Glossary

3.1 Consent and Its Forms

3 min read•july 23, 2024

is a powerful defense against intentional torts, but it has limits. It must be given freely and can be express or implied. However, consent isn't valid if obtained through duress, fraud, or mistake.

There are important restrictions on using consent as a defense. It doesn't apply to actions beyond the , illegal activities, or when given by minors or incapacitated individuals. Consent can also be revoked at any time.

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  • Consent acts as a complete defense to intentional torts
    • If the plaintiff voluntarily agreed to the defendant's actions, the defendant is not liable for the intentional tort (, , false imprisonment)
  • Consent removes the wrongfulness element of the defendant's conduct
  • Consent can be communicated expressly or implied through actions
  • Consent must be given freely and voluntarily
    • Consent obtained through duress (threats), fraud (deception), or mistake (misunderstanding) is not valid
  • is explicitly communicated through words or clear actions
    • Signing a liability waiver before skydiving
    • Verbally agreeing to a medical procedure
  • is inferred from the plaintiff's conduct or the surrounding circumstances
    • Implied consent exists when the plaintiff voluntarily engages in an activity with known risks
      • Playing a contact sport like football or hockey
      • Entering a haunted house attraction
  • Implied consent is evaluated using an objective standard
    • The defendant must have a reasonable belief that the plaintiff consented based on the plaintiff's actions
  • Consent is not a defense to conduct that goes beyond the scope of the consent given
    • Consenting to a specific surgical procedure does not imply consent to additional unauthorized surgeries
  • Consent is not a defense to conduct that violates public policy or the law
    • Consenting to engage in illegal drug use
    • Agreeing to participate in a deadly game or stunt
  • Minors and mentally incapacitated individuals generally lack the capacity to give valid consent
  • Consent can be revoked at any time before or during the conduct
    • If the defendant continues the actions after consent is withdrawn, they may be liable for intentional torts
  • is a specialized type of consent required in medical situations
  • Physicians have a legal duty to disclose significant risks, benefits, and alternatives to a proposed medical treatment or procedure
    • Significant risks are those that a reasonable patient would find important in making a decision about the treatment
  • Patients must have the mental capacity to provide informed consent
    • Patients must be able to comprehend the information provided and make a voluntary choice
  • If a physician fails to obtain proper informed consent and the patient suffers harm, the physician may be liable for medical malpractice
    • The patient must demonstrate that a reasonable person would have refused the treatment if fully informed and that the lack of informed consent directly caused the harm
  • There are limited exceptions to the informed consent requirement, such as emergency situations where obtaining consent is impossible

Key Terms to Review (17)

Assault: Assault is an intentional act that creates a reasonable apprehension of imminent harmful or offensive contact in another person. This term is closely tied to concepts like self-defense, consent, and the components that make up intentional torts, highlighting how these elements interact in legal situations involving personal harm.
Battery: Battery is the intentional and unlawful physical contact with another person, resulting in harm or offense. This tort emphasizes the necessity of intent and the physical act involved, connecting it to concepts like consent, self-defense, and other aspects of personal rights.
Capacity to consent: Capacity to consent refers to an individual's legal and mental ability to agree to an action or decision, particularly in the context of legal agreements or medical procedures. This concept is crucial in determining whether a person's consent is valid, as it examines their understanding and appreciation of the consequences of their choices. Factors like age, mental competency, and the presence of coercion or undue influence can affect this capacity, highlighting its importance in various legal contexts.
Conditional consent: Conditional consent refers to an agreement that is granted based on specific conditions being met or maintained. This type of consent means that the individual gives permission, but only under certain circumstances, making it essential to understand the nuances of consent in legal contexts. Conditional consent can impact the legality of actions taken and the responsibilities of parties involved, especially when those conditions are violated.
Consent: Consent is the voluntary agreement to a particular action or decision, particularly in legal contexts where it can affect liability and liability defenses. It plays a critical role in establishing whether certain torts have occurred, as it can negate claims of harm and justify actions that might otherwise be considered wrongful or invasive.
Consent Defense: Consent defense is a legal principle that asserts an individual may not claim harm or seek damages for an injury if they voluntarily consented to the conduct that caused the injury. This concept is crucial in tort law as it establishes that individuals can agree to certain risks and waive their right to legal recourse, making it a fundamental aspect in evaluating liability and responsibility in various scenarios.
Doctrine of informed consent: The doctrine of informed consent requires that individuals are fully informed about the risks, benefits, and alternatives of a medical procedure or treatment before they agree to it. This principle ensures that patients have the autonomy to make informed choices regarding their health care, establishing a foundation for ethical medical practices.
Express consent: Express consent refers to a clear and unequivocal agreement given by a person, indicating their willingness to engage in a specific act or activity. This type of consent is typically communicated verbally or in writing and is crucial in legal contexts, particularly in determining liability for intentional torts. Understanding express consent helps clarify the boundaries of personal autonomy and the extent to which individuals may permit certain actions against their interests.
Implied Consent: Implied consent refers to a legal concept where a person's agreement to a certain action is inferred from their behavior or circumstances, rather than explicitly stated. This form of consent often arises in situations where individuals engage in activities that suggest they are willing participants, such as during medical emergencies or sporting events. It is crucial in understanding how consent operates without verbal or written agreement, linking it closely to the idea of intent in tort law.
Informed consent: Informed consent is the process by which a person voluntarily agrees to a proposed course of action, such as medical treatment or participation in research, after being fully informed of the risks, benefits, and alternatives involved. This concept is critical in establishing ethical standards, ensuring that individuals understand what they are consenting to and protecting their autonomy in decision-making.
Medical battery: Medical battery occurs when a healthcare provider performs a medical procedure on a patient without obtaining the patient's consent, or when the procedure exceeds the scope of the consent given. This tort is significant because it protects patients' rights to make informed choices about their own medical care and ensures that healthcare providers respect those choices. The essence of medical battery lies in the violation of a patient's autonomy, highlighting the importance of consent in medical settings.
Mutual assent: Mutual assent is a legal principle indicating that parties involved in a contract have reached an agreement on the terms of the contract, signifying a meeting of the minds. This concept is fundamental in determining whether a valid contract exists, as it reflects that all parties understand and accept the obligations and rights involved. It encompasses the processes of offer and acceptance, and ensures that the agreement is formed through clear communication and intention.
Parental Consent: Parental consent refers to the legal permission given by a parent or guardian for a minor child to engage in activities or decisions that require authorization. This concept is crucial in various contexts, such as medical treatment, participation in research, or legal contracts, where minors are typically not considered capable of giving informed consent on their own.
Reasonable person standard: The reasonable person standard is a legal standard used to determine if an individual's actions can be considered negligent by comparing them to what a typical, rational person would do in similar circumstances. This standard helps assess duty of care and is fundamental in various areas of tort law.
Scope of consent: Scope of consent refers to the boundaries within which a person has given permission for an action to occur, particularly in situations involving personal autonomy and physical interactions. Understanding this concept is essential as it delineates the extent to which consent is valid, emphasizing that consent can be limited by context, purpose, and the nature of the activity involved. Recognizing these limits helps in understanding legal and ethical obligations regarding informed consent in various scenarios.
Therapeutic privilege: Therapeutic privilege is a legal and ethical concept that allows healthcare providers to withhold specific information from a patient when disclosing that information could cause significant harm to the patient's emotional or psychological well-being. This practice is rooted in the belief that the provider knows what is best for the patient, especially in sensitive medical situations, and aims to prioritize the patient's overall health over the principle of informed consent.
Withdrawal of Consent: Withdrawal of consent refers to the act of retracting previously given permission for a particular action, especially in contexts involving personal autonomy and bodily integrity. This concept highlights the importance of ongoing consent in relationships and situations, emphasizing that consent is not a one-time agreement but rather an ongoing process that can be revoked at any moment. It is particularly relevant in legal scenarios, especially regarding torts, where individuals must maintain control over their choices and actions.
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