When work and health assessments collide

An employee of an area health service in Queensland recently sought the court’s leave to appeal a decision in which he failed to establish that blood and urine samples collected from him without his consent causing a psychiatric injury [Pere v Central Queensland Hospital and Health Service [2017] QCA 225]. The employee alleged assault and negligence in relation to the collection of blood and urine samples.

The employee, a security officer at the hospital, had been observed by a co-worker to be acting in an unusual manner and was directed to attend the emergency department. The employee was observed by a nurse and doctor in the emergency department to appear to be under the influence of alcohol, however, the employee denied this. The doctor recommended that blood be collected for alcohol testing and urine be collected to screen for illicit substances. In the event of a negative result, the doctor was of the view that further investigation would be required to determine whether the employee was suffering from a medical condition requiring urgent attention.

At first instance the trial judge found the employee’s credibility to be so poor that it should not be accepted where it conflicted with other credible accounts. The trial judge did not accept that the blood or urine testing occurred without the employee’s consent. Specific attention was paid by the trial judge to the employment relationship which existed and what impact that may have had on the appearance of consent.

Whilst the trial judge noted that the employee had been taken to the emergency department by a security officer, who had physically touched or held him as part of that process and which was contrary to the employer’s policies and procedures, the judge was satisfied that consent was given after the process was explained to the employee. The trial Judge concluded that the urine and blood had been provided with the employee’s consent and therefore did not amount to a battery.

In relation to the claim made in negligence, the trial judge concluded that a reasonable person would not foresee that by requesting and taking the samples this would cause a psychiatric injury. Further, the Court was not satisfied that there was a ‘not insignificant’ risk of injury. Additionally, the expert evidence of two experts in relation to the cause of the psychiatric injury was dependent on the employee’s alleged facts being accepted. Two other experts questioned whether the alleged incident was the cause of the employee’s alleged symptoms.

Ultimately the employee failed to persuade the Court that his employer had been negligent in its collection of the samples. That is because the employee failed to establish a breach of duty of care on the part of his employer or any causal nexus between the events and his ongoing psychological disturbance.

On the application seeking leave to appeal the decision, the employee submitted that as a result of the power imbalance between himself and his employer, his consent to provide the samples was not freely given. Further, he submitted he was too intoxicated to consent. The employee did not however, challenge the trail judge’s finding regarding his poor credibility or advance any accepted legal bases to challenges the findings of fact made by the trial judge.

On appeal it was noted that consent may be inferred from the patient’s conduct and that consent is valid once a patient is informed of the nature of the intended procedure in broad terms. It is a matter of fact as to whether such consent was given or not. The evidence of the doctor and the nurse, the nurse’s contemporaneous note, together with the employee presenting his arm for the collection of the blood and the passing or urine, demonstrated his consent.

In relation to the intoxication, it was noted that a person need not be fully sober to consent. The employee did not lead any evidence which suggested that his blood alcohol reading of 0.2 grams deprived him of the requisite capacity to consent. In relation to the impact of the alleged ‘power imbalance’, the doctor treated the employee as a patient and he was not ordered to undergo the tests as if he was an employee of the doctor who worked at the doctor’s direction. As a result the Court of Appeal found the employee’s submissions that this precluded valid consent to be obtained, as being quite unpersuasive. Given that the appeal had no prospects of success, the application for leave to appeal was refused.

This decision provides a reminder as to the required elements of valid consent to defeat an assault or battery claim. It also highlights the importance of ensuring that appropriate policies and procedures are in place in relation to the taking of blood and urine samples from employees who appear to be under the influence of alcohol at work. For consent to be valid, the patient must have the requisite mental capacity, be informed in broad terms as to the nature of the intended procedure, provide their consent freely and without duress. It is important however, to note that obtaining consent to defeat a claim of assault or battery is separate from what is required of practitioners when obtaining a patient’s informed consent in order to defeat a claim in negligence that there was a failure to warn of specific risks associated with the proposed procedure. Providing a patient with informed consent requires patients to be advised of all material risks to them.

Post by Karen Kumar 

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