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Consent forms are essential for some businesses, particularly in healthcare, finance, law, and technology. Business owners and managers must select and implement the right kind of consent form. Otherwise, it may not serve its intended legal purpose.
Below, we’ve outlined everything you need to know about consent forms with tips and tricks along the way:
What is a Consent Form?
Consent forms, sometimes called release forms, are legal documents that serve as written permission to send or receive information among participating parties. They often inform them of associated use risks and release the provider from associated claims. Upon signing, a consent form acts as an authorization and waiver .
Here is an article that defines consent.
Purpose of a Consent Form
The purpose of a consent form is to inform clients, patients, or subjects of what information you’re obtaining, what rights they’re waiving, and other pertinent details. They ensure that the lines of communication remain open among the parties and afford people the right to be informed.
Types of Consent
Consent takes many forms. Several factors determine the type of consent you’ll use, including the relevant industry, medium, legal situation, and more. You’ll want to review different kinds of consent available to help you make a decision.
Below, we’ve outlined the six most common consent types that you should know:
Type 1. Active Consent
Active consent is when consumers “actively” agree to a specific statement and similar to explicit consent. For example, clicking “I agree” on a website or signing a contract are forms of active consent.
Type 2. Explicit Consent
Explicit consent is when you offer customers the opportunity to authorize use, risk, or disclosure. For example, global privacy regulations require explicit consent when an organization processes a consumer’s data. These laws require clear and documented disclosure of company practices and how customers can opt out.
Type 3. Implied Consent
Implied consent is when participation automatically grants permission in some cases. For example, most states impose an implied consent law for accepting a driver’s license. The implied consent in this situation is that you’re willing to provide a breath sample to police for reasonable DWI/DUI investigations.
Type 4. Informed Consent
Informed consent is when you inform the individual of all possible outcomes and consequences of granting their permission. For informed consent to remain valid, the signatory must:
- Be competent
- Authorize voluntarily
- Be fully informed about use and risks
- Be at least age 18
Type 5. Opt-Out Consent
Opt-out consent is when customers can refuse or rescind permission at any time. For example, you can offer an opt-out consent form so that clients can reject cookies on your website. Consent formally occurs if the consumer continues to use it without their declining it.
Type 6. Passive Consent
Passive consent is a type of implied consent in which the consumer automatically gives their authorization unless otherwise stated. You can’t use passive consent if you’re working toward privacy regulation compliance. However, you could use passive consent clauses if use doesn’t significantly affect the customer.
What’s Included in a Consent Form?
Consent forms can be complicated or straightforward, depending upon the situation. However, they generally contain some form of acknowledgment, authorization, and release of claims. Since you’re often asking customers to waive their rights in specific situations, it’s essential that you speak with an attorney to ensure that their civil rights remain intact.
Here are the six elements that are included in a consent form:
- Release Clause : Your consent form should offer a release clause that the customer acknowledges. They release you from risks associated with the use of your product or service.
- Limitation of Liability Clause : The release of liability should clearly state that customers won’t sue you for provider negligence. Ensure that you include the protection from legal liability in your disclaimers to achieve enforceability.
- Proper Formatting : Your consent form should include headers, readable fonts, and use clear language. Ensure that it’s suitable for a general audience.
- Legality : Work with a legal professional to review your consent forms. They can tell you if the document violates public policy or contract law in some manner.
- Precision : If you ask people to waive their rights, you must create a specific list of what they’re waiving while complying with the law. Otherwise, you could be violating their rights or not offering enough information in your consent forms.
- Signature and date lines : The final component of a consent form is active consent when necessary. Active consent can come in the form of a signature and dateline or as simple as a button that says, “I Accept. You can skip this step if you’re using some form of implied consent.”
A consent form doesn’t release you from acts of gross negligence. There are still benchmarks and standards to uphold. Consent forms only protect you from reasonable risks, or your liability insurance company may not cover you otherwise.
Examples of Consent Forms
Many legal situations require the use of a consent form. In the abstract sense, it’s challenging to understand how they work, especially if this is the first time that you’re drafting one.
In this section, we’ve offered three examples of consent forms in a hypothetical situation:
Example 1. DUI Testing
The example below shows how governments utilize consent forms:
- Shavonne lives in the State of California
- She just moved there and wants to get a driver’s license
- The State of California will issue her a driver’s license under implied consent laws
- By accepting and driving on public roadways, Shavonne agrees to reasonable DUI checks
- If she refuses to provide a breath sample during a DUI check in the future, she automatically loses her driver’s license for a specific period
Image via Pexels by Ksenia
Example 2. Website Cookies
The example below involves an online store that sells to consumers in locations with consumer privacy laws:
- Dress Fiction is an online women’s clothing store
- They sell and ship to customers worldwide
- Part of their website relies on cookies to function properly
- Dress Fiction creates an active cookies consent form on their website
- They further comply with opt-out consent measures
- If customers don’t agree to the terms, then certain website features won’t work or remain accessible
Read about Cookies Policies .
Example 3. Personal Health Information
The example below involves a healthcare tech company:
- HeartRite Rx offers an application that monitors a patient’s heart rate, manages prescriptions, provides personalized recommendations to customers, and transmits data to physicians.
- HeartRite Rx signs new customers up through a form on the splash page of their app
- Customers must offer their explicit and active consent before using the service
- HeartRite Rx places a consent form in their customer onboarding process
- If the customer doesn’t offer their consent, they can’t use some or all application features
Who Uses Consent Forms?
Businesses use consent forms. They use them to authorize the permission of a specific action. Some industries, such as healthcare, tech, and finance, require companies to collect consent through consent forms at certain times.
If you need to create a consent form for your business, hire contract lawyers. They have an in-depth knowledge of the law and can apply it to your unique situation. A legal professional ensures that you walk away with the perfect consent form from the first draft to the contract signing.
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Meet some of our Consent Form Lawyers
Ryan A. Webber focuses his practice primarily on Estate Planning, Elder Law, and Life Care Planning. His clients range from young families concerned about protecting their family as well as aging individuals. Ryan provides Estate Planning, Trust Planning, Special Needs Planning, Public Benefit Planning, and Estate Administration. Ryan focuses on the holistic approach to the practice of elder law which seeks to ensure clients are receiving good care when needed and that they preserve enough assets with which to pay for such care. Many families and individuals also come to Ryan for preparation of their wills, power of attorney, and healthcare guidance documents. Additionally, Ryan assists small and medium sized business owners with their organizational and planning needs. From starting or winding down a business, Ryan provides quality business advice.
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