However, in the eyes of the law, the two are very different. A person may refuse treatment at any time, and should be free to leave when they wish. For example, in medical contexts, a patient may be asleep, unconscious, comatose or anaesthetised. It would not be a defence to imprison/restrain a person because a health practitioner thought it was for the person’s own good. Unlike assault, you don't have to warn the victim or make him fearful before you hurt them for it to count as battery. Physical contact involves immediate contact with a person. Assault and Battery example in nursing Threatening them verbally or pretending to hit them are both examples of assaultthat can occur in a nursing home. Charges of assault and battery may result where trespass to the person - that is, unwanted physical contact - occurs. FindLaw's Assault, Battery and Intentional Torts section provides information about the various acts that are considered intentional torts and the elements that a … A complaint will be brought and the police will act upon an appropriate case. Search for an issue relevant to you, or read about them all. Thus it is the fear which is the gist of assault. All are considered direct acts. 4. The words “assault” and “battery” are often used and often interchanged. First, unlawful restraint in any form gives rise to both criminal and civil claims issues. Almost 4,000 assaults were reported in Australian nursing homes last financial year, but the real number is likely to be much higher, the aged care royal commission has heard. Thus forcing beneficial care on an unwilling patient would be battery. Make sure you read the other Health Law Central topics on consent by adults, consent by minors, and consent by incapacitated patients. or email. This is one of the reasons why there is confusion about restraint, generally among non-lawyers. Battery is the intentional act of causing physical harm to someone. An assault comprises the threat of bodily contact with the person of another (not actual contact). There are some criminal law statutes in every State and Territory dealing with assault and generally speaking, these restraints are offences of the common-law. The focus is on the mind of the plaintiff not on whether the defendant was actually going to follow up the threat. A defence to an action for false imprisonment is therefore if the act of the defendant was authorised or justified for example, due to statutory or common law powers of arrest. This refers to situation where both an assault (attempting to injure or threatening to injure) and a battery (actually touching someone) occur in the same incident. Generally, it is only necessary for the defendant to have an intent to do the act that causes the harm. Any lawful restraint also has to be proportional to what is needed, that is, it cannot be excessive, and there must be no reasonable alternative. Exemplary damages: This award goes beyond compensation: exemplary damages may be awarded as punishment to the guilty, to deter people from any such behaviour in the future, and as proof of the detestation of the judge/jury to the action itself. In other words, the act must be done voluntarily. Any touching of a person without consent may amount to a battery. In an act of physical violence by one person against another, "assault" is usually paired with battery. Consent may be given expressly by words, or be implied from conduct (for example a person rolling up their sleeve and offering their arm to have their blood pressure taken). A tribunal has reprimanded an enrolled nurse and permanently disqualified him from applying for registration after he admitted to professional misconduct concerning an assault on a patient. The autonomy of the patient and the right to refuse to consent to medical treatment should be considered fundamental principles of medical law. After residence has been established, the patient should speak up about any perceived abuses. Battery is the intentional act of causing physical harm to someone. Why are we concerned with these causes of actions here? In a health care context this might occur if a voluntary patient is locked in a ward with no way to get out, or no freedom of movement is felt. Any references or links to third party resources included in Health Law Central are provided for reference and convenience and do not constitute an endorsement of the information contained in those resources or of any associated organisation, product or service. There is an exception to this rule for the attempted battery type of criminal assault. False imprisonment is a direct and intentional act by the Defendant that totally deprives the Plaintiff of his or her liberty without lawful justification. There is a good deal of confusion about the rules surrounding and the law applying to restraint. In addition, at criminal law, consent may not always be a defence — for example, if a medical practitioner intends to cause the death of a patient, regardless of consent, they may be prosecuted for murder. The law treats false imprisonment (which includes unlawful restraint), battery (which includes contact with another person without lawful excuse) as forms of assault. In Australia, the person committing the battery must have either intended to cause contact with the other person, or had reckless disregard for or been negligent with respect to the consequences of his or her actions. 7. It is sufficient if the person knows and expects that contact is about to take place. If there continues to be a serious lack of awareness of rights and responsibilities in this important area of aged care practice, someone soon will likely pay a severe price for their unlawful conduct. Prior to entry in the nursing home, family members and the patient should tour the facility and interview staff members and residents to discern the level of care and determine the risk of abuse. She is experienced in working with individuals, government, non-government and small and large business organisations. In particular the article by Caroline Egan of 22 May shows that there is confusion right throughout the aged care system. By Rodney Lewis, Senior Solicitor, Elderlaw Legal Services. A person’s consent to the alleged battery is a total defence to a claim. Please see the services page or submit your inquiry here. First-degree assault and battery charges are the most severe and it includes extreme bodily harm, usually with the use of a weapon. It is noted here that assault, battery and false imprisonment are also crimes – and can be prosecuted in a criminal court. An assault occurs when a person intentionally creates apprehension of imminent harmful or offensive contact in another. However, they often occur together, and that occurrence is referred to as "assault and battery." Should you be looking for legal advice, please contact a registered legal practitioner (lawyer) where you live, who can advise you on matters specific to your circumstances. Here is a look at some of the most common defenses to a personal injury lawsuit where assault or battery … Apprehension has three components: 1. the person who alleges assault (the plaintiff) knows of the threat (you cannot fear, or expect imminent contact 2. unless you know about it! Assault and Battery Charges. 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