Informed Consent to Psychoanalysis

The Law, the Theory, and the Data

Elyn R. Saks, Shahrokh Golshan

• Publisher: Fordham University Press
• Year: 2013
• Print ISBN: 9780823249770, 9780823249763
• eBook ISBN: 9780823249787
• Topic: Psychology
• Subtopic: Medical Law
• Index: Psychology

The goal of this book is to shed psychoanalytic light on a concept—informed consent—that has transformed the delivery of health care in the United States.Examining the concept of informed consent in the context of psychoanalysis, the book first summarizes the law and literature on this topic. Is informed consent required as a matter of positive law? Apart from statutes and cases, what do the professional organizations say about this?Second, the book looks at informed consent as a theoretical matter. It addresses such questions as: What would be the elements of a robust informed consent in psychoanalysis? Is informed consent even possible here? Can patients really understand, say, transference or regression before they experience them, and is it too late once they have? Is informed consent therapeutic or countertherapeutic? Can a "process view" of informed consent make sense here?Third, the book reviews data on the topic. A lengthy questionnaire answered by sixty-two analysts reveals their practices in this regard. Do they obtain a statement of informed consent from their patients? What do they disclose? Why do they disclose it? Do they think it is possible to obtain informed consent in psychoanalysis at all? Do they think the practice is therapeutic or countertherapeutic, and in what ways? Do they think there should or should not be an informed consent requirement for psychoanalysis?The book should appeal above all to therapists interested in the ethical dimensions of their practice.

1. Law and Literature on Informed Consent

The Cases, Statutes, and Regulations

Is there a legal requirement to obtain informed consent? Reviewing relevant cases and statutes bearing on informed consent to psychotherapy should help us gauge that. Naturally, there is less urgency for mental health professionals sorting through what to disclose or not if there is no legal informed consent requirement. There are very few cases that imply such a duty on the part of mental health professionals in the context of psychotherapy. On the other hand, many state statutes and regulations seem to require informed consent to therapy. In addition, Ethics Codes of the professions raise their own expectations, and many states incorporate the disciplines’ Ethics Codes into state law. (Of course, even if the statutes do not incorporate the Ethics Codes, the codes themselves impose an informed consent duty or the professional risks disciplinary sanctions.) Naturally, if the law is unclear and things are in flux, our study might enable us to better shape the direction of the law. Even if the law is clear, thinking about whether there should be an informed consent requirement may lead us to advocate for change.

We turn first to a discussion of informed consent cases.

Informed Consent Cases

Every human being of adult years and sound mind has a right to determine what shall be done with his own body.

Schloendorff v. Society of New York Hospital, 1914

We showcase two general informed consent cases here, drawing out the important features of this doctrine. We then spend time on the most famous informed consent case in the therapy context, the Chestnut Lodge case. While this case settled out of court, there is considerable literature about it and it seems to have affected practice. We then very briefly review some other relevant cases.

Canterbury v. Spence (1972), a seminal informed consent case, was also a very sad case. A teenaged boy with back pain had an operation without being informed of the risk of paralysis. A day after his operation, as he attempted to reach a bathroom when no staff was present, he fell from his hospital bed. A few hours later, the lower half of his body was paralyzed, and he had to undergo another operation. Now, years later, instead of back pain, “he hobbled about on crutches, a victim of paralysis of the bowels and urinary incontinence. In a very real sense this lawsuit is an understandable search for reasons” (Canterbury v. Spence at 776).

Canterbury v. Spence discusses a number of important informed consent issues that are rather technical—for example, the informed consent action is a matter of negligence rather than battery. It also covers the element of “cause” (did the failure to disclose cause the injury?) and how to understand the cause element, namely, as a matter of whether a reasonable person in the patient’s situation would have declined treatment had he or she been informed of the risks.

In its decision, the court also discusses some exceptions to the doctrine—for example, so-called “therapeutic privilege” (when the doctor can elect not to inform the patient if he or she believes it will be too destructive to the patient psychologically); the right not to inform of very remote risks or things the patient knows already anyway; and the right not to disclose if the patient expresses the wish not to be informed.

We would like to focus on why disclosure is important and how to measure the doctor’s disclosure obligation: What must he or she disclose in this context?

Why then is disclosure important? The epigraph at the beginning of this section is a good place to start: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” The court goes on to note that true consent is the informed exercise of choice, and that entails that one be able to evaluate the options available and the risks attendant upon each. Also the average patient has little or no medical knowledge and is dependent on the doctor to provide information. “From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible.” As the court says later in the decision, “It is evident that it is normally impossible to obtain a consent worthy of the name unless the physician first elucidates the options and the perils for the patient’s edification” (Canterbury v. Spence at 783).

The court also later underscores how dependent the patient is on the doctor: “The patient’s reliance on the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with arms-length transactions. His dependence on the physician for information affecting his well-being, in terms of contemplated treatment, is well-nigh abject” (Canterbury v. Spence at 783).

We turn now to the important question of the doctor’s disclosure obligations. The court addresses this in two ways: by identifying the sorts of things that must be disclosed and by articulating a general standard for measuring disclosure.

Under the first, the court speaks several times of the usual elements of a disclosure: The physician must generally inform the patient “in nontechnical terms as to what is at stake: the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment and no treatment” (Canterbury v. Spence at 783). The court reiterates this later: “The topics importantly demanding a communication of information are the inherent and potential hazards of the proposed treatment, the alternative to that treatment, if any, and the results likely if the patient remains untreated” (787–88).

A most important question in the context of informed consent is the general standard for measuring the doctor’s disclosure obligations. One possibility, which a number of states adopt, is the “professional standard”: What would a reasonable doctor disclose in this kind of case? A more progressive standard is the “objective, patient standard”: What would a reasonable patient in this patient’s situation find material to her decision? And the third standard is “subjective”: What would this patient deem material to his decision?

The jurisdictions are roughly split between the first and second. Canterbury, and all the more progressive states, adopts the patient-based standard. The courts provide a number of reasons for their choice. For example, Canterbury notes that there is no real professional standard and the questions aren’t so technically complex as to require expert testimony. In addition, the court notes that what to disclose is “ofttimes a non-medical judgment and, if so, is a decision outside the ambit of the special standard” (785). But to adopt the professional standard is to “bind the disclosure obligation to medical usage”; and this in turn is “to arrogate the decision on revelation to the physician alone” (784). This surely doesn’t make sense if the decision is largely nonmedical.

More generally, “any definition of scope (of duty to disclose) in terms purely of a professional standard is at odds with the patient’s prerogative to decide on projected therapy himself” (786). Indeed, “respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves” (784).

The court therefore adopts the objective, patient-based standard: “The scope of the physician’s communications to the patient, then, must be measured by the patient’s need, and that need is the information material to the decision” (786). The court, quoting from a commentator, defines materiality in this way: “A risk is thus material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy” (787).

We discuss briefly another seminal case, Cobbs v. Grant, in which a man went into surgery for a duodenal ulcer and, over time, suffered a number of problems requiring a number of additional surgeries—for example, he had to have his spleen removed, which was a 5 percent risk of the first surgery. He later developed another ulcer, another risk of the earlier treatment. A third operation was then required, which removed 50 percent of the patient’s stomach. Yet another hospitalization was necessitated when the patient began to bleed internally as a result of the premature absorption of a suture, another inherent risk of surgery.

We first want to discuss a number of areas of agreement between Canterbury and the Cobbs. Cobbs agrees that an informed consent action is a negligence issue, as well as the elements of required disclosure: “Therefore, we hold, as an integral part of the physician’s overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to the proposed therapy and of the dangers inherently and potentially involved in each.”

The duty of the physician is more generally to provide “any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment” (8). The court also adds some important reasons for adopting an objective, patient-based standard: “Even if there can be said to be a medical community standard as to the disclosure requirement for any prescribed treatment, it appears so nebulous that doctors become, in effect, vested with virtual absolute discretion.… Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents to be subjected” (9).

The court adds that the doctor’s expert function is to supply the medical data on which the patient relies: “But once this information has been disclosed, that aspect of the doctor’s expert function has been performed. The weighing of those risks against the individual subjective fears and hopes of the patient is not an expert skill. Such evaluation and decision is a nonmedical judgment reserved to the patient alone” (9).

The court, citing Canterbury, summarizes: “In sum, the patient’s right of self-decision is the measure of the physician’s duty to reveal. That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice. The scope of the physician’s communications, then, must be measured by the patient’s need, and that need is whatever information is material to the decision. Thus the test for determining whether a potential peril must be divulged is its materiality to the patient’s decision” (10).

We would like now to turn to the context of informed consent to therapy in particular. The most famous case is Osheroff v. Chestnut Lodge. This case did not reach the courts but settled. Still, there was a lot of press about it, as well as scholarly articles, and, anecdotally, it seems to have affected practice to a considerable degree.

Osheroff was a 41-year-old nephrologist. He was consulting a psychiatrist for depression. Antidepressants were not effective, and he was advised to check himself into Chestnut Lodge Hospital, a very famous psychoanalytically informed hospital. The Lodge diagnosed him as having a narcissistic personality disorder as well as depression (his own expert denied the former), and believed that intensive psychotherapy was the way to treat him. He was on no medications, although he asked for them quite frequently.

Over the course of seven months of in-patient treatment, he deteriorated terribly: “I was waking up at 4 every morning, pacing so much that my feet deteriorated. I lost 40 pounds, I deteriorated mentally and physically, I lost a whole life. I had a million-dollar medical practice, I lost that. I lost my status in the medical community, I lost the respect of my patients, I even lost contact with my children” (New York Times, October 1990).

Another account of his deterioration addressed the fact that, no matter how badly he wanted to, “Ray Osheroff couldn’t stop pacing. For months he had spent nearly every waking moment—sometimes 16 hours—trudging an estimated 18 miles a day up and down the hall of a locked ward in a mental hospital. The soles of his feet blistered, ulcerated and turned black. He lost 40 pounds and stopped bathing and shaving. His uncut hair hung in limp hanks on his shoulders. He couldn’t sit still long enough to eat with a knife and fork—instead, he would snatch food off a plastic tray as he paced” (Washington Post, 1989).

Eventually, Osheroff went to another hospital, which immediately put him on antidepressants, and within a couple of months he improved considerably and was discharged. Over time, he was able to rebuild his life and his practice, but all of this took some doing.

There were two main issues in the Osheroff case. First, was the treatment he was given substandard? Was it malpractice not to give medication? Second, was Osheroff provided adequate informed consent?

The first question is outside the scope of this book, but we will say that one view—as proposed by Gerald Klerman (1990) among others—is that whenever there is an evidence-based treatment and one not supported by the evidence, the doctor has to give the evidence-based treatment. The alternative—as suggested by Alan Stone (1979) among others—is that the “substantial minority” rule should apply: If a substantial minority supports and uses the treatment, it is within the standard of care. For a variety of reasons, we support the latter view: Some things may be hard to study but are still highly effective, or patients may have reasons for preferring a less supported therapy (for example, it doesn’t have what, for them, is a terrible side effect). In any event, even if we take the first view, there was considerable controversy over a correct diagnosis for Osheroff and how he should be treated—for example, if he indeed had narcissistic personality disorder, we might think differently of the therapy option. And of course he had already failed on at least one medication.

More important for us, however, is the informed consent issue. One might say that Osheroff, who kept asking for medication, did not need to have that alternative disclosed to him. He was a doctor, after all. As we have seen, disclosure of what the patient already knows needn’t be made. But a more careful view suggests that his knowing about this alternative is not enough. Osheroff needed to be informed of the pros and cons of therapy versus medication to be able to make a “knowing choice.” That is, he needed to know the costs and benefits of the different alternatives, as well as whatever was known about their efficacy.

For example, if Osheroff had been told at the beginning of his hospitalization that the hospital would treat him only with therapy, that medication was an alternative that would be much quicker but perhaps not as long-lasting, that there were such-and-such other costs and benefits of the two interventions, and that he could be referred elsewhere if he wanted medication, perhaps he would have been empowered earlier to seek this alternative.

The bottom line is that informed consent doctrine says that the nature of and risk/benefit profile of a therapy, as well as alternatives, needs to be provided to prospective patients. Indeed, one might think this is especially true if the clinician thinks in the particular case that a minority-supported treatment would be better for this patient.

The most famous legal case involving informed consent to therapy, then, has sent up a red flag that informed consent is important. There are a few additional cases that discuss informed consent in this context, although none so famous: One case discusses the issue generally; two possibly relevant cases concern children; and a few cases concern a particular disclosure—namely that the doctor might have to breach confidentiality.

Only one reported case explicitly deals with informed consent to psychotherapy in the case of an adult. Daly v. Wisconsin Patients Compensation Fund (Wis. 2005) concerns informed consent to psychotherapy in the context of a false memory / MPD case. A state statute required doctors to inform their patients about the availability of...

Table of contents

• Cover
• Half Title
• Series Announcement Page
• Title Page
• Copyright
• Contents
• Acknowledgments
• Half Title
• Introduction
• 1. Law and Literature on Informed Consent
• 2. Analysis of the Concept of Informed Consent: The Theory
• 3. Empirical Study: Methods and Results
• 4. Empirical Study: Discussion
• 5. Limitations of Our Study and Directions for Future Research
• Afterword: Our Own View
• Conclusion
• Appendixes
• References
• Index
• Series Page