6.1 What is “consent”?

Various attempts have been made to define what “consent” is, and the law has given the term different meanings in different contexts. For the purpose of this discussion, it can be said that there are three elements necessary to create a proper consent. To be valid, consent must be:

• 1) identifiable;
• 2) informed; and
• 3) given freely.

Consent is identifiable when it is expressed or implied. While consent ordinarily becomes identifiable through some positive act, consent can be implied from passivity under certain circumstances.

There are different degrees of informed consent. In some contexts, consent is only said to be informed if the person giving the consent has been given all relevant information regarding the possible consequences of giving that consent, and all relevant information concerning what they are consenting to. While such a strict requirement certainly is fitting, for example, in the context of a patient having to give her/his informed consent to having a leg amputated, it seems to be an excessively harsh requirement in the context of most ordinary commercial transactions.  While genuine consent requires the person giving the consent to be informed about what the consent relates to and as to the implications of giving the consent, it cannot be the case that the person giving the consent must know all the details of the consent in a normal commercial transaction.

Consent must be given freely for it to be valid. Although there can be little controversy regarding the sensibility of this requirement, the degree of freedom to choose has been the source of numerous disputes. In literature, a distinction has been drawn between situations where the person giving the consent has a real choice in doing so, and situations where the person giving the consent has no other options. A somewhat bizarre example used in several textbooks, is the situation where an employee consents to the employer hitting her/him with a cane, because of the promise of a promotion. As well as the situation where an employee consents to the same amount of strokes by the same cane, but in order not to get fired. In the former situation, consent would appear to have been given freely, while in the latter context, that does not appear to be the case.

As will be clear from the discussion below, all the causes of action discussed relate to the quality of the consent (i.e., was consent given freely, and was it sufficiently informed), rather than to the existence of the consent (i.e., is there an identifiable consent).