The Volokh Conspiracy - Forced Medical Examinations:

A fascinating article in the New York Times City Room blog:

Brian Persaud ... asserts that he was forced to undergo a rectal examination after sustaining a head injury .... Mr. Persaud was taken to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, where he received eight stitches to his head.

According to a lawsuit he later filed, Mr. Persaud was then told that he needed an immediate rectal examination to determine whether he had a spinal-cord injury. He adamantly objected to the procedure, he said, but was held down as he begged, "Please don't do that." As Mr. Persaud resisted, he freed one of his hands and struck a doctor, according to the suit. Then he was sedated, the suit says, with a breathing tube inserted through his mouth....

There's much more interesting factual detail, but not the thing I most want -- a link to the relevant court papers (such as the Complaint and any non-one-liner decisions by the judge). My sense, though, is that the hospital has only one possible defense: "It is not always clear what is the patient's capacity to make decisions, especially if the doctor suspects a head injury."

The general rule is that touching someone (except in relatively de minimis ways, which this surely wasn't) without their consent is tortious battery. That's true even if one has wonderful medical motives; the doctor is supposed to get the patient's informed consent, and if he doesn't then the doctor is guilty of battery even if he saved the patient's life. There are exceptions, for instance related to compulsory immunizations, but they are generally aimed at protecting the health of others. Someone who's mentally competent may even refuse lifesaving treatment when that's clear to lead to his death; the assisted suicide debate focuses on whether others can provide him with deadly substances or tools, but it's generally well-established that someone who's mentally competent may demand that, for instance, life support be removed.

But sometimes, of course, the consent is unavailable, for instance because the patient is unconscious. And sometimes the patient may be found to be legally incapable of meaningful consent, for instance if he's insane. So the interesting legal (and moral) question here is: When there's suspicion that the patient may be incapable of consent (for instance, because of head trauma), and there's the risk of irreversible harm if the hospital takes more time to figure things out -- including if the hospital even takes more time to figure out whether the patient is indeed suffering from head trauma that might make him delusional -- may the hospital just go with what doctors find reasonable (and what most patients would usually accept)? I don't know the answer to that question, but I thought I'd pass it along.

There are also of course less broadly interesting but potentially dispositive factual questions as well -- for instance, if there were simple, quick, and effective alternatives that the doctors could have suggested instead, or if there was solid evidence that Persaud was indeed delusional, or if there was no real reason to think he was suffering from head trauma (other than his seemingly excessive reaction to an admittedly unpleasant but generally not horrible and possibly lifesaving procedure).

	[Eugene Volokh, January 16, 2008 at 7:23pm] Trackbacks Forced Medical Examinations: A fascinating article in the New York Times City Room blog: Brian Persaud ... asserts that he was forced to undergo a rectal examination after sustaining a head injury .... Mr. Persaud was taken to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, where he received eight stitches to his head. According to a lawsuit he later filed, Mr. Persaud was then told that he needed an immediate rectal examination to determine whether he had a spinal-cord injury. He adamantly objected to the procedure, he said, but was held down as he begged, "Please don't do that." As Mr. Persaud resisted, he freed one of his hands and struck a doctor, according to the suit. Then he was sedated, the suit says, with a breathing tube inserted through his mouth.... There's much more interesting factual detail, but not the thing I most want -- a link to the relevant court papers (such as the Complaint and any non-one-liner decisions by the judge). My sense, though, is that the hospital has only one possible defense: "It is not always clear what is the patient's capacity to make decisions, especially if the doctor suspects a head injury." The general rule is that touching someone (except in relatively de minimis ways, which this surely wasn't) without their consent is tortious battery. That's true even if one has wonderful medical motives; the doctor is supposed to get the patient's informed consent, and if he doesn't then the doctor is guilty of battery even if he saved the patient's life. There are exceptions, for instance related to compulsory immunizations, but they are generally aimed at protecting the health of others. Someone who's mentally competent may even refuse lifesaving treatment when that's clear to lead to his death; the assisted suicide debate focuses on whether others can provide him with deadly substances or tools, but it's generally well-established that someone who's mentally competent may demand that, for instance, life support be removed. But sometimes, of course, the consent is unavailable, for instance because the patient is unconscious. And sometimes the patient may be found to be legally incapable of meaningful consent, for instance if he's insane. So the interesting legal (and moral) question here is: When there's suspicion that the patient may be incapable of consent (for instance, because of head trauma), and there's the risk of irreversible harm if the hospital takes more time to figure things out -- including if the hospital even takes more time to figure out whether the patient is indeed suffering from head trauma that might make him delusional -- may the hospital just go with what doctors find reasonable (and what most patients would usually accept)? I don't know the answer to that question, but I thought I'd pass it along. There are also of course less broadly interesting but potentially dispositive factual questions as well -- for instance, if there were simple, quick, and effective alternatives that the doctors could have suggested instead, or if there was solid evidence that Persaud was indeed delusional, or if there was no real reason to think he was suffering from head trauma (other than his seemingly excessive reaction to an admittedly unpleasant but generally not horrible and possibly lifesaving procedure).