Informed Consent/Therapist Disclosure By Bonnie R. Benitez, Attorney Previously employed with CAMFT The Therapist (January/February 2001)

First, it is important to understand the distinction between “informed consent” and “therapist disclosure.” Patients have the right to make their own decisions with regard to mental health treatment (as well as medical treatment). The overarching principle of informed consent is that patients should be provided with sufficient information so that their decisions for or against treatment are meaningful. The information provided should include the potential benefits and risks of the treatment, the therapist’s policies and procedures, his/her theoretical orientation, as well as any other information that the therapist knows or should know would be needed to make an informed decision regarding the proposed treatment. Therapist disclosure is a part of informed consent and includes that information which the therapist must or may disclose about themselves, the relevant laws and ethics of their practice and any practice policies of which patients should be aware.

“Informed” Consent
Providing informed consent is important for three main reasons. First, because patients have the right to consent to or refuse to consent to treatment, it is critical that they have sufficient information about the potential therapist and that therapist’s policies, procedures and theoretical orientation so as to make that consent meaningful. Second, informed consent, preferably in writing, assists patients and therapists in avoiding misunderstandings. Third, it helps therapists in organizing their practices, and causes them to develop sound policies and procedures, as well as a rational approach to their businesses.

If a therapist obtains a patient’s consent to treatment that lacks adequate information to make the consent meaningful, the patient may attempt to bring an action against the therapist for negligence based on lack of informed consent. This kind of suit is typically brought against physicians, but is also applicable to therapists. In such a case, the patient need not show that the treatment was negligently provided. However, the patient would have to show that a reasonable person in the patient’s position would not have consented to the treatment (or specific technique) if he or she has been properly informed, and that the treatment was the legal cause of the patient’s harm. On the other hand, in a malpractice action based on negligent treatment, a patient must show that the therapist did not conform to the applicable standard of care, and that the nonconforming care was the legal cause of the patient’s harm.

Viewing Informed Consent as a Process
Just as the treatment itself is a process, so is informed consent. Informed consent cannot be achieved in one shot. It must be revisited periodically, at different intervals depending upon the patient and the nature of the therapist. Therapists should view informed consent as a continuing obligation. It should be revisited whenever there is a major change in the treatment approach, when the patient comes back to therapy after a reasonable or extended absence, when a new technique is introduced, etc. Therapists may decide create a calendaring system that reminds them to revisit issues of informed consent at regular intervals, depending upon the patient. Therapists should consider how the therapeutic process has changed over time, what the current goals are, whether the patient’s presenting problem remains within the scope of practice and scope of competence, etc.

Information to be Disclosed
LMFTs are required to make two disclosures to patients prior to the commencement of treatment. These disclosures can be made orally or in writing.

Section 49823(n) “Unprofessional Conduct”
Prior to the commencement of treatment, failing to disclose to the client or prospective client the fee to be charged for the professional services, or the basis upon which that fee will be computed.

Section 4980.46 “Fictitious Business Names”
Any licensed marriage, family, and child counselor 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.

Section 4987.7 “Name”
The name of a marriage, family, and child counseling corporation shall contain one or more of the words "marriage," "family," and "child" together with one or more of the words "counseling", "counselor," or “therapist”, and wording or abbreviations denoting corporate existence. A marriage, family, and child counseling 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 marriage, family, and child counseling corporation.

Clearly there is other pertinent information that may be disclosed to patients, and each patient presents a unique situation with regard to consent. The patient’s mental and emotional condition must be taken into consideration when deciding how to properly achieve informed consent. Therefore, it is difficult to have a blanket information/disclosure statement for all patients. Generally speaking, a therapist should disclose all information that is material to the patient’s decision of whether to proceed. This standard does not require the disclosure of all exceptions to confidentiality or every possible risk associated with the therapy, however, it also does not require a mini-course in psychotherapy.

The patient should be provided enough information, in lay terms, to make an informed decision, given his/her mental or emotional state and overall ability to understand what is being provided. There are four main areas that should be discussed: (1) the nature of the treatment; (2) the risks and expected benefits associated with the treatment, including the likelihood of success; (3) any alternatives to treatment, including the alternative of no treatment, and their risks and benefits; and (4) any other information that may be required by the standard of practice in a specific case.

Informed Consent Forms
Because what constitutes “informed” consent varies from patient to patient, as illustrated above, it is difficult to create a “one size fits all” consent form. However, there are some content areas that should be included in any form. If such a form is used, patients should read, sign and date it. In addition to providing information in a form, it is critical that therapists also discuss each area of information with each patient to be certain that there are no misunderstandings. Additionally, records should document these discussions.

Therapists should create a checklist that can be used to remind the therapist of all of the areas that should be discussed. That checklist should then become a part of the patient record. In addition, periodic informed consent discussions should be well-documented in the patient record. The notes should include the nature and date of the discussion, the reasons why the therapist chose to have the discussion and a general description of the patient’s reactions.

Therapist Background and Information – General
Therapists should provide patients with a general introduction to the therapist him/herself. This may include information like how long the therapist has been practicing, his/her qualifications, specific areas of professional interest and experience, theoretical orientation, etc. Personal information need not be disclosed in this area.

Business and Professions Code section 4980.55 “Statements of Experiences, Education, Specialties, etc.” As a model for all therapeutic professions, and to acknowledge respect and regard for the consuming public, all marriage, family, and child counselors 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.

Description of the Therapeutic Process
In addition to disclosing his/her theoretical orientation, the therapist should describe to the patient how therapy works, and also explain some of the problems that may occur during the process. Therapists should explain not only the potential risks and benefits of a given treatment approach, but also the expected outcome. For example, it is a good idea to let patients know that therapy is not always successful. Some patient’s may experience periods of depression or increased difficulty along the way. Sometimes one needs to get worse in order to get better. Most importantly, patients need to understand that therapy is indeed a process. No quick fix is available. Goals should be set and revisited periodically. Some patients may not like what they learn about themselves as the treatment moves along. Expectations should not be too high. Sometimes patients may find that the therapeutic relationship is not what they anticipated and that is okay. With regard to termination, patients should be informed that they are free to terminate treatment at any time. The therapist may also choose to terminate treatment for reasons the patient may not always agree with or understand.

Ethical Standards
Therapists may want to include in their consent forms excerpts from the CAMFT Ethical Standards or attach the entire document. This lets patients know that you take the ethical standards of your profession seriously. Sections one, two and three of the standards deal specifically with the therapist-patient relationship. Section one addresses responsibility to patients, section two deals with confidentiality and section three tackles professional competence and integrity. It may be helpful for therapists to incorporate some of the language of the ethical standards into their consent forms.

Fees and Cancellations
Therapists should clearly articulate their fees and payment policies. If a reduced fee is available, it should be agreed upon in writing, while allowing for discretion on the part of the therapist with regard to changes in the fee arrangement. Therapists should agree to provide patients reasonable notice prior to raising fees.

Therapists should also ask patients to agree to a specific payment schedule and develop a policy for late or missed payments. If interest on balances is to be charged, the patient should be informed and agree to the terms. Therapists should also explain to patients that it may be disruptive to the therapeutic relationship if large balances accumulate. The therapist does not want to become the patient’s creditor. Patients should also be informed that the therapist may need to terminate due to an unpaid balance. If this occurs, the patient would be referred to another therapist or agency that is more affordable. Collection of outstanding balances may also be pursued through small claims court or other endeavors.

Patients should also be informed of the therapist’s cancellation policy. Therapists may choose to have a 24 or 48-hour cancellation notice requirement. Because the patient may be responsible for paying for a session he/she did not attend, the terms of the policy should be clear and agreed upon by the patient.

Insurance and other Third Party Payors
Therapists who accept insurance should explain their policies regarding the use of insurance to patients. It is important that patients not be led to believe that their health insurance will cover all forms of treatment. Typically, health insurance does not cover marital therapy, and most policies require that any covered mental health treatment be “medically necessary.” Some insurance companies or other third party payors will require that the insured seek treatment from specified providers. Many third party payors will reimburse for service only after the patient has been referred by a primary care physician. Patients should understand that they are responsible for verifying that the treatment is covered by their policy. Therapists can avoid that lag time in waiting for insurance reimbursement by having patients pay for the therapy at the time the service is provided and providing the patients with super bills that they can submit to their payors for reimbursement.

Confidentiality
Although many therapists choose to inform patients of the limits of confidentiality and the specifics of the reporting requirements, this is not mandatory. It may be sufficient to simply say something like “information disclosed by you during the course of your therapy is generally confidential. However, there are exceptions to confidentiality including, but not limited to reporting child, elder and dependent adult abuse, expressed threats of violence towards an ascertainable victim, and where you tender your mental or emotional state in a legal proceeding.” There are several other exceptions to confidentiality, but trying to explain the various circumstances in which you are permitted or mandated to disclose information can be confusing to both the patient and the therapist. Keep it simple, yet clear.

Availability and After-hours Contact Information
Each therapist has his/her own policies with regard to the extent he/she is accessible to patients. It is important that each patient be aware of your policy. It may be that you carry a pager, check your answering machine/service regularly each day, or are not available after hours or on weekends. Whatever you decide, be clear about the limits of your availability for all of your patients.

A therapist’s general policy of not carrying a pager may need to be changed in some cases. For example, if you are treating someone in crisis, or actively suicidal, you may need to make yourself more readily available to a patient in order to meet the standard of care. Keep flexibility in mind when creating and carrying out your policies.

Therapists who are planning leaves-of-absence or vacations will want to notify their patients in advance. It is helpful to have a colleague who would be willing to serve as an emergency contact during your absence. Patients should also be informed of the colleague’s availability and contact information.

Delegation of Informed Consent Duties
The duty to properly inform patients prior to obtaining consent resides with the treating therapist. As a general rule, therapists should not delegate this duty to another staff person, either clinical or non-clinical.

Information for Specific Situations
Therapists who choose to develop informed consent forms may want to have different forms for different therapeutic situations. For example, a separate form may be created for conjoint therapy. Such a form would include information about the therapist’s “no secrets” policy. Having a “no secrets” policy means that any information shared with the therapist by one member of the couple outside of the presence of the other member of the couple may be disclosed to the other member of the couple at the therapist’s discretion. In other words, the therapist will not allow him/herself to be put in the position of holding the secrets of a patient participating in conjoint therapy. Each of the conjoint patients should be informed of and agree to this policy. Too many therapists find themselves receiving information from one member of a couple that he/she does not want disclosed to the other member of the couple without having informed the patients of a “no secrets” policy.

Therapists who conduct groups should also have a specific form for each member of the group. Such a form should include not only the rules of confidentiality for the therapist, but also the rules of confidentiality, as established by the therapist for the group participants. For example, the therapist may want to have each group participant agree to keep all information disclosed in session confidential as a condition of group therapy. The therapist may also want to develop a policy regarding outside relationships among group participants.

Contractual Requirements
Some government contracts for the provision of mental health services may require either the use of specific forms or the use of an interpreter when forms are written in English only. Therapists should take care to read and understand the terms of any contracts they may have for the provision of mental health services on behalf of third parties.

Exceptions to Informed Consent Requirements
There are three general exceptions to the informed consent doctrine: (1) emergency situations, (2) patient requests not to be informed, and (3) simple procedure with remote danger. Therapists who choose to utilize any of these exceptions are best protected by carefully documenting the reasons why the exception was appropriately invoked. Therapists should note that these exceptions are typically invoked by physicians and should not regularly be utilized.

Emergency Situations
Circumstances may arise in which a patient’s immediate need for treatment outweighs the need for the informed consent. A distraught patient may not be able to appreciate the information being provided, thus it may be prudent at times for a therapist to defer the informed consent process to a time when the patient will be more receptive and understanding of the information provided.

Patient Requests not to be Informed
The Supreme Court of California in held “a medical doctor need not make disclosure of risks when the patient requests that he not be so informed.” This case did not address issues therapists are faced with, however, this exception may be applicable in some limited circumstances. A therapist faced with a patient who requests treatment absent informed consent should consider whether he/she wants to treat the patient at all, revisit the informed consent issue in a subsequent session, and document his/her records as to the patient’s request, as well as any further actions taken.

Simple Procedure with Remote Danger
A disclosure need not be made if the procedure is simple and the danger remote and commonly appreciated to be remote. While this may appear to be a good exception to be utilized by therapists who see the patient’s treatment as short-term, it should not be seen as providing immunity from liability should the patient later initiate a legal action.

Forms for third party non-patients
Many patients will at some time during the course of their therapy bring a third party into a session or sessions. For example, an adult man who is focusing, at one point during individual therapy, on his relationship with his girlfriend/sister/mother, will have her attend a session or two. And while it may be obvious to the therapist that the third party “visitor” is only attending the session(s) for the purpose of the treatment of the actual patient, the “visitor” may see things differently. This issue may not even arise until some time later when the actual patient is requesting that the therapist send a copy of his/her records to his/her attorney. It is at this point that the therapist may realize that there is information contained in the record about that visitor. Is the visitor entitled to confidentiality? Maybe. Would the visitor have an expectation of confidentiality? Perhaps. The therapist can address these and other issues when the visitor first attends the therapy session with the patient. The therapist should inform the visitor that he/she is not a patient and therefore is not entitled to confidentiality or psychotherapist-patient privilege under the law. Obviously the therapist will respect the confidential nature of the session, but the visitor should have no expectation of the legal protections afforded patients. This kind of disclosure falls under informed consent in that the third party is being informed of what role he/she is playing in the process and consenting to participation under the conditions outlined by the therapist.

Another common example of third parties being involved in therapy is the participation of parents in the therapy of their minor children. Sometimes therapists conduct family therapy, in which all or some member of a family are identified as patients. However, there are times in which the identified patient is the minor child and not adult members of the family. In this case, the therapist should make it clear to the parents that the patient is the child, and while the parents may play a part in the child’s therapy, they are not identified by the therapist as patients, and should have no expectation of the legal protections afforded the patient. Therapists should both explain this concept to the parents and also have them read and sign a form addressing the issue.

Conclusion
Any treatment that takes place absent informed consent falls below the standard of care and may subject the therapist to civil liability. Therapists who want to follow best practices will understand the doctrine of informed consent, and appropriate disclosures, and incorporate these guidelines into their practices.

This information is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.
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1The "standard of care" refers to the standard to which therapists are held by the courts.
2See generally, Arato v. Avedon 5 Cal. 4th 1172 (1993); Cobbs v. Grant 8 Cal. 3d 229 (1972); Jambazian v. Borden 25 Cal. App. 4th 836 (1994).
3Cobbs at 243.
4Id. at 245.
5Id. at 246.