishes may be held to constitute inhuman or
degrading treatment or punishment. In addition ,Article 8 which concerns the
right to respect for privacy of home and family life may be applicable ± but as this
right is not absolute it can be argued that there will not be an infringement of
Article 8 where the patient is not in a position to give informed consent [21]. Article
9ofthe Convention ± freedom of religion ± may also be used to support the refusal
of treatment in a situation in which the reason why the individual is refusing
treatment is because of a tenet of their particular religious belief. In the past in a
number of cases refusal of treatment on religious grounds has been overruled by
the courts ,particularly in the context of refusal by child patients [22]. It will be
interesting to see how these issues are considered in the future.
Overruling a refusal of treatment
While a clear refusal should be respected ,there are situations in which a patient's
refusal may be overridden. InSt George's NHS Trustv.S?1998) ,the Court of
104 Nursing Law and Ethics