consent

consent, in law, active acquiescence or silent compliance by a person legally capable of consenting (see age of consent). It may be evidenced by words or acts or by silence when silence implies concurrence. Actual or implied consent is necessarily an element in every contract and every agreement. In criminal charges, the consent of the party injured (if not obtained by fraud or duress) is a defense for the accused, unless a third party or the state is injured.

Consent as a term of jurisprudence is a possible defence (an excuse or justification) against civil or criminal liability. Defendants who use this defense are arguing that they should not be held liable for a tort or a crime, since the actions in question were taken with the plaintiff or "victim's" consent and permission.

For cases such as rape that involve the criminal law, see consent (criminal).

Tort

For example, if the plaintiff signs a document stating that he or she is aware of the hazards of paintball, and that individual is then injured playing the game, the express consent given in advance may excuse the person who shot the plaintiff. In English law, the principle of volenti non fit injuria applies not only to participants in sport, but also to spectators and to any others who willingly engage in activities where there is a risk of injury. Consent has also been used as a defense in cases involving accidental deaths, which occur during sexual bondage. Time (May 23, 1988) referred to this latter example, as the "rough-sex defense" but it is not effective in English law when serious injury or death results.

Medicine

The question of consent is important in medical law. For example, a surgeon may be liable in trespass (battery) if they do not obtain consent for a procedure. There are exemptions, such as when the patient is unable to give consent.

Also, a surgeon must explain the significant risks of a procedure (those that might change the patient's mind about whether or not to have it) before the patient can give binding consent. This was explored in Australia in Rogers v. Whitaker (1992) 175 CLR 479. If a surgeon does not explain a material risk that subsequently eventuates, then that is considered negligent. These material risks include the loss of chance of a better result if a more experienced surgeon had performed the procedure.

See also

• Consent of the governed
• Assumption of risk
• Volenti non fit injuria
• Implied consent

References