Where a medical practitioner provides treatment that is objectively unnecessary and not capable of constituting a therapeutic response to the patient's condition, the patient's apparent consent is vitiated and the treatment constitutes trespass to the person. The s 3B(1)(a) exclusion from the Civil Liability Act 2002 (NSW) is engaged where the practitioner knew the treatment was not reasonably necessary. There is a difference of opinion within the Court as to whether the practitioner's state of mind must be established (Macfarlan JA) or whether objective unnecessity alone suffices (Basten JA, Beazley JA agreeing). Exemplary damages of $150,000 were awarded for a planned course of unnecessary treatment over 12 months.
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