Fig. 46.2 Consent can fall into the categories of implied consent and express consent (Copyright Elsevier [1]. Used with permission)

treatment without a patient’s consent leaves the physician susceptible to a claim of assault and/or battery that may not be covered by malpractice insurance [16]. It may also constitute a criminal offense in select circumstances.

It is of paramount importance that physicians understand the intricacies of obtaining proper consent for skin cancer treatment. Consent can fall into the various categories shown in Fig. 46.2 [1].

46.3.1 Implied Consent

Consent may be implied from a patient’s conduct or from the surrounding circumstances. If a patient’s conduct indicates awareness and understanding of the planned treatment, then implied consent may exist [17]. Also, if it is probable that a patient would reasonably consent to treatment, even if the patient is unable to express consent, then consent is implied. For example, implied consent may be sufficient to proceed in a simple situation such as performing a straightforward physical examination in the clinic. In more complex situations, relying on implied consent can be risky since the burden will generally rest on the physician to prove that the patient’s conduct implied consent. For example, consider a patient who complains of possible lesions on the arms, and the physician performs a breast exam as part of the evaluation. If such an exam was unwarranted under the circumstances, this may constitute a lack of implied consent. Thus, relying on implied consent can be risky, and a physician is best advised to obtain express consent whenever possible.

46.3.2 Express Consent

Physicians should obtain express consent, written or oral, in most situations or treatments which present an appreciable risk to the patient. All consent requires is

that patients are able to clearly communicate their desires for medical treatment with their physician. Verbal consent is as valid as written consent. However, verbal consent may be problematic, as it is usually not documented in writing, and therefore it is subject to the burden of proof that consent was actually obtained. Further complicating the concept of verbal consent is that patients often fail to recall details of a procedure they previously approved. In fact, it has been documented that patients only remember 35–55% of the information told to them after 1 week [3]. Patients may even change their minds or later take the position that they did not authorize a particular procedure. Furthermore, witnesses to informed consent are more likely to be unavailable the longer the elapsed time between when the consent was obtained and when the consent is called into question. For these reasons, it is prudent to obtain written consent, not only to ensure a framework for addressing pertinent information but also to serve as a record in the patient’s chart for documentation [3]. Such written consent can be in the manner of a formal consent form, or it can be as a written note in the patient’s chart. The problem with the latter is that it may not have a patient’s signature or initials to indicate that the patient participated in the consent process. Nevertheless, a properly prepared note can serve as documentation.

46.3.3 Informed Consent

Physicians may avoid legal action regarding skin cancer treatment by properly performing the informed consent process [18]. In general, complete informed consent includes the following elements:

•Nature of the procedure

•Risks

•Benefits

•Alternatives

•Assessment of patient understanding

•Acceptance of the intervention by the patient

This communication process constitutes an ethical

and legal obligation prior to performing a procedure, using a device, or even prescribing a medical treatment. Informed consent allows patients to be active decision makers in their own treatment, deciding with their physicians what is in their best interest [19]. A competent patient who makes an informed decision to forego a recommended test or treatment has made an informed refusal [1].