Revisiting Informed Consent
By Michael Griffin, J.D., LCSW
Revised October, 2017 by Michael Griffin, JD, LCSW, CAMFT Attorney
Although most therapists consider informed consent to treatment to be an important principle in healthcare, some question whether informed consent differs from ordinary consent to treatment and if so, how it applies to the practice of psychotherapy. Therapists also raise a variety of related questions, such as: Are there specific legal requirements for informed consent in California? If so, do they apply to medical professionals and to non-medical mental health providers alike? Are therapists legally and/or ethically required to make certain disclosures to their patients at a particular time in the treatment process? Are ethical standards related to informed consent the same for marriage and family therapists, psychologists, and clinical social workers? Should therapists address informed consent differently under special or unique treatment circumstances, such as on-line therapy? Is informed consent any different for children than it is for adults? Are there special considerations to be aware of when treating couples or families? Is informed consent actually a process?
In an effort to address these and other questions, this article provides a general discussion of informed consent, examines the relevant legal and ethical standards, addresses the issue of mandated disclosures and reviews a number of special circumstances involving informed consent.
What is Informed Consent?
The Legal Doctrine of Informed Consent
Informed consent to treatment should be distinguished from simple consent to treatment. In the latter, an adult simply agrees to accept treatment for him or herself, or for his or her minor child. To be effective, consent must be provided knowingly and voluntarily. In other words, the patient must be at least generally informed about his or her treatment and understand that he or she has a right to decline the treatment. In addition, the patient must possess the legal capacity to provide consent. For example, a minor (with certain exceptions) lacks the legal capacity to provide consent to his or her own treatment. Alternately, an intoxicated person may lack the capacity to provide effective consent due to impaired mental condition.
In the 1960s, the legal doctrine known as informed consent emerged in various case law decisions that concerned the failure of a physician to provide his or her patient with adequate information about the possible or known risks associated with a particular medical treatment or procedure.1 Informed consent doctrine ultimately required a physician to disclose meaningful information to his or her patient about the proposed treatment, and to offer a discussion of the relevant risks and benefits of that treatment. 2 A patient was thereby provided with an opportunity to make an informed decision about whether or not to accept the particular treatment.3
It is important to note that the element of risk that is associated with a given treatment is an important consideration in determining whether informed consent is applicable. As the likelihood of potential harm increases, there is a corresponding increase in risk. As risk increases, the need to inform the patient increases in importance. This principle is further illustrated by the fact that the informed consent doctrine is generally inapplicable to routine or simple treatments, or to treatments that present little or no risk to the patient.
Informed Consent Doctrine in California
The specific requirements for informed consent vary from state to state and from profession to profession.4 In the 1972 case, Cobbs v. Grant, the California Supreme Court established a medical doctor’s duty of reasonable disclosure for the purposes of informed consent, stating that physicians must disclose “all information relevant to a meaningful decisional process.”5 In their opinion, the Court articulated four “primary postulates” of informed consent, 6 as paraphrased here:
- Patients do not ordinarily possess the same technical knowledge as a physician.
- A person has the right to exercise control over him or herself and to determine whether or not to submit to treatment.
- A patient’s consent to treatment must be informed to be effective.
- A patient relies upon his or her provider for important information regarding the treatment.7
The definition of informed consent expressed in Cobbs v. Grant and in subsequent California cases, is evident in the California Civil (jury) Instructions (CACI), which state:8
“…A [medical professional] must give the patient as much information as he/she needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances…”9
Because psychotherapy is not an inherently risky form of treatment, it is reasonable to question whether informed consent doctrine is truly applicable to psychotherapy under most circumstances. In fact, many therapists may be surprised to learn that, with the exception of telehealth, California law does not specifically require psychotherapists to obtain their patients10 informed consent for treatment. Section 1815.5(c)(1) of the California Code of Regulations requires a licensee or registrant to obtain informed consent from the client consistent with Section 2290.5 of the Business and Professions Code, upon initiation of telehealth services.
While the language of section 532 of the California Civil jury instructions CACI concerns the conduct of “medical professionals,”that doesn’t mean that psychotherapists are, or should be, nonchalant about the underlying principles of informed consent. For example, a number of ethical guidelines directly refer to, and in some cases require, the specific application of informed consent.11 Furthermore, many therapists believe that issues of informed consent arise during the course of treatment when the therapist and his or her patient consider significant changes or modifications to the treatment plan.
California law does require psychotherapists to disclose specific information to their patients.12 Because the law does not require that such disclosures be made in a particular manner, some therapists provide their disclosures verbally, while others prefer to furnish the information in writing, which may or may not be in the form of a signed agreement. Regardless of the method selected, therapists should strive to provide their patients with clear information, in plain English.13
The following information identifies the various disclosures that California law either requires or encourages of marriage and family therapists, licensed clinical social workers, and psychologists. The disclosure requirements are similar, but by no means identical, for these professional groups.
The California Business and Professions Code and the California Code of Regulations govern the conduct of numerous professional groups in California, including marriage and family therapists, clinical social workers and psychologists. Violations of these laws generally constitute unprofessional conduct and may subject the individual to disciplinary action by their respective licensing board(s).
Section 1815.5 of the Code of Regulations, and Section 2290.5 of the Business and Professions Code require a number of specific disclosures to the client prior to rendering telehealth services. Additional information regarding this topic is available in “Regulatory and Legal Considerations for Telehealth,” by Ann Tran-Lien, JD, in the September, 2016 issue of The Therapist, and “The Basics of Telehealth,” by Alain Montgomery, JD, in the February, 2015 issue of The Therapist.)
Marriage and family therapists14 must disclose the following information to their patients:
- Prior to the commencement of treatment, information concerning the fee to be charged for the professional services, or the basis upon which that fee will be computed, must be disclosed to the client or prospective client.15
- If the therapist is a Registered MFT Associate or trainee, he or she must inform each client or patient prior to performing any professional services that he or she is unlicensed and under the supervision of a licensed marriage and family therapist, licensed clinical social worker, licensed professional clinical counselor, licensed psychologist, or a licensed physician and surgeon certified in psychiatry by the American Board of Psychiatry and Neurology.16 17
- Any licensed marriage and family therapist who conducts a private practice under a fictitious business name shall not use any name which is false, misleading, or deceptive, and shall inform the patient, prior to the commencement of treatment, of the name and license designation of the owner or owners of the practice.18
- The name of a marriage and family therapy corporation shall contain one or more of the words “marriage,” “family,” or “child” together with one or more of the words “counseling,” “counselor,” “therapy,” or “therapist,” and wording or abbreviations denoting corporate existence. A marriage and family therapy corporation that conducts business under a fictitious business name shall not use any name that is false, misleading or deceptive, and shall inform the patient, prior to the commencement of treatment, that the business is conducted by a marriage and family therapy corporation.19
- The therapist is required to conspicuously display his or her professional license in his or her primary place of business.20
- California law encourages, (but doesn’t require) marriage and family therapists to disclose the following: “…all marriage and family therapists are encouraged to provide to each client, at an appropriate time and within the context of the psychotherapeutic relationship, an accurate and informative statement of the therapist’s experience, education, specialties, professional orientation, and any other information deemed appropriate by the licensee.”21 22
- While this article does not specifically discuss professional clinical counselors, it is worth mentioning that under California law, their disclosure requirements are very similar to those which are applicable to marriage and family therapists, clinical social workers and psychologists. Information regarding the legal requirements applicable to professional clinical counselors is available on the BBS website at: www.bbs.ca.gov.
Clinical social workers23 must disclose the following information to their patients:
The licensee is required to conspicuously display his or her professional license in his or her primary place of business.24
The registrant shall inform each client or patient prior to performing any professional services that he or she is unlicensed and is under the supervision of a licensed professional.25
Prior to the commencement of treatment, information concerning the fee to be charged for the professional services, or the basis upon which that fee will be computed, must be disclosed to the client or prospective client.26
The name of a licensed clinical social worker corporation and any name or names under which it may be rendering professional services shall contain the words “licensed clinical social worker” and wording or abbreviations denoting corporate existence. A licensed clinical social worker corporation that conducts business under a fictitious business name shall not use any name which is false, misleading, or deceptive, and shall inform the patient, prior to the commencement of treatment, that the business is conducted by a licensed clinical social worker corporation.27
Psychologists must disclose the following information to their patients:
- All licensees and registrants are required to post the following notice in a conspicuous location in their principal psychological business office: “NOTICE TO CONSUMERS: The Department of Consumer Affair’s Board of Psychology receives and responds to questions and complaints regarding the practice of psychology. If you have questions or complaints, you may contact the board on the Internet at www.psychboard.ca.gov, by calling 1-866-503-3221, or by writing to the following address: Board of Psychology2005 Evergreen Street, Suite 1400, Sacramento, California, 95815-3894.”28
- The name of a psychological corporation and any name or names under which it may render professional services shall contain one of the words specified in subdivision (c) of Business and Prof. Code, § 2902, (such as “psychologist,” “psychology,” etc.) and wording or abbreviations denoting corporate existence.29
- Every licensed psychologist shall include his or her number in any advertising, public directory or solicitation, regardless of whether such a presentment is made under the licensee’s own name, a fictitious business or group name or a corporate name.30
- Primary supervisors shall ensure that each client or patient is informed, prior to the rendering of services by the trainee; (1) that the trainee is unlicensed and is functioning under the direction and supervision of the supervisor; (2) that the primary supervisor shall have full access to the treatment records in order to perform supervision responsibilities and (3) that any fees paid for the services of the trainee must be paid directly to the primary supervisor or employer.31
- The supervisor shall inform each client or patient prior to the rendering of services by the psychological assistant that the assistant is unlicensed and is under the direction and supervision of the supervisor as an employee and that the supervisor shall have full access to the patient’s chart in fulfilling his/her supervision duties.32
“Covered Entities” Under HIPAA
All therapists who are covered entities according to HIPAA must provide a copy of their Notice of Privacy Practices.33 The therapist is not required to obtain the patient’s signature on the Notice, but must make a good faith effort to obtain the patient’s written acknowledgment of receipt of the Notice.”34
Therapists are certainly not limited to the disclosures mandated by California law. However, because of their unique backgrounds, training and theoretical approaches, no single list will address all of their needs. The following is a list of commonly utilized disclosures. Individual therapists may pick and choose those items that are meaningful to him or her, eliminate those that aren’t and modify or add content as needed.
- Information regarding the use of health insurance, charges for missed sessions and any policies concerning the use of collection services for unpaid fees.
- Information describing the therapist’s policies regarding scheduling and cancellations.
- Information regarding therapist availability, including “on-call” availability for after-hours emergencies.
- The therapist’s policies concerning termination of treatment for lack of cooperation (client no-shows, unpaid fees, etc.)
- Information regarding the limitations of psychotherapy, including the fact that therapists cannot guarantee a particular outcome.
- Information regarding the value of patient cooperation and collaborative participation in the treatment process.
- Information about the limits of confidentiality35 , including the mandated reporting of child abuse,36 elder abuse, the therapist’s “duty to warn / protect”37 and the Patriot Act.38
- The therapist’s clinical impressions and treatment recommendations regarding the application of particular therapeutic modalities (e.g., individual therapy, family therapy, marital therapy, group therapy, play therapy); specific treatment methods or techniques (e.g., EMDR, hypnosis, art therapy, music therapy, etc.); frequency of sessions, and length of treatment.39
The ethical standards promulgated by professional associations such as CAMFT,40 AAMFT,41 NASW,42 APA,43 and others, are an important source of guidance to therapists. The following selected examples of ethical standards from each of these organizations pertain to the issue of informed consent:
CAMFT Code of Ethics for Marriage and Family Therapists
- “Marriage and family therapists respect the right of patients to make decisions and help them to understand the consequences of those decisions. When clinically appropriate, MFTs advise their patients that decisions on the status of their relationships, including dissolution, are the responsibilities of the patient.”44
- “Marriage and family therapists inform patients of the potential risks and benefits of service of therapy when utilizing novel or experimental techniques or when there is risk of harm that could result from the utilization of any techniques.”45
- “Marriage and family therapists inform patients of the extent of their availability for emergencies and for other contacts between sessions. When a marriage and family therapist is not located in the same geographic area as the patient, he/she shall provide the patient with appropriate resources in the patient's locale for contact in case of emergency.”46
- “Marriage and family therapists discuss appropriate treatment alternatives with patients.47 Marriage and family therapists do not limit their discussions of treatment alternatives to what is covered by third-party payers.”48
- “Marriage and family therapists are encouraged to inform patients as to certain exceptions to confidentiality such as child abuse reporting, elder and dependent adult abuse reporting, and patients dangerous to themselves or others.”49
- “Marriage and family therapists are encouraged to inform patients at an appropriate time and within the context of the psychotherapeutic relationship of their experience, education, specialties, theoretical and professional orientation and any other information deemed appropriate by the therapist.”50
- “Marriage and family therapists disclose, in advance, their fees and the basis upon which they are computed, including, but not limited to, charges for canceled or missed appointments and any interest to be charged on unpaid balances, at the beginning of treatment and give reasonable notice of any changes in fees or other charges.”51
- “Marriage and family therapists obtain written informed consent from clients before videotaping, audio recording, or permitting third party observation.”52
- “When therapy occurs by electronic means, marriage and family therapists inform patients of the potential risks and benefits, including but not limited to, issues of confidentiality, clinical limitations, transmission difficulties, and ability to respond to emergencies.”53
AAMFT Code of Ethics
- “Marriage and family therapists obtain appropriate informed consent to therapy or related procedures as early as feasible in the therapeutic relationship, and use language that is reasonably understandable to clients. The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented. When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible.”54
2. “Marriage and family therapists obtain written informed consent from clients before videotaping, audio recording, or permitting third-party observation.”55
NASW Code of Ethics
- “Social workers should provide services to clients only in the context of a professional relationship based, when appropriate, on valid informed consent. Social workers should use clear and understandable language to inform clients of the purpose of the services, risks related to the services, limits to services because of the requirements of a third-party payer, relevant costs, reasonable alternatives, clients’ right to refuse or withdraw consent, and the time frame covered by the consent. Social workers should provide clients with an opportunity to ask questions.”56
- “In instances when clients are not literate or have difficulty understanding the primary language used in the practice setting, social workers should take steps to ensure clients’ comprehension. This may include providing clients with a detailed verbal explanation or arranging for a qualified interpreter or translator whenever possible.”57
- “In instances when clients lack the capacity to provide informed consent, social workers should protect clients’ interests by seeking permission from an appropriate third party, informing clients consistent with the clients’ level of understanding. In such instances social workers should seek to ensure that the third party acts in a manner consistent with clients’ wishes and interests. Social workers should take reasonable steps to enhance such clients’ ability to give informed consent.”58
- “In instances when clients are receiving services involuntarily, social workers should provide information about the nature and extent of services and about the extent of clients’ right to refuse service.”59
- “Social workers who provide services via electronic media (such as computer, telephone, radio, and television) should inform recipients of the limitations and risks associated with such services.”60
- “Social workers should obtain clients’ informed consent before audio taping or videotaping clients or permitting observation of services to clients by a third party.”61
APA Principles of Psychologists and Code of Conduct:
- “When psychologists conduct research or provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics code.”62
- For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare.”63
- “When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding.”64
- “Psychologists appropriately document written or oral consent, permission, and assent.”65
- “When obtaining informed consent to therapy as required in Standard 3.10, Informed Consent, psychologists inform clients/patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers.”66
- “When obtaining informed consent for treatment for which generally recognized techniques and procedures have not been established, psychologists inform their clients/patients of the developing nature of the treatment, the potential risks involved, alternative treatments that may be available, and the voluntary nature of their participation.”67
- “When the therapist is a trainee and the legal responsibility for the treatment provided resides with the supervisor, the client/patient, as part of the informed consent procedure, is informed that the therapist is in training and is being supervised and is given the name of the supervisor.”68
- “Before recording the voices or images of individuals to whom they provide services, psychologists obtain permission from all such persons or their legal representatives.”69
Special Treatment Circumstances
In California, the Business and Professions Code requires the documentation of verbal informed consent for the use of Telehealth (on-line therapy).70 Also, as noted earlier, the ethical standards for marriage and family therapists, clinical social workers and psychologists all require that the patient’s informed consent be obtained prior to audio and video-taping treatment and/or for third party observation.71 The standards for marriage and family therapists further require that the patient’s informed consent be provided in writing prior to any of those same activities.
A therapist should also consider the use of a written informed consent document when the nature of the treatment is likely to be unfamiliar to his or her patient, and/or when the treatment is novel, experimental, is particularly unique or presents an unusual element of risk. In such instances, the patient is likely to benefit by a description of the treatment, including its intended benefits and if applicable, the relevant risks. For example, when the proposed therapy includes outdoor hiking, there may be an increased likelihood of accident or injury. Additional examples might include the use of hypnosis, EMDR, biofeedback, bodywork, art therapy, music therapy, drama therapy, Christian counseling, confrontational group therapies, and others.
The Telehealth statute requires that prior to the delivery of health care via telehealth, the health care provider at the originating site shall verbally inform the patient that telehealth may be used and obtain verbal consent from the patient for this use. The verbal consent shall be documented in the patient's medical record.75
Because Telehealth is a relatively new, innovative and non-traditional method of providing therapy, therapists are encouraged to disclose information that provides the patient with a description of the particular form of telehealth offered.76 For example, telehealth with audio/video features may be distinguished from telehealth using text-only communications.77 Such disclosures will vary, depending on the facts of the case, and the experience of the therapist, similar to the manner in which nonmandatory disclosures vary from therapist to therapist in other treatment scenarios.78 Audio taping, videotaping and third-party observation: written informed consent required.
Therapists have numerous uses for audiotaping and videotaping in their clinical work. Audiotapes and videotapes are an excellent source of feedback to the therapist about the efficacy of his or her efforts with a particular patient. Recordings can also be extremely helpful to patients by providing them with the opportunity to review important content from their sessions. And as any clinical supervisor knows, audio and videotapes are fundamental tools for use in supervising and training therapists.
Patients generally offer little or no objection to the use of audio taping or videotaping equipment. That may be due in part to the fact that current technology permits the use of recording devices that are small, quiet and relatively unobtrusive. However, the therapist should consider his or her patient’s particular sensitivity to being recorded when contemplating the use of audio and or video tape recording. Prior to the use of any recording devices, the therapist should insure that his or her patient has provided explicit consent for their use. Informed consent documents should be signed and dated by the patient, documenting his or her permission for the use of audio tape and/or videotape, for a stated purpose, e.g., treatment review and/or planning, or clinical supervision, etc. Because audio and/or videotapes, and digital video recordings contain confidential and privileged content, they should be subjected to the same protections and security measures that are applicable to other clinical records.
There are a number of circumstances where a therapist may wish to permit a third party to observe their patient’s treatment. As an example, the use of one-way mirrors that permit the observation of therapy sessions by a clinical supervisor is a long-standing method used in the training of therapists. Although the use of third-party observation is hardly rare, many patients may be unfamiliar with its use. Therefore, therapists should consider the suitability and appropriateness of its use on a case by case basis. As in the use of audio taping and videotaping, the therapist should consider his or her patient’s individual needs and sensitivities ahead of all other concerns. As in the use of audio taping and videotaping, therapists should obtain a written informed consent from his or her patient prior to the use of third-party observation.
It is suggested that informed consent be obtained prior to the use of hypnosis. One rather unique example of mandatory informed consent under California law involves the use of hypnosis for the purpose of helping a witness to recall events which are the subject of their testimony in a criminal case. The California Evidence Code requires that a witness must have given their informed consent to the use of hypnosis for this purpose, as one condition of admissibility for his or her testimony.79
Family Therapy/Couples Therapy
Therapists who work with families and couples sometimes utilize a “no-secrets” policy, which permits them to use their professional discretion in the disclosure of information obtained from a family member’s individual session. Because such a policy is a significant departure from the typical parameters of confidentiality, therapists are advised to consider the use of a written informed consent.
Children and Informed Consent
It is easy for therapists and families alike to overlook the relevance of informed consent to the treatment of children and adolescents. Although minors, under the age of 12 lack the legal capacity to provide legal consent to their treatment, they certainly can, and should, provide input to their therapist regarding their treatment. Clinicians who treat children are often witnesses to the fact that children feel powerless and/or helpless in the face of traumatic events, such as the divorce of their parents, a change in the composition of their family, or the physical relocation of their family. In these and other circumstances, children are often particularly grateful for the opportunity to express their opinions about the direction of the therapy and they appreciate the fact that someone asked. Therapists who work with children have an opportunity to acknowledge the child’s need to understand and participate in their own treatment plan.
Informed Consent as a Process
Addressing Informed Consent Prior to Treatment
The issues of consent and/or informed consent for treatment are typically addressed during the initial interview(s). Depending on the nature of the case and the type of treatment being sought or provided, a patient either agrees to accept treatment, e.g., provides his or her ordinary/simple consent to treatment, and/or, the therapist initiates the process of obtaining his or her patient’s informed consent. Whereas simple consent is basically a static event involving a patient’s agreement to participate in treatment, informed consent is often described as a process that includes the therapist’s initial assessment and any subsequent dialogue(s) between the therapist and his or her patient about the treatment plan.80
Addressing Informed Consent During the Course of Treatment
By addressing informed consent at the start of treatment, the patient is provided with an opportunity to determine whether he or she agrees with the therapist’s assessment and his or her related treatment recommendations. However, issues of informed consent are not confined to the beginning of therapy. They may also arise during the course of treatment. At the beginning of treatment, the patient and therapist have had limited opportunity to establish a therapeutic relationship. Consequently, initial treatment plans are crafted with the understanding that therapist and patient alike are expected to engage in a process of regular review of the efficacy of their collaborative treatment efforts. This process of review is founded upon the premise that changes in treatment plans will be contemplated should therapeutic progress fail to materialize.
The therapist’s duty of care requires him or her to maintain an appropriate awareness of therapeutic progress and to make or suggest the appropriate changes to the treatment plan.81 Regardless of the precision of the initial treatment plan, neither therapist nor patient can possibly know what the precise outcome of treatment will be. A good practice is to inform new patients that treatment plans are subject to an ongoing process of review by patient and therapist and that such reviews are intended to insure their input into, and agreement with, the treatment plan.
In one example, a patient may resist his or her therapist’s suggestion to explore certain traumatic experiences, preferring instead that his or her therapist address present-day issues that were identified during the intake. Alternately, a therapist may ask an individual psychotherapy patient to invite his or her spouse to a session. To the extent that the patient’s individual therapy becomes conjoint marital therapy and the patient has not explicitly assented to the change, the therapist may have exceeded the bounds of the originally agreed-upon treatment plan.
In order to avoid confusion, and as a measure of respect for the patient’s autonomy, a therapist should definitely consider the use of informed consent any time that a significant change in the original treatment plan is contemplated. Significant decision points in the treatment, such as those referred to in the foregoing examples, are a logical time to consider the use of informed consent. As stated earlier, informed consent is applicable in situations where the patient is unlikely to be familiar with the particular treatment. In this situation, a patient may not have prior familiarity with the fact that more than one treatment modality may have relevance to his or her needs. It also cannot be assumed that a patient is in agreement with, or aware of, his or her therapist’s reasoning. Furthermore, some patients may be reluctant to question their therapist about a proposed change or may be confused, in light of the preceding therapeutic process. Consequently, significant decision points in the treatment offer a valuable opportunity to discuss the nature of proposed changes and the reasons for (or if applicable, against) making the change(s).
The Use of Forms
For the sake of consistency, therapists are advised to develop clear and reliable procedures82 for the purpose of providing information to their patients and to address issues of informed consent. Such procedures and the use of related forms or documents should be incorporated into the therapist’s regular intake and assessment process.
Therapists often focus on the utility or language of a particular document or form, created for the purpose of obtaining consent. That’s understandable, as the use of various “intake,” “client information” or “therapist disclosure” statements, etc., as a means to provide new patients with information has become standard practice.83 Similarly, many therapists are trained in bureaucratic settings where the use of forms for patient consent is ubiquitous. However, just because an individual signs a form, it doesn’t mean that he or she understands its contents. Consent forms are often confusing, poorly worded and filled with technical jargon. Because patients are reliant on the clarity of information provided to them, therapists must take care to provide patients with clear and complete information on any form they select for the purpose of obtaining informed consent. Yet, regardless of the therapist’s diligence to this matter, misunderstandings are inevitable. It is therefore recommended that informed consent documents contain a clear expression of the therapist’s willingness to respond to the patient’s questions and concerns as they may arise.
Berner, Marilyn, “Informed Consent,” In, Lifson, Lawrence and Simon, Robert, The Mental Health Practitioner and the Law Harvard Univ. Press, 1999
See generally, Leslie, Richard, S., J.D., (2006) “Informed Consent,” CPH & Associates, Avoiding Liability Bulletin, July, (1).
Cobbs v. Grant, (1972) 8 Cal.3d 229
CACI No. 532. CACI is used by California judges to instruct jurors regarding the law
The terms “patient” and “client” are used interchangeably in this article.
See CAMFT Code of Ethics, AAMFT Code of Ethics, NASW Ethical Standards, and APA Ethical Principles.
The required disclosures are not identical for Marriage and Family Therapists, Clinical Social Workers and Psychologists.
Plain English should not be confused with the verbiage commonly employed by therapists and lawyers.
References in this article to marriage and family therapists are to licensees, associates and trainees.
California Business & Professions Code, §§ 4982.(n)
California Business & Professions Code, § 4980.44 (a)(4)
California Business & Professions Code, § 4980.48
California Business & Professions Code, § 4980.46
California Business & Professions Code, § 4987.7.
California Business & Professions Code, § 4980.31
California Business & Professions Code, § 4980.55.
A therapist should exercise caution when describing their areas of special interest and skill. Holding oneself out as an “expert” imposes the standard of care applicable to that of a reasonable and prudent expert providing treatment under same or similar circumstances.
References in this article to clinical social workers are to licensees and associate clinical social workers.
California Business & Professions Code, § 4996.7.
California Business & Professions Code, § 4996.18.(e) The term “registrant” refers to an associate clinical social worker.
California Business & Professions Code, §§4992.3.(n);1881.(j)
California Business & Professions Code, §4998.2.
California Business & Professions Code, § 2936.
California Business & Professions Code, § 2998.
California Administrative Code, title 16, § 1380.6
California Administrative Code, title 16, § 1387.1
California Administrative Code, title 16, § 1391.6
The Health Insurance Portability and Accountability Act of 1996
Therapists should advise couples regarding confidentiality between the partners. For example, in the absence of a “no secrets” policy, each member of the couple has an expectation of confidentiality when speaking to the therapist outside the presence of their partner.
Calif. Penal Code, §§11164-11174.3; Calif. Welf. & Instit. Code, §§ 15630-15632
Calif. Civil Code, § 43.92; Tarasoff v.Regents of Univ. of Calif., (1976),17 Cal.3d 425; Ewing v. Goldstein, (2004), 120 Cal.App.4th 807; Ewing v. Northridge Hospital Center (2004), 120 App. 4th 807
The US Patriot Act of 2001 requires therapists (and others) in certain circumstances, to provide FBI agents with books, records, papers and documents and other items and prohibits the therapist from disclosing to the patient that the FBI sought or obtained the items under the Act.
A therapist’s clinical impressions and recommendations will obviously vary, depending on the nature of the case and the information then available to the therapist.
California Association of Marriage and Family Therapists
American Association of Marriage and Family Therapists
National Association of Social Workers
American Psychological Association
CAMFT Code of Ethics 1.4
4 AAMFT Code of Ethics 1.2
NASW Ethical Standard 1.03 (a)
Id., 1.03 (b)
Id., 1.03 (c)
Id., 1.03 (d)
Id., 1.03 (e)
Id., 1.03 (f )
APA Ethical Standard 3.10 (a)
Id., 3.10 (b)
Id., 3.10 (c)
Id., 3.10 (d)
Id.,10.01 (a); See also, APA Ethical Standards regarding informed consent to research and informed consent to assessments.
California Business and Professions Code, §2290.5
See id.; CAMFT Code of Ethics 1.4.2; AAMFT Code of Ethics, 1.12; NASW Code of Ethics 1.03 (f) APA Ethical Principles 4.03
See id., § 2290.5
See, Leslie, Richard, S., J.D., (2002) “ Practicing Via the Internet-the Legal View,” Family Therapy Magazine, Sept/Oct. (1); Benitez, Bonnie R., Jensen, David, G.,(2002)“ Telemedicine: AKA On-Line Therapy & Mandatory Informed Consent,” The Therapist, Sept./Oct., vol. 14, (5).
See id., § 2290.5 The failure to comply with the provisions of this statute constitutes unprofessional conduct.
California Business & Professions Code, §2290.5(b)
See Leslie, Richard, S., JD., (2002) “Practicing Via the Internet-the Legal View”
Id.; See also, Riemersma, Mary, (2002) “Informed Consent/Disclosure Online Therapy Statement,” The Therapist, Sept. /Oct., vol. 14, (5). Provides a sample form illustrating optional disclosures.
California Evidence Code, §795.
Pomerantz, Andrew M. (2005). “Increasingly Informed Consent: Discussing Distinct Aspects of Psychotherapy at Different Points in Time,” Ethics & Behavior 15(4), 351-360; Berg, J.W Appelbaum, P.S., Lidz, C.W., & Parker, L.S., Informed consent: Legal theory and clinical Practice (2nd ed.), New York: Oxford University Press; O’Neill, P. (1998) Negotiating consent in Psychotherapy, New York: New York University Press.
See, CAMFT Code of Ethics, 1.7 Marriage and family therapists continually monitor their effectiveness and take steps to improve when necessary. Marriage and family therapists continue therapeutic relationships only so long as it is reasonably clear that patients are benefiting from the relationship.
Having a written procedure, and following it, helps to insure that all patients are treated professionally and consistently. It also serves as documentary evidence of the therapist’s care and attention to the matter of consent.
See generally, Leslie, Richard, S., J.D., “Information/ Disclosure Statements: Informed Consent,” The Therapist, March/April, 1992