Consent and the Law

Consent

Consent can be described as the “voluntary acquiescence to the proposal of another”. The law recognizes different forms of consent. Implied consent is not expressly granted by a person, but rather inferred from a person’s actions and the facts and circumstances of a particular situation (or in some cases, by a person’s silence or inaction). Express consent is clearly and unmistakably stated, rather than implied. It may be given in writing, orally, or non-verbally, e.g. by a clear gesture such as a nod.

Non-written express consent, not evidenced by witnesses or an audio or video recording, may be disputed if a party denies that it was given. Informed consent, in medicine, is consent given by a person who has a clear appreciation and understanding of the facts, implications, and future consequences of an action. The term can also be used in other contexts. Unanimous consent, or general consent, is consent given by all parties or members of a group, for example, an association.

Valid/ Invalid Consent

In order for consent to be valid, it must be voluntary. Any consent that is obtained through fraud, duress, undue influence or overbearing pressure, will be considered invalid.

The case of R (Proctor) v Hutton demonstrates that undue influence occurs when an unfair advantage has been gained by a non-conscientious use of power in the form of some unfair or improper conduct, some coercion from the outside, some overreaching, or some form of cheating. Where such occurs, a person’s consent is negated.

Medical Treatment Consent

Consent must be present to allow a medical professional to carry out any form of procedure on a patient. In the absence of consent, any touching of the person is considered battery. “Battery” in tort is defined as “actual or intended use of unlawful force to another person without his consent or any other lawful excuse”.

In the case of F v West Berkshire Health Authority, it was held that unwanted surgery, in the absence of consent could amount to a battery. Furthermore, it was held that unauthorized actions during consensual surgery could amount to a battery.

In order for consent to be valid, the person whom is consenting must have the requisite capacity to do so, and such consent must be informed. Informed consent can be described as an agreement following the disclosure of all material facts, risks and possible complications that the patient ought to be made fully aware of before consenting to the procedure. This was established in the case of Geoghegan v Harris [2000], in which it was held that where a patient is undergoing an elective procedure, that is one in which the patient has a choice to undergo such procedure and it is not of medical necessity, all material risks must be disclosed, even if there is less than a 1% chance of such occurring. This was held necessary in order for the patient to be capable of making a “real” choice. In the absence of disclosure of all material risks in the context of elective procedures, consent to the procedure will be deemed invalid.

The issue of capacity to consent was central to the recent constitutional case of Fitzpatrick & Ryan v FK [2008]. In this case, the Court noted that for a refusal of medical treatment to be legally valid, it must “be based on the appropriate treatment, be made by a person with the necessary capacity, and be voluntary”.

In determining if a patient had been deprived of capacity to make such a decision, a test was laid down in the UK Court of Appeal decision of Re T. In this case, the court established that the test is “whether the plaintiff’s cognitive ability has been impaired to the extent that he or she does not sufficiently understand the nature, purpose and effect of the proffered treatment, and the consequences of accepting or rejecting it in the context of the choices available (including any alternative treatment) at the time the decision was made”. What can be taken from this test is that any consent given in circumstances in which a person’s cognitive ability has been impaired or they do not fully understand the nature and effect of the proffered treatment, will be deemed invalid.

Trespass to the Person

As described above, trespass to the person can occur in the form of battery where valid consent has not been given. However, where a person has given consent or authority to the impact, such consent can provide a full defence to battery. Again, such consent must be genuine, and the scope of the consent is relevant. In Corcoran v W&R Jacobs, it was held that any acts outside that scope will not be excused. In this case, the plaintiff was aggressively lunged at when he gave his consent to be searched. It was held that these actions went beyond the scope of the consent that was given by the plaintiff.

In the UK case of R v Barnes, it was held that the consent is to ordinary injuries within sport. If the consent is exceeded, it will venture into the realm of battery. Breaking rules is not the threshold of the consent, and it is likely that even if the rules are broken, that consent will still be valid, as the courts take into account factors surrounding the heat of the moment in the game. However, if the injuries are procured by actions totally beyond what is expected in the ordinary limits of the game, consent will be negated.

In the context of sports again, the case of Simms v Leigh Rugby Club is illustrative of the extent to which consent may be considered valid. In this case, the plaintiff’s leg was broken during a rugby tackle which threw him against a concrete wall running along the touchline.

The Court decided that the rugby club could raise the defence of consent as the injury occurred during a tackle which was within the rugby league rules and he had willingly accepted the risks in playing on a pitch with the wall located so close to the touchline. Generally, in sports, consent to contact which frequently involves actual injury is implied.

Consent to enter into a Contract

In order for consent to enter into a contract to be valid, the person whom is consenting must have the mental capacity to do so.

For example, if one suffers from a mental illness, the contract will be deemed valid unless;

(a) the mental illness was such as to prevent the sufferer from knowing the nature of his actions, and,

(b) the other party was aware of that mental illness.

This rule is based on the case of Imperial Loan Company v Stone and it holds that if either of the above factors are present, the contract will be deemed invalid and therefore consent to entering such a contract will be vitiated.

Capacity of a Minor to Consent to Entering into a Contract

Special rules also apply to the capacity of a minor to consent to entering into a contract.

The Age of Majority Act 1985 defines a minor as one who has not reached the age of majority, that is, eighteen years of age. Where a minor enters into a contract, such contract is only enforceable if the contract is one for necessary goods or necessary services, for example, clothes, food, academic books, etc. Furthermore, the UK case of Fawcett v Smethurst establishes that such a contract is only enforceable on reasonable terms.

If a contract is entered into by a minor for anything other than necessary goods or necessary services, the contract will not be enforceable. This is supported by s.1 and s.2 of the Infancy Relief Act 1874, which was implemented to prevent a minor from consenting to entering a contract of which they do not fully understand consequences, or one which may be unfair or unreasonable, given their capacity to consent may be impaired due to their not having reached the age of majority.

Sexual Assault and Sexual Abuse

The Actus Reus  (the Physical Act) of assault is the application of force without consent; or causing someone to fear the immediate application of such force.

Sexual Assault incorporates the definition of assault, with added circumstances of indecency. Circumstances of indecency were held in R v Court to be judged according to the standards of “right-minded people”, and only if there is an irresistible inference of indecency, should a jury convict.

Absence of consent is a constituent part of the physical element of sexual assault. It must be established as an external fact, independent of the accused’s state of mind. In the case of DPP v C [2001], Murray J held that “Consent means voluntary agreement or acquiescence to sexual intercourse by a person of age with the requisite mental capacity. Knowledge or understanding of the facts material to the act being consented to is necessary for the consent to be voluntary or constitute acquiescence”.

Similarly, if consent to sexual intercourse or any sexual act is obtained by fraud, it will be deemed invalid. However, it will only be deemed invalid if fraud as to the nature of the act is present. If a person does not know that they are consenting to a sexual act, consent will be meaningless- this is illustrated in the UK cases of R v Flattery, R v Williams and R v Tabussum, where consent was vitiated due to the fact that those who consented were unaware of the nature of the act to which they consented to.

Similarly, consent will be negated where one is sleeping, or in a case of mistaken identity, as was established in the old Irish case of R v Dee [1884].

Finally, it might be noted that consent will not be a defence to the offence of sexual intercourse with a person under the age of 17. This is supported by s. 2 & 3 of the Criminal Law (Sexual Offences) Act 2006.