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Informed consent can be either explicit or implicit; in either case, it is subject to judgement.

Consider these examples:

A dentist tells a patient that a tooth has to be extracted. By sitting in the chair and opening his mouth upon command, the patient, by implication, consents to the extraction.

A physician tells a patient that the mole on her arm should be biopsied. By presenting her arm for the biopsy, the patient gives implied consent to the procedure.

Is it necessary, in either of these cases, to obtain written consent which details all of the options, and the pros, cons, and costs of each? By obtaining written consent, are the dentist and physician absolved from liability? By being informed, can the patient be assured that all possible outcomes have been illuminated?

What's the expression: "A grand jury can indict a ham sandwich." With or without informed consent, everyone is liable and no one is assured. As a rule, "routine," uncomplicated procedures are performed without first obtaining formal, written consent because, by implication, the patient consents by allowing the procedure to be performed. Usually, formal, written consent is sought in cases that involve considerable risk (death, e.g.) or unknown consequences (e.g., treatments whose outcomes are inconsistent). In the former instance, the patient's behavior is sufficient proof, formal evidence of disclosure being unnecessary; in the latter, it would, in the least, be prudent to obtain formal, written consent.

Regardless of the situation, I dare say all practitioners, clinics, or hospitals appreciate the fact that proof of informed consent proves very little and is a meager barrier to litigation.

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Q: How can you prove that the patient gave informed consent?
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