Why not use Informed Consent Forms instead of Waivers?

April 09, 2011

Ian McGregor, Ph.D.
President, McGregor & Associates

There are some good arguments for using ‘Informed Consent’ forms instead of Waivers — but this is ultimately an institutional decision. Either way, it is important to understand what Informed Consent is — and isn’t.

If you study a well written waiver, it is split essentially into two distinct sections: an ‘Assumption of Risk’ section and a ‘Release’ section. The main purpose of the ‘Assumption of Risk’ section is to inform the participant of the inherent risks in a particular activity. The best waivers will include an Assumption of Risk statement that is very specific to the activity (e.g. rock climbing), and will detail the inherent risks specific to that activity. (But this means that you need a waiver for every activity — a potential logistical nightmare.)

If you decide to stop there — i.e. omit the ‘Release’ section in the document, you have in fact created an Informed Consent form.

What are the disadvantages and advantages of this approach?

The major disadvantage of using an Informed Consent form is that it does not give you the same legal protection as a Waiver. The main reason for using a Waiver is that if held valid in court, it can protect an organization from claims for damages caused in a variety of ways — including through negligence. Since an Informed Consent form does not contain a ‘Release’ section, it means that there is no protection if negligence is found.

Some advantages of using Informed Consent forms include:

• They may be easier to administer

• They are much ‘softer’ than waivers which are often perceived as ‘hard’ and insensitive

• They can be used for minors (a ‘parental consent’ form is recommended for children’s programs)

• They can be viewed by the courts as an attempt by an organization to inform people of the risks involved in various physical activities.

Some institutions use Waivers in some situations (e.g. for higher risk activities), and Informed Consent forms or statements for other situations. Some universities have taken the approach that if they are found negligent then they should take full responsibility — hence they do not use Waivers.

Ultimately it is the institution which determines the direction it will take. Whatever the approach, the final decision should be based on a clear understanding of the differences in the two forms, and the realities around their implementation.