Torts I

Consent

Consent is a defense applied in intentional tort cases that can be expressed or implied through prior dealings, actions, or circumstances.

Medical care providers may act in the absence of express consent if:

  1. The patient is unable to give consent. (unconscious, intoxicated, mentally ill, incompetent)
  2. There is a risk of serious bodily harm if treatment is delayed.
  3. A reasonable person would consent to treatment under the circumstances.
  4. The physician has no reason to believe this patient would refuse treatment under the circumstances.

Consent obtained by fraud is not consent.

  • The fraud must pertain to the essential nature of the thing consented to.

Under the majority rule, a person cannot consent to an illegal act.

The minority rule and the Restatement state that consent is a defense to an illegal act.