Medical consent and the broader consent paradigm

In this chapter, I examine how the foundational legal concept of consent works in three contexts: clinical, commercial and sexual. There are good reasons to view the first two as sitting at the ends of a consent spectrum, while sex is a middle ground.

I will focus on the following four questions. First, how the demarcation between nature and circumstances operates. Second, what (if any) is the scope for the consenter to avoid the consequences of mistakes pertaining to the circumstances (but not the nature) of the interaction which undermined their free consent. Third, whether dignitary losses pertaining to the circumstances are compensable. Fourth, how do the materiality and causation tests work regarding circumstantial losses from mistake.

My conclusions are that first, consent in the medical context regarding inherent physical risks from the procedure has to be informed to an extent consent to sex is not; whether this is justified could be disputed. Second, liability gap exists with respect to dignitary harms in both medical and sex contexts; however, the problem is quite a non-issue in the commercial context.