Consent Evaluation

Question 1

Is consent fit for purpose in modern times?
Intro

Answer 1

-No, needs to be reformed.
-Dominated by policy
-Justice can’t be achieved in inidividual cases
-Law isn’t adapting

Question 2

Public policy p1

Answer 2

-Desire to fulfill public policy rather than achieve justice
-Distinguishing in Brown and Wilson
-separate law for homosexual and heterosexual
-Brown sadomasochistic acts not consent as not in public interest but Wilson seen as body adornment and shouldn’t criminalise what is consented to by man and woman in own home
-discriminatory
-can’t adapt to changes
-Brown: interfere with rights no more than necessary - subjective
-level indiv freedom is unclear

Question 3

Counter argument for public policy

Answer 3

-Allows for free will, decide themselves what they wish to do eg R v Wilson and R v Slingsby

Question 4

Euthanasia p2

Answer 4

-Grey areas around consent
-Pretty, Purdy cases stated that terminally ill person can take own lives - respects personal autonomy
-But if incapable of doing so and someone assists then this is murder
-Unfair as have to suffer
-Nicholson: if someone assists someone to die, shouldn’t be imprisoned as not a danger to society
-Lack free will

Question 5

Counter argument to euthanasia

Answer 5

-However if euthanasia was allowed and people could consent to having a loved one assist them in dying this could lead to vulnerable people being exploited.
-Eg dementia patients who cannot make their own decisions may have their decision on whether to end their life made for them by someone else, not ethical
-Exploitation, people use as an excuse to commit murder
-need to protect those who are vulnerable in our society

Question 6

Judges adaptations

Answer 6

-Doesn’t need reforming as adapted by judges to reflect changing attitudes
-Esp women in society
-Clarence said if woman consented to intercourse then she consented to an STD, unfair and doesn’t respect women. Wouldn’t have consented if she knew
-Dica has reformed this, 2 women not informed man had HIV, no consent
-ensures women protected in society

Question 7

Counter argument to judges adaptations

Answer 7

-Judge made law
-Doesn’t respect parliamentary sovereignty
-Uncertain as not in statues but judge made law which can change

Question 8

Medical procedures

Answer 8

-Doesn’t need reforming as allowed to consent to reasonable medical procedures and even if cannot consent, doctors can do so anyway if urgent and cannot obtain consent from patient or family, protection for doctors and surgeons as would open the floodgates if no law on consent for medical procedures

Question 9

Contrast to medical procedures

Answer 9

-Uncertain: ‘reaosnable’ cosmetic procedure and body adornment. BM and Melin
-‘reasonable’ medical treatment.
-what is meant by reasonable - subjective.
-also whether cosmetic procedures and medical procedures are similar etc.

Question 10

Conclusion

Answer 10

-Consent has adapted over time due to changes of decisions of cases by judges and new precedents made eg more respect for women as in Dica. But leads to judge made which isn’t democratic and also some decisions driven by public policy rather than justice. Changes should be made to prevent courts making decisions on policy, job for parliament to do
-Inconsistent decisions as left for jury to decide. Richardson and Tabassum.