September 2006

… 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.


Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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