By Bonnie R. Benitez,
Previously employed with CAMFT
Even though not required
by law or regulation, therapists should obtain the informed consent of patients
prior to treatment as a best practice. Best practices are those
practices therapists engage in that are designed to ensure the therapist
meets the standard of care. The following are answers to the most commonly
asked questions with regard to informed consent and therapist disclosure.
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 therapists
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.
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 therapists 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 patients 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 patients 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 patients 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 patients harm.
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 patients presenting
problem remains within the scope of practice and scope of competence,
LMFTs are required to make two disclosures to patients prior to the commencement
of treatment. These disclosures can be made orally or in writing.
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.
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 patients
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 patients 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.
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.
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 patients
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.
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 patients 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.
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
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.
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 patients 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 therapists 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
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.
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.
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.
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 colleagues availability and contact information.
Delegation of Informed
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.
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 therapists 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
therapists 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
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
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.
Circumstances may arise in which a patients 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.
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 patients request, as well as any further actions taken.
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 patients
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
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 childs 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.
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.
of care" refers to the standard to which therapists are held by the
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.
This article appeared
in the January/February 2001 issue of The California Therapist, the publication
of the California Association of Marriage and Family Therapists, headquartered
in San Diego, California. This article 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