Stephen Hasner | Personal Injury | January 15, 2021
Consent is a person’s freely given agreement to do a thing. Many legal relationships, like contracts, require both parties to give their consent and understand the agreement terms.
Other relationships can go afoul if a party acts without the other party’s consent, such as romantic relationships or doctor-patient relationships. In intimate situations, a failure of consent can lead to allegations of sexual assault. How can someone know if they have the other party’s consent?
Express consent is a clear and direct statement of agreement. If you have ever participated in a research study, you have probably given your express consent for your information to be used by researchers. When you sign paperwork for a dental cleaning, it probably includes an express consent to that type of treatment.
Implied consent is shown by actions rather than words. When you hand your keys to a valet at a restaurant, for example, and accept a check ticket from them. You have communicated, without words, that you agree for the valet to drive your car to a parking space. When you return, you agree for a valet to drive your car back to pick you up.
Consent is often a major issue in medical malpractice cases. It can be hard to wrap your head around why a doctor would do a procedure without a patient’s consent. Understanding the difference between express and implied consent can make it more clear.
In the context of medical treatment, a patient can provide express consent by signing documents relating to treatment. When patients suffer unexpected complications from treatment, they may assert that the doctor acted without their consent.
What is a Patient’s Right to Informed Consent?
The American Medical Association refers to informed consent as “fundamental in both ethics and law.” What does informed consent mean?
Patients have the right to make decisions about their medical treatment. To make well-considered decisions, patients are entitled to information about the recommended treatment and the opportunity to ask questions.
This information and opportunity, together, allow a patient to give informed consent. That is, they willingly agree to the treatment with an understanding of the risks and their available alternative options.
Except in an emergency in which they are incapacitated, a patient has the right to refuse medical treatment. Of course, a patient can also give informed consent to treatment.
How Much Information is Needed for Informed Consent?
Before a patient can give their informed agreement to a procedure, they should be apprised of the potential risks of the procedure. Should a doctor tell a patient all the possible risks of the procedure? That may not be necessary. But how much is enough?
A patient should be informed about the nature of their diagnosis. Understanding their condition, a patient is entitled to know about the nature and purpose of the recommended treatment.
The doctor should also explain the burdens, risks, and expected benefits of all options. This includes expensive options and even the option of refusing treatment.
Only with all the information, and the chance to ask questions, can a patient truly understand the possible risks and rewards of proposed medical treatment. With this information, the patient can give their informed consent.
Is a Written Document Always Proof of Express Consent?
One method of documenting patient consent is having them sign a consent form. A consent form may state that the patient was provided information about the procedure, alternative options, and risks. It might include affirmative language showing that the patient consents to a specific procedure. But is that enough?
Maybe not. If a doctor gets a patient’s signature without fully educating them about the risks or other pertinent medical information, the doctor does not have informed consent. If the patient lacks the ability to understand the information and to make an independent decision, there may not be informed consent.
What’s the Main Difference?
The main difference between express and implied consent is the succinctness with which consent is expressed. It can be much more difficult to prove implied consent than express consent. But even written agreements can sometimes lack true consent. If you have questions about how the laws of consent apply to your situation, contact a reputable attorney to discuss your legal rights.