A Gold Coast paediatrician is apparently defending a charge of common assault in the Southport Magistrates Court after he allegedly hog-tied a 7 year old boy and sat on him.
Dr Neville Davis says that he hog-tied the boy because of his “dangerous and disruptive” behaviour. Dr Davis denied sitting on the boy. The doctor said that he had never done this manoeuvre before, and conceded that in hindsight, it was inappropriate.
It is not entirely clear whether the hearing is one completely challenging the charge, or conceding the assault occurred but contesting the facts.
If it is the former, some thorny legal issues arise.
The position in NSW – defence of lawful correction
If this occurred in NSW, the following analysis would be apposite: the Crimes Act 1900 provides a statutory defence of “lawful correction” where a parent or authorised guardian exerts physical force necessary and appropriate to control a child.
Section 61AA provides a defence where the complainant is a child, that is, under 18 years old, the force is applied by a parent or person acting for a parent of the child, and the application of force was reasonable having regard to the age, health, maturity or other characteristics of the child, the alleged misbehaviour or other circumstances.
A person acting for a parent is defined to include, among others, a person who is authorised by a parent of the child to use physical force to punish the child.
There are limitations, one of which is that under s 61AA(2) the application of physical force, unless it could reasonably be considered to be trivial or negligible in all the circumstances, is not reasonable if it is applied to the head or neck of the child. The mother alleges that the doctor placed the rope around the boy’s neck, while the doctor denies this. If the mother’s accusation is accepted, it could mean that the doctor would lose the protection of s 61AA, however, the police would still need to prove that even if the rope were tied around the boy’s neck it was not done in a trivial or negligible way, which might be argued if the rope was not tightened.
The most difficult element for the defence to prove in these circumstances would be that the doctor was authorised by the parent to use physical force to punish the child, especially where it appears the parent made the complaint to police.
One angle would be to construe the parent’s decision to take the child to the doctor as impliedly consenting to such punishment, but a characterisation of punishment would need to be undertaken, and it might not be accepted that a paediatrician is expected to “punish” a child as part of their therapy. This would be a difficult decision for a Magistrate to make, and perhaps certain rules and regulations of the medical profession would be of assistance.
Defence of consent to medical treatment
The other possible defence is that of consent to medical procedure, but this would be on more shaky ground than the above defence. This defence exists in common law, and has been developed through the civil law torts of negligence and trespass. Looking through that lens, the reasoning of which is applicable in criminal law, it is a defence to a tort of trespass where the defendant can establish that the plaintiff consented to the physical interference by way of informed consent to medical treatment. One issue with this defence would be that it might be difficult to prove that the mother consented on behalf of her son to his being tied up: this defence might only succeed if her consent could be construed more broadly to encompass any kind of reasonable physical intervention during the course of the paediatrician’s treatment. Another related issue could be that if the paediatrician’s conduct was so outside any kind of acceptable paediatric treatment, the mother could not be said to consent to this.
The doctor is in a difficult position. He could take the safe road and plead guilty to common assault, contest the facts and get a section 10, but there might be irrevocable ramifications for his medical practising certificate following a finding of guilt for assault. He could roll the dice, and try to get off under s 61AA, but he would have a tricky and uncertain battle of convincing the magistrate that the mother authorised him to correct or treat the child in the way he did.
Image credit: ABC News
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