Informed Consent and Your Rights

When it comes to a treatment relationship between a healthcare provider and a patient implied consent, consent to treat and informed consent are types of consent for care. Each are different, each are important.

Informed consent is a critical part of the treatment relationship between a healthcare provider and a patient.

Implied Consent

Implied Consent is driven primarily driven by a patient’s actions and behaviors. A patient seeks care and calls a doctor’s office for an appointment. The call or seeking of care implies there is consent to get treatment. This would not constitute a legal relationship. It is a simply understanding a patient seeks care.

Consent to Treat, Medical Consent & Medication Authorization Form

There are forms you are likely familiar signing that provides a general less specific consent to treat. It may be signed in a healthcare provider’s office prior to being seen. A school may require a Medication Authorization Form to be signed to give a nurse permission to provide Tylenol for a headache, or perhaps medication for a medical or mental health condition. These consents are more formal and specific than implied consent, which does not require a form to be signed.

Informed Consent

Informed Consent is very specific and required by law prior to a healthcare provider delivering care to a patient. The premise for informed consent is that patients have autonomy over their care. In other words, patients get to decide what type of care they receive.

The only exception to gaining informed consent is in emergency situations, where a physician may initiate treatment without informed consent from a patient or a decision maker for the patient, often called a surrogate. If this occurs, a physician will make the surrogate or patient aware of the decisions at the earliest possible moment.

When care is not urgently needed, and/or when the patient or surrogate cannot provide informed consent, it is required. Informed consent creates a legal agreement between the healthcare provider and the patient regarding the medical treatment being provided. With this agreement certain standards must be met for informed consent to be valid for both parties. Signing an informed consent document does not constitute an agreement unless basic criteria are met.  The basic elements of informed consent below:

Patient (or Decision-Making Surrogate) Capacity

A patient providing informed consent must be capable of or have the capacity to make a medical decision. A surrogate can provide this on the patient’s behalf if the patient so chooses and/or if the surrogate has been given permission to do so legally. A patient must do so with their own free will.

A decision-making surrogate can provide consent on behalf of the patient.

Consent Must Be Provided with Free Will

There must be no coercion. The patient must voluntarily provide his/her consent.

Disclosure by Healthcare

The healthcare provider must provide clear information about the condition or diagnosis that exists and the treatment that is being provided in a way that is understandable to a patient. This may mean that a patient must be provided with an interpreter service. The risks and benefits of the treatment and the respective probability or likelihood of risks occurring along with alternatives must be clear to the patient. The patient should understand alternatives and likely outcomes for not getting the treatment.

The health care provider should be present, able to answer questions about all of the above. Information should be thorough and detailed. The consent should be documented in a clear manner that matches the conversation that occurs.

Information Provided Must Be Understood

A patient or surrogate must understand the treatment being performed and the risks and benefits of the treatment and also of not getting the treatment. There should be an opportunity for a discussion. There should be an opportunity for a physician to gage the understanding of the patient or surrogate. Information should be provided in a patient’s native language and interpreter services should be provided if necessary to ensure the patient understands.

Informed Consent Pitfalls

Be aware that informed consent documents provided to a patient to sign are often poorly written and administered. They are often written in generic form, to cover all potential scenarios and risks, many of which may have never been mentioned by a healthcare provider.  If you read on a consent form an adverse potential outcome of a surgery that has never been discussed with a healthcare provider, raise that concern.

Over time, consent forms suffer from added language, sentences and lines that may not go well together. Parts may be incomprehensible. Informed consents often are not updated appropriately to account for variation by physicians and their exact procedure performed and include so much risk management language that it can interfere with the description of the treatment and ultimately a patient’s understanding.

An informed consent should not be provided to a patient by a nurse, who asks please sign this. If that occurs, the spirit and legality of informed consent have not been met.

The gold standard for obtaining informed consent is from a direct interaction between a medical provider and his/her patient, family and/or surrogate.

The healthcare provider should meet with a patient and family to discuss the treatment, risks, benefits and respective probabilities of occurrence of adverse outcomes. Patients should understand the treatment and risks and benefits and what they are consenting to. The healthcare provider is the most experienced and capable person of answer the questions accurately because they are delivering the treatment. If a direct conversation does not occur, it is possible informed consent was not gained properly.

If a patient cannot sense that a physician is making an effort to gage their understanding of a procedure, be wary.

The best practice for ensuring both the patient and physician work collaboratively together on decision making about treatment is called “Shared Decision Making.”

Challenges with Informed Consent Management

The reality is informed consent is often operationalized into the healthcare providers processes external to the physician workflows. In fact, in some cases multiple physicians may be on a consent, multiple procedures may be listed because the exact process may not be known at the time of consent.

A physician may also ask take place during a surgery, alternatives methods and procedures may need to be performed and should and must be also consented to. That is often a good thing.

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About the Author

Jason Minor is a healthcare quality and transformation leader with nearly 30 years of continuous improvement experience. A Certified Lean Six Sigma Black Belt, Certified Professional in Healthcare Quality, Certified Professional in Patient Safety, and Certified Utilization Review Professional, he has led thousands of end‑to‑end improvement projects, mentored dozens of quality professionals, and pioneered healthcare SaaS innovations.

As Board Chair of the Vermont Program for Quality in Health Care, Jason has partnered with hospitals, non‑profits, and state agencies to elevate patient safety and care quality statewide. Previously, as Network Vice President of Quality at the UVM Health Network and through the Jeffords Institute for Quality, he guided the redesign of a system‑wide quality framework and led initiatives that achieved a number‑one patient safety ranking among the nation’s top academic medical centers.

In 2020, Jason founded EvaluCare to help organizations shift from episodic improvement to a robust quality assurance approach.

EvaluCare’s Eva platform leverages AI‑powered natural language processing, machine learning, and agentic orchestration to analyze and improve inpatient care and support comprehensive quality, mortality, peer, and utilization reviews.

Jason Minor, EvaluCare Executive Director

Network Director Continuous Systems Improvement Jeffords Institute for Quality UVM Health

Board Chair Vermont Program for Quality in Health Care Inc.,

Vice Chair Northwestern Counseling & Support Services, Inc

Lecturer UVM College of Nursing & Health Sciences in Healthcare Quality

Quality Peer Reviewer Vermont Care Partners: Centers of Excellence