What Is the Difference Between Express and Informed Consent

Consent forms the backbone of practically all procedures, transactions, and agreements in society. Without it, subsequent results and consequences can be deemed to be invalid or of no effect.

But what exactly is consent? Consent is an acquiescence, agreement, or acceptance of the terms, conditions, or results of a proposal. It can be communicated in numerous ways and does not always need to be outrightly expressed to be valid, depending on the context.

What about the different types of consent? Various kinds of consent serve different contexts — including express consent and informed consent. What are the differences, if any, between these two types of consent? Learning the basis of both express and informed consent can safeguard your rights and privileges in many different contexts.

Express Consent

Express consent is consent that is positively communicated through written means. It is necessary in various fields, such as the medical field. In medicine, it’s needed for all procedures except for emergencies when the patient is unable to give consent.

In many instances, express consent is considered to be the same as informed consent, but not always.

For instance, some make a distinction between informed and express consent based on the exchange of information between the consenter and the proposer. Take the medical field as an example. In many medical circles, express consent is a type of consent that patients can use to agree to basic procedures that carry little to no risk, such as:

• Getting blood drawn
• Testing reflexes
• Submitting to a basic physical examination

However, more in-depth procedures need consent that involves understanding more information regarding the procedure.

Informed Consent

As mentioned, informed consent is often considered express consent. But for those who differentiate between the two, informed consent is always much more detailed than express consent. In other words, those who give informed consent have more information regarding a proposal than those who simply give express consent.

Consider two medical procedures: a basic blood draw and exploratory surgery. Both procedures need the patient’s consent to proceed. However, detailed information regarding risks, ramifications, and consequences of a certain procedure need only be transmitted to the patient getting the exploratory surgery.

This is because the nature and extent of the risks involved with exploratory surgery are far greater than those associated with a basic blood draw.

How to Give Express and Informed Consent

Express consent is typically given through written means of communication. It may arrive by way of a signed contract or agreement form, or through a letter or electronic communication. In some cases, consent doesn’t need to come through written means, at least not initially.

For example, a patient in a hospital can verbally consent to a basic, simple procedure, such as a mouth swab, because the risks are so limited that they are practically nonexistent.

However, if that same patient needs to be put under to allow a doctor to deal with an internal injury, that patient will need to not only give express consent, but also informed consent — which is the same concept in many fields, but not all fields.

Informed consent can only be given when the person making the decision to consent or not has been informed of the risks of consenting to a proposal or a procedure as well as alternative options to the risky proposal.

So a doctor who tells their patient that leg surgery is necessary must also discuss with them the alternatives to surgery, as well as all of the potential risks that could reasonably occur.

The goal is to get the patient to a place where they sufficiently understand the nature of the procedure to be completed, the reasons for undergoing the procedure, and the potential risks involved.

What if My Doctor Failed to Get My Express or Informed Consent?

Consent is the main defense that doctors and other healthcare professionals have against the charge of battery or assault. If you were operated on or made subject to any procedure without your consent, the healthcare professionals involved could face criminal charges.

More importantly for you, they can potentially be held responsible for paying you civil damages to compensate you for the losses you have experienced.

Find Answers from a Medical Malpractice Attorney

If you have questions about consent or believe a healthcare professional acted without your consent, reach out to Silberstein & Miklos for answers. Our dedicated team can determine what compensation you may be entitled to. Contact us to schedule your free consultation today with a medical malpractice attorney who cares.