Introduction

• arguably not a defence as consent means there has been no unlawful act
• relevant considerations are in what circumstances a person is able to give consent and whether genuine consent is given
• area of the law has attracted some criticism and calls for reform

Justification

• lack of clarity over the reasons behind allowing or denying consent defence

Valid consent

• application of the law in relation to whether consent is valid seems unclear
• especially in terms of V’s necessary knowledge
• in cases of fraudulently obtaining consent conflicting conclusions have been reached

  Richardson (1998)

  • D, a suspended dentist, carried out treatment on patients
  • patients consented assuming the D was suitably qualified, would not have done so if they knew D was disqualified
  • consent was accepted in this case, D found not guilty of assault

  Dica (2004)

  • D, knew he was HIV positive, had unprotected sex with Vs, who became infected
  • Vs claimed they did not know about D’s HIV, if they had would not have engaged in unprotected sex
  • D convicted of S20 offences under OAPA 1861
  • Court of Appeal found V needed to consent to the risk of catching the disease
  • quashed conviction and ordered a retrial on the grounds of a misdirection
• in some cases of mistaken consent, the argument has been allowed

  Richardson and Irwin (1999)

  • Ds and V were students who often indulged in horseplay
  • Ds drunk five pints and dropped V from a balcony, believing he consented, V suffered serious injuries
  • Ds convicted of S20 offences under OAPA 1861
  • Court of Appeal allowed D’s appeals, held their belief in V’s consent should have been considered
• in contrast to decisions in cases where genuine consent existed but was not allowed, such as Leach [1969] and Brown (1993)

Individual freedom

• some inconsistency in whether individual freedom to engage in consensual activity should be allowed
• some cases put forward public policy concerns

  Attorney General’s References (No6 of 1980) 1981

  • Lord Lane: ..It is an essential element of an assault that the act is done contrary to the will and without the consent of the victim, it’s not in the public’s interest that people should try to cause, or should cause, each other bodily harm no reason...
• some cases consent is accepted, despite serious harm
• this raises issue whether consent should be reflected in sentencing but not in verdict

  Wilson (1996)

  • D branded his initials, with a hot knife on his wife's (V) buttocks, V requested the homemade tattoo
  • V had to seek medical attention for burns, D convicted of ABH under S47 of OAPA 1861
  • Court of Appeal found branding was not an unlawful act despite injury caused, it was a situation of personal adornment and not in the public interest to criminalise such consensual acts
• in other cases the courts will intervene despite presence of consent

  Brown (1993)

  • Lord Mustill dissenting: .. The state should interfere with the rights of the individual no more than is necessary...

Euthanasia

• consent is not allowed to be given for killing
• raises complex arguments in relation to euthanasia
• if patient is capable of giving consent then a doctor has no authority to treat them without their consent, but patient is not allowed to ethically refuse treatment in order to bring about their own death
• no legal right to suicide or for others to be involved in helping someone to die
• concerns exist that allowing some competent patients to decide to die, leaves opportunity for vulnerable to be ‘killed off’
• legislation to allow euthanasia would allow private citizens, doctors, to kill others
• issue has raised serious arguments and challenges in courts

  Pretty (2002)

  • Dianne Pretty was paralysed by motor neurone disease, .impossible for her to move or communicate easily, but mental faculties remained, she wanted to choose the time of her own death and would need her husband’s help
  • she took a case to try and ensure if husband assisted in her suicide he would not be prosecuted, argued that Article 2 of the European Convention on Human Rights protects the right to life and right to choose manner of death
  • House of Lords and European Court of Human Rights found Article 2 did not provide right to die, courts found protection of vulnerable citizens was of paramount importance

  R (on application of Purdy) v DPP (2009)

  • Mrs Purdy, suffered from multiple sclerosis and wished to travel to a country where assisted suicide was lawful to end her life
  • she wanted to know whether her husband could help her travel
  • under Prosecution of Offences Act 1985, DPP is obliged to give guidance to prosecutors in deciding whether to prosecute in cases involving aiding suicide
  • guidance not relevant to assisting people to travel abroad to commit suicide, Mrs Purdy asked for clarification, DPP refused
  • House Lords heard judicial review request, held DPP should issue guidelines
• assisted suicide remains unlawful under the Suicide Act 1961
• new DPP guidelines still leave the situation unclear
• those who assist someone to travel abroad to commit suicide may be liable for prosecution
• some cases moved closer to allowing the withdrawal of life sustaining treatment

  Airdale NHS Trust v Bland [1993]

  • Mr Bland was severely injured at Hillsborough disaster
  • he continued to breathe by himself and his digestive system still functioned, but he could not communicate, was incapable of voluntary movement, had no sensory abilities and was unconscious
  • doctors agreed there was no hope for recovery, after 3 yrs doctors and his family applied to court for a decision on whether it was lawful to stop his artificial hydration and nutrition, which would lead to his death
  • House of Lords decided that his treatment could be stopped, found that artificial nutrition and hydration is a form of medical treatment, there is no distinction between withholding treatment (an omission) and discontinuing treatment
  • should be considered whether it is in the best interests of the patient that his life should be prolonged, assessment should include the previous stated wishes of patient and views of family
  • Lord Goff: .. the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end...
  • .. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be.. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia...
• remains a very controversial area of law
• subject with such wide ranging issues, which infringes on morals and ethics, should only be dealt with through legislation
• most agree for judges to change position through case law would be wrong and inappropriate use of power

Proposals for reform

• proposals for reform on certain aspects, such as in relation to euthanasia have been made by a wide range of campaigning organisations
• more formal proposals are less common

Law Commission

• Commission has expressed several views on the rules surrounding consent, as part of different reviews
• in Consent in sexual offences, written in response to Government consultation, key recommendation was that subsisting, free and genuine agreement should count as consent to a sexual act by another
• Sexual Offences Act 2003 brought in but problems still exist in some cases
• 1994 consultation paper Consent and Offences Against the Person discusses the view that a person's body is their own and that the law has no place in dictating what can be done with it
• approach is rejected with the Commission highlighting illegal drugs as an example where the law limits complete bodily freedom
• 1994 consultation paper Consent and Offences Against the Person agrees law should set a limit to the injury to which a person may consent
• but certain special categories should be exempt, such as ritual circumcision, ear-piercing, tattooing and dangerous exhibitions