Informed consent occurs when there is agreement to an interaction or action rendered with knowledge of relevant facts, such as the risks involved or any available alternatives. Informed consent often comes up in the contexts of legal ethics, medical treatment, and waiver of constitutional rights.
Legal Ethics: Lawyers counseling clients must obtain the client’s informed consent prior to undertaking an action for them. The ABA’s Model Rules of Professional Conduct defines informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
Medical Treatment: In the context of medical treatment, patients must generally give their informed consent prior to medical care. On one hand, it is impractical for patients to give absolute informed consent given the complexity of medical treatment and the need for physicians to react to uncertainties during operations. On the other hand, courts will hold physicians liable for battery, among other potential torts, if they clearly exceed the patient’s consent for treatment. For example, in the famous Minnesota Supreme Court case Mohr v. Williams, the court found a physician liable for assault and battery when, in an operation to perform on the patient’s rights ear, he discovers that the left ear has a more serious ailment and improperly exercised his discretion to perform on the left ear instead. Additionally, in some situations, such as emergencies or legal guardianship, the individual may be unable or legally incompetent to give informed consent.
Waiver of Constitutional Rights: A person may need to give their informed consent prior to waiving their constitutional rights. For example, in the context of constitutional protections of criminal procedure from the Fifth Amendment, a person accused of committing a crime cannot give up his constitutional rights -- for example, to remain silent or to talk with an attorney -- unless and until he has been informed of those rights, usually via the well-known Miranda warnings.
[Last updated in December of 2020 by the Wex Definitions Team]