… In the March 2006 (Volume 1) issue of the Avoiding Liability Bulletin, I briefly wrote about and contrasted the words “consent” and “authorization,” and indicated that I would write about “informed consent” in a future issue. “Informed consent” (as opposed to a simple consent to treatment by an adult patient or by a parent on behalf of a minor) essentially and generally involves the disclosure of information to the patient and the discussion of such information with the patient so that he/she is agreeing to treatment with knowledge of the material facts necessary to make his/her decision.

The various mental health professions treat the issue of informed consent somewhat differently (e.g., in their ethical standards), and state law and regulation likewise may vary from state to state and from profession to profession. For instance, in some states and with respect to certain professions, practitioners may be required to obtain a patient’s signed, “informed consent” at the outset of routine therapy/counseling by providing the patient with written information specified in law or regulation. Failure to obtain this required informed consent typically constitutes unprofessional conduct. In other states and with respect to other professions, a signed, written informed consent at the outset of treatment for routine psychotherapy is not required by statute or regulation.

The doctrine of informed consent has developed largely as the result of case law (published court decisions) with respect to the medical profession. As a general rule, physicians do not need the signed, informed consent of the patient for a simple and common treatment or procedure, where the risks or dangers are remote and commonly understood to be remote. They simply need the patient’s consent. Of course, the person consenting must have the legal and mental capacity to consent. For example, minors may lack the legal capacity to consent to treatment and will generally need the consent of a parent or guardian before treatment can begin. With respect to routine (simple and common) medical care, consent to treat may be express or implied from the circumstances.

Physicians typically seek informed consent either where a statute or regulation requires a written and signed informed consent, or where the circumstances warrant it. Where there are significant risks or perils from a certain treatment or procedure, the physician must, at a minimum, carefully let the patient know what the risks and benefits of the proposed treatment or procedure are, what the alternative treatments or procedures are (including the alternative of no treatment), and must discuss this information with the patient, allowing the patient to ask questions. The touchstone of the physician’s duty of disclosure is the patient’s need for adequate information to enable an intelligent choice. The test is, in essence, what would a prudent person in the patient’s position have decided if adequately informed by the physician of all significant perils.

With respect to psychotherapy and counseling, and as stated above, the issue of informed consent may be treated differently from profession to profession and from state to state. The reader should of course abide by state legal requirements and by the ethical standards of their profession. Patients must, of course, knowingly consent to treatment. And, in a general sense, their consent must be informed. The questions really become – informed of what, informed of how much, and informed in what manner?

Even when state law or regulation specifies what has to be done, many questions can arise. For instance, does state law specify the minimum disclosures necessary and leave it open to the therapist or counselor to add other disclosures? If state law specifies that the practitioner must disclose the potential risks and benefits of treatment, does the law specify in any way what the typical risks of counseling or therapy are? Can therapists be found civilly liable for failure to obtain “appropriate” informed consent even though they disclosed all that the state law required, or is there immunity from liability for making the required disclosures?

Further, are therapy, psychotherapy or counseling inherently dangerous treatments? If the possible consequences of marital therapy or couple counseling is that the couple will mutually decide to divorce, is that a risk or a benefit of treatment? Are therapists required to tell prospective patients that therapy could result in great stress, self-doubt, depression and perhaps suicide? Are mental health counselors or marriage and family therapists, for example, required to tell prospective patients that an alternative to treatment by a person of their respective licensure is treatment by a psychiatrist, psychologist, or clinical social worker (with appropriate explanations of the differences)? Must the informed consent be in writing, and must it be signed and dated by the patient?

The answers to all of these questions may or may not be found in applicable laws, regulations or ethical standards. They are, however, important (and hopefully interesting) questions to ponder. If state laws or regulations do answer any of these questions, then the applicable state law or regulation will govern. The answers to these questions cannot be adequately addressed this month, but let’s start with the last question first – must an informed consent be in writing, and must it be signed and dated by the patient?

First, you will abide by state requirements with regard to written, signed, and dated informed consent documents. In the absence of a state law or regulation that governs, one would typically look to the applicable ethical standards. Some of the standards, however, do not specify that a signature (dated) must be obtained on a written document. In other words, some standards would allow the therapist to have discussions with the prospective patient, to make certain disclosures to the patient, and to document those discussions and disclosures in the treatment records. Under HIPAA privacy regulations, the requirement for obtaining a signed “informed consent,” prior to the commencement of treatment, was entirely eliminated by the U. S. Department of Health and Human Services in favor of the Notice of Privacy Practices (specified written disclosures) that must be given to the patient. The patient’s signature is not required to be on the Notice, but the “covered provider” must make a good faith effort to obtain the patient’s written acknowledgment of receipt of the Notice.

… In the July 2006 issue of this Bulletin I answered one of the several questions I raised about “informed consent” – that is, whether the informed consent had to be written, dated and signed. Another question raised was whether therapists can be found civilly liable for failure to obtain “appropriate” informed consent even though they disclosed all that the state law required, or whether there is immunity from liability for making the required disclosures.

Although state laws and regulations vary, the typical situation is that state laws do not usually provide immunity from liability for making the required disclosures. In other words, a lawsuit can be brought alleging that the therapist failed to obtain the “appropriate” informed consent because he or she failed to make some other disclosure (one not specified in the law or regulation) that would have affected the patient’s decision to proceed with treatment. Plaintiffs’ attorneys and others seemingly argue that there is a never-ending list of things that should be disclosed to patients prior to the start of therapy.

For example, suppose that a patient is assaulted or raped in the parking lot of the therapist’s office when she leaves the office one evening. It might later be alleged that the therapist should have made disclosures regarding the fact that the office is located in a high crime area or that the therapist should have disclosed that no security is provided in the building or in the parking area. It might further be alleged that had these disclosures been made, the patient would not have entered into this particular professional relationship.

A more common example follows. Suppose that a therapist or counselor engages in a prohibited dual relationship with the patient (e.g., a sexual, romantic or business relationship) and that the relationship later sours and results in a lawsuit by the patient against the therapist. It is possible that the lawsuit will contain an allegation that the therapist failed to obtain the informed consent of the patient prior to entering into the secondary relationship, and that the therapist failed to disclose, among other things, the risks to the therapeutic relationship (and to the therapy) and the potential benefits presented by entering into the secondary relationship.

If taken to an extreme, one can imagine allegations that the therapist failed to inform the patient that therapy could result in the patient discovering why he or she is so disliked by others, and further, that this could result in depression and ultimately in his or her attempted suicide. Or, perhaps the absurd allegation will be that the marriage and family therapist or mental health counselor failed to inform the patient that professional mental health services could instead be rendered by a licensed psychologist or a psychiatrist and that those practitioners might have more training than the MFT or mental health counselor. While anything can be alleged in a lawsuit, proving lack of “appropriate” informed consent in these extreme circumstances will hopefully be difficult.

… Perhaps the most common component of an informed consent mentioned in state laws, ethical provisions and other sources of authority is the requirement to disclose the potential risks and benefits of the proposed treatment. As discussed in prior issues of the Avoiding Liability Bulletin, the necessity for an informed consent document may be specified in state law for limited and specific purposes (e.g., for e-therapy/telemedicine) or may be more generally required by law or recommended in ethical standards under a variety of circumstances. Rarely does the law specify what the actual risks or benefits are, but rather, the law more generally mandates that the practitioner must inform the patient of the risks and benefits, leaving it to the judgment of the practitioner to determine the actual disclosures.

In the case of telemedicine, for example, what are the potential risks? Or, if a therapist or counselor were to ask permission of the patient to videotape sessions for use in supervision and training, what are the potential risks? These kinds of questions are not easy to answer and they require considerable thought. Depending upon circumstances, the answers may vary. With respect to e-therapy or “telemedicine,” see the March 2006 (Volume 1) edition of this Bulletin (under “Related Links,” click on “Bulletin Archives,” scroll down and click on “Online Therapy – Disclosure”) for some ideas about the potential risks that one may want to disclose and discuss with prospective e-therapy clients.

With respect to the videotaping of sessions (which may be helpful with supervision, training and quality of patient care), one must exercise care in how and with whom the subject is broached. Patients who say “no” might later feel that they have disappointed their therapists or counselors and this may negatively affect their future relationships. Thus, practitioners would certainly want to make abundantly clear in an informed consent document that there is no obligation to consent and that the patient is encouraged to make his or her wishes known, without penalty or consequence. Such attempt to obtain informed consent should, where possible, be pursued at the outset of therapy rather than after therapy has begun.

One of the risks of videotaping is that the tape may be lost or may otherwise get into the hands of those who should not have access. Thus, therapists should be clear (in the informed consent document) about how the tapes will be maintained, who will have access to them, and how and when will they be destroyed. Patients should also be informed in the document that they have the right to withdraw their consent at any time. The method by which the consent may be withdrawn should also be delineated.

Another concern about videotapes is their availability to be subpoenaed. Patients who are involved in litigation, or who are likely or expecting to be involved, may not want the tapes to become discoverable evidence because of the extent of the content, and thus, may want to say “no” to the videotaping request. Careful judgment must be exercised in such cases as to whether or not the request by the therapist should even be initiated. A thorough informed consent disclosure might therefore include, among other things, the fact that the tapes may be subpoenaed and may have to be released (assuming that the privilege doesn’t apply and that the tapes have not yet been destroyed).

For those who have consented to videotaping, it is important that the destruction of the tapes takes place not only at the earliest time appropriate, but on a regular schedule as well. The schedule of tape destruction should be carefully delineated in the informed consent document. Thus, if a subpoena unexpectedly arrives a few days after destruction of the tapes, the practitioner will have a reasonable explanation for the destruction and will hopefully have the informed consent document to help prove that the destruction was both legitimate and appropriate. Otherwise, it may look as though the practitioner has intentionally destroyed evidence - a rather serious charge.

… These two words are often misused and misunderstood, not only by therapists and counselors, but also by state legislation (law) and by some professional organizations. HIPAA regulations (specifically, the “Privacy Act”), from the beginning, properly recognized the essential difference between the two words. Although HIPAA regulations do not apply to many private practitioners (those who are not covered entities/covered providers), it is helpful to look to those regulations as an example. In essence, a written authorization (as opposed to a “consent to release”) is the document or form that a patient signs allowing the health care provider to release confidential information, including the treatment records, to a third party. Many states have passed laws or regulations that specifically detail the required provisions to be contained in a valid authorization form. For those who are governed by HIPAA, the content of a valid authorization form is specified by the federal regulations.

One of the most important elements, if not the most important element, of informed consent is the obligation to inform the patient of the potential risks and benefits of treatment – that is, some form of psychotherapy, therapy, or counseling. It should be understood from the outset that each state likely treats this subject matter differently. For example, a state may require (for a particular licensed health care practitioner) that a written and signed informed consent be obtained before certain kinds of treatment (procedures) occur, or before any treatment occurs. Other states may not refer to the term “informed consent,” but may simply require that certain disclosures be made in writing prior to the commencement of treatment. Ethical standards of the various mental health professions treat the subject matter somewhat differently. With respect to HIPAA, federal regulations do not require that the patient first give his or her informed consent prior to treatment, but they do require that certain disclosures about the practitioner’s privacy policies and related matters be made.

Obviously, patients must consent to treatment. Consent is sometimes express and often implied. Patients must be mentally competent to consent to their own treatment. Additionally, minors under a certain age may not be able to lawfully consent to their own treatment, and thus the practitioner will need the consent of a parent or guardian before treatment can begin. Depending upon the circumstances (including state law), this consent may also be express or implied. Generally, the time when informed consent becomes important (other than when required by law, regulation, or ethical standards) is when there is treatment that does not involve a simple and common “procedure” (e.g., an hour of counseling or psychotherapy) where the risks or dangers are remote and commonly understood to be remote. Stated otherwise, the test as to whether informed consent may be necessary is to ask whether a prudent person in the patient’s position would decide not to pursue therapy or counseling if he or she is adequately informed of all of the significant perils or risks involved.

What are the risks, if any, of therapy, psychotherapy, or counseling? Is therapy or counseling an inherently dangerous activity? Must prospective patients or clients be informed of particular risks, or of any and all risks? May a patient claim, no matter how many disclosures were made by the practitioner, that the therapist failed to disclose something of such importance that it would have influenced the patient not to enter upon the therapy or counseling? A discussion of these questions is overdue. I wrote about “informed consent” in the July 2006 issue of the Avoiding Liability Bulletin. In that article, I answered the question concerning whether or not the informed consent had to be in writing, signed and dated by the patient, and stated that I would write about other questions raised in the article in a subsequent issue of the Bulletin.

In my view, psychotherapy, therapy, or counseling is generally not an inherently dangerous or risky undertaking. Generally, the risks or perils of therapy or counseling would, in my view, seem remote to most consumers. Of course, there is the risk that therapy may not be “successful,” however that word might be defined or the degree of success judged. A weekly hour with a counselor or therapist to deal with relationship problems or parenting issues is in my view routine treatment, as is treatment of patients or clients for a variety of mental health problems or conditions. With respect to the doctrine of informed consent, it is generally understood that “full disclosure is not required where the explanation of every risk attendant upon treatment would result in alarming the patient, and who might as a result refuse to undertake that which involved a minimal risk.” In other words, and stated less “legalistically,” there is no duty to scare a patient away from counseling or therapy. Of course, informed consent must be obtained, or specified disclosures must be made, when required by statute or otherwise required or indicated.  

In some articles and in some therapist disclosure statements that I have read, it seems that some practitioners believe that unless the prospective patient is informed of everything that could possibly happen or go wrong there has not been sufficient disclosure. I have often stated the following at workshops, tongue firmly implanted in cheek, to make my point about how some may go too far with respect to informed consent. The supposedly prudent therapist or counselor concerned with informed consent says the following to the prospective patient or client:

“I want you to know that during the course of therapy/counseling you may discover more about yourself and better understand why so many people do not like you, or why you are having trouble with your relationships, and this may lead you to get depressed – perhaps even contemplate suicide. I’m not saying this will happen, but I’m just informing you that this is possible. I also want you to know that there are alternatives to seeing me in therapy/counseling. You can see a psychologist rather than me. I’m a licensed professional clinical counselor (or marriage and family therapist) with a master’s degree. A psychologist has a Ph.D. You can also see a psychiatrist, who is a physician and can prescribe medication that you may need. I will make a referral if you would like to be treated by a psychiatrist or a psychologist. There are also things you can do of a self-help nature, or in a group setting, and some studies show that these remedies may be as effective as counseling or therapy. If you see me about relationship problems, this could lead to your discovery that a divorce is the right thing for you to do, which could lead to major problems regarding custody of your children and major financial problems for you.

Okay, enough! My obvious point is that there is no duty to scare a patient away, nor is it wise to do so.

On the other hand, practitioners should strive to provide adequate information to patients so that they can make meaningful decisions about their therapy.

In my view, the potential risks and benefits of therapy would be disclosed and discussed, and informed consent would and should be obtained, when the proposed treatment involves novel or experimental techniques, or when there is a risk of harm that could result from the utilization of a particular technique or approach. I have generally recommended that the potential risks and benefits of treatment be disclosed, and that written informed consent be obtained, when the therapist is providing online therapy, or is videotaping or audio recording sessions, permitting third party observation, providing hypnosis or hypnotherapy, providing EMDR, when the treatment includes touch, for Christian or spiritual counseling or other special focuses (e.g., reparative therapy), and for retreats, hikes, and other physical activities. This list is illustrative rather than exhaustive, and depending upon circumstances, the disclosures and content of the informed consent will vary. The informed consent under the above circumstances should address (explain) the nature of the recommended treatment and the alternatives to the treatment recommended, including the possibility of no treatment of the kind proposed (e.g., the use of touch).

I do not think that it is necessary or wise to inform patients as to the likely outcome of routine therapy or counseling. I am reminded of the definition of psychotherapy (not mine) that I have previously shared with readers - that is, “psychotherapy is an unidentified technique, applied to unspecified circumstances, with unpredictable outcomes - requiring rigorous training.” As I explained in the past, this definition is attributed to an attorney who wrote a multiple volume work on the regulation of psychotherapy. In that work, a viewpoint was expressed to the effect that the states should not regulate a profession that cannot be clearly defined. It is hard to predict the outcome of therapy, since there are so many factors that can affect it. However, if one is proposing a form of treatment where the evidence is that the treatment may not be beneficial or may be harmful, disclosures about the likelihood of success and the potential harm will be needed. The answer to the question of whether a patient may claim that the practitioner failed to disclose something of such importance that it would have influenced the patient not to enter treatment is “yes.” Even though the practitioner may have disclosed much, a patient (and lawyer) may later claim that something critical was not disclosed – such as, that the therapist had a serious drug or alcohol problem that was likely to negatively affect treatment!

One of my criticisms of some state laws requiring that informed consent be obtained from the patient, and that the potential risks and benefits be disclosed at the outset of treatment, is that those statutes rarely specify what any of the risks are – leaving it to the discretion and judgment of the practitioner to define the risk. In California, for example, the telemedicine statute required, among other things, that the risks of telemedicine (e.g., online psychotherapy) be disclosed to patients. However, the statute contained no specification of any of the supposed “risks.” If the Legislature thought that there were risks, significant enough to require written and verbal informed consent, why not specify what those risks are? Why were practitioners expected to discern or define all of the risks and perhaps be liable for not disclosing something that is later, with the benefit of hindsight, alleged to be a risk? Recent legislation in California has repealed the requirement of informed consent prior to the delivery of telemedicine or “telehealth.” Effective January 1, 2012, the law will contain no requirement that potential risks be disclosed. Shazaam!!