Consent vs. Authorization

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Avoiding Liability Bulletin – March 2006

… 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.

As to consent, this word typically relates to the patient consenting or agreeing to treatment at the beginning of the doctor or therapist-patient relationship. It is an accepted principle of health care law that in order for one to properly consent to medical or other health care, they must possess the mental capacity to consent to treatment. Therapists do not typically test or examine potential patients in order to determine if they have the requisite mental capacity to participate in psychotherapy – it is generally inferred from the circumstances. Thus, if a husband and wife are seeking marital therapy or couples counseling, the therapist would typically make an appointment and commence treatment without much ado. Of course, where law, regulation or ethical standards mandate that certain disclosures be made prior to the commencement of treatment, therapists and counselors must be sure to comply with such requirements, which are sometimes referred to as “informed consent” (to be discussed more fully in a future Bulletin).

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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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