What is Consent in Law

8 Key excerpts on "What is Consent in Law"

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  Self-determination in Health Care

  A Property Approach to the Protection of Patients' Rights

  • Leroy C. Edozien(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  4 These requirements form the basis of the distinction that Faden and Beauchamp make between the legal and moral foundations of consent:

  The law’s approach springs from a pragmatic theory. Although the patient is granted a right to consent or refuse, the focus is on the physician, who holds a duty and who risks liability by failure to fulfil the duty. Moral philosophy’s approach springs from a principle of respect for autonomy that focuses on the patient or subject, who has a right to make an autonomous choice.5

  In other words, the law’s approach to consent focuses heavily on the duties of the doctor, while ethics and moral philosophy focus more on the patient’s autonomous choice. The point has been made above that it is not pragmatic for the law to concern itself with whether a particular choice is autonomous; nevertheless, I will argue (see Chapter 9 ) that, if the patient’s right to self-determination is to be protected, the law should have this right as its starting point.

  The Legal Development of Consent: Battery and Negligence

  In English law, a doctor undertaking treatment without consent may be liable for assault or battery or face an action in negligence.6 Battery and negligence are both torts; assault could be a crime. Battery is an intentional, unauthorised touching of another person, irrespective of whether any injury results and irrespective of whether or not the defendant acted in good faith .7 Assault is an intentional act which induces in the victim an apprehension of imminent harm or offensive contact, but the term ‘assault’ ‘is now, in both ordinary legal usage and in statutes, regularly used to cover both assault and battery’.8 In Scots law no distinction is made between assault and battery but this brief review of battery and negligence takes an English law perspective, as the key consent cases (Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospita l 9 and Chester

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  General Hospital Care for People with Learning Disabilities

  • Lynn Hannon, Julie Clift(Authors)
  • 2010(Publication Date)
  • Wiley-Blackwell

    (Publisher)

  This chapter explores the consent process from the perspective of a patient who has learning disabilities. For those of you who have already experienced the difficulties of supporting a patient who is refusing treatment, or if you have felt concern that the intervention or treatment has not been fully explained, we hope that the following information will help you.

  WHAT DO WE MEAN BY CONSENT?

  Consent is a patient's agreement for the health care professional to provide them with health care. The patient may do this verbally, or in writing, or the consent may be indicated non-verbally by passive acceptance or compliance with the health care procedure (e.g. holding out an arm for a blood test). The health care professional must always be satisfied that the patient is consenting before proceeding with providing health care.

  For this consent to be valid the patient must:

  • Be competent to make that decision
  • Have received sufficient information to make the decision
  • Not be acting under duress

  The Royal College of Nursing (RCN 2006, p. 8) explains that ‘In the past it was assumed that having learning disabilities meant people lacked the capacity to make decisions. However, it is now recognised that people with learning disabilities have as much right to make decisions for themselves as anyone else’. They outline that the UK has two separate laws on capacity to consent:

  • The Mental Capacity Act 2005 in England and Wales (Department for Constitutional Affairs 2005)
  • Adults with Incapacity Act 2000 in Scotland (Scottish Executive 2000)

  They also explain that ‘although the Acts and case law differ in terminology and procedures they are based on similar principles and have similar expectations of health care staff. The underlying principles in both Acts are that no adult can make a decision on behalf of another adult, and it must be assumed that a person has the capacity to make a decision unless proved otherwise. Adults, with or without learning disabilities can refuse examination or treatment, even if it is detrimental to their health, as long as they have the capacity to do so’.

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  Euthanasia, Death with Dignity and the Law

  • Hazel Biggs(Author)
  • 2001(Publication Date)
  • Hart Publishing

    (Publisher)

  Any propos-als to revise law in favour of voluntary euthanasia would of course need to be firmly grounded on mechanisms for ensuring that consent is freely given, informed and valid within the context of an enduring decision to die. Before this can be achieved a sound understanding of the law of consent and current restric-tions on its application is required. This chapter will outline the background to the law of consent and its application in respect of euthanasia and life-limiting medical decisions in order to ascertain its value in the pursuit of dignity in dying. The legal foundation of consent in relation to medical treatment is precisely articulated in Cardozo J’s statement that “every human being of adult years and sound mind has the right to determine what shall be done with his own body”. 1 It requires that no person should be touched by another without 1 Schloendorff v. Society of New York Hospital (1914) 105 NE 92, 93 (NY) per Cardozo J. express authorisation, which, when applied to the context of medical care, means that no treatment should be given in the absence of valid consent. Consent is required regardless of whether the contact occurs in everyday life or during examination by a medical professional intent on diagnosis or treat-ment, 2 and generally ensures the protection of personal bodily integrity and individual autonomy. As such there are various heads of liability that attach to unauthorised touching, medical or otherwise, as well as various mechanisms available to legitimate treatment without consent in appropriate circum-stances. The ability of consent to safeguard a patients interests and wishes at the end of life depends on the complex relationship between liabilities imposed for treatment in the absence of valid consent, and the mechanisms through which treatment without consent can be legitimated.

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  Medical Law Essentials

  • Murray Earle(Author)
  • 2014(Publication Date)
  • EUP

    (Publisher)

  CONSENT 93 As regards the legally competent adult patient, actions in consent follow a pattern common to other common law countries and are litigated in negligence. There is a rebuttable presumption of competence in adults. Treatment without consent may be an assault (the English law of trespassory touching does not form part of Scots law). With consent being a defence to an action in assault, the onus is on the defender to establish that consent was given by the pursuer. Where this burden is discharged by evidence of consent in broad terms, it may yet be alleged that consent was imperfect. If so, the case will be litigated under the law of negligence where damages will be sought for injuries caused – in the legal sense – by the doctor’s failure to obtain complete or “informed” consent. This usually means the failure to warn of an inherent risk in the procedure, where the pursuer argues that had they been so warned, they would not have given their consent and would not have suffered the injury. Where Scots law differs is that a possible action for wounded feelings is built into the common law. This area of law is based on the patient’s right to self-determination within the law of delict, as well as within the European Convention on Human Rights. That the right of self-determination forms part of this area of Scots law was confirmed by Lord President Hope in Law Hospital NHS Trust v Lord Advocate (1996) in which he said that the right solves the problems of consent as far as the court is concerned. As he put it, “consent renders lawful that which would otherwise be unlawful”. To that end, the defence of volenti non fit iniuria is applicable, as it means that a legal wrong is not done to someone who is willing and so voluntarily assumes the inherent risk. By implication, it is for the patient to determine whether to take a particular risk. The right to consent carries with it a right to refuse treatment.

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  Autonomy, Consent and the Law

  • Sheila A.M. McLean(Author)
  • 2009(Publication Date)
  • Routledge

    (Publisher)

  Consent, autonomy and the law

  Law is essentially a set of rules; courts are not necessarily the ideal place for an ethical battleground. This is not to say that law never engages with complex and divisive ethical issues – obviously it often has to – but rather that it needs an appropriate framework and workable guidelines in order to function with internal logic and consistency. This generally means that courts operate on the basis of adherence to principle and/or precedent. Since courts are arranged in hierarchies, previous decisions can carry considerable – sometimes definitive – weight. When confronted with new situations, judges will either try to identify precedent to guide them or, as is particularly true in Scotland whose law owes much to its Roman Law heritage, will apply long established principles to novel problems. In terms of consent to treatment, however, there is – in the case of competent adults at least1 – no difference between the various United Kingdom jurisdictions. Each starts with the presumption that the competent adult has a right to make his or her own healthcare decisions, and even to reject optimal medical advice. This, as we have seen, is said both to derive from and to reflect the law’s declared prioritisation of autonomy.

  It has emerged from our previous discussion, however, that while it seems relatively easy to identify the autonomous person, it is much less easy to decide whether or not a decision is truly autonomous. Allmark, for example, says that while being autonomous is a sine qua non of an autonomous act, on the other hand ‘it is not always the case that an act performed by such an agent is autonomous.’2 The ability to make an autonomous choice, however, will in large part hinge on fulfilling the criteria identified in the previous chapter – such as information disclosure and voluntariness.3

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  Informed Consent

  Patient Autonomy and Clinician Beneficence within Health Care, Second Edition

  • Stephen Wear(Author)
  • 1998(Publication Date)
  • Georgetown University Press

    (Publisher)

  In the past these sorts of issues were usually resolved by referring to the customary practice of members of the medical profes-sion. In effect, the traditional response to many of our questions was that the medical profession itself was the legally recognized source of guidelines and criteria, not specific legal principles and agendas. Reliance on the customary practice of the medical profession— that is, on professional standards—surely makes things simpler for the clinician, at least to the extent that an individual clinician shares a common training, experience, and perspective with his peers, and should have a general sense of what is customary. The clinician is thus not also obliged to attempt to fathom the different languages, agen-das, and formulations of the legal profession. Ironically, as Flexner's reforms of medical education made such a common experience and perspective among clinicians more of a reality, the law tended to shift away from a solely professional standard. In the early twentieth century, certain principles and agendas that had long been basic to the law but less central to medical practice began to come to the fore in judicial determinations regarding patient consent and patient-physician interactions. Most basic, at first glance, was the common law's traditional concern for the bodily integrity of 12 The Legal Doctrine of Informed Consent the individual, in effect a concern for patient self-determination, which at least requires patient consent to treatment, however uninformed. 2 But other legal concerns and agendas also began to assert themselves: (1) the law's prescription against battery—that is, the unauthorized touching of one individual by another (Faden and Beauchamp, 1986, pp. 120-22); (2) tort law's concern about the inflic-tion of physical and emotional harm, and legal mechanisms for com-pensation (Faden and Beauchamp, 1986, pp. 125-32), and (3) the constitutional concern for the individual's privacy, his right to be left alone.

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  Consent in the Law

  • Deryck Beyleveld, Roger Brownsword(Authors)
  • 2007(Publication Date)
  • Hart Publishing

    (Publisher)

  20 For a general theory of official accountability and citizen restraint, see Deryck Beyleveld and Roger Brownsword, Law as a Moral Judgment (London, Sweet and Maxwell, 1986; reprinted Sheffield: Sheffield Academic Press, 1994), especially at chs 5 and 7–9. 351 extent, the rule-sets themselves also make consent a requirement. Consent, thus, seems to operate in two spheres, one external to the rule-set and the other internal to it. What is the relationship between these two spheres of consent? For the sake of illustration, let us suppose that a court is seized of a dis-pute between two contracting parties. The contract, which is for the lease of a large warehouse, provides, inter alia, that the claimant-lessee is not to sublet any part of the premises without the consent of the defendant-lessor, which consent should not be unreasonably withheld. The claimant, having been denied permission to sublet, contends that the defendant is in breach because the latter is unreasonably withholding consent. Now, consider the following three different levels of defence that the defendant might offer: (1) The defendant argues that he has good grounds for denying permis-sion in this particular instance and that consent is not being unreason-ably withheld; hence, there is no breach of contract (lease). (2) The defendant argues that the contract (lease) is actually invalid because the formalities required by the local law for such transactions have not been complied with: there is no written record of the parties having consented. (3) The defendant argues that he did not freely consent to submit to the local law of contract (leases). He contends that the claimant threatened to burn the warehouse down if negotiations for the lease (subject to the local law) were not opened. Each of these arguments involves an issue of consent.

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  Choosing Life, Choosing Death

  The Tyranny of Autonomy in Medical Ethics and Law

  • Charles Foster(Author)
  • 2009(Publication Date)
  • Hart Publishing

    (Publisher)

  70 This is appropriate: in the civil law it is right that negligence should be easier to prove than assault, and of course crime should be more demanding that the civil law. The different demands do not in themselves tell us much about the view that the law has of autonomy. That is well illustrated, though, by three examples from different areas of the law. First, the question of when consent is vitiated in cases of the transmission of disease by sexual intercourse; second, the question of how far the consent to a surgical pro-cedure can stretch; and third, the issue of the use to which human tissue deposited in a biobank can be put. A doctor inserted an instrument into a woman’s vagina. He was motivated only by a desire for sexual gratification. The woman consented because she thought it was diagnostically justified. The Supreme Court of Victoria held that there was no assault: there was no fraud as to the nature and quality of the act. 71 This result seemed bizarre to many. 72 It was a consequence of the twisted phil-osophy of R v Clarence. 73 Clarence had gonorrhoea, and knew it. His wife did not know of his infection. He slept with her, and she got infected. He was prosecuted under sections 47 and 20 of the Offences Against the Person Act 1861—causing The Law of Consent the real character of patients’ needs and abilities as active inquirers. . . . While I have warned that clin-icians should not expect their patients to hear them as unilateral and automatically authoritative sources of information, I have also argued that clinicians have moral as well as technical expertise to offer their patients, and a crucial role to play in enabling their patients to function as autonomous knowers and choosers.

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