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Encyclopedia > Informed consent
Tort law I
Part of the common law series
Intentional torts
Assault  · Battery
False arrest  · False imprisonment
Intentional infliction of emotional distress
Property torts
Trespass to chattels
Trespass to land  · Conversion
Detinue  · Replevin  · Trover
Dignitary and economic torts
Slander and libel  · Invasion of privacy
Fraud  · Tortious interference
Alienation of affections
Breach of confidence  · Abuse of process
Malicious prosecution  · Conspiracy
Defenses to intentional torts
Consent  · Necessity
Self defense and defense of others
Fair comment (as to slander/libel)
Other areas of the common law
Contract law  · Property law
Wills and trusts
Criminal law  · Evidence

Informed consent is a legal condition whereby a person can be said to have given consent based upon an appreciation and understanding of the facts and implications of an action. The individual needs to be in possession of all of his faculties, such as not being mentally retarded or mentally ill and without an impairment of judgment at the time of consenting. Impairments include illness, intoxication, drunkenness, using drugs, insufficient sleep, and other health problems. Image File history File links Scale_of_justice. ... // Tort is a legal term that means civil wrong, as opposed to a criminal wrong. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. ... At common law, battery is the tort of intentionally (or in Australia negligently) and voluntarily touching another person without lawful excuse or justification. ... False arrest is a common law tort, where a plaintiff alleges he or she was held in custody without reasonable cause or an order issued by a court of appropriate jurisdiction. ... False Imprisonment is a common law tort, and possibly a misdemeanor crime, wherein a person is intentionally confined without legal authority. ... Intentional infliction of emotional distress (IIED) is a common law tort claim for intentional conduct that results in extreme emotional distress. ... Trespass to chattels is a tort whereby the infringing party has intentionally (or in Australia negligently) interfered with another persons lawful possession of a chattel. ... Trespass to land is a common law tort that is committed when an individual intentionally (or in Australia negligently) enters the land of another without lawful excuse. ... In law, conversion is a tort that deals with the wrongful interference with goods. ... In tort law, detinue is an action for the wrongful detention of goods from an individual who has a greater right to immediate possession than the current possessor. ... Replevin is an Anglo-French law term (derived from repletir, to replevy). ... Trover signifies finding. ... Libel redirects here. ... Invasion of privacy is a legal term essentially defined as a violation of the right to be left alone. ... Tortious interference, in the common law of tort, occurs when a person intentionally damages the plaintiffs contractual or other business relationships. ... In United States law, alienation of affections is a tort action brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage. ... The tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. ... Abuse of process is a common law intentional tort. ... Malicious prosecution is a common law intentional tort. ... In the law of tort, the legal elements necessary to establish a civil conspiracy are substantially the same as for establishing a criminal conspiracy, i. ... Consent (as a term of jurisprudence) is a possible justification against civil or criminal liability. ... In tort law, the defense of necessity is divided between private necessity (where a person commits a tort for the defense of his own property) and public necessity (where a person commits a tort for the public good, such as cutting down someone elses trees to stop the spread... This article and defense of property deal with the legal concept of excused (sometimes termed justified) acts that might otherwise be illegal. ... Fair comment is a legal term for a common law defense in defamation cases (libel or slander). ... A contract is a promise or an agreement made of a set of promises. ... Property law is the area of law that governs the various forms of ownership in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ... Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. ... The law of evidence governs the use of testimony (e. ... Weighing scales represent the way law balances peoples interests For other senses of this word, see Law (disambiguation). ... Consent (as a term of jurisprudence) is a possible justification against civil or criminal liability. ... Mental retardation (abbreviated as MR), is a term for a pattern of persistently slow learning of basic motor and language skills (milestones) during childhood, and a significantly below-normal intellectual capacity as an adult. ... The Scream, the famous painting commonly thought of as depicting the experience of mental illness. ... The term disability, as it is applied to humans, refers to any condition that impedes the completion of daily tasks using traditional methods. ... A judgment or judgement (see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. ... ... A drunken man in Tampere, Finland. ... A psychoactive drug or psychotropic substance is a chemical substance that acts primarily upon the central nervous system where it alters brain function, resulting in temporary changes in perception, mood, consciousness and behavior. ... Sleep is the state of natural rest observed in most mammals, birds, fish, as well as invertebrates such as the fruitfly Drosophila. ...


Some acts cannot legally take place because of a lack of informed consent. In other cases, consent of someone on behalf of a person not considered able to give informed consent is valid. Examples of this include the parents or legal guardians of a child and caregivers for the mentally ill. A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. ... 9 year old girl A child (plural: children). ...

Contents

Issues surrounding assessment of consent

Informed consent can be complex to evaluate, because neither expressions of consent, nor expressions of understanding of implications, necessarily mean that full adult consent was in fact given, nor that full comprehension of relevant issues is internally digested. Many times consent is implied within the usual subtleties of human communication, rather than explicitly negotiated verbally or in writing. In some cases consent is legally prevented from ever being possible, even if the person protests they do indeed understand and wish.


There is thus always a degree to which informed consent must be assumed or inferred based upon observation, or knowledge, or legal reliance. This especially is the case in sexual or relational issues.


In medical or formal circumstances explicit agreement by means of signature which may normally be relied upon legally, regardless of actual consent, is the norm.


Brief examples of each of the above:

  1. A person may verbally agree to something from fear, perceived social pressure, or psychological difficulty in asserting their true feelings, and the person requesting the action may honestly be unaware of this and believe it is genuine, and rely upon it. Consent is expressed, but not internally given.
  2. A person may state they understand the implications of some action, as part of their consent, but in fact not have appreciated the possible consequences fully and later deny the validity of their consent for this reason. Understanding needed for informed consent is stated to be present but is in fact (through ignorance) not present.
  3. A person may move from friendship to sexual contact on the basis of body language and apparent receptivity, but very few people on a date which results in sexual contact, have explicitly asked the other if their consent is informed, if they do in fact fully understand what is implied and all potential conditions or results. Informed consent is implied (or assumed unless disproven) but not stated explicitly.
  4. A person below the age of consent may agree to sex, know all the consequences, but their consent is deemed invalid as they are deemed (regardless of the reality) to be a child unaware of the issues and thus incapable of being informed consent. Individual is barred from legally giving informed consent, despite what they may feel (1)
  5. In some countries (notably United Kingdom), individuals may not consent to injuries inflicted upon them, and so a person practicing sadism and masochism upon a consenting partner may be deemed to have caused actual bodily harm without consent, actual consent notwithstanding. Individual is barred from legally giving informed consent, despite what they may feel (2). See also Spanner case and 'consensual non-consensuality'.
  6. A person signs a legal release form for a medical procedure, and later feels they did not really consent. Unless they can show actual misinformation, the release is usually persuasive or conclusive in law, in that the clinician may rely legally upon it for consent. In formal circumstances, a written consent will usually legally override later denial of informed consent (unless obtained by misrepresentation)
  7. A person or institution (i.e., such as a school or child care professional) exposes a minor to non -age appropriate material, in any media format, with out the expressed informed consent of the minors parent or legal guardian. Informed consent in this instance goes to the argument of competency on the part of the minor. An example would be the showing of an R rated movie to a 12 year old by an educational institution without the informed consent of the parent or legal guardian.

The term date can refer to: A day according to a calendar; see calendar date. ... This article or section does not cite its references or sources. ... Flogging demonstration at Folsom Street Fair 2004. ... It has been suggested that Assault causing bodily harm be merged into this article or section. ... Operation Spanner was the name of an operation carried out by police in Manchester in the United Kingdom in 1987. ... Consent within BDSM is an issue that attracts much attention in the field. ... A release is a legal instrument that acts to terminate any legal liability between the releasor and the releasee(s) signed by the releasor. ...

Surgery

The doctrine of informed consent relates to professional negligence and establishes a breach of the duty of care owed to the patient (see duty of care, breach of the duty, and causation in English law). In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. ... In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty. ... In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty. ... In the English law of tort, causation proves a physical link between the defendant’s negligence and the claimant’s loss and damage. ...


In the United Kingdom and countries such as Malaysia and Singapore, informed consent requires proof as to the standard of care to be expected as a recognised standard of acceptable professional practice (the Bolam Test), that is, what risks would a medical professional usually disclose in the circumstances (see Loss of right in English law). Arguably, this is "sufficient consent" rather than "informed consent." The Bolam Test In Sidaway v Governors of Bethlem Royal Hospital, Lord Scarman said: The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion... In the English law of tort, loss of right is a new heading of potential liability arising as a matter of policy to counteract limitations perceived in the more traditional rules of causation. ...


In the United States, Australia, and Canada, a more patient-centered approach is taken and this approach is usually what is meant by the phrase "informed consent." Informed consent in these jurisdictions requires that significant risks be disclosed, as well as risks which would be of particular importance to that patient. This approach combines an objective (the reasonable patient) and subjective (this particular patient) approach.


The doctrine of informed consent should be contrasted with the general doctrine of medical consent, which applies to assault or battery. The consent standard here is only that the person understands, in general terms, the nature of and purpose of the intended intervention. At common law, battery is the tort of intentionally (or in Australia negligently) and voluntarily touching another person without lawful excuse or justification. ...


As the higher standard of informed consent applies to negligence, not battery, the other elements of negligence must be made out. Significantly, causation must be shown: that had the individual been made aware of the risk they would not have proceeded with the operation (or perhaps with that surgeon).


The informed consent doctrine is generally implemented through good healthcare practice: pre-operation discussions with patients and the use of medical consent forms in hospitals. However, reliance on a signed form should not undermine the basis of the doctrine in giving the patient an opportunity to weigh and respond to the risk. In one British case, a doctor performing routine surgery on a woman noticed that she had cancerous tissue in her womb. He took the initative to remove the woman's womb; however, as she had not given informed consent for this operation, the doctor was judged by the General Medical Council to have acted negligently. The council stated that the woman should have been informed of her condition, and allowed to make her own decision. The General Medical Council (the GMC) is the regulator of the medical profession in the United Kingdom. ...


The doctrine of informed consent also has significant implications for medical trials of new medications.


Competency

The ability to give informed consent will be governed by a general requirement of competency. In common law jurisdictions, adults are presumed competent to consent. This presumption can be rebutted, for instance, in circumstances of mental illness or other incompetence. This may be prescribed in legislation or based on a common-law standard of inability to understand the nature of the procedure. In cases of incompetent adults, informed consent--from the patients or from their families--is not required. Rather, the medical practitioner must simply act in the patient's best interests in order to avoid negligence liability.


By contrast, 'minors' (which may be defined differently in different jurisdictions) are generally presumed incompetent to consent. In some jurisdictions (e.g. much of the U.S.), this is a strict standard. In other jurisdictions (e.g. England, Australia, Canada), this presumption may be rebutted through proof that the minor is ‘mature’ (the ‘Gillick standard’). In cases of incompetent minors, informed consent is usually required from the parent (rather than the 'best interests standard') although a parens patriae order may apply (allowing the court to dispense with parental consent in cases of refusal). Gillick competence is a term used in medical law to describe when a minor may be able to consent to his or her own medical treatment, despite a young age. ... Parens patriae is Latin for parent of the fatherland or parent of the homeland. ...


Abortion

In some U.S. States, informed consent laws (sometimes called "Right To Know" laws) require that a woman seeking an elective abortion be given factual information by the abortion provider about her legal rights, alternatives to abortion (such as adoption), available public and private assistance, and medical facts (some of which are disputed - see fetal pain), before the abortion is performed (usually 24 hours in advance of the abortion). Other countries with such laws (e.g. Germany) require that the information giver not be affiliated with the abortion provider, to avoid giving an economic incentive for handing out faulty information. Federal courts Supreme Court Chief Justice Associate Justices Elections Presidential elections Midterm elections Political Parties Democratic Republican Minor parties State & Local government Governors Legislatures State Courts Counties, Cities, and Towns Other countries â€¢ Politics Portal • • A state of the United States is any one of the fifty subnational entities referred to... The issue of when a fetus can feel pain is a highly divisive and keenly debated one when considering the experience of a fetus during abortion. ...


Sex

The question of whether informed consent needs to be formally given before sexual intercourse or other sexual activity, and whether this consent can (and must be able to) be withdrawn at any time during the act, is an issue which is currently being discussed in the United States in regard to rape and sexual assault legislation. For example, with sleep sex fetishists (those who are aroused by the thought of having sex with someone asleep, or someone having sex with them while asleep), by the law they are not giving consent to the sex, but have given prior informed consent to the act within a reasonable recency, and are assumed to be consenting during the act and to not prosecute for it when waking up. This is also an issue in rape fantasy enaction which is often discussed by a "ravishment community" of participants (a subset of the BDSM community) who advocate extensive prior negotiation and planning. The issue of prior informed consent may also come up if the legality behind consensual necrophilia is ever further explored. Coition of a Hemisected Man and Woman (c. ... Please wikify (format) this article as suggested in the Guide to layout and the Manual of Style. ... Sleep sex, a. ... A rape fantasy is a sexual fantasy about participating in a rape, a fictional story about a rape, or an acted-out scene of pretend rape between consenting adults. ... A collar is a common symbol in BDSM. BDSM is any of a number of related patterns of human sexual behavior. ... Look up Necrophilia in Wiktionary, the free dictionary. ...


While children may be able to give consent, a more complex question applies in terms of informed consent: whether children are developmentally and otherwise able to give informed consent, in particular to an adult, bearing in mind power relationships, maturity, experience and mental development. For this and other reasons most states have an age of consent under which a child is deemed unable to give consent. As evaluation of maturity, mental maturity, child development, child communication, and child intelligence are further explored, this may be based on psychological and medical evaluation of status for sexual activity instead of chronological age. Hans Baldung Grien: The Ages And Death, c. ... This article or section does not cite its references or sources. ... Maturity may refer to: Sexual maturity Maturity, a geological term describing hydrocarbon generation Maturity, a financial term indicating the end of payments of principal or interest Look up Maturity in Wiktionary, the free dictionary. ... This article or section does not cite its references or sources. ... The examples and perspective in this article or section may not represent a worldwide view. ...


Animals are not usually considered able to give informed consent in a legal sense (although advocates and some ethologists argue they have the capability to agree and strongly solicit such activity), and partly for this reason, but more usually due to concerns for morality and abuse, bestiality is illegal in many jurisdictions. As animal communication methods and evaluation of animal intelligence and animal sexuality changes, this may also change. Ethology is the scientific study of animal behavior considered as a branch of zoology. ... Leda and the Swan, a 16th century copy of a lost painting by Michelangelo, 1530 (National Gallery, London) Zoophilia, from the Greek Ζωο (zôon, animal) and φιλία (philia, friendship or love), is a paraphilia, defined as an affinity or sexual attraction by a human to a non-human animal. ... Animal communication is any behaviour on the part of one animal that has an effect on the current or future behaviour of another animal. ... The term Animal intelligence is currently used in three distinct but overlapping ways: as a synonym for animal cognition, to pose the question “are animals intelligent?”, or to denote a discussion of relative levels of intelligence in different animal species. ... Animal sexual behavior takes many different forms; even within the same species, researchers have drawn parallels between this and masturbation, homosexuality, bisexuality, intersexuality and transgender behavior in humans. ...


No-victim laws

It may not be legally possible to give consent to certain activities in certain jurisdictions; see the Operation Spanner case for an example of this in the UK which involved sadomasochistic activities such as branding. Operation Spanner was the name of an operation carried out by police in Manchester in the United Kingdom in 1987. ... Flogging demonstration at Folsom Street Fair 2004. ... Branding persons refers to the use of the same physical techniques as in livestock branding on a consenting or constrained human, a form of body modification (see that article for general considerations) similar to scarification (see that article for technical details). ...


Research

Informed consent is also important in social research. For example in survey research, people need to give informed consent before they participate in the survey. In medical research the Nuremberg Code has set a base standard since 1947, and most research proposals are reviewed by ethics committees in the 21st Century. Social research refers to research conducted by social scientists (primarily within sociology, but also within other disciplines such as social policy, human geography, social anthropology and education). ... Statistical surveys are used to collect quantitative information in the fields of marketing, political polling, and social science research. ... Medical research (or experimental medicine) is basic research and applied research conducted to aid the body of knowledge in the field of medicine. ... The examples and perspective in this article or section may not represent a worldwide view. ... The 21st century is the present century of the Gregorian calendar. ...


See also

The World Medical Association (WMA), an international organization of physicians, was formally established on 17 September 1947, pursuant to deliberations and decisions taken in the First General Assembly of WMA held in Paris, France. ... The International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH) is a project that brings together the regulatory authorities of Europe, Japan and the United States and experts from the pharmaceutical industry in the three regions to discuss scientific and technical aspects of pharmaceutical... This article is about the Declaration of Geneva pertaining to the medical profession. ... The Declaration of Helsinki, developed by the World Medical Association, is a set of ethical principles for the medical community regarding human experimentation. ... The Belmont Report is a report created by the former dee dee dee (which was renamed to Health and Human Services) entitled Ethical Principles and Guidelines for the Protection of Human Subjects of Research and is an important historical document in the field of medical ethics. ... Safe, sane and consensual (SSC) is one of several phrases used by a large section of the BDSM and sexual bondage communities to describe themselves and their philosophies who regard SSC to be a watchword for safety. ... Consent within BDSM is an issue that attracts much attention in the field. ... Categories: | ... It has been suggested that Victimless crime be merged into this article or section. ... Wikipedia does not yet have an article with this exact name. ... This article or section does not cite its references or sources. ...

References

  • Druml C., Informed consent of incapable (ICU) patients in Europe: existing laws and the EU Directive, Curr Opin Crit Care. 2004 Dec;10(6):570-3.
  • Fisher, JA., Procedural Misconceptions and Informed Consent: Insights from Empirical Research on the Clinical Trials Industry, Kennedy Institute of Ethics Journal. 2006; 16(3): 251-268.
  • Holmes-Rovner M, Wills CE., Improving informed consent: insights from behavioral decision research, Med Care. 2002 Sep;40(9 Suppl):V30-8.
  • Solomon RC., Ethical issues in medical malpractice, Emerg Med Clin North Am. 2006 Aug;24(3):733-47.
  • Wang CE, Huch MH., Protecting human research subjects: an international perspective, Nurs Sci Q. 2000 Oct;13(4):293-8.

External links

  • Informed Consent (University of Washington School of Medicine)
  • A Guide to Understanding Informed Consent (National Cancer Institute, USA)

  Results from FactBites:
 
Informed consent - Wikipedia, the free encyclopedia (1676 words)
Informed consent is a legal condition whereby a person can be said to have given consent based upon an appreciation and understanding of the facts and implications of an action.
A person below the age of consent may agree to sex, know all the consequences, but their consent is deemed invalid as they are deemed (regardless of the reality) to be a child unaware of the issues and thus incapable of being informed consent.
The doctrine of informed consent relates to professional negligence and establishes a breach of the duty of care owed to the patient (see duty of care, breach of the duty, and causation in English law).
  More results at FactBites »

 
 

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