Consent Flashcards
Under which circumstances the consent should be obtained?
Under circumstances that would lead a reasonable person to believe that consent had been given.
What is the rule in Wright v. McLean? (boys throwing mud)
Conclusion : The harm that he suffered, he consents for it, because he agreed to participate in this game. Therefore, harm suffered when consented to, within limits is not a cause of civil action. He voluntarily participated in mud fight, no ill will, malice on the part of the Ds and acts were “within the limits of the game”.
CONSENT TO AN ACTIVITY IS VIEWED AS CONSENT TO THE NORMAL RISKS OF THAT ACTIVITY.
What is the rule in Elliott v. Amphitheatre Ltd? (spectator hit with puck, hockey game)
Rule : when you attend sporting events, you implicitly consent to injuries incidental to attending, thereby providing implied consent.
What to remember from Agar v Canning? (hockey injury)
Hockey is a violent sport, include risk of injury even from people that don’t follow rules.
The court held that players consented to the risk of unintentional injury by participating at the game.
Injuries inflicted in circumstances which show a definite resolve to cause serious injury to another, even when there is provocation and in the heat of the game, should not fall within the scope of the implied consent.
The act of the defendant in striking plaintiff in the face with a hockey stick, in retaliation for the blow he received, goes beyond the limit marking exemption from liability.
Who can consent? What are the conditions to a valid consent?
The person giving it must be capable of appreciating the nature AND consequences of the act to which it applies.
What are the 4 factors vitiating consent?
- Fraud (Deceit)
- Mistake
- Duress (Coercion)
- Public Policy
What are the factors that must be present to invalidate consent based on fraud?
- It must be established the defendant was aware of or responsible for the plaintiff’s misapprehension.
- fraud only negates consent if it relates to the nature and quality of the act, as opposed to a “collateral” matter.
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- A dishonest act
- Depriviation
What is the rule in Latter v. Braddell? (maid force to do a pregnancy test)
Rule: consent cannot be negatived by emotional or economic duress; only physical duress.
Name 2 situations where public policy can negate consent?
- exploitation of trust / authority OR 2. clear power imbalance.
What are the general principles for a valid consent to treatment?
- Consent should be obtained in advance.
- Should cover the proposed intervention (so describe it as much as possible).
- Must relate to the specific procedure that is to be undertaken.
- Must be received from the patient alone or its legal guardian.
- Next of kin consent (substitute consent) is only relevant if the patient is incapable of consenting.
- Must be “voluntary” which is to say a product of the patient’s conscious mind.
- Maybe implied by participation or by other behavior or demeanor.
- May be limited in scope.
What are the 3 exceptions to consent when we talk about treatment?
- Unforeseen medical emergency
- General consent to a course of treatment
- Therapeutic privilege to withhold information.
What to remember from Marshall v. Curry? (Facts : Marshall consents to hernia operation. Dr. Curry gets in there, finds testicle is all gross, removes it.)
Held : it is the surgeon’s duty to act in order to save the life or preserve the health of the patient, but not do something else. It needs to be an emergency situation, where here its not the case, so the doctor should not have removes it.
In Malette v. Shulman, should the doctor continued by giving blood or no?
NO, the card was valid and he should have stop, because she was not consenting.
