Columnists and Correspondents

Malpractice and Risk Management

Jeffrey E. Barnett, Psy.D.

In the first important ruling concerning informed consent, Schloendorff v. Society of New York Hospital (1914) the judge ruled: "Every human being of adult years and social mind has a right to determine what shall be done with his own body." (as cited in Stromberg et al, 1988, p. 446). Unfortunately, this ruling languished until Natanson v. Kline (1960) in which it was ruled that each patient must be provided with enough relevant information to make an informed treatment decision. Yet, it was left to health care professionals to determine just what was relevant and how much information the patient needed. This was refined in Canterbury v. Spence (1972) and Cobbs v. Grant (1972) when the courts ruled that the amount of information to be shared with the patient would be what a reasonable person would need to make such a treatment decision, rather than what health care professionals determined their patients needed to know. Also, for patients to make an "informed" decision they now needed to have an accurate understanding of the potential risks and benefits of the proposed course of treatment. It was also ruled that patients did not need to request this information. A new standard was set which requires health care professionals to share all relevant information that might affect a reasonable person's decision about the proposed treatment. Additionally, this information must be shared in a manner that is understandable to the layperson. In Truman v. Thomas (1980) the court added to the professional's obligation, ruling that patients must also be informed of the potential risks of refusing treatment.

The goal of informed consent is to make our patients active partners in the decision-making process. Our objective is to share with patients at the outset of the treatment relationship enough information so they may make an "informed" decision about accepting or rejecting it. While the specifics of what should be included in an informed consent agreement are not delineated in APA's Code of Ethics and Professional Conduct (1992) standards are provided which require us to discuss with patients "appropriate issues, such as the nature and anticipated course of therapy, fees, and confidentiality" (p. 1605).

To decide what to include in an informed consent agreement one must consider what patients might want or need to know. Consultation with ethics codes and relevant State laws are important as well as the specifics of the individuals involved and the type of service to be provided. In one recent study Braaten and Handelsman (1997) found that current and former psychotherapy patients most wanted information about confidentiality, risks of alternative treatments, and inappropriate therapeutic techniques. Information about the psychotherapist's personal characteristics and professional training were rated as least important.

Historically, psychologists have not been very attentive to these informed consent issues. For example, Baird and Rupert (1987) found that only 35.7% of psychologists surveyed reported that they always discuss confidentiality issues with their patients. Additionally, another study (Handelsman et al., 1986) found that only 28.8% of psychologists surveyed utilized a written agreement for informed consent. Some practitioners have feared that doing so would leave patients with a negative impression of the psychotherapist and not pursue treatment. Interestingly, several studies (eg. Dauser, Hedstrom, and Croteau, 1995; Handelsman, 1990; Sullivan, Martin, and Handelsman, 1993) have found that patients prefer a comprehensive disclosure of relevant information at the outset of the therapy relationship and that a combination of written and verbal disclosure is viewed most positively.

The APA Ethics Code (1992) further specifies that when obtaining informed consent the individual "(1) has the capacity to consent, (2) has been informed of significant information concerning the procedure, (3) has freely and without undue influence expressed consent, and (4) consent has been appropriately been documented" (p. 1605). Additionally, we must ensure patients understand what they are agreeing to. Merely asking if they understand or have any questions is not sufficient. Checking to ensure their understanding of the information shared and what they are agreeing to is an important part of the consent process. It is further recommended that the informed consent process occur both verbally and in writing. Just reviewing it verbally leaves no tangible record to be referred back to later; having a patient read and sign yet another wordy document at the beginning of treatment does little to "inform" them or to be sure they understand what they are agreeing to. Thus, the use of a written agreement that is worded so patients may understand it, not one that requires an attorney to decipher, along with a verbal review of its contents is recommended.

It is also recommended that informed consent be viewed as an ongoing process. It does not end when the initial treatment agreement is reached. It should be reviewed periodically and updated as treatment needs change. For example group psychotherapy may be added to a patient's individual treatment, a family member may be included in ongoing treatment, or the need to use a specialized technique such as hypnosis may arise as treatment progresses. If any changes are to occur to the initial treatment agreement it should be revised according to the standards discussed.

Patients must also be legally competent to consent to treatment which as Stromberg et al. (1988) describe means they must be of "sufficient mind to reasonably understand the condition, the nature and the effect of the proposed treatment, attendant risks in pursuing treatment, and in not pursuing treatment" (p. 447). One category of individuals generally not considered legally competent to consent to treatment is minors. Instead, only a parent or guardian may legally consent to the child's treatment. Practitioners must be familiar with relevant State laws that stipulate the legal age of majority and exceptions to this requirement. For example, while 18 is the age of majority in many jurisdictions, in several, 16 year olds may legally consent to substance abuse treatment and reproductive services counseling. Many jurisdictions also have guidelines for exceptions such as emancipated minors which typically include those minors who are married, are self-supporting, or are in the military.

So what should be included in an informed consent agreement? While this may vary depending on the nature and circumstances of the evaluation or treatment and the individual(s) involved, a basic framework is recommended that may be modified as is warranted. At a minimum it should include: the nature and purpose of treatment, each party's roles and responsibilities, treatment alternatives available based upon your assessment of the patient's treatment needs, the risks and benefits associated with each alternative, the risk of refusing treatment, confidentiality and any relevant limits to it that may be anticipated, fees and financial arrangements, scheduling, how to contact you between appointments, actions to take should an emergency arise, and any use of audio or videotaping.

Do you use a written informed consent agreement with your patients? If so, what do you include in it? Please send me a copy of your written agreement at barnetthome@erols.com or by fax to (410)-987-0713. I will have a number of representative forms posted here on 42 Online for division members to review and possibly use.

To view sample informed consent forms, click here.

References

American Psychological Association. (1992). Ethical principles of psychologists and code of conduct. American Psychologist, 47, 1597-1611.

Baird, K.A., & Ruppert, P.A. (1987). Clinical management of confidentiality: A survey of psychologists in seven states. Professional Psychology: Research and Practice, 18, 347-352.

Braaten, E.B. & Handelsman, M.M. (1997). Client preferences for informed consent information. Ethics and Behavior, 7, 311-328.

Canterbury v. Spence, 464 F.2d 772, 789 (D.C. Cir. 1972). Cobbs v. Grant, 502 P.2d 1 (Cal. 1972). Dauser, P.J., Hedstrom, S.M., & Croteau, J.M. (1995). Effects of disclosure of comprehensive pretherapy information on clients at a university counseling center. Professional Psychology: Research and Practice, 26, 190-195.

Handelsman, M.M. (1990). Do written consent forms influence clients' first impressions Of therapists? Professional Psychology: Research and Practice, 21, 451-454.

Handelsman, M.M., Kemper, M.B., Kesson-Craig, P., McLain, J, & Johnsrud, C. (1986). Use, content, and readability of written consent forms for treatment. Professional Psychology: Research and Practice, 17, 514-518.

Nathanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960). Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914).

Stromberg, C.D., Haggarty, D.J., Leibenluft, R.F., McMillian, M.H., Mishkin, B., Rubin, B.L., & Trilling, H.R. (1988). The Psychologists Legal Handbook. Washington, DC: The Council for the National Register of Health Service Providers in Psychology.

Sullivan, T., Martin, W., Jr., & Handelsman, M.M. (1993). Practical benefits of an Informed consent procedure: An empirical investigation. Professional Psychology: Research and Practice, 24, 160-163. Truman v. Thomas, 611 P.2d 902, 27 3d 285 (Cal. 1980).