Facts
On 2 September 2005, a 13-year-old girl, A., went to the Y Medical Center due to pain caused by a fall on the coccyx. Dr. B. examined A. in the presence of her mother and diagnosed a coccyx injury. She presented to the patient and her mother two therapeutic alternatives: to do no treatment or to proceed with a rectal touch manipulation to reposition the coccyx.
In accordance with the mother's wish, the doctor requested the intervention of X, an osteopath. He proceeded, on the same day, to an endo-rectal reduction to correct the position of A's coccyx, in the presence of her mother, although the patient had clearly expressed her opposition. The practitioner performed a first manipulation, then a second after finding, on the radiograph, that the first had not had the expected effect.
The patient's mother complained to the Vaud Medical Society, criticizing the medical care of her daughter. The Head of the Department of Health and Social Action opened an administrative investigation, which resulted in a disciplinary fine of 1,500 fr. against X.
Considerations
The Federal Court examined whether the practitioner had respected the informed consent of the minor patient. The case law admits that a minor patient can consent alone to medical treatment if they are capable of discernment (ATF 114 Ia 350 consid. 7a p. 360). The Federal Court considered that the patient, aged 13 years and two months, was capable of discernment, as she had understood the information given by the practitioners and had expressed her opposition to the treatment.
The Federal Court also examined whether the practitioner had violated art. 16 CC by not respecting the informed consent of the patient. It considered that the patient's capacity for discernment had to be assessed in each case, in light of the nature of the problems posed by the intervention. The Federal Court concluded that the patient was able to understand the information given and to communicate her choice with full knowledge of the facts.
The…