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Re: competency to consent From: Malcolm Griffiths (malcolm@mgriff22.demon.co.uk) Mon Jul 21 14:00:51 1997 Messages sorted by: [ date ][ thread ][ subject ][ author ] Next message: rbraun@indyunix.iupui.edu: "Re: Fw: Estrogen therapy after surgical castration" Previous message: James Taylor: "Cleaning EV transducers" In reply to: Julie Graves Moy: "competency to consent" Next in thread: Dean Huffman: "Re: competency to consent" In message <AFF8E59F-73978@205.238.146.57>, Julie Graves Moy <jgmoy@bga.com> writes There is no major differnce here with the UK. In the UK ( and I suspect US ) courts can determnine a person non-comptetent. We assume them competent unless they give some reason for us to doubt it, then we ask the courts to judge. Nevertheless the INFORMED clinician will be applying exactly the same rules as the court. The tort of surgery without consent is assault here - assault and battery get mixed up over here in both civil and criminal law - often used ( incorrectly interchangebly ). In order to have a case for tort of assualt one merely has to show harm. If no informed consent was obtained any harm is compensatable, even if there were no negligence in how the surgery was performed. >My psychiatrist husband (director of a state psychiatric hospital) reminds >me that only the court can determine competency in the U.S. Physicians >have no legal right to do so. Patients are presumed competent unless an >interested party (usually the family, sometimes law enforcement, less often >the hospital or physician) petitions the court and a judge rules the >patient is not competent. >Any time a physician or hospital staff performs any procedure on any >patient with the patient's consent (or the parent or guardian's consent in >the case of a minor or incompetent adult), battery has been committed. >Battery is a tort, but is an intentional tort not covered by most >malpractice policies. It does not require financial damages as a medical >malpractice (negligence) tort does. >So, I'd be careful about doing anything without consent, even if you think >the patient needs it, and I don't use blanket consents to treatment. >There's not a lot of money in battery lawsuits for attorneys, but some are >noticing that since the malpractice policy doesn't cover it, physicians are >more likely to settle quickly, so there's potentially less work for the >attorney. >I guess my health law and patient's rights classes at the school of public >health impressed me. >Julie Graves Moy, MD, MPH >Austin, Texas > -- Malcolm Griffiths MD,MRCOG,MFFP,Cert.Mgmnt Obstetrician & Gynaecologist Luton & Dunstable Hosp., LU6 2DT, UK. Tel: 01582-497459 (office) Fax: 01582-497376 01525-222849 (home) email: Malcolm@mgriff22.demon.co.uk http://www.obgyn.net/board/griffith.htm "It is dangerous to be right on a subject on which the established authorities are wrong." (Voltaire) "But sometimes it's fun :-)" (Griffiths) Next message: rbraun@indyunix.iupui.edu: "Re: Fw: Estrogen therapy after surgical castration" Previous message: James Taylor: "Cleaning EV transducers" In reply to: Julie Graves Moy: "competency to consent" Next in thread: Dean Huffman: "Re: competency to consent"

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