Celia B. Fisher, PhD, and Matthew Oransky
Informed consent is often seen as the primary means of respecting client personhood and protecting the self-determination rights of those with whom psychotherapists work. The increasing emphasis in healthcare in general and psychotherapy in particular reflects a societal shift from the traditional paternalistic medical model of health care to one that respects the autonomy, agency, and self-determination of clients (Fisher, 2003a).
For centuries the responsible practice of healthcare followed the Hippocratic Oath’s paternalistic emphasis on protecting the patient from harm. It was not until the early and mid twentieth century that the decisional rights of patients began to emerge in legal cases against physicians, culminating in the case of Canterbury v. Spence (1972) in which informed consent to medical treatment as a protection against medical “battery” emerged as a legal right. Osheroff v. Chestnut Lodge (1980) is seen by many as the landmark case for informed consent to psychotherapy. After undergoing a year of extensive but unsuccessful inpatient psychoanalysis for major depression, Osheroff discontinued therapy and began a course of antidepressant medications to which he reportedly responded well. In this case, the plaintiff claimed negligence asserting that had he been told of this option in advance he could have been spared a year of severe psychological distress and a large financial burden. Although the case was settled out of court - thus leaving no legal doctrine or precedent – it shifted public attention to the role of informed consent in psychotherapy, specifically the therapist’s duty to present clear information regarding the nature of treatment and goals of therapy, and when appropriate, viable treatment alternatives (Beahrs & Gutheil, 2001). The legacy of these cases is the formalization of ethical standards requiring informed consent to therapy in the American Psychological Association (APA) Ethical Principles of Psychologists and Code of Conduct (APA, 2002) and in state licensing laws.
The three basic guidelines for consent are that a client’s decision to enter psychotherapy is informed, voluntary, and rational. The informed component of consent typically includes informing clients of the nature and expected duration of the therapy, explaining fees and payment policies, detailing the involvement of third parties, and discussing the limits of confidentiality. The voluntary component of consent requires psychologists to take steps to ensure that clients’ initial and continuing participation in psychotherapy is not subject to coercion by either the psychologist or others in the clients’ social network. The rationale component of consent reflects clients’ ability to appreciate the personal relevance of the information provided by the psychologist and make a rational judgment about agreeing or refusing to accept the psychologist’s services.
Providing clients with the opportunity to make an informed decision about engaging in psychotherapy communicates respect for personhood and reflects the collaborative nature of psychotherapy. In this vein, informed consent to psychotherapy not only satisfies the ethics of professional conduct but also is integral to the formation of a balanced and healthy therapeutic relationship. For example, by asking for voluntary participation, informed consent demonstrates respect for a client’s autonomy and right to self-determination. Furthermore, informed consent procedures emphasize the client’s role in making treatment decisions, increasing a sense of ownership over the process. Indeed, therapies that emphasize and employ the agency and self-direction of the client tend to have more successful outcomes than therapies that do not (Pope & Vasquez, 2007; Beahrs & Gutheil, 2001; Draper, 2000). Informed consent procedures can also establish the therapist and client as partners working toward a common goal, decreasing the likelihood that clients will put the therapist on a pedestal and become overly or dangerously dependent (Beahrs & Gutheil, 2001). Finally, informed consent procedures can reduce a client’s anxiety by demystifying the therapeutic process.
The remainder of this article details key components of informed consent to psychotherapy by placing them within real-world psychotherapy scenarios. We provide information on client-therapist discussions of the nature and course of therapy, fees and payment policies, the involvement of third parties, confidentiality policies, and the implementation of new and untested treatments. In addition, this paper addresses informed consent procedures for individuals with impaired cognitive capacities and under HIPAA regulations.
Informed Consent Timing: Obtaining Consent “As Early As Feasible”
As written in Standard 10.01a, Informed Consent to Therapy, of the APA Ethics Code, psychologists should present each client with the information necessary for informed consent “as early as is feasible” in the therapeutic relationship. While informed consent is ideally obtained in the first session, this is not always possible or clinically appropriate. For example, informed consent during the first meeting may be contraindicated if the client is in a crisis that requires urgent therapeutic care (Fisher, 2003a). In such cases, the psychologist’s ethical priority is to take clinically appropriate steps to assist the client and wait to obtain consent once the crisis has subsided. In some instances involvement of third party payors means that following the initial session psychologists may have to contact the client’s health insurer to gain approval for a treatment plan and reimbursement for services. In such cases, during the initial session psychotherapists should explain to clients the necessity of waiting for feedback from their health maintenance organization and obtain their clients’ permission to contact their health insurers.
Case 1: Responding to the immediate needs of clients. During an initial therapy session, the client appeared quite excited. Speaking rapidly, he told the psychotherapist he was planning a gambling trip that he was sure would win him millions of dollars. After some probing, the therapist learned that the client had recently stopped taking his medication prescribed for bipolar disorder because he had been feeling so happy. The therapist decided to postpone discussions of some elements of informed consent and focus the initial session on helping the client deal with his manic episode and the immediate crisis. After assessing the client and deciding that he was not in immediate danger, at the end of the session the therapist and client made a follow up appointment for the next day and the therapist gave him a referral for an appointment with a psychiatrist with whom she often consulted. During the second appointment, the practitioner felt the situation was stable enough to present the client with informed consent information including the anticipated nature and course of therapy, and a discussion of fees and confidentiality policies.
Consent as a Continuing Process
Informed consent to psychotherapy is best conceptualized as an ongoing process, designed around a client’s evolving treatment needs and the subsequent treatment plans to which he or she must consent (Fisher, 2003a). For example, while some parts of the informed consent process can reliably occur at or near the outset of therapy (e.g., confidentiality and disclosure procedures, fees and payment options, cancellation policies), more substantive parts of the informed consent process may continue into the second, third, or even fourth session. Many therapists report that information such as the specific goals of the therapy, the techniques used, and the estimated duration of the therapy may not be clearly formed during the initial meeting. In such cases, it is neither in the best interest of the client nor the therapist to establish such matters in haste (Pomerantz, 2005); rather, psychologists may wish to inform clients that such decisions will be made on an evolving basis. At the same time, psychologists are advised to provide their clients with an educated estimate of how long the treatment may likely take.
Clinician Red Flag: Some treatment facilities require clients to sign informed consent documentation before entering the therapy room. In many of these instances, the forms are handled by administrative staff and may neither be written in plain language nor adequately explained (Pope & Vasquez, 2007). Psychologists must be concerned with more than legal liability. Regardless of institutional procedures, they should still make sure to have open and comprehensive informed consent discussions with their clients.
The Nature of the Psychotherapy
The informed component of consent requires psychologists to provide clients with information about those aspects of therapy that would reasonably be expected to affect their decisions to enter into therapy with that psychologist. Accordingly, depending upon their treatment modality psychologists should provide clients with information about the overall approach they will use to treat the presenting problem, and likely techniques that the approach may entail e.g., exposure therapy, dream analysis, detailed developmental history, conjoint family sessions, behavior contracts, homework assignments, or any other information relevant to making an informed decision to engage in treatment (Fisher, 2003a). Psychologists should also inform clients of their appointment schedule and the duration of each session, as this may vary from setting to setting (e.g. some behavioral techniques call for out-of-office sessions and sessions that exceed the more mainstream 45-50 minute time frame). In addition, some therapists choose to inform clients of the empirical evidence guiding their treatment of choice.
Case 2: Describing potentially anxiety producing components of therapy. A young man enters therapy to overcome a crippling fear of elevators. After listening to her new client’s presenting problem and establishing good rapport, the therapist provides the client with psycho-educational information. She explains her cognitive-behavioral orientation, and that treatment from this perspective would involve challenging faulty cognitions regarding enclosed spaces and gradual exposure to the feared stimuli. She informs the client that in order to accomplish the goals of therapy, they will meet on a weekly basis, that some sessions will involve traveling outside of the therapy office, and that he will be expected to complete regular homework assignments, sometimes entailing exposing himself to feared situations such as enclosed spaces. The psychologist encourages the client to ask questions. During the consent conference she also makes sure to explain that this type of treatment usually takes 12-16 sessions, but that the pace and content of the treatment will be matched to the client’s comfort level. In response to the client’s questions regarding whether this therapy has been shown to work, the psychologist explains that research has shown this type of therapy to be effective in overcoming specific phobias and that while this would be her treatment of choice there are alternative approaches to phobias that they could discuss.
In the example above, the therapist establishes a trusting rapport before disclosing the elements of exposure therapy that may make the client anxious. To provide the client with sufficient information to make a choice about continuing therapy, she makes sure to inform him about activities that may make him uncomfortable (e.g., getting in an elevator), that some sessions will take place outside of the office, and that he will be asked to practice new behaviors in between sessions. She encourages him to ask questions, which in turn helps to fortify a trusting and collaborative therapeutic alliance. By contrast the next case illustrates how well-intentioned, but ethically and therapeutically naive decisions to withhold information about the nature of therapy may have iatrogenic consequences.
Case 3: Avoiding discussion of potentially anxiety-producing methods. A young woman seeks therapy due to a dog phobia that has significantly limited her functioning. During the informed consent procedure, the therapist explains that in accordance with his cognitive- behavioral orientation and treatment techniques, he will begin the treatment by teaching the client to identify and challenge the irrational thoughts underlying her fears. He explains that the treatment will also include exposure to stimuli associated with her fears (a slide show of different dogs) and watching others interact safely with dogs. Although the therapist hopes that the treatment will eventually involve exposing his client to an actual, live dog, he fears that telling her this too early on in the treatment might make her too anxious to even begin. Halfway through the treatment, when the therapist eventually brings up including a live dog in the treatment, the client balks at the suggestion. The therapist praises her progress and encourages her to participate in the exposure as a way of fully meeting her goals to eliminate her fear of dogs. The client feels as though she has been misled; she looks back at the informed consent process as being full of “half truths” and finds it difficult to trust or feel safe with her therapist again.
The psychotherapist in this scenario may have been well-intentioned. Perhaps he did not want his client to spend weeks worrying about her eventual contact with a live dog. If the practitioner thought that the prospect of live contact with a dog would be too anxiety producing during the initial informed consent process, he could have simply informed her that research has demonstrated it to be an effective technique in overcoming specific phobias, but that they could continue to discuss the possibility as treatment proceeded and some of her symptoms began to subside. This approach would reflect the evolving nature of consent to new stages of the treatment.
Anticipated Course of Treatment
The anticipated course of therapy typically refers to the number of sessions the psychologist thinks will be necessary to treat the presenting problem based on the information presented by the client and professional expertise (Fisher, 2003a). Providing this type of information will be easier from some treatment perspectives than from others, as certain treatments have a prescribed or manualized course of treatment. Dialectical behavioral therapy (DBT) for borderline personality disorder, for example, requires clients to attend both individual therapy sessions and group-based skills training sessions once a week for one year. At the outset of DBT, clients are informed of these treatment parameters. On the other hand, it may not be possible for a psychoanalytically oriented psychologist to provide as explicit a time table for treatment for clients seeking help with fears of intimacy. In such cases, psychologists should strive, to the best of their ability, to provide an accurate account of treatment duration, while acknowledging that unexpected treatment issues may lead the client and therapist to jointly reassess the duration of therapy. Therapy, like informed consent, can be an evolving process that requires modifications in its course and nature as the psychologist learns more about treatment needs or unique personality characteristics.
Case 4: Providing a balanced perspective on the anticipated length of therapy. A psychologist saw a new client who complained of depressive symptoms and relationship difficulties. As part of the informed consent process, the therapist explains her interpersonal therapy approach, highlighting the fact that it is a manualized treatment with demonstrated efficacy in research studies on depression. She explains that the treatment proceeds through several stages, and details the average number of sessions devoted to each stage. In addition, she informs the client as to the typical number of sessions after which clients often feel some relief from their symptoms, while making sure to emphasize that each person responds differently and that they will together reassess his progress after a specific number of sessions.
Clinician Red Flag: It may be frustrating for both client and psychotherapist when treatment plans do not move according to a proposed schedule. Client resistance or ambivalence, unforeseen treatment side effects or needs, trauma or stressful life events, or other factors can disrupt treatment schedules. In reaction to such uncertainty, therapists may avoid making predictions regarding the length of treatment. However, the APA Ethics Code Principle C: Integrity encourages psychologists to promote accuracy, honesty and truthfulness in their practices and to avoid unwise or unclear commitments. For many disorders, psychologists can draw upon a substantial body of scientific and professional knowledge and their own clinical expertise to anticipate the average number of sessions, as well as to expect that such estimates will probably evolve. Therapists familiar with a client’s insurance plan may also be able to estimate the degree of progress that can be made within and beyond the number of sessions covered. Honestly sharing this information gives clients the opportunity to make an informed choice about continuing in treatment and helps to maintain the therapeutic alliance.
Fees and Financial Arrangements
As embodied in APA Ethics Code Standards 6.04a Fees and Financial Arrangements, psychologists are responsible to discuss with clients as early as feasible information about fees, payment schedules and payment options. Whenever possible, therapists should also inform clients of their fee for the initial session and whether or not they accept the client’s insurance when the client calls for an appointment. Barring an acute mental health emergency, a full discussion of fees and payment option should take place during the initial meeting. Discussion of fees typically includes the cost of the therapy, types of reimbursement accepted (e.g., checks, credit card payments, direct payment from insurance companies), the payment schedule (e.g., weekly, monthly), when fees may be renegotiated (e.g., annual fee raises), and practitioner policies regarding missed appointments and late payments (Fisher, 2003a). For the sake of clarity, therapists may wish to provide clients with printed information that details their payment policies.
In instances in which therapists are unfamiliar with a client’s insurance plan, they can inform the client that (with the client’s written authorization) they will communicate with the insurer and discuss coverage and payment options at or before the next session. As soon as they gather the appropriate information, therapists should inform their clients of the percentage of therapy costs covered by their health insurance, and any limitations their health plan may put on the number of sessions it will cover (Acuff et al., 1999). As illustrated in Case 5, psychologists have a fiduciary obligation to be knowledgeable about and confirm with insurers the extent to which the type of treatment they will be offering meets the company’s mental health benefit criteria (Principle B, Fidelity and Responsibility, APA, 2002).
Case 5: Treatment limits imposed by health plans. Before coming in for her initial meeting, a client made sure that her psychologist was covered by her insurance plan. On the phone, the psychologist explained that the insurance company would cover 50% of each session and the client would have to pay the rest out-of-pocket. When she submitted the first month’s therapy costs to her insurance company she was shocked to receive a denial of coverage. A staff member at the insurance company explained that based on her therapist’s diagnosis and treatment plan, her weekly therapy did not meet the company’s criteria for “medical necessity.” The client felt the psychologist had purposely kept the information from her so that he could continue to bill her for the month.
Clinician Red Flag: Practitioners directly contracting with HMO’s may have agreements that provide financial incentives to limit the number of treatment sessions. Standard 3.06 Conflict of Interest of the APA Ethics Code requires that psychologists do not let such arrangements interfere with their treatment plans in ways that jeopardize client welfare. When legally permissible, psychologists should inform clients about such agreements (Acuff et al., 1999; Fisher, 2003a).
Involvement of Third Parties
In some cases, a third party may be involved in paying for the client’s treatment. In addition to insurance carriers, third party can refer to legal guardians, employers, organizations, medical companies, or other legal or governing authorities. Standard 10.01a Informed Consent to Therapy (APA, 2002) requires psychologists to inform clients of the involvement of such parties. In addition, they must inform their clients if a third party is legally or contractually entitled to receive diagnostic evaluations or other information regarding the therapy (Fisher, 2003a).
Case 6: Involvement of third parties in financial arrangements. A psychotherapist working as an outside consultant for an assisted living residence is approached by the son of a resident requesting that she provide psychotherapy for his mother. He tells the psychologist that his mother was diagnosed with moderate depression and her health insurance has only approved payment for an antidepressant medication. However, the client’s son would like her to receive psychotherapy. He also tells the psychologist that his mother cannot afford therapy and would refuse treatment if she knows that her son was paying for it. The man asks the psychologist if she would tell his mother that psychotherapy is included in the cost of the assisted-living home. The psychologist conducted a recent assessment of the resident as part of her consulting duties and concurred with the depression diagnosis, but found no evidence that the woman lacked the cognitive capacity to consent to her own treatment. She informs the son that while her professional code of ethics does not permit her to hide such third party involvement from a client, she would discuss the issue with his mother during an initial meeting and if indicated explore with the mother whether it might be beneficial to have a family session.
Describing the Limits of Confidentiality
Maintaining client confidentiality promotes the therapeutic alliance and reflects the profession’s respect for the privacy and dignity of persons. The APA Ethics Code devotes an entire section to standards on confidentiality protections. However, the obligation to respect client autonomy sometimes conflicts with the therapist’s obligation to safeguard the welfare of clients and protect others from harm. Recognizing this dual obligation, Standard 4.05b of the APA Ethics Code permits psychologists to disclose confidential information in order to protect the welfare of clients and identifiable third parties. Informing clients of the confidential nature of psychotherapy, as well as the limits of confidentiality, is a necessary component of the informed consent procedure (Standards 4.02a, Discussing the Limits of Confidentiality, 10.01a, Informed Consent to Therapy, APA, 2002) .
For example, psychologists must inform clients of mandated reporting laws regarding child or elder abuse. Psychologists should take steps to ensure that clients – especially minors, those with impaired consent capacity, those whose first language is not English, or who may not be familiar with the U.S. legal system – fully understand the kind of information that leads to mandated disclosures. Furthermore, when working with clients whose treatment will be covered by health plans, psychotherapists should discuss what information will be made available to case managers working at their health company (Acuff et al., 1999). In cases involving minors or adults with impaired consent capacities, psychologists should inform clients about guardian access to records (Fisher, 2003a, Standard 3.10b, Informed Consent, APA, 2002). Due to the sensitive information disclosed during therapy, psychotherapists may wish to remind clients, from time to time, about confidentiality policies.
While it is not possible to anticipate all situations in which disclosure of confidential information may be ethically appropriate, clinically necessary or legally required, psychologists should inform clients about potential scenarios known to be more common for their presenting problem or clinical context. For example, psychologists conducting couples therapy should take reasonable steps to clarify how confidential information among parties will be handled. Will the psychologist permit or prohibit “secret keeping” between the psychologist and one member of the couple? How and when will such information be shared? Since the probability of requests for a psychologist’s testimony in legal proceedings such as divorce or custody disputes may frequently emerge during or following couple’s counseling, psychologists should be familiar with state law on privileged communications in couple’s therapy and clearly articulate their legal obligations and policies regarding such matters during informed consent.
Case 7: Confidentiality and disclosure related to domestic violence. A man decided to enter therapy after his wife of many years filed for divorce. During the initial session he told the psychologist that he was having difficulty concentrating at work and controlling his sense of loss and anger. During the session the clinician explained that while their sessions were confidential, she was obligated to disclose confidential information if she believed that there was an imminent risk that the client might harm himself or someone else. During the third session the client was very agitated and admitted to the psychologist that he had devised a plan to assault his wife, that he could not stop thinking about retaliation, and that he had had trouble controlling his impulses in the past. After assessing the level of risk presented by her client’s violent feelings, the clinician reminded the client of the disclosure policies. They spent the rest of the session discussing strategies for reducing the husband’s agitation and other risk factors known to be associated with domestic violence. At the end of the session, the client agreed to permit the psychologist to arrange short-term hospitalization.
Implications of HIPAA
Psychologists who are covered entities under the Health Insurance Portability and Accountability Act (HIPAA) must inform clients about their rights and the use and disclosure of private health information (PHI) during their informed consent procedures. PHI is defined as individually identifiable health information created or received by a health care provider relating to the past, present or future health, provision of health care; or payment for health care. HIPAA regulations cover any health care provider who electronically submits protected health information in connection with a transaction related to financial or administrative activities. HIPAA is not triggered by the psychologist’s use of electronic transmission for each individual client; rather, if a psychotherapy practice has electronically transmitted any protected health information it is considered a covered entity in regards to each client thereafter (Fisher, 2003a).
When covered under HIPAA, psychologists must provide each client with a Notice of Privacy Practices. The Notice should detail clients’ rights to access and amend their PHI, restrict uses and disclosures, and to receive an accounting of disclosures made by the provider to others during the past 6 years. Additionally, psychologists who are considered covered entities must demonstrate that clients have received the Notice of Privacy Practices and the information it entails. Psychologists typically do this by obtaining the client’s signature in a format that demonstrates that the Notice has been read and understood. If a client refuses to sign the Notice, psychologists should include this in their official records (Bennett et al., 2006). In cases in which a client is unable to make his or her own health-related decisions, a personal representative must be appointed to receive and sign the privacy notice. Exceptions to this rule can be made if the psychologist suspects the personal representative of abusing the client. Psychologists are advised to incorporate these HIPAA requirements into their informed consent procedures.
Psychologists have traditionally sought permission from clients to disclose private health information to other professionals and managed care organizations. HIPAA has formalized the requirements for such permission. For each request to send information to a third party a written document authorizing the release of such information must include: a description of the information to be disclosed, identification of the specific person(s) to whom the psychologist is authorized to disclose information, a description of the purpose of the disclosure, a statement explaining the client’s right to revoke the disclosure, exceptions to the right to revoke, an expiration date, and the client’s signature (Fisher, 2003a). In most cases, the client receives a copy of the written authorization as well. Importantly, psychologists making such disclosures should disclose no more than what is sufficiently required for the third party to carry out its responsibilities. (For more detailed information on the implications of HIPAA to informed consent in practice see Fisher, 2003a.)
Clinician Red Flag: When making referrals to other treating professionals it is often helpful to share PHI information with them so that they can best treat the client. When working with a long-term trusting client such as the one described in the scenario below, it may seem natural to both psychologist and client to simply contact the colleague and discuss the case information jointly. Indeed, in circumstances such as these, psychologists infer that the particular client would not object to such a discussion between his psychologist and psychiatrist. However, legal and ethical guidelines inform us that it is prudent to make sure that the client has authorized, in a written document, the release of the specific information before it is shared as well as time limitations in which the authorized communication is approved.
Case 8: Authorizing release of information. A middle-aged man suffering from moderate anxiety has been in psychotherapy for over a year when he and his therapist decide it is time for him to have a medication consultation. They agree that the psychologist should send a written report to a psychiatrist who is on the client’s health coverage plan. The client trusts his psychologist and thinks it is unnecessary to sign a form authorizing her to transmit the information. After discussing the protections that an authorization provides, the client agrees to review and sign the authorization form.
Consent for New and Untested Treatments
In order for therapies to evolve and to be introduced into practice, psychotherapists need the freedom to employ experimental and alternative treatments when preliminary knowledge suggests they may be helpful. At the same time, when compared to more traditional methods, the effectiveness and risks of such treatments have not been established. Since clients may assume that they will be receiving treatments supported by scientific research and widely accepted by practitioners, it is especially important to include discussion of the developing nature of the treatment during informed consent. Ethics Code Standard 10.01b (APA, 2002) requires that psychologists who are considering using a new or experimental treatment inform their clients of this fact, explain the potential risks of the new treatment, describe alternative treatments that may be available, and emphasize that participation in the experimental treatment is voluntary. Case 8 illustrates what could well be considered a violation of the requirements of Standard 10.01b (APA, 2002).
Case 9: Influencing rather than informing consent to new treatments. Frustrated with how his clients were responding to evidence-based treatments for generalized anxiety and dysthymia, a psychologist seeks out workshops on alternative treatments. Intrigued by a new yogic breathing method, he decides to implement the yogic teachings with his clients who are suffering from anxiety and depression. Rather than emphasizing the experimental nature of the treatment to his clients, the psychologist emphasizes the profound effect it has had in his own life. He encourages his clients to consent to such treatment without discussing the alternative established treatments that are available.
Clinician Red Flag: When an experimental or developing treatment has worked well with a number of consecutive clients, it may be natural for the clinician to no longer conceive of it as an experimental treatment. However, psychologists should consider continuing to follow the informed consent standard for new and developing treatments as such until they are backed by an established body of scientific and clinical knowledge (Standard 2.04, Bases for Scientific and Professional Judgments, APA, 2002).
Competency to Give Consent
The rights of minors and adults who are legally incompetent to give consent are protected by Ethics Code Standard 3.10b (APA, 2002). Although a legally appointed guardian may be officially responsible for medical and mental health care decisions, psychotherapists must nevertheless provide clients with an appropriate explanation of services, consider the client’s preferences and best interests, and seek the client’s assent.
Informed Consent Involving Minors
Psychologists should also be aware of state laws that permit minors to receive psychological services without guardian permission. An emancipated minor is a legal status conferred on individuals who have not yet reached the age of legal maturity but for whom state law assumes competence to consent by virtue of their assuming adults responsibilities such as marriage or self support. A mature minor is a service specific legal privilege that states grant persons who have not reached the age of adulthood to be treated as an adult for certain conditions (e.g. venereal disease, drug abuse, emotional disorders). Irrespective of their legal status, psychologists should tailor their consent procedures to fit the client’s developmental maturity and experiences. In some cases it may be appropriate to appoint a neutral consent advocate to help ensure the voluntary nature of the minor’s participation.
Informed Consent with Adults with Impaired Capacities
When working with adults with persistent, transient or advancing cognitive impairments such as mental retardation, schizophrenia or Alzheimer’s disease, psychotherapists are advised to view consent capacity not as an all-or-none ability, but as existing on a continuum (Bennett et al., 2006). Psychologists may choose to adopt a goodness-of-fit approach to the consent process (Fisher, 2003b) by fitting the nature of the consent process to each client’s cognitive strengths, vulnerabilities, and decision-making capacities and styles. For example, adults with mild levels of developmental disabilities may have the capacity to understand the reasons for and nature of therapy, but may be at a disadvantage because they lack experience making healthcare decisions on their own (Fisher, 1999; Fisher 2002a, 2002b). Approaching the consent conference in an educational manner and encouraging clients to discuss treatment decisions with family members or other trusted care providers may enable them to make more informed decisions.
Therapists should not assume consent impairment simply based on a diagnosis. Indeed, studies of consent capacity consistently demonstrate marked within-diagnosis heterogeneity, with level of cognitive confusion or distortion – particularly verbal and executive functioning skills – a more reliable predictor of consent capacity than diagnostic criteria (Howe et al., 2006; Jeste & Saks, 2006). Psychologists may also draw upon assessment instruments such as the MacArthur Competence Assessment Tool for Treatment (MacCATT; Grisso et al, 1997; Palmer et al., 2005) to evaluate consent capacity (see Cea & Fisher, 2003, for adaptation of the MacCATT for adults with mental retardation).
Clinician Red Flag: Questions of consent capacity often arise when a client refuses treatment that the psychotherapist, family members or other healthcare providers believe to be the best course of action. It is important that clinicians not assume that a client lacks the reasoning skills necessary for consent capacity just because he/she disagrees with the expert opinion about the necessary course of treatment (Fisher, 2002). Likewise, it would be dangerous for clinicians to assume that clients possess the capacity to consent merely because they agree with the suggested course of treatment (Fisher, 1999). Adults with a history of mental disorders may lack confidence in expressing their own opinions, and may agree to a course of treatment simply because it is suggested by an authority figure.
Whether in written or oral presentation, psychotherapists must make every effort to use consent language that is understandable to the client. For different clients this may require therapists to be familiar with literature on the communication needs of individuals varying in age, language, cultural background, and other individual characteristics.
Case 10: Cultural expectations. A client who had recently immigrated to the United States from China told a psychotherapist that his general practitioner had referred him to her for treatment for his trouble falling and staying asleep. After she listened to the man’s presenting problem, the therapist briefly explained that she applied a cognitive-behavioral treatment technique to working through insomnia with clients. The client was rather quiet during the session and when at the end of the session the clinician asked if he had any questions, the clinician was surprised when the client asked what kind of medication she would be prescribing. This alerted the therapist to the fact that her new client was unfamiliar with distinctions between psychotherapy and psychopharmacology. In response, the therapist carefully explained how her cognitive-behavioral treatment differs from standard pharmacological care.
Clinician Red Flag: Psychotherapists may assume that most clients seeking treatment are familiar with the basic goals of and practices involved in psychotherapy. However, client familiarity with mental health treatment based on pop culture representations of psychotherapy (on television shows, TV commercials, movies, novels) that often misrepresent, simplify or exaggerate the therapeutic process. Thus it is important that psychotherapists do not assume that new clients truly understand the nature of psychotherapy (Fisher, 2003a).
When the Therapist is a Trainee
Many organizations providing mental health services also provide practicum and internship experiences for trainees. When a trainee provides psychotherapy, the trainee’s supervisor is legally responsible for the trainee’s decisions and actions. Standard 10.01c, Informed Consent to Therapy (APA, 2002) requires that clients be informed that their therapist is a trainee, that the supervisor is responsible for the trainee’s therapy, that the trainee meets regularly with the supervisor for guidance and advice, and that the client is provided with the supervisor’s contact information. Importantly, this standard applies to predoctoral or postdoctoral trainees and not licensed practitioners who have chosen to receive additional supervision (Fisher, 2003a).
Case 11: Informing clients that the therapist is a trainee. A trainee feels insecure about telling clients that she is not a licensed practitioner. She fears that they will reject her services or that they will carefully monitor any mistakes that she makes. She tells her supervisor that she has held off mentioning her trainee status during the initial session with two new clients so that a trusting therapeutic alliance can be formed. Although her supervisor empathizes with her discomfort, he explains that by not disclosing her trainee status she may have in fact undermined the future of the therapeutic alliance, since they may now question her integrity and motives for not disclosing sooner. The supervisor works with the supervisee on ways in which she can introduce discussion of her status at the next session with the client.
Informed consent procedures reflect the profession’s commitment to respecting clients’ self-determination and autonomy. Informed consent can serve to demystifying the therapeutic process, give clients a sense of ownership, and enhance rapport-building, client enthusiasm, and clinical outcome. Fitting the language, timing, and content of informed consent to the client’s unique needs and cognitive-emotional skills as well as to the nature of the psychotherapy demonstrates commitment to advancing human welfare, respecting client autonomy, and establishing relationships of trust.
*Portions of this article were adapted from Fisher, C. B. & Oransky, M. (in press). Informed consent to psychotherapy: Protecting the dignity and respecting the autonomy of patients. Journal of Clinical Psychology.
Celia B. Fisher is the Marie Ward Doty Professor of Psychology at Fordham University and Director of the Fordham Center for Ethics Education. Dr. Fisher chaired the American Psychological Association Task Force and is author of Decoding the Ethics Code: A Practical Guide for Psychologists (Sage Publications). She is the co-editor of 5 books, author of over 100 publications in the areas of ethics and life-span development, and of commissioned papers for the President’s National Bioethics Advisory Commission on relational ethics and vulnerable populations and on the ethics of suicide research for NIMH. She currently chairs the Environmental Protection Agency's Human Research Subjects Board and was chair of the Children's Subcommittee for the U.S. Department of Health and Human Services Secretary's Advisory Committee on Human Research Protections.
Matthew Oransky is a doctoral candidate in the Clinical Psychology Program at Fordham University. He also works at Fordham's Center for Ethics Education, where he is involved in a National Institute of Drug Abuse funded research project investigating participant perspectives on the ethics of drug abuse and related HIV risk research. He has co-authored papers on ethics-related topics such as informed consent in psychotherapy, the therapeutic misconception in drug treatment randomized clinical trial research, and issues of confidentiality in ethnographic research with illicit drug users. Other research interests include the development of masculine identity in adolescent boys, and the correlates of adhering to traditional masculine roles.
Selected References & Recommended Readings
Acuff, C., Bennett., B.E., Bricklin, P.M., Canter, M.B., Knapp, S.J., Moldawsky, S., et al. (1999). Considerations for ethical practice in
managed care. Professional Psychology: Research and Practice, 30, 563-575.
Beahrs, J. O., Gutheil, T. G. (2001). Informed consent in psychotherapy. American Journal of Psychiatry, 158, 4-10.
Bennett, B.E., Bricklin, P.M., Harris, E., Knapp., S., VandeCreek., L., & Younggen, J.N. (2006). Assessing and managing risk in psychological practice: An individualized approach. Rockville, MD: The Trust.
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)
Cea, C., & Fisher, C. B. (2003). Health care decision-making by adults with mental retardation. Mental Retardation,41, 78-87.
Draper, H. (2000). Anorexia nervosa and respecting a refusal of life-prolonging therapy: A limited justification. Bioethics, 14, 120-133.
Fisher, C. B. (1999). Relational ethics and research with vulnerable populations. Reports on research involving persons with mental disorders that may affect decision-making capacity Vol. II (pp. 29-49). Commissioned Papers by the National Bioethics Advisory Commission. Rockville, MD: National Bioethics Advisory Commission.http://www.bioethics.gov/reports/past_commissions/nbac_mental2.pdf .
Fisher, C. B. (2002a). A goodness-of-fit ethic of informed consent. Urban Law Journal, 30, 159-171.
Fisher, C. B. (2002b). Respecting and protecting mentally impaired persons in medical research. Ethics & Behavior, 12, 279-284.
Fisher, C.B. (2003a). Decoding the ethics code: A practical guide for psychologists. Thousand Oaks, CA: Sage.
Fisher, C.B. (2003b). Goodness-of-fit ethic for informed consent to research involving adults with mental retardation and developmental disabilities. Mental Retardation and Developmental Disabilities Research Reviews, 9,27-31.
Grisso, T., Appelbaum, P. S., & Hill-Fotouhi, C. (1997). The MacCAT-T: A clinical tool to assess patients’ capacities to make treatment decisions. Psychiatric Services, 48, 1415-1419.
Howe, V., Foister, K., Jenkins, K., Skene, L., Copolov., Keds., N. (2005). Competence to give informed consent inn acute psychosis is associated with symptoms rather than diagnosis. Schizophrenia Research, 77, 211-214.
Jeste, D. V., & Saks, E. (2006). Decisional capacity in mental illness and substance use disorders: Empirical database and policy implications. Behavioral Sciences and the Law, 24, 607-628.
Osheroff v. Chestnut Lodge, 63 Md. App. 519, 490 A.2d 720 (Md. Ct. App), cert denied.
Palmer, B. W., Dunn, LB., Appelbaum, P. S., Mudaltiar, S., Thal, L. , & Henry, R. (2005). Assessment of capacity to consent to research among older persons with schizophrenia, Alzheimer disease, or diabetes mellitus. Archives of General Psychiatry, 62, 726-733.
Pomerantz, A. M. (2005). Increasingly informed consent: Discussing distinct aspects of psychotherapy at different points in time. Ethics and Behavior, 15, 351-360.
Pope, K. S., & Vasquez., M. J. (2007). Ethics in psychotherapy and counseling: A practical guide. San Francisco: Wiley.