Psychotherapy Bulletin

Psychotherapy Bulletin

Being Informed About Informed Consent

Part One: Foundational Issues

The informed consent process is an essential component of ethical, legal, and clinically

effective practice by psychotherapists. Yet, how we engage in this process can have significant implications for the unfolding professional relationship and for the assessment, treatment, or other professional services provided. This is the first of four consecutive articles that will address various aspects of informed consent.

Case Example

Viewing informed consent as a legal requirement to be met quickly so that the real work of treatment may begin, a psychotherapist includes detailed information about treatment on their website. Not wanting to waste precious treatment time on such issues, the psychotherapist refers clients to the website whenever questions arise. Whenever a misunderstanding about an important issue such as confidentiality, fees, and financial arrangements arises, the psychotherapist states that it is each client’s responsibility to educate themselves about these issues.

Historical Antecedents

The doctrine of informed consent has a long history that dates back to the Nuremberg Trials of 1947 and the resultant Nuremberg Code, which while focused on research with human subjects, laid the foundation for current standards in health service delivery today (Shuster, 1997). Among other standards, the Nuremberg Code required voluntary consent of the participant before an individual may participate in research (for the 10 standards of this code see: https://www.imarcresearch.com/blog/bid/359393/nuremberg-code-1947).

The requirements of the Nuremberg Code have been updated and refined over the years to include in the Declaration of Helsinki in 1964 (World Medical Association, 2018) and the Belmont Report of 1974 (HHS, 2020) which first articulated the basic ethical principles of respect for persons, beneficence, and justice that are familiar to all psychologists in the General Principles of the Ethical Principles of Psychologists and Code of Conduct (APA Ethics Code; APA, 2017). The Belmont Report also established the standard that practitioners should “reveal the information that reasonable persons would wish to know in order to make a decision regarding their care.” It also addressed the issue of comprehension by the recipient of services, stating that “the manner and context in which information is conveyed is as important as the information itself,” and that based on each individual’s needs and differences, “it is necessary to adapt the presentation of information to the subject’s capacities.”

The Role of Case Law

Despite the presence of these foundational standards for research with human subjects, the early history of health care is filled with examples of patients being treated as passive recipients of professional services provided by experts who made all treatment-related decisions on their patients’ behalf (Welfel, 2006). The results of malpractice lawsuits have created legal precedents that have advanced required standards of professional practice. Examples include that clients must understand the information presented to them for the informed consent to be considered valid (Salgo v. Stanford, 1957); the minimal information a reasonable person would need to make an informed decision must be provided and the opportunity to ask questions and to receive explanations must be provided (Canterbury v. Spence, 1972); and clients must be provided with information about reasonably available relevant treatment options, to include no treatment, and their relative risks and benefits (Osheroff v. Chestnut Lodge, 1985).

These various historical rulings and standards have profoundly impacted how we obtain each client’s informed consent today. Their presence can be seen in the dictates of the APA Ethics Code in Standards 3.10, Informed Consent; 8.02, Informed Consent to Research; and 10.01, Informed Consent to Therapy. Standard 10.01 provides specific requirements for obtaining each client’s informed consent to treatment “as early as is feasible in the therapeutic relationship,” and that information shared should include “the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality,” and that each client should be afforded the opportunity to have all their questions about this information answered (APA, 2017).

While having this understanding of informed consent from historical, ethics, and regulatory perspectives is important, questions about how to implement these requirements in one’s clinical practice may be challenging. There are many details relevant to how one applies these requirements with clients that may prove vexing and additional guidance should be of assistance. Part Two of this article addresses these challenges.

For Your Consideration

Do you obtain each client’s informed consent prior to providing professional services? If so, how does this process comport with the guidance described in this brief article? Do you view the informed consent process as an obstacle to overcome or a perfunctory process to quickly complete so that the real work of treatment can begin? What advice do you have for the psychotherapist in the case example?

Part Two: Informed Consent in Clinical Practice

Case Example

A psychotherapist who works for an agency knows that informed consent issues are addressed by clinicians who do initial assessments before the clients are assigned to their treating clinician. The psychotherapist always looks in the client’s treatment record to ensure that the informed consent document is signed, dated, and witnessed so that there “won’t be any difficulties later.” Feeling confident that this requirement has been met, the psychotherapist moves forward with providing treatment. When modifications to the treatment being offered are indicated the psychotherapist makes these changes, feeling confident in doing so, knowing that they have the client’s best interests in mind.

Informed Consent Basics

Informed consent should be an ongoing process, not a one-time event. After the initial informed consent agreement is reached, it should be updated anytime a substantive change to the agreement is being considered or proposed. Ethical and legal standards require that informed consent be obtained verbally and in writing. Simply having a client sign a document is not sufficient. Similarly, a verbal review of the required information to be shared is not sufficient either. A combined approach is recommended to help promote each client’s understanding of the information being shared so they can make the best decision possible on their own behalf. It is further recommended that beyond the signed document by the client, psychotherapists include documentation of the informed consent process in the treatment record to reflect that all relevant standards have been met.

Informed Consent Requirements

Based on case law and other legal and ethical requirements, a valid informed consent process will include four key components:

  • The consent must be given voluntarily.
  • The individual must be competent to give consent and have the legal right to do so.
  • We must actively ensure their understanding of the information being shared (simply asking if they have any questions is insufficient.).
  • The informed consent information should be provided both verbally and in writing, and the process should be documented in the treatment record.

 Informed Consent Documents

Care should be taken to ensure that informed consent documents are written at a level appropriate for the vast majority of clients. Noting that approximately 50% of adults in the U.S. read at the ninth-grade reading level or below, professional terminology and jargon should be avoided and psychotherapists should endeavor to ensure that these documents are written at the sixth to eighth grade reading level so that the vast majority of potential clients will be able to comprehend the information in these documents (Walfish & Ducey, 2007). Psychotherapists may assess the reading level of a document utilizing the Flesch-Kincaid Grade Level Equivalency in Microsoft Word (see https://www.techlearning.com/news/determine-fleschkincaid-reading-levels-using-microsoft-word).

One study found that of the Notice of Privacy Forms assessed, 91% of them were written at or above the reading level of medical literature or legal contracts (The Numbers Game, 2005). Another study found that of the informed consent documents assessed, the average reading grade level was 10.6 (Paasche-Orlow et al., 2003). We should ensure that informed consent documents are written at a reading level likely to be comprehended by most clients.

Information Sharing Challenges

It may be challenging to know how much information to share when. Attempts to share all relevant information at the beginning of the initial session might be overwhelming to a client, might be off putting, and for clients experiencing emotional distress or who are in crisis they might not be able to process and comprehend the implications of the information being shared. In addition to sharing the written proposed informed consent agreement with clients prior to meeting with them, it may be more effective to review the most relevant and important aspects of informed consent initially, to share additional information at the end of the session and at subsequent sessions, and to recommend that clients review the written materials between sessions to aid in subsequent discussions. Prospective clients have consistently wanted to know initially about fees and financial arrangements, confidentiality and its limits, and the likely course of treatment (Claiborn et al., 1994; Miller & Thelen, 1986). While additional information is relevant, important, and required, psychotherapists are guided to be thoughtful about which information and how much information to share at different points in time and by different means (verbally and in writing).

Rather than viewing informed consent as a burden or as a hurdle to clear to get to the real work of treatment, it should be seen as an important part of the treatment process. How the informed consent process is carried out has significant implications for the treatment relationship and process to follow. As Snyder and Barnett (2006) explain, there are many potential benefits of the informed consent process to include:

  • Empowering clients and promoting their autonomy.
  • Laying the foundation for a collaborative working relationship.
  • Demystifying and improving the therapeutic relationship.
  • Reducing anxiety, stress, and misunderstandings.
  • Reducing the risk of exploitation of or harm to clients.
  • Promoting ethical practices and the underlying values of our profession.

Essential Information to Include

While each psychotherapist should exercise their professional judgement regarding the need to include additional information when it is relevant and might reasonably be expected to have the potential to impact a client’s ability to make an informed decision about participation in the professional services being offered, the following information should be included in all informed consent agreements:

  • Nature, purpose, and anticipated course of treatment
  • Reasonably available options and alternatives and their relative risks and benefits, to include the treatment being proposed and no treatment at all
  • The right to refuse participation
  • Confidentiality and its limits
  • Fees and financial arrangements (to include billing and insurance)
  • Involvement of third parties
  • Recording (if relevant)
  • Emergency contact information
  • Termination process and conditions (Barnett, 2020)
  • When applicable, the use of technology and electronic communications should be thoroughly addressed

No One Size Fits All

The informed consent process should be modified as may be needed based on the client’s particular needs and circumstances. Examples include the role of age and developmental level such as with the treatment of minors; the treatment of couples, families, and groups; when a client may have cognitive deficits that impact their ability to comprehend the information being shared; with clients of diverse backgrounds; and when third parties are involved such as in forensic situations.

In each of these circumstances how confidentiality is handled may vary: the psychotherapist may have potentially competing obligations to multiple individuals, something that may result in negative outcomes if not adequately addressed in the informed consent process; other individuals may need to provide consent on a client’s behalf; clients will need to know the parameters of the professional relationship and who may have access to treatment-related information; and factors such as language fluency, disability, and cultural differences may necessitate the need to modify informed consent procedures so that clients’ individual differences and needs are respected. How each of these issues is addressed will likely have a significant impact on the quality of the treatment relationship and effectiveness of the treatment process that follows. Issues relevant to informed consent and the treatment of minors will be addressed in part three of this article.

For Your Consideration

Are there any ways you plan to modify your informed consent process and procedures based on what you have read in this article? If so, what are they and why will you be making these changes? What are your thoughts about the case example? What are your recommendations for this psychotherapist?

Part Three: Informed Consent and The Treatment of Minors

Case Example

Two parents meet with a psychotherapist to seek treatment for their 14-year-old adolescent. The parents review their goals for their child’s treatment with the psychotherapist and express their desire to receive weekly updates on their child’s treatment, to include any negative statements the adolescent makes about their parents and any disclosures about acting out behaviors. The psychotherapist agrees to all this and after the parents sign the informed consent document and the financial responsibility form, the initial treatment session for the adolescent client is scheduled.

Minors and Informed Consent

The age of majority is defined in relevant state laws but may vary by state so psychotherapists should review their state’s applicable law. Additionally, exceptions to these statutes regularly exist to such as for minors who are in the military or are married to consent on their own behalf and for minors who are parents to consent on their own and their children’s behalf. Some states also have laws that specify that minors of certain ages may consent to their own mental health care and to certain types of health care. Thus, familiarity with the applicable laws in one’s state is essential to ensure that clinical services are provided to those who have the legal right to consent to them.

Informed Consent Versus Assent

With this information in mind, in general psychotherapists must receive consent from the parent or guardian prior to providing professional services to a minor. Yet, this does not mean that minors should be excluded from the informed consent process or that their opinions or preferences should be overlooked or ignored. While parents or guardians typically have the legal right to consent (it should be confirmed that the parent or guardian actually has this legal right, something especially important in divorce and custody situations) and thus to reach agreements on the parameters of the assessment or treatment with the psychotherapist, overlooking the minor’s role in the process may jeopardize the treatment relationship and the success of treatment.

It is therefore recommended that a process of assent occur with all minors. Assent is a process of sharing relevant information with the minor that occurs in conjunction with the informed consent process with the parent or guardian. The ethical obligation for this is seen in Ethical Standard 3.07, Third Party Requests for Services, requires that “psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved” (APA, 2017). Additionally, when more than one person is involved in the treatment being provided (e.g., parents, guardians) we should clarify from the outset our obligations to each party (Fisher, 2009). 

A Developmental Perspective to Assent

A developmental approach to assent is recommended in which the information sharing is done at a level commensurate with the minor’s ability to understand the implications of the information. Thus, how a psychotherapist shares information about their role, the treatment to be offered, limits to confidentiality, and related issues will vary significantly for a five-year-old, a nine-year-old, a 13-year-old, and a 17-year-old, for example. Additionally, the minor client’s ability to participate in decision-making relevant to the informed consent process changes dramatically as they go through this developmental progression (McCabe, 2006). Researchers have found that minors at the formal operations stage of development (approximately 12 years of age) typically possess the same ability as adults to understand the implications of decisions they make (Redding, 1993), but psychotherapists should assess this with each minor client before making decisions on consent versus assent.

While in most situations the parent or guardian has the legal right to give informed consent, to include the right to access to all treatment-related information, as psychotherapists we understand that parents asserting this right with a five- or seven-year-old child is likely very different than with many adolescents. In fact, to be able to provide effectively provide treatment to an adolescent, and to help ensure their willingness to participate in treatment in a meaningful way, it often is necessary to renegotiate parental rights, such as setting treatment goals and regulating access to treatment-related information. Without a legitimate promise of some degree of confidentiality many adolescents will either not willingly participate in treatment or for those who do, may be very guarded about what they disclose to the psychotherapist, potentially greatly limiting the psychotherapist’s ability to provide meaningful and helpful treatment.

Renegotiating Parental Rights

Thus, minor clients should be included in informed consent discussions to the extent possible based on their developmental level. For those with the ability to understand the consequences of their decisions, and who likely are developmentally at a place where independence from their parents is relevant, parental rights to treatment-related information should be openly discussed and renegotiated. As Koocher explains, “Parents can often be persuaded to agree to respect the privacy of the treatment relationship, particularly if they feel that the psychotherapist shares their interest and values with respect to their child’s safety” (In Barnett et al., 2007, p. 12).

Parents and their adolescent children cannot reasonably be expected to just trust the psychotherapist to make decisions about what information should or should not be shared with the parents. During the renegotiation of parental rights during the informed consent discussion the psychotherapist can provide overarching guidance on what information will be kept private and what information will be shared, with representative examples provided. An example would be that the psychotherapist will share information of direct relevance to the minor client’s safety and welfare such as issues of dangerousness, while keeping private the adolescent’s opinions, complaints, and descriptions of frustrations with parents. The psychotherapist can also highlight how treatment can be used to promote greater and more effective communication between the minor client and their parents.

Additionally, with parental permission many minor clients can participate in decision-making relevant to the informed consent process. While the parent or guardian has the legal right to give consent and to make relevant treatment-related decisions, inclusion of their developmentally advanced minor child in the decision-making process (at least to seek their opinions and input, and giving these consideration) can be a significant and positive way to begin the treatment process, helping to set it up to be more successful.

Custodial Arrangements and Parental Legal Rights

As every psychotherapist who assesses and treats minor clients knows, parental legal rights due to custody arrangements may vary. It is essential that psychotherapists confirm parental rights from the outset of the professional relationship. In intact families either parent may consent to their minor child’s assessment or treatment. But, in certain custody arrangements one parent may have full legal custody (only that parent may give consent), both parents may share joint legal custody (consent from both parents is needed), or there may be other arrangements such as joint physical custody with only one parent having legal custody. It is certainly possible to have a non-custodial parent with visitation rights bring their child for evaluation or treatment when their child is visiting with them and these parents do not have the legal right to consent to any evaluation or treatment on their minor child’s behalf. In custody situations being a biological parent is not sufficient, one must be granted this legal right by the court.

Whenever considering offering professional services to, or that include, children it is recommended that psychotherapists ask about custody arrangements at the initial session and when the existence of one is acknowledged, not to schedule any additional appointments until proof of the custody arrangement is received. Receipt of a copy of the court order that stipulates the custody arrangement is recommended, with this being maintained in the client’s treatment record. Relying on a parent’s verbal understanding or recollection of the court order should not be considered sufficient. These recommendations will hopefully help prevent psychotherapists from violating any person’s legal rights when attempting to provide needed mental health services.

For Your Consideration

How might you modify your informed consent and assent process and procedures for minors of different ages and developmental levels? When might you offer the minor the opportunity to provide their preferences for treatment and its goals? Have you ever negotiated parents’ rights with them for the benefit of their minor child in treatment? What has your experience with this been? What are your recommendations to the psychologist in the case example?

Part Four: Special Considerations

Case Example

A psychotherapist received a referral from an agency to provide treatment to a recent immigrant family that is experiencing significant difficulties acclimating to their new life in America. The psychotherapist is happy to accept this referral and looks forward to the initial session, but is surprised when three generations of the family, an agency translator, and the agency’s staff member show up for the first session. The psychotherapist is unsure of how to proceed and wonders who should provide the informed consent and how should it be obtained.

When Informed Consent Must be Modified

There are a number of circumstances where how informed consent is obtained, and several important details of its content, must be modified. Some examples include when offering treatment to couples and families; when treatment is ordered or recommended by a third-party; and when individual differences necessitate flexibility in how informed consent is obtained so that important individual differences and needs are respected.

Informed Consent with Couples and Families

Regardless of one’s theoretical orientation or treatment approach when treating multiple individuals such as couples and families, as Knapp and VandeCreek (2003) recommend, at the outset of the treatment process psychotherapists should “clarify their roles and relationships with all parties” (p. 148). This is consistent with Fisher’s (2009) suggestion that rather than focus solely on “who is the client?” psychotherapists ask instead “Exactly what are my ethical responsibilities to each of the parties in this case?” (p. 1). Thus, psychotherapists should not rely on obtaining informed consent from selected individuals but should include all those participating in treatment in this process, to include obtaining minors’ assent for family therapy. In fact, as Barnett and Jacobson (2019) explain, it is important not to assume that the individual who makes initial contact to request treatment services will be the client. This individual’s stated goals and objectives may not be the same as those of all who will participate in the treatment. Thus, it is important to ensure that no commitments or decisions about the planned course of treatment be made until the input of all relevant parties is obtained.

A key issue to consider when offering treatment to couples and families is that one person typically may not waive privilege for another. Thus, it is important to ensure that all those involved in treatment understand how documentation will be done and how access to treatment records, and how any requests to release treatment-related information will be addressed. In essence, it is the couple or the family that is the client, not specific individuals as would be the case when offering treatment to an individual. Ensuring each party’s understanding of this and its potential implications at the outset of the professional relationship can help minimize the risk of many difficulties and misunderstandings later.

Also consistent with a focus on the couple or family being considered the client, it is recommended that the informed consent discussion include a policy on extra-therapeutic contacts, to include communications in between treatment sessions to which each participant agrees (Kuo, 2009). Such a policy will typically specify that should any such communications or contacts occur, the psychotherapist will disclose them in full to the other treatment participant(s) at the next scheduled appointment.

All of the above is consistent with Ethical Standard 10.02, Therapy Involving Couples and Families (APA, 2017a) which states:

When psychologists agree to provide services to several persons who have a relationship (such as spouses, significant others, or parents and children), they take reasonable steps to clarify at the outset (1) which of the individuals are clients/patients and (2) the relationship the psychologist will have with each person. This clarification includes the psychologist’s role and the probable uses of the services provided or the information obtained.

Third Party Requests for Services

At times, psychotherapists will receive referrals from individuals or organizations to evaluate or treat another person. Examples include when an individual is court-ordered to be evaluated or to receive treatment, when a family is court-ordered for a custody evaluation, when a police department refers an officer for a fitness for duty evaluation following an incident such as discharging their firearm in the line of duty, and when a legal guardian (either an individual or an agency) refers an individual for evaluation or treatment.

In these situations, the person who the psychotherapist is evaluating or treating may not actually be “the client”. It is important that psychotherapists clarify from the outset their responsibilities to each of the parties involved. In many situations, the person being evaluated or treated may assume they have certain confidentiality rights, that they may participate in decisions on treatment goals and on who will have access to treatment information or evaluation results, and they may not understand the consequences for them of a failure to participate as requested or ordered by the referral source.

Ethical Standard 10.07, Third Party Requests for Services (APA, 2017a) requires that the informed consent process address each party’s roles and responsibilities, clarifies who is the client, and “probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality.” For example, when an evaluation is court ordered, the court is the client and the individual being evaluated needs to understand that all information they share and all evaluation results will be sent directly to the court, and that the results of the evaluation will not be shared with this individual by the psychotherapist, regardless of who is paying for the evaluation. Additionally, the consequences of a refusal to participate fully in the evaluation should be clarified at the outset. As Melton and colleagues (2007) recommend, psychotherapists should “make bona fide efforts to assist the defendant in understanding the parameters of the evaluation and to obtain his or her assent to proceed” (p. 158).

Informed Consent and Individual Differences

The APA Ethics Code (APA, 2017a) makes clear that psychologists must be “aware of and respect cultural, individual, and role differences, including those based on age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, and socioeconomic status, and consider these factors when working with members of such groups.”

Each of these aspects of diversity, alone and in combination, may impact how psychotherapists will conduct the informed consent process. Modifications in one’s usual informed consent process may need to be made to ensure that these individual differences and client needs are respected and so that informed consent is obtained in the manner most meaningful and relevant to the client. The APA’s Multicultural Guidelines (APA, 2017b) specify that multiculturalism be integrated into all aspects of psychologists’ roles and interactions with clients, to include informed consent, and that doing so should be considered an essential aspect of each psychotherapist’s multicultural competence.

Relevant examples include the following:

  • Gender roles and religion: A female client may report that her religious beliefs dictate that her husband makes all decisions for the family, to include mental health treatment. In this case the husband would provide informed consent for his wife even though she is an adult with the legal right to provide her own consent. Respect for their wishes based on these religious beliefs may be necessary for the wife to be able to receive needed mental health treatment.
  • Culture: An adult client from an Eastern or collectivistic cultural background may request that their parent, grandparent, or a community elder provide consent to their treatment. Many treatment approaches and many psychotherapists may take a primarily Western approach or perspective that would be inconsistent with respecting the cultural values of such clients.
  • Language: When the psychologist and client are not fluent in the same language, the use of an interpreter may be needed in order to provide the needed treatment. In these situations, it is important to address in the informed consent process the role of the interpreter, how confidentiality will be addressed, and the like. Further, a separate agreement should be reached between the psychotherapist and the interpreter prior to providing the services to ensure expectations for accurate translation, maintaining confidentiality, and the roles of each individual.

 

For Your Consideration

Many other examples are possible and it is recommended that psychotherapists keep diversity factors in mind when considering how best to obtain informed consent from clients. For each of the many diversity factors included in the APA Ethics Code, how might you need to modify how you engage in the informed consent process? Do you have any examples from your practice that you can share? What are your recommendations for the psychotherapist in the case example?

 

Cite This Article

Barnett, J. E., (2023). Being Informed About Informed Consent. Psychotherapy Bulletin, 58(4), 29-39.

References

American Psychological Association. (2017). Ethical principles of psychologists and code of conduct (2002, amended effective June 1, 2010, and January 1, 2017). Retrieved from http://www.apa.org/ethics/code/index.aspx 

Canterbury v. Spence. 464 F2d 772, 787 (DC Cir 1972). 

Osheroff v. Chestnut Lodge. CA No. 66024 (Circuit Court for Montgomery County, Maryland, filed 1984).  

Salgo v Leland Stanford Jr. University Board of Trustees, 317 P.2d 170, 154 Cal.App.2d 560 (1957). 

Shuster, E. (1997). Fifty years later: The significance of the Nuremberg Code. New England Journal of Medicine, 337, 1436-1440. 

S. Department of Health and Human Services. (2020). The Belmont Report. Retrieved from https://www.hhs.gov/ohrp/regulations-and-policy/belmont-report/read-the-belmont-report/index.html 

Welfel, E. (2006). Ethics in counseling and psychotherapy: Standards, research, and emerging issues. Thompson/Brooks Cole.  

World Medical Association. (2018). WMA Declaration of Helsinki – Ethical principles for medical research involving human subjects. Retrieved from https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/  

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