Consent

Question 1

What is implied consent?

Answer 1

The courts imply consent for physical contacts of ordinary life so e.g. bumping into someone in a crowded place.

Question 2

What can consent be allowed for?

Answer 2

If they inflicted injuries amounting to ABH or worse defence will not be allowed unless it comes under one of the exceptions.

Defence for non-fatal offences and will not be allowed for murder.

Question 3

Who may not give valid consent under the mental capacity act?

Answer 3

A person:

1. Unable to understand relevant information.
2. Unable to retain information
3. Unable to communicate their decision
4. Unable to use information to make a decision

Question 4

Whats meant by consent must be valid?

Answer 4

Will only be valid if the victim understands the nature of the act and they know exactly what they are consenting to.

Burrell V Harmer-

• Tattooed boys (12+13) who had consented.
• Liable for ABH as didn’t understand nature of act.

Question 5

When may consent be given on behalf of someone else?

Answer 5

Parents may be able to give consent on behalf of their child until child has sufficient understanding.

Gillick V West Norfolk health authority-

• Challenged doctors ability to give pill to girls under 16 without parents permission.
• Allowed to do this as long as the child was considered competent. Known as ‘Gillick competence’.

Question 6

What is meant by consent must be informed?

Answer 6

Victim must be informed as to the identity and the nature and quality of their act.

R V Dica-

• Slept with two women who didn’t know he had HIV.
• Victims had not consented to the risk of HIV as they were unaware he had it. Could not rely on the defence.

Question 7

What is meant by fraud?

Answer 7

If D has obtained victims consent by fraud this will not always mean that the defence of consent is invalid.
Only make it invalid if they are derived as to the identity of D and nature/quality of the act.

R V Richardson-

• Dentist continued work after being suspended. Patients would not consent if knew.
• No fraud as to the identity had consented to treatment.

R V Tabassum-

• Pretended to carry out medical exam and examined breasts of 3 women. Also said he had medical qualifications but didn’t.
• Deceived as to identity and nature of act. No consent..

Question 8

Whats the difference between implied and express consent?

Answer 8

Express consent is when permission for something has been directly/ specifically stated.

Implied permission is when consent is implied/presumed based off of a persons actions.

Question 9

What are the exceptions?

Answer 9

Certain actions mean victims will sustain injury beyond assault/battery, consent will not be available for these injuries unless its one of these exceptions:

1. Surgery
2. Tattooing/peircing
3. Sports
4. Boxing
5. Horseplay
6. Sexual acts

Question 10

Exceptions explained?

Answer 10

Surgery:
- Many types require a wound to be inflicted, a patient can consent as the surgery is for their benefit.

Tattooing/piercing:
- Adults are able to consent to these as well as branding.

Sports:
- Deemed to be socially useful so participants are able to consent to any injuries sustained. Also their choice to play.
(R V Billinghurst- went beyond what they had consented to)

Boxing:
- Regarded as a sport and therefore it can be consent to. A fight however cannot be consented to even when both parties agree
(AGR 1981)

Horseplay:
- Accepted consent for serious injury sustained during horse play.
(R V Jones)

Sexual acts:
- Sexual acts with result in injury can be consented to unless they are sadomasochistic acts.
(R V Browns & others)

Question 11

What happens if there is mistaken consent?

Answer 11

If someone is mistaken as to the consent but they honestly believe it is real consent then the defence will be available.
( R V Morgan)