What’s the Difference Between Express and Implied Consent?

Personal injury and medical malpractice cases often involve the issue of consent. This is because people sometimes agree to the risks involved in certain activities and medical procedures which can lead to harm. 

Consenting to these potential dangers is important because it limits the degree to which a person can be held responsible for your injuries. Sometimes consent is obvious, but other times it is implied by the surrounding circumstances. 

Why Consent Matters

Now, under personal injury tort law, you generally have a case against someone that intentionally or negligently hurt you. However, an exception to this rule applies if you agreed to the action that caused the harm to you or your property. An example would be if you hurt yourself riding a mechanical bull on your neighbor’s ranch. 

Note that consent must be freely given, and there are certain things that a person cannot consent to, such as homicide. 

What is Express Consent?

One way that a person can consent to something is by unequivocally agreeing. This is known as express consent, and an example would be if you underwent a medical procedure after having had a doctor explain all of the risks to you. In this case, you would verbally agree and then perhaps sign a document that confirms the agreement.

But, to be legally effective, the consent must be free from coercion, duress, trickery, or fraud. Further, you must have been provided all of the pertinent information about what you were agreeing to.

In addition, you need to have what is known as the “capacity” to consent. This means that you cannot be a minor, and you must be conscious and not drunk or otherwise intoxicated. You must also be mentally competent. Note that a parent or guardian can consent on behalf of minors or mentally incompetent individuals.  

What is Implied Consent?

By contrast, implied consent is inferred from a person’s conduct rather than any direct statements that would indicate agreement. Keep in mind that this type of consent may be expressed by silence or inaction, so long as a reasonable person would have interpreted this behavior to be indicative of consent. 

For example, if you agree to participate in a boxing match, you have impliedly consented to being punched. Likewise, if you ride on a bus you are impliedly consenting to people accidentally bumping into you. 

Note that in considering what constitutes implied consent, the surrounding circumstances are important. This would include taking into account things like generally accepted social norms.

Emergency Medical Procedures

Now, sometimes consent is implied by law. An example is with emergency medical treatment. To apply, the medical professional needs to reasonably believe that the procedure must be undertaken immediately. This is typically based on evidence that failure to do so will lead to serious disability or death. Action can also be taken in order to alleviate serious pain. 

But, keep in mind that the patient or person authorized to consent (such as the parent of a minor) must be unable to give consent before the treatment is administered. An example would be if you were unconscious following a car accident. 

Exceeding Consent

Now, there are always limits to consent. This means that if a person exceeds this limit, they would be held liable for injuries or damage to property that were not agreed to.

For example, if you were participating in a boxing match and your opponent kicked you resulting in your leg being fractured, you may have a claim against that person. This is because kicking was not something you consent to in a boxing match.

The same rationale applies to medical professionals. For example, if you agree to minor surgery, but a doctor chooses to amputate without your consent, he or she would be liable for this harm. But, remember, this rule would not apply to an emergency situation that meets the requirements mentioned above. 

Consent can also be exceeded if it was based on insufficient information. An example would be if a doctor failed to warn you about the side effects associated with a particular medication. 

Revoking Consent

Note that consent can be freely revoked. For example, you may choose to undergo surgery and then decide later that you no longer wish to have the medical procedure performed.

Now, your change in mind might be due to a reassessment of the risks or for insurance reasons. However, it’s important to understand that you can’t be forced to accept any non-emergency medical treatment, regardless of the reason.