ABSTRACT
The present chapter has the following structure. After next considering the ethical underpinnings of consent, we shall, in section 3.2, begin our analysis of the general legal framework by examining the doctor’s potential liability if consent is absent (and occasionally even if it is present); we also look there at the rules as to the form and scope of consent. By contrast, section 3.3 addresses some exceptional situations, where (at least, arguably) treatment may proceed without consent. In section 3.4, we then move on to examine what is actually required for a patient to give a valid consent, in terms of capacity, voluntariness, and information. Each of these elements has its complexities, not least the informational requirement, where English law distinguishes between non-disclosures that found an action in battery, and those where the proper cause of action is negligence. In section 3.5 we conclude by looking at the latter type of action, which typically concern a doctor’s failure to disclose risks attached to the treatment, and what it is the patient must show in order to obtain compensation.
