In a legal context, informed consent refers to consent given by an individual. By using informed consent, it means that the consent meets a minimum standard of the agreement. A party can give informed consent after carefully considering and understanding all the implications, facts, and consequences of a given action.
In order for an individual to give informed consent, he or she must be fully aware of the situation and have all the correct facts and information during the time the consent is given. If there is any reason that the individual is deficient, for example due to either impairment in judgment or reasoning or just not having all the information, the person is not considered able to give consent.
Certain factors that would make giving informed consent impossible include:
• Mental retardation
• Emotional or intellectual immaturity
• Mental illness
• Severe sleep deprivation
• Severe stress or post-traumatic stress disorder
• Alzheimer’s disease
When an individual is unable to give informed consent, sometimes another person is able to do it on their behalf. For example, a child cannot give consent but his or her parents or legal guardians would be able to do so. The same applies to a mentally ill individual and his or her caregiver. This can sometimes apply to a patient who loses their ability to give consent and no one is authorized to give consent. In this situation, a doctor may make decisions to save the patient’s life.
Assessing Informed Consent
It is difficult to assess consent easily because even if an individual appears to express informed consent or seems to understand the details, it does not necessarily mean that full adult consent was given, nor does it mean that the issues were fully comprehended
Consent can sometimes be implied within the usual subtleties of communication, as opposed to explicitly expressed in writing or verbally. In some situations, consent is legally impossible, even if the individual understands and tries to consent. Certain instruments are set in place for determining an individual’s ability to give informed consent, but none of them are ideal.
In certain cases, particularly those of a sexual or relational nature must look, informed consent is assumed based on observation. In other cases such as formal or medical circumstances, written consent may be more important.
Different legal circumstances that may require informed consent include:
• Age of consent
• Sexual intercourse or other sexual activity
• Legal release forms for a medical procedure
• Social research
• Clinical trials