Consent: Evaluation & Reform

[Flash Card 1 of 3]

• arguably not a defence / no unlawful act if consent
• relevant considerations / in what circumstances person able to give consent / whether consent is genuine / lack of clarity / reasons behind allowing or denying defence

Level of Harm:

• seems grave harm is factor (Barnes) / despite genuine consent / D causes serious harm may still be liable / V organised own crucifixion / Ds guilty GBH S18 (Leach)
• inconsistent consent allowed situations where injuries common / boxing so dangerous doctor must be ringside (Watson) / horseplay exemption / Ds caused serious harm setting flame resistant clothing on fire had had convictions quashed on appeal (Aitken)

Intention:

• consent present / may not be sufficient / if aim is to cause harm
• Ds participated sadomasochistic activity / no one suffered permanent injury / Ds argued acts consensual / appeal confirmed consent could be only be used in cases of battery / greater injury not in public interest / Templeman: ..violent cruelty is injurious and predictably dangerous. I am not prepared to invent a defence of consent for sadomasochistic encounters...(Brown)

bits of law

Consent: Evaluation & Reform

[Flash Card 2 of 3]

Valid consent:

• need to protect vulnerable / D tattooed teenage boys / D guilty ABH / held boys were unable to appreciate the nature of the act / not give true consent (Burrell v Harmer)
• fraudulent medical examination & treatment / case law unclear / found V must understand basis on which consent is given (Tabassum) / conversely found exact basis of consent to treatment not relevant (Richardson)
• mistaken belief V consented may be sufficient / students indulged in horseplay / Ds dropped V from balcony / believed V consented / CoA overturned Ds GBH S20 convictions (Richardson & Irwin) stark contrast / decisions where genuine consent existed but not allowed (Leach & Brown)

Individual freedom:

• extent individual freedom to engage in consensual activity / unclear / confusion raises issue whether consent should be reflected in sentence not verdict
• Lord Lane: .. it's not in the public's interest that people should try to cause, or should cause, each other bodily harm no reason... (AG's Ref No 6 of 1980)
• V requested homemade tattoo / V had to seek medical attention for burns / CoA overturned D's ABH conviction / found branding not unlawful act despite injury / personal adornment & not in public interest to criminalise (Wilson)
• some cases / serious harm & consent accepted (Aitken) / others courts intervene / Lord Mustill: .. the state should interfere with the rights of the individual no more than is necessary... (dissenting in Brown )

bits of law

Consent: Evaluation & Reform

[Flash Card 3 of 3]

Euthanasia:

• person cannot consent to being killed / issues with life support machines & euthanasia / lack of clarity
• life prolonging treatment / distinction between doctors withdrawing treatment and taking steps to .. actively to bring his patient's life to an end... (Airdale NHS Trust v Bland)
• recently High Court judge ruled life sustaining treatment not be stopped / .. although not an absolute rule, the law regards the preservation of life as a fundamental principle... (W v M and S and NHS PCT)
• illegality of euthanasia challenged / HoL & ECtHR found Article 2 of ECHR not provide right to die / protection of vulnerable citizens of paramount importance (Pretty)
• assisted suicide unlawful under Suicide Act 1961 / unclear if assist someone to travel abroad to commit suicide / may be liable for prosecution (Purdy)
• controversial area of law / wide ranging issues / infringes on morals & ethics / reform should be through legislation not judges

bits of law