Is when the patient directly communicates his or her consent to the doctor.

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. 

Contact Organizations:

• Canadian Radio-television and Telecommunications Commission
• Legal Match

We are interested in generating some discussion on this topic - please check out our Healthcare Privacy Community and join the conversation.

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.

The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an informed choice. The patient should make his or her own determination about treatment. The physician’s obligation is to present the medical facts accurately to the patient or to the individual responsible for the patient’s care and to make recommendations for management in accordance with good medical practice. The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice. Informed consent is a basic policy in both ethics and law that physicians must honor, unless the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent. In special circumstances, it may be appropriate to postpone disclosure of information (see Opinion 8.122, “Withholding Information from Patients”).

Physicians should sensitively and respectfully disclose all relevant medical information to patients. The quantity and specificity of this information should be tailored to meet the preferences and needs of individual patients. Physicians need not communicate all information at one time, but should assess the amount of information that patients are capable of receiving at a given time and present the remainder when appropriate.

Opinion 8.082 - Withholding Information from Patients

The practice of withholding pertinent medical information from patients in the belief that disclosure is medically contraindicated is known as “therapeutic privilege.” It creates a conflict between the physician’s obligations to promote patients’ welfare and respect for their autonomy by communicating truthfully. Therapeutic privilege does not refer to withholding medical information in emergency situations, or reporting medical errors (see 8.08, “Informed Consent,” and 8.121, “Ethical Responsibility to Study and Prevent Error and Harm”).

Withholding medical information from patients without their knowledge or consent is ethically unacceptable. Physicians should encourage patients to specify their preferences regarding communication of their medical information, preferably before the information becomes available. Moreover, physicians should honor patient requests not to be informed of certain medical information or to convey the information to a designated proxy, provided these requests appear to genuinely represent the patient’s own wishes.

All information need not be communicated to the patient immediately or all at once; physicians should assess the amount of information a patient is capable of receiving at a given time, delaying the remainder to a later, more suitable time, and should tailor disclosure to meet patients’ needs and expectations in light of their preferences.

Physicians may consider delaying disclosure only if early communication is clearly contraindicated. Physicians should continue to monitor the patient carefully and offer complete disclosure when the patient is able to decide whether or not to receive this information. This should be done according to a definite plan, so that disclosure is not permanently delayed. Consultation with patients’ families, colleagues, or an ethics committee may help in assessing the balance of benefits and harms associated with delayed disclosure. In all circumstances, physicians should communicate with patients sensitively and respectfully.

Read More

• Ethics/Health policy

Citation

Virtual Mentor. 2012;14(7):555-556.

DOI

The viewpoints expressed in this article are those of the author(s) and do not necessarily reflect the views and policies of the AMA.

Author Information

• AMA Council on Ethical and Judicial Affairs is responsible for revising and updating the AMA Code of Medical Ethics.

Got Art?

Share your visuals in our gallery.

You may also be interested in