What Is the Difference Between Express and Implied Consent?

Why is Consent So Vital in Healthcare Situations?

Undergoing medical procedures and treatments is often vital to maintaining your health and well-being, but many aspects of medical care also involve risks. It is your healthcare provider’s ethical and legal duty to fully inform you of these risks so you can make a knowledgeable decision about how you wish to proceed. By consenting to a medical procedure, you are giving your permission for the doctor to provide the treatment.

Certain situations require formal, written consent, while a patient’s actions can provide the necessary permission in others. Understanding the difference between these two types of consent and when they apply is critical for patients. If a doctor does not give you the information necessary to make choices about your healthcare, or they perform procedures without your consent, they may be held liable for medical malpractice.

What is Express Consent?

Express consent is also known as informed consent. It is permission obtained from the patient following a clear explanation of the proposed treatment and the potential risks. Typically, express consent is given by signing a medical authorization form, but verbal consent may suffice if emergency treatment is required.

Express consent from the patient is necessary before performing many types of invasive procedures or treatments, including:

• Blood transfusions
• Surgeries
• Cancer treatments, such as radiation or chemotherapy
• Biopsies
• Anesthesia
• Clinical trials or experimental treatments

What Information Must Be Provided Before You Can Give Express Consent?

The authorization form you will be given to sign should contain all the details necessary for you to make a well-informed choice regarding your course of treatment. You also have the right to ask questions or have the information presented to you verbally or translated so you fully understand the consequences of giving your consent. Common information the doctor is obliged to provide includes:

• Your diagnosis.
• A full description of the proposed treatment and why the doctor believes it is appropriate for your situation.
• The benefits, side-effects, and risks of the treatment.
• The anticipated outcome of the procedure and what could happen if it is not performed.
• Alternative treatment methods that could be considered.

What is Implied Consent?

The main difference between express and implied consent is the clarity of your agreement to treatment. Express consent is very formal and usually requires a written authorization, while implied consent can be much less explicit. Medical professionals rely upon their interpretation of your actions to determine implied consent.

For example, suppose you make an appointment for a routine physical with your doctor. You perform the pre-appointment requirements, such as fasting, and arrive at the doctor’s office at the scheduled time. In this case, your doctor will assume, based on your actions, that you have given your implied consent for them to perform the physical examination unless you state otherwise. However, if your doctor notices an issue during the examination that requires an invasive procedure, such as a biopsy on a suspicious lump, they must then obtain your express consent to proceed with the testing.

What if a Patient is Unable to Give Consent?

Unfortunately, there are sometimes situations where a patient is physically or legally unable to provide their consent for treatment. Examples include:

• Patients suffering medical emergencies where they are unconscious or unable to speak.
• Elderly, disabled, or mentally ill patients.
• Minor children who cannot legally consent to care.
• Patients who speak a different language than their care team.

In these circumstances, the doctor still has an obligation to provide necessary life-saving treatments because it is presumed that the patient has given their implied consent for these procedures. The doctor is acting on the assumption that the patient would agree to these vital treatments if they were conscious or able.

Can You Revoke Your Consent?

Signing an authorization form does not mean you are required to follow through with a procedure. If you change your mind at any point before the treatment begins, you have the right to withdraw your express consent. You also have the option to request partial changes to the treatment plan you previously agreed to. For example, if you have received a cancer diagnosis and your doctor proposed surgery followed by chemotherapy, you can revoke your consent for the surgery but still agree to undergo chemo.

What Can You Do if a Procedure is Performed Without Your Consent?

Ultimately, where invasive procedures are concerned, patients have the right to fully understand their healthcare options so they can refuse or give their express consent to treatment. The main exception to this rule exists when the patient is incapacitated or otherwise unable to give consent, and reasonable emergency medical care is necessary to save their life. In these cases, the patient’s implied consent is generally sufficient. In most other situations, if a doctor does not provide adequate information to the patient or fails to obtain consent and these actions result in harm to the patient, then the doctor may be held liable for medical malpractice.

If you or a loved one were injured by a medical procedure you did not consent to, contacting a skilled medical malpractice attorney as soon as possible is crucial. It can be challenging to navigate the complex laws surrounding medical consent, and a thorough investigation of the circumstances leading up to the procedure is often necessary. Mausner Graham Injury Law, PLLC can evaluate your case and explain your legal options for recovery. You may be eligible for damages, including medical expenses, lost wages, loss of quality of life, and pain and suffering. Contact our Miami personal injury law firm today at 305-344-4878 to schedule a free consultation to learn more.