Pere v Central Queensland Hospital and Health Service [2017] QCA 225 involved an appeal before Gotterson and Morrison JJA and Applegarth J by a self-represented litigant. List member Brett Charrington appeared for the respondent in this case.
The applicant had not filed an application for leave to appeal but the judges, taking into account his self-represented status, proceeded on the footing that he had.
The applicant had been employed by the respondent as a Fire Safety and Security Officer. He was directed to attend the emergency department by a colleague after he displayed unusual behaviour. He was seen by Nurse Gardner and Dr Droulers who formed the impression that he was intoxicated. The applicant denied this. Dr Droulers decided to take blood and urine samples to either confirm intoxication or screen for any other health problem. Both the nurse and the doctor asserted that they had discussed this with the applicant and that he was co-operative. Contemporaneous notes recorded the patient’s consent.
The applicant alleges that while he talked to the Doctor, the nurse appeared at his side and poked him with a needle. He further alleged that when he produced the urine sample, the nurse watched him. He alleged that this caused him shame and humiliation and thereafter caused a psychiatric disorder which has had and will have an adverse impact on his income earning capacity.
The primary judge had accepted the evidence of Nurse Gardner and Dr Droulers over the evidence of the applicant, particularly since comments he made shortly afterwards to a union representative did not support this version of events, and accepted the applicant had given consent to the tests. He therefore reasoned that the tests could not be assault or battery. The primary judge also reasoned that there was not a foreseeable risk such as to bring the matter within the provisions of ss 305B-305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
The applicant brought this appeal alleging that the primary judge erred in finding that he had consented to the test, arguing that either he was too intoxicated or that because he was employed by the respondent, there was a power imbalance between them and he did not feel he could refuse consent. He also alleged that the respondent had acted outside its own guidelines and that the respondent’s witnesses had lied to the court.
Gotterson JA, Morrison JA and Applegarth J agreeing, said consent was a matter of fact, and the fact that he participated in giving the samples was an overt manifestation of his consent. He did not have to be completely sober, and there was no evidence that he lacked the capacity to consent. The doctor treated the appellant as a patient rather than an employee and there was therefore no power imbalance. There was no guideline in place for the taking of blood samples and urine tests from employees but neither was there a protocol that precluded it.
The judges refused leave to appeal.
See judgment here.
