Informed Consent: Part 1

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Avoiding Liability Bulletin – August 2006

… 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.

Once one understands the informed consent requirements imposed by state law and other legal authority, compliance should be easy. Compliance with established laws, regulations and ethical standards related to informed consent should assure that the licensing board will not pursue disciplinary action against the practitioner for unprofessional conduct. Compliance, however, will not necessarily assure that a lawsuit against the therapist will not be brought.

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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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