Evaluation of Defence of Consent

Main Criticisms Informed consent Consent and Euthanasia Individual Freedom and its restrictions

Informed Consent Lack of consistency in cases involving issues of informed consent Richardson – Vs were patients of a dentist who had been struck off the register, but they were unaware of this. Vs argued they would not have given consent had they have known, but court decided they had consented Tabassum – Vs tricked into allowing D to touch their breasts as he claimed it was for a survey on cancer – Court held Vs had not consented Dica – V consented to sex but was unaware D had HIV – court held V had not consented Seems to be no clear difference between Richardson and Tabassum and Dica

Reform - Informed Consent The confusion between these cases and what amounts to informed consent and consent obtained by fraud needs to be clarified

Consent and Euthanasia Oxford English Dictionary defines euthanasia as “the bringing about of a gentle and easy death in the case of incurable and painful disease with the consent of the victim” Under current law, person who helps another to die can be charged with murder, manslaughter or assisting a suicide Ministry of Justice (2012) – attempted to get courts to change the law. Appeal on behalf of Tony Nicklinson who had suffered from locked-in syndrome for several years and was paralysed from the neck down. He wanted the court to allow him to have an assisted death once he felt he could no longer endure his suffering and had no quality of life. High Court rejected appeal, stating an issue of this importance should be left to Parliament to decide, and reaffirmed the current position that consent cannot be given to an assisted death Pretty – Mrs P applied to court for declaration that if husband helped her to commit suicide he would not be prosecuted – court refused

Reform - Euthanasia High level of public support for legalisation of euthanasia, on the basis that in a civilised society people should be entitled to a dignified death when they have an incurable illness and are suffering intolerable pain Law allows patients to refuse medical treatment and food, but this can result in a slow and painful death that is unacceptable to many There is also an argument of personal autonomy – everyone should have the freedom to make decisions about when to end their life – suicide not illegal, only assisted suicide, but often in these cases those who wish to die are unable to take their own life because of their condition Opponents of euthanasia argue that if it were possible to consent to death it would threaten the right to life of others, especially the elderly, seriously ill and disabled, whose lives may be considered to be of less value. They argue that legalising euthanasia would undermine the sanctity of life and it is opposed on religious and moral grounds

Individual Freedom and Its Restrictions Difficult to understand why individual activities done with consent should not be lawful State interferes where individual freedoms are perceived to be used in an immoral manner - e.g. Brown Also conflicting cases on individual freedoms: Brown – consent not a defence to sado-masochistic behaviour between consenting adult homosexuals Wilson – consent was a defence when a husband branded his wife’s buttocks with his initials In Brown, Vs did not need medical treatment whereas the wife in Wilson did. Conflict Could be viewed in 2 ways: Causing pain for sexual gratification not allowed but consent for body adornment is; or Courts are prepared to condone acts where parties are consenting adult heterosexuals but not when they are consenting adult homosexuals

Reform – Individual Freedoms Law Commission Consultation Document 1995 - following decision in Brown LC stated that the law needed clarification because of the number of conflicting decisions. Concluded that V’s consent to personal injury should be valid except where the injury is seriously disabling or involves death This would appear to provide a satisfactory compromise between the need to respect the autonomy of D and V and the need to protect V When an injury is seriously disabling or worse, it is appropriate for state to intervene but not in cases like Brown where there were no long-term injuries