Consent And The Law

By RICHARD MEEHAN

The Cool Justice Report
www.cooljustice.blogspot.com
July 28, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com

As citizens of a constitutional society we often hear the assertion, "I know my rights."

Every person in this country, whether or not a citizen, has rights guaranteed by our Constitution. This includes illegal aliens.

Paramount among those rights are the proscriptions of the Fourth Amendment, prohibiting illegal searches and seizures. The greatest protection offered by this amendment is the requirement that government may not intrude in your private space without a judicially issued warrant, supported by probable cause.

But what if the police possess neither a warrant, nor probable cause to obtain one, and still wish to conduct a search of your home or your car? They can lawfully do so if they obtain your consent to the search. Consent, freely and knowingly given, is an exception to the warrant requirement. Evidence seized during a consensual search is legally admissible. When challenged there must be clear evidence that the individual did not merely acquiesce to a display of lawful authority. Many people believe that when uniformed officers demand entry and the ability to "look around" without a search warrant, that they must allow the intrusion. Consent cannot be coerced. It must be freely and voluntarily given.

Consent is a defense to a claim of forcible sexual conduct among adults. Youngsters under the age of 16, however, are legally incapable of giving consent. Those with severe mental disabilities are likewise deemed incapable of consenting to sex. In addition, certain relationships such as therapist and patient, teacher and student under 18, among others, focus on the inherent power or control that is vested in the therapist or teacher, which would render the "consent" the product of an inherently dominating relationship.

In medicine and dentistry consent is essential when invasive procedures are contemplated. The law requires that a patient must give an informed consent before any such procedure is attempted. "Informed consent" is a term of art that has both legal and medical implications. Merely agreeing to a procedure does not satisfy the consent requirement. More than seeking permission is required from the practitioner. To be informed consent there must be a thorough discussion of the risks, benefits and alternatives to the intended procedure.

The absence of informed consent can transform the well-intended bodily intrusion into an assault. A thorough discussion prior to the procedure not only protects the patient, it protects the doctor as well. In those instances where a lawyer is evaluating the level of care provided to someone who has had a bad result from a medical or dental procedure, one of the first items investigated is whether the patient truly consented. The lack of an informed consent can form an independent basis for a lawsuit, even if the care given was within the accepted standards.

You, as a patient, have a right to know the risks associated with what your doctor intends. You should understand that there are risks associated with nearly every medical or dental procedure, even with the best of medical care. Often doctors are called upon to make a clinical judgment balancing those risks against the potential benefits. A bad result that is among the acknowledged risks of a procedure, standing alone, is not malpractice, especially in the instance where the patient has been fully informed.

As a patient you should ask your doctor to fully explain the risks he or she mentions in an "informed consent" discussion. You have the right to be fully educated. You have the right to discuss with the doctor his or her opinion balancing any such risks against the hoped for benefits. Last, you should also be informed of whether there are alternatives.

In the case of most invasive procedures, particularly in a hospital environment, your consent should be in writing, signed by you when you have a clear head. No patient should be requested to execute a consent form once sedation has begun or after a procedure has been completed. Don't be reluctant to ask questions. Your doctor will appreciate your inquiries and strive to assure you about the impending procedure.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com

Meehan law firm