In the previous blog post, you were introduced to several relevant PIPEDA principles, including obtaining valid, informed consent. But there is a lot more to this principle than meets the eye. As you know, consent is the agreement you obtain from your patient to collect information, perform a procedure, or put through a credit card payment. This blog post will provide you with a number of facts you might not know about the third PIPEDA principle. All information can be found at www.priv.gc.ca.
1 Consent comes in two forms
Express consent is fairly common in any situation as it is “given explicitly, either orally or in writing.” But what about a specific online action? Is that also express consent? Yes, in fact, it is. Once your patient checks a box labeled “terms and conditions” on your website or on an online form, they have freely given their express consent.
Implied consent is different. It is still a form of permission, but it is permission given without speaking, writing or checking a box online. This kind of consent is not a formal agreement. You don’t get a signature or a verbal “yes” of proof. What you do get is an action or gesture that implies your patient has consented. As a simple example: Your patient calls to make an appointment regarding a chipped or painful tooth. Do you ask for a signature before you start suggesting treatments and procedures? Of course, you don’t, but before you panic, it’s okay! Why is it okay? It is implied that by setting that appointment, your patient has given you their consent to suggest those treatments and procedures. It’s the same as your patient getting into the dentist’s chair before you administer treatment. You don’t need a yes, or them to sign on the dotted line because just by getting in the chair they are giving you permission to perform whatever procedure you two had discussed beforehand.
Now that you know about these two types of consent, the next question is when is the right time to use each of them? The answer comes in the second thing you might not know about consent.
2 Each type has specific rules for use
When to use express
Express consent is the most commonly used to create a legally binding agreement between you and your patient. It applies to “all situations involving personal medical or financial records or any other personal information likely to be considered sensitive in a certain situation.” You aren’t going to process a credit card without getting a signature and you aren’t going to collect personal information without receiving a verbal “yes” from your patient. When the information is considered sensitive, that is when express consent should be used.
When to use implied
But what about implied consent? If sensitivity is the requirement for obtaining express consent, you must be thinking, what else is there? And that’s where implied comes in. “Only in situations where the intended uses or disclosures are obvious from the context and your organization can reasonably assume a certain understanding, knowledge or acceptance on the customer’s part.” Implied consent is just that, implied. This is used in obvious situations where the patient knows they are consenting and knows what they are consenting to, such as getting into the dentist’s chair or calling to make an appointment. It’s also important to note that implied consent should not be used when the information is sensitive.
3 Consent can be withdrawn
Consent is not permanent and your office needs to provide an easy, inexpensive way for your patients to withdraw their consent when necessary to do so, but before you think that “oh if they can just withdraw then what’s the point?” Withdrawing consent has rules and guidelines, too. According to PIPEDA, withdrawing consent is “subject to legal or contractual restrictions and reasonable notice.” The PIPEDA website even offers a practical way to deal with consent withdrawal, stating that “Toll-free telephone is the preferred option.”
Understanding all the aspects regarding consent is incredibly important to your patients, your staff, and your practice. So please feel free to check out the resources below for more information.
Be prepared for exceptions to Consent, the “do’s and don’t’s” edition coming in the next blog post.
- People accidentally agree to clean toilets for free Wi-Fi (yes, this too is consent related)