Informed consent

Informed consent is a legal condition whereby a person can be said to have given consent based upon an appreciation and understanding of the facts and implications of any actions. The individual needs to be in possession of all of his faculties, such as not mentally retarded or mentally ill), without an impairment of judgment at the time of consenting. Impairments include sleep, illness, intoxication, drunkenness, using drugs or other health problems.

Some acts cannot legally take place because of a lack of informed consent. In other cases, consent of someone on behalf of a person not considered able have informed consent is valid. Examples of this include the parents or legal guardians of a child and caregivers for the mentally ill.

Surgery
The doctrine of informed consent relates to the tort of negligence. It defines the standard of care required in discharging the duty of care owed to the patient.

In the United Kingdom and countries such as Malaysia and Singapore informed consent requires proof as to the standard of care to be expected as a recogonised standard of acceptable professional practice (the 'Bolam' standard). That is, what risks would a medical professional usually disclose in the circumstances. Arguably, this is "sufficient consent" rather than "informed consent".

In the United States, Australia, and Canada a more patient-centered approach is taken and this approach is usually meant be the phrase "informed consent". Informed consent in these jursidictions requires that significant risks be disclosed, as well as risks which would be of particular importance to that patient. This approach combined an objective (the reasonable patient) and subjective (this particular patient) approach.

The doctrine of informed consent should be contrasted with the general doctrine of medical consent, which applies to assault or battery. The consent standard here is only that the person understands, in general terms, the nature of and purpose of the intended intervention.

As the higher standard of informed consent applies to negligence, not battery, the other elements of negligence must be made out. Signifigantly, causation must be shown: that had the individual been made aware of the risk they would not have proceeded with the operation (or perhaps with that surgeon).

The informed consent doctrine is generally implemented through good healthcare practice: pre-operation discussions with patients and the use of medical consent forms in hospitals. However, reliance on a signed form should not undermine the basis of the doctrine in giving the patient an opportunity to weigh and respond to the risk. In one British case, a doctor performing routine surgery on a woman noticed that she had cancerous tissue in her womb. He took the decision to remove the woman's womb; however, as she had not given informed consent for this operation, the doctor was judged by the General Medical Council to have acted negligently. The council said that the woman should have been informed of her condition, and allowed to make her own decision.

The doctrine of informed consent also has significant implications for medical trials of new medications.

Competency
The ability to give informed consent will be governed by a general requirement of competency. In common law jurisdictions adults are presumed competent to consent. This presumption can be rebutted, for instance in circumstances of mental illness. This may be prescribed in legislation, or based on a common law standard of inability to understand the nature of the procedure. In cases of incompetent adults informed consent - from the patient or from their familiy - is not required. Rather, the medical practitioner must act in the patients 'best interests' in order to avoid a negligence charge.

By contrast, 'minors' (which may be defined differently in different jurisdictions) are generally presumed incompetent to consent. In some jurisdictions (e.g. much of the US) this is a strict standard. In other jurisdictions (e.g. England, Australia, Canada) this presumption may be rebutted through proof that the minor is ‘mature’ (the ‘Gillick standard’). In cases of incompetent minors informed consent is usually required from the parent (rather than the 'best interests standard') although a parens patriae order may apply (allowing the court to dispense with parental consent in cases of refusal).

Abortion
In some U.S. States, Informed Consent laws (sometimes called "Right To Know" laws) require that a woman seeking an elective abortion be given factual information by the abortion provider about her legal rights, alternatives to abortion (such as adoption), available public and private assistance, and medical facts, before the abortion is performed (usually 24 hours in advance of the abortion). These laws have been shown to reduce the frequency of abortion by 10-20%. Other countries with such laws (e.g. Germany) require that the information giver is not affiliated with the abortion provider, to avoid giving an economic incentive for handing out faulty information.

Sex
The question of whether informed consent needs to be formally given before sexual intercourse or other sexual activity, and whether this consent can (and must be able to) be withdrawn at any time during the act, is an issue which is currently being discussed in the United States in regard to rape and sexual assault legislation. For example, with sleep sex fetishists (those who are eroused by the thought of having sex with someone asleep, or someone having sex with them while asleep), by the law they are not giving consent to the sex, but have given prior informed consent to the act within a reasonable recency, and are assumed to be consenting during the act and to not prosecute for it when waking up. This is also an issue in rape fantasy enaction (permission given by the rapee), and may come up if the legality behind consensual necrophilia is ever further explored.

While children may be able to give consent, a more complex quesion applies in terms of informed consent: whether children are developmentally and otherwise able to give informed consent, in particular to an adult, bearing in mind power relationships, maturity, experience and mental development. For this and other reasons most states have an age of consent under which a child is deemed unable to give consent. As evaluation of maturity, mental maturity, child development, child communication, and child intelligence are further explored, this may be based on psychological and medical evaluation of status for sexual activity instead of chronological age. Animals are never considered able to give informed consent, so beastiality is currently always illegal. As animal communication methods and evaluation of animal intelligence changes, this may also change.

No-victim laws
It may not be legally possible to give consent to certain activities in certain jurisdictions; see the Operation Spanner case for an example of this in the UK which involved sadomasochistic activities such as branding.

Research
Informed consent is also important in social research. For example in survey research, people need to give informed consent before they participate in the survey. In medical research the Nuremberg Code has set a base standard since 1947, and most research proposal are reviewed by ethics committees in the 21st Century.