While "consciousness" is the primary argument, the other critical component in this discussion relates to the state of mind... Consciousness is useless if the complainant does not have the presence of mind in which to apply sober judgement in terms of their cognitive process and what they are consenting to.
A first year law student could effectively argue that a fully conscious participant that was being choked-out and affected by raging hormones did not have the 'sober' presence of mind to make the informed and educated choice to consent to anything at that time.
I wonder how long it will be before we hear this argument in the SCOC.
Well technically, anything these days can be chalked up like that using similar arguments.... someone was under the influence of a medication, such as anti-depressants, Tylenol, too much coffee, too much sugar, not enough to eat that day, etc. etc..... everything has a direct effect on our minds & body and thus, influences how we react to every situation on a daily basis. We just have a society that subjectively determines which influence are trivial to one's decision making, aka: state of mind, while other influences can be used as an excuse.
Its reasonable for a doctor in the emergency room to assume that the unconscious patient wants to be saved.
To stop you right there, not all operations are about saving someone's life, ie: cosmetic, dental, etc.... in other words, they're not always a dire situation.
In fact they are obligated by the ethical code of their profession to offer assistance.
To do no harm if I remember correctly..... but that's not an absolute and not all doctors obey that little rule, or else there wouldn't have been cases of abuse, malpractice, sexual assault, using patients for questionable experiments, etc. and they'd all be perfect.
Most doctors are great at what they do and trust worthy, but not all are..... which also applies to people in relationships. They, us and everybody else are all humans, capable of making mistakes and doing wrong.
If the surgeons had to wait for the patient to become aware enough to consent to treatment, then morbidity rates would sky rocket.
Probably, but that's still not a valid justification to excuse their situation from this ruling of not being able to consent while unconscious.
The problem isn't how doctors perform operations or patients accepting those operations before the act..... the problem lies in this court decision regarding conscious consent and how consent before losing consciousness no longer applies as consent.
As mentioned before, it's a broad generalization they have made that will be exploited and used innapropreately..... thus causing more un-needed conflicts and more useless cases in court that go nowhere because a few want to abuse the system & the ruling for their own benefit..... regardless if it's operations, medical procedures, or conflicts within a relationship or other situations that could apply and extend to this ruling they have made.
Seriously, consenting to sexual activity is not even in the same realm of discussion for medical professionals and their requirements for consent.
Yes it is, because both directly relate to consent prior to losing consciousness.... that's what this court ruling directly targets. By their ruling, nobody can consent to any action done to them while unconscous and not directly aware of what exactly is happening to them at that time of the action..... and any consent given prior to the action and losing consciousness is null & void.
That's the wording used and that's where the problem lies.
And if you don't think people in our society won't attempt to extend the findings in this ruling to their own situations that might not relate in a sexual manner, then I'd say you're ignorant on just how low people in our society can go..... take this women who originally brought up the case as an example. She did this because she was angry about her partner seeking custody of their child and filed the complaint months after it originally happened...... when they both admitted to doing this act multiple times in the past with no incident or complaint.
The point we're trying to make here is that people are petty and they will attempt to exploit this ruling by playing the victim, even when they were never a victim in the first place and agreed to the action and knew fully well what was going to happen.
