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20 Medico-legal questionsQuestion 9: Implied versus expressed consent

A 44-year-old part-time street musician experiences persistent numbness of the palm andfirst three digits of the hand, requiring carpel tunnel release. As the surgeon performingthe procedure, what is the next best step?

A) Proceed if the patient lies down on the operating table because consent isimplied

B) Discuss the risks of surgery in detail, including consideration of the vocationof this patient

C) Proceed without a consent discussion as this is a relatively short procedurewith local anesthesia only, a consent discussion is not required

D) Provide the patient with a pamphlet on the benefits and risks of carpel tunnelsurgery as this precludes the need for a consent discussion

E) Proceed without consent as this surgery is important to the patients income

The answer to this question is: B

Implied versus expressed consent

Consent to treatment may be implied or it may be specifically expressed either orally or in writing. The clinical situation determines the approach required.

Implied consent

Much of a physician's work is done on the basis of consent, which is implied either bythe words or the behaviour of the patient or by the circumstances under whichtreatment is given. For example, it is common for a patient to arrange an appointmentwith a physician, to keep the appointment, to volunteer a history, to answer questionsrelating to the history and to submit without objection to physical examination. In thesecircumstances consent for the examination is clearly implied. To avoidmisunderstanding, it may be prudent to state to the patient an intention to examine thebreasts, genitals or rectum.

The foregoing notwithstanding, in many situations the extent to which consent wasimplied may later become a matter of disagreement. Physicians should be reasonablyconfident the actions of the patient imply permission for the examinations,investigations and treatments proposed. When there is doubt, it is preferable theconsent be expressed, either orally or in writing.

Expressed consent

Expressed consent may be in oral or written form. It should be obtained when thetreatment is likely to be more than mildly painful, when it carries appreciable risk, or when it will result in ablation of a bodily function.

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Although orally expressed consent may be acceptable in many circumstances,frequently there is need for written confirmation. As physicians have often observed,patients can change their minds or may not recall what they authorized; after theprocedure or treatment has been carried out, they may attempt to take the position ithad not been agreed to or was unjustified. Consent may be confirmed and validatedadequately when the treating physician notes the consent discussion in the patient'srecord at the time of the discussion.

Expressed consent in written form should be obtained for surgical operations andinvasive investigative procedures.

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