Ethical Concerns with Providing Informed Consent Bob Hill, Ph.D. Department of Psychology Appalachian State University A

1. Ethical Concerns with Providing Informed ConsentBob Hill, Ph.D.Department of PsychologyAppalachian State UniversityASU Summer Psychotherapy Institute 2004

2. Bob Hill Contact Info • Email: hillrw@appstate.edu • Web site: www1.appstate.edu/~hillrw

3. Practice Areas of Greatest General Legal Risk • Failure to obtain/document informed consent • Client Abandonment • Marked departure from established therapeutic practice • Practicing beyond scope of competency • Misdiagnosis • Repressed or False Memory • Multiple Relationships with clients • Failure to control a dangerous client Corey, Corey & Callanan (2003) Issues and Ethics in the Helping Professions

4. Informed Consent: Purpose for Clients • To be informed about therapy • To make autonomous, voluntary decisions regarding participation • To understand benefits and risks of treatment (or assessment) • To understand alternatives to therapy

5. APA Code • Regarding 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” (10.01)

6. Capacity for Informed Consent • Client Capacity- to make informed decisions (if not, involve parent/guardian) • Comprehension- provide clear information and check client’s understanding • Voluntariness- client is consenting freely and are free to withdraw • When services are court mandated, inform about services, and any limits of confidentiality beforehand

7. If Limited Client Capacity • APA Code: “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 not (available) psychologists take reasonable steps to protect the individual's rights and welfare. “ (3.10)

8. Educating About Informed Consent • Encourage Client’s questions about Tx • Provide ongoing opportunities to raise questions about Tx, including expectations • Clients do not comprehend informed consent after an initial session with a signed form (Welfel, 2002) • Informed consent can be a means of sharing power with client- developing a collaborative relationship

9. Written Informed Consent • Written (rather than verbal) informed consent provides: • Consistent documentation of informed consent • Ease of administering informed consent • Standardization of content of informed consent • Now the “community standard”

10. Checklist for Informed Consent • Overview: 16 point Checklist for content of Informed consent • Derived from various sources (see refs.) • Not exhaustive • Needs modifying for particular settings

11. Checklist for Informed Consent 1) Therapist Role- what will therapist provide (psychotherapy) a) Therapy Orientation- brief explanation of type of therapy employed: (e.g. Cognitive Behavioral Tx, Interpersonal)

12. Consent Checklist Cont. b) Anticipated Length of treatment - Provide expectation consistent with preferred intervention strategy about course of treatment • Discuss any agency or third party payer limitation • Clients often have mistaken expectations about length of treatment

13. Case Illustration: Length Tx • Rosemary calls for help with chronic back pain and depression, hoping hypnosis will help. She has traditionally relied on physicians, and expects 1-2 sessions. • When should therapist provide realistic description of treatment duration? • What are risks of “rosey” expectations?

14. Consent Checklist Cont. c) Recognized techniques and procedures • if Not using generally recognized procedure, inform client about developing nature of treatment and potential risks • A recognized procedure will have empirical evidence documenting usefulness • Describe alternative treatments available (e.g. self-help groups, other professional practitioners)

15. Consent Checklist Cont. d) Therapist Availability Describe limits to availability Provide office number and expectation for return calls Emergency Number (where therapist can sometimes be reached if desired) Other Emergency number (local hospital, mental health)

16. Consent Checklist Cont. 2) Voluntary Participation- client voluntarily agrees to treatment and can terminate without penalty

17. Consent Checklist Cont. 3) Risks Associated with treatment- therapy may not lead to improvement or anticipated results therapy may impact current relationships therapy may involve psychiatric consultation therapy may be emotionally painful at times Other risks?

18. Case: Therapy Makes it Worse • After 4 sessions of therapy for depression and GAD, Stella reports that she feels worse than when she started, and describes crying spells, pessimism and relationship distress. • Should the client be surprised? • Should the therapist discontinue treatment? • Therapist response?

19. Consent Checklist Cont. 4) Confidentiality • Information presented during therapy is private and confidential • Therapist has professional and legal duty to safeguard information

20. Consent Checklist Cont. 5) Limits on Confidentiality a) suspected child abuse, elder abuse, or dependent adult abuse b) When threat to injure or kill oneself is communicated c) “Tarasoff ”situations where serious threat to a reasonably well-identified victim is communicated

21. Consent Checklist Cont. 5) Limits on Confidentiality Cont. d) client signs release providing access to Third party payer e) client signs release for records if involved in litigation (or other matters): discuss possibilities of legal involvements f) records (and notes on sessions) and phone calls can be subject to court subpoena

22. Consent Checklist Cont. Limits on Confidentiality Cont. g) Couple, family, and group work provide limits (discretion encouraged & exercised) h) Consultation- “I may at times speak with professional colleagues about our work without asking permission” i) Clients under 18 do not have full confidentiality from their parents

23. Consent Checklist Cont. Limits on Confidentiality Cont. j) Cell phones, portable phones, faxes, and e-mails are used on some occasions and All electronic communication may compromise confidentiality k) Disguised use of client material for teaching purposes

24. Case Experience with Need to Break Confidentiality? • E.g. Involuntary hospitalization • E.g. Contacting DSS to report allegation of child abuse • Anecdotal dilemmas?

25. Consent Checklist Cont. 6) Fees Describe fees for specific services Describe how collected ( e.g. billed, collected at beginning of session) 7) Insurance Reimbursement Co-payment responsibilities What responsibility will therapist take? Discuss disclosure of diagnosis to insurance Co.

26. Consent Checklist Cont. 8) Credentials- a) education b) license- with name of licensing Board (e.g. NC Psychology Licensing Board) c) if trainee, describe status and supervision Agencies with trainees may wish to provide a handout describing trainees and credentials of staff

27. Consent Checklist Cont. • 9) Ethical and professional Guidelines • Under what standards does therapist practice. Provide source of standards. (e.g. APA Ethical Code) • For your purposes APA code available: web APA.org/ethics

28. Consent Checklist Cont. 10) Cancellation Policy Including notice and fee required 11) Affiliation with other Practitioners Describe independence or relationship with others in office suite 12) Supervisory Relationship Describe any required supervisory relationship Provide supervisors name and credentials

29. Case Illustration: Supervision • Ms. Real, an LPA, provides a handout to new clients, describing her practice, including the name and credentials of her supervisor. Occasionally clients decline her services, because they know her supervisor socially, or professionally, and want greater privacy. • What if she omitted that supervisory disclosure?

30. Consent Checklist Cont. 13) Disputes and Complaints a) how will fee and other disputes be resolved? b) consider Agreement for Arbitration (rather than court) c) Client agrees to pay collection or legal costs?

31. Consent Checklist Cont 14) Contacts Permission: Obtainpermission and names, phone numbers of persons (family or friends) to contact in case of emergency (like suicidal, or manic impaired)

32. Consent Checklist Cont. 15) Clients Signature a) under sentence describing agreement, opportunity to ask questions, and satisfaction with answers 16) Therapists Signature a) with sentence documenting discussion of diagnosis and treatment plan with client and assurance of mental capacity for consent

33. Sample Therapist Sig. • Statement of the Therapist • This document was discussed with the client and questions regarding fees, diagnosis, and treatment plan were discussed. I have assessed the client’s mental capacity and found the client capable of giving an informed consent at this time. • Date________________ and Initial of Therapist __________.

34. Scenario: No Informed Consent • Paul Smith, reads the standard informed consent document presented by Dr. Hill and declines to sign because • He objects to the therapist consulting with colleagues • He objects to a documented diagnosis • He objects to information being provided to third party payer

35. Strategies to Provide Written Informed Consent • Client Information Brochure • With detailed information about Tx and contains the Informed Consent Checklist • Client Question List Structure for client to interview psychologist e.g. What will we do in therapy? How will I know when I am better? How do I reach you in emergency?

36. Strategies to Provide Written Informed Consent • Psychotherapy Contract or • Consent to Treatment Form • Rights and Responsibilities of Client and Therapist outlined • Consider using multiple strategies to provide informed consent • Written strategies require supplemental verbal discussion (Welfel, 2002)

37. Case Illustration: Written Form • Dr. Besness trained his receptionist to provide clients with an informed consent document in the waiting area, and to review a protocol of points with them prior to intake. Dr. B. thus rarely found the need to discuss informed consent issues with clients. • Is this practice consistent with current standards?

38. Guidelines for Ethical Practice: Consent • Use a written informed consent a) Document review of informed consent with client • Educate and review client’s role in consent process as needed • Include the Features listed in Checklist • Remember to include HIPPA Informed Consent

39. HIPAA Practices • Provide separate or additional notice of Privacy Practices for Protected Health Information • (often a lengthy document itself) • separate or additional Informed Consent statement specific to use and disclosure of Protected Health Information

40. Close: Informed Consent • Opportunity to address Informed Consent Concerns or Experiences

41. Dual Relationships When a professional holds 2 or more relationships with a client at the same time or sequentially For example: Therapist and friend Therapist and instructor Therapist and business partner Therapist and sexual partner

42. Dual Relationships • Among the 12 most common areas where therapists leave themselves open to law suits and licensing board complaints are: A) Sexual Relationship with client (whether current or former client) B) Business Relationships with client C) Out of Office Contact with client (Caudil, B. Malpractice & Licensing Pitfalls for Therapists: A Defense Attorney’s List)

43. Dual Relationships: Sexual • Sexual intimacy with a client is one of the most common reasons for malpractice suits • Sexual intimacy prohibited in the codes of most professional organizations • Sexual intimacy with former clients also prohibited “except in the most unusual of circumstances” (APA Ethics Code, 2002)

44. Dual Relationships: Non-Sexual • Recent trend with state licensure boards has been to prohibit all dual relationships • Intent of banning dual relationships has been to prohibit any dual relationship that: • 1) may impair the judgment of the therapist • 2) may be potentially exploitive of clients • Such a broad ban has been controversial

45. Dual Relationships • Lazarus (1994) has admitted to socializing with clients, playing tennis, taking walks, accepting gifts and giving gifts • Lazarus suggested that the accountable therapist must consider: • The risks of harming a client • Possible conflicts of interest • If dual relationship may impair therapist’s judgment • If the client’s rights or autonomy will be infringed • If the therapist will gain a personal advantage

46. Dual Relationships: Data on Frequency A survey of 4,800 psychologists, psychiatrists and social workers re beliefs and behaviors about Dual Relationships (Borys & Pope, (1989) Professional Psychology: Research and Practice)

47. Dual Relationships: Data Results of survey of Behaviors (N=1021) 1= no client 2 = few clients, 3= some clients, 4 = most clients, 5 = all clients Accepted a client's invitation to a special occasion 1 2 3 4 5 64.0 28.0 3.3 2.4 1.4 Accepted a service or product as payment for therapy 82.6 13.9 2.8 0.2 0.1 Became friends with a client after termination 69.0 26.5 3.2 0.2 0.3 Provided therapy to an employee 87.5 9.3 1.7 0.3 0.2

48. Dual Relationships: Data 1 2 3 4 Engaged in sexual activity with a client after termination 95.3 3.9 0.0 0.0 Went out to eat with a client after a session 87.4 10.5 0.9 .2 Disclosed details of current personal stresses to a client 60.1 30.7 7.4 .2 Bought goods or services from a client 77.6 20.5 1.1 0.1 Provided individual therapy to a relative, friend, or lover of an ongoing client 38.0 36.0 21.6 2.1

49. Dual Relationships: Friendships • Do social relationships interfere with current therapy relationships? • Defenders of social relationships suggest that sometimes a “blended” role can assist a client. Examples? • Most therapists would agree that social relationships with clients are unwise

50. Senario: Friendships • Senario: A member of your church (or local civic group) makes an appointment and requests therapy services. • What are your concerns? • Do you share your concerns with the client? • What options do you have?