Informed Consent: Express or Implied Consent?

Executive Summary

We came across some useful information from the Canadian Radio-television and Telecommunications Commission and Legal Match and have combined it into the summary below on the topic of gathering patient consent. Please refer to the original sources below for more detailed information.

A patient's informed consent can be gathered one of two ways: through implied consent or express consent. Failure to obtain a patient's informed consent constitutes medical malpractice. Consent is one of the most crucial factors in healthcare privacy legislation. The key to managing consent is to keep records in order to have the onus to prove patient consent. 

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Express consent is valid consent given in writing or orally.[1]  Express consent is when the patient directly communicates their positive and explicit consent to the doctor or healthcare provider. This is usually done in writing by signing papers. It can also be supported through oral or verbal communication with the doctor (such as saying, “Yes, I consent”).[2] Express consent is not time-limited unless the user withdraws their consent.

Implied consent is more difficult to prove than express consent. Implied consent occurs through the actions or conduct of the patient rather than direct communication through words. For example, informed consent can be implied from patient’s nodding of the head, or by them showing up at the agreed upon time for surgery.  If the patient has prepared themselves for surgery by fasting for the previous 24 hours, this might also serve as proof of implied consent.  

Implied consent can arise from an existing business or personal relationship. Implied consent is generally time-limited. It is typically a period of 2 years after the event that starts the relationship (e.g. purchase of a good). For subscriptions or memberships, the period starts on the day the relationship ends.[1]