Express Consent vs. Implied Consent: What’s the Difference?

David Muñoz | January 5, 2022 | Medical Malpractice

Express Consent vs. Implied Consent

Many medical malpractice cases hinge on the issue of informed consent. Before a healthcare provider can provide treatment, you must give informed consent. If the healthcare provider failed to obtain your informed consent before a procedure, you might have a claim for medical malpractice.

There are two types of consent — express and implied. Express and implied consent have the same effect. But they manifest differently and this difference can lead to dangerous misunderstandings between you and your healthcare providers.

Here is some information about the differences between express consent and implied consent.

Informed consent does not arise from a doctor’s legal duties. The American Medical Association (AMA) considers seeking informed consent as a part of a doctor’s ethical duty. When a doctor performs a medical procedure without securing informed consent, the doctor deprives the patient of control over their body.

Informed consent includes:

  • Discussing the patient’s diagnosis
  • Explaining the nature of each treatment option
  • Talking about benefits and risks of treatment and non-treatment
  • Obtaining consent from the patient for a course of treatment

Doctors commit a medical error when they fail to obtain informed consent. A communication error can happen in a few ways:

  • Withholding information from the patient
  • Incorrectly describing the treatment options, risks, or benefits
  • Failing to secure the patient’s consent before commencing treatment

In emergencies, doctors can treat a patient without informed consent. When a patient is non-verbal or unconscious, doctors might seek informed consent from a surrogate, such as a family member. But in most other cases, doctors must get either implied or express consent to treat a patient.

Express consent happens when a patient communicates assent to the treatment. Express consent includes both written and oral consent.

Thus, saying “yes” or “okay” constitutes express consent. Similarly, signing a consent form or sending a text message saying “I’m ready” provides express permission for the treatment.

Doctors usually have you sign a paper or electronic form to manifest consent because they can add the signed form to your records. California law also requires written consent for some treatments like electro-convulsive therapy and reproductive sterilization.

Implied consent relies on the healthcare provider to interpret the patient’s actions under the circumstances. Implied consent can result from any actions or circumstances that a healthcare provider can reasonably interpret as consent.

For example, implied consent can happen when:

  • A doctor infers consent from the patient’s actions
  • The circumstances imply the patient’s consent
  • An emergency suggests that the patient would have consented to life-saving measures

Some examples of implied consent include:

  • Nodding
  • Making an appointment for treatment
  • Showing up for treatment
  • Following the doctor’s instructions during treatment

If a patient takes actions that a reasonable doctor would interpret as consent in the treatment, the patient has given implied consent.

Bear in mind that this implied consent definition does not take into account the patient’s state of mind. If the patient did not intend to consent but still takes actions that imply consent, a doctor can rely on a reasonable interpretation of the patient’s actions.

Healthcare providers and their insurers document consent carefully. They know that you can use a lack of consent to pursue a medical malpractice case. A signed consent form can provide powerful evidence that you consented to the procedure.

You should always pay close attention to the doctor’s disclosures. Make sure you have satisfactory answers to all of your questions before signing the consent form. 

If you do not consent to a procedure, you should state your non-consent so doctors cannot misinterpret your actions as a form of implied consent.

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