Negotiating Consent in Psychotherapy

Patrick O'Neill

• Éditeur: NYU Press
• Année: 1998
• ISBN:
  9780814738344
• Sujet: Psicologia
• Sous-sujet: Psicoterapia

Psychotherapists have an ethical requirement to inform clients about their treatment methods, alternative treatment options, and alternative conceptions of their problem. While accepting the basis for this "informed consent" requirement, therapists have traditionally resisted giving too much information, arguing that exposure to alternative therapies could cause confusion and distress. The raging debates over false/recovered memory syndrome and the larger move towards medical disclosure have pushed the question to the fore: how much information therapists should provide to their clients?

In Negotiating Consent in Psychotherapy, Patrick O'Neill provides an in-depth study of the ways in which therapists and clients negotiate consent. Based on interviews with 100 therapists and clients in the areas of eating disorders and sexual abuse, the book explores the tangle of issues that make informed consent so difficult for therapists, including what therapists believe should be part of consent and why; how they decide when consent should be renegotiated; and how clients experience this process of negotiation and renegotiation.

1
Informed Consent as a Challenge for Psychotherapists

HIPPOCRATES and his followers had no interest in the sort of informed consent we now consider essential in health care. The father of medical ethics, who lived and worked around 400 B.C., is remembered for his oath, which emphasized the physician’s obligation to do no harm and to maintain confidentiality. But there is nothing in the writing of Hippocrates and his followers to indicate that patients should have meaningful input into treatment decisions. On the contrary, in Decorum, attributed to Hippocrates, apprentice physicians are given this advice about bedside manner:

Perform all this calmly and adroitly, concealing most things from the patient while you are attending to him. Turn his attention away from what is being done to him. Sometimes reprove [him] sharply and emphatically, and sometimes comfort with solicitude and attention, revealing nothing of the patient’s future or present. (Hippocrates, 1923).

The Precepts give more advice about the lengths to which the healer should go in concealing information from patients:

And yet some patients ask for what is out of the way and doubtful, through prejudice, deserving indeed to be disregarded, but not to be punished. Wherefore you must readily oppose them, as they are embarked upon a stormy sea of change. (Hippocrates, 1923)

This strong view that the doctor knows best and that the patient’s role is to be compliant and to follow medical advice continued to be a touch-stone of the healing arts for more than two millennia. Only in the second half of the twentieth century was there a shift from reliance on the doctor’s judgment to a belief in the right of the patient or client to self-determination.

On this older view, not only were patients’ views of treatment irrelevant, but it was thought best to keep them in the dark about their condition. Although there were occasional dissenters, the prevailing view among healers was that too much information would merely confuse patients; where the malady was serious, knowledge might actually be harmful.

The idea that patients may be or ought to be deceived for their own good became enshrined in therapeutic privilege, a doctrine that holds that the healer may withhold information that he or she believes would be harmful to the patient. This doctrine, long an implicit fact of practice, was formally enunciated in Thomas Percival’s influential Medical Ethics (Percival, 1849).

Although this was the orthodox position, there were always some dissenters. Samuel Johnson, in 1784, thundered against doctors who lied to their patients for fear of alarming them. He said that doctors had no business worrying about the consequences of truthfulness. “You are to tell the truth. Besides, you are not sure what effect your telling him that he is in danger may have. It may bring his distemper to a crisis, and that may cure him” (Boswell’s Life of Johnson, June 13, 1784, cited in Percival, 1849). Percival quoted Johnson’s view merely to attack it in his Medical Ethics.

Percival claimed if knowledge would harm patients, it would be “a gross and unfeeling wrong” to tell them the truth. He maintained that a patient’s right to the truth is “suspended, even annihilated” by the patient’s stronger right to be kept from harm. He went beyond arguing that one may lie to patients and claimed that to deceive a dejected or sick patient, as long as the objective is to give hope, is not a lie.

Like Samuel Johnson, Worthington Hooker was a critic of the orthodox position. In Physician and Patient (1849), he raised a number of arguments against deceiving patients: Doctors are often wrong in thinking that the truth will hurt the patient; the patient usually finds out the truth anyway; discovery of the deception by the patient has a worse effect than the truth would have had; the deceived patient, upon learning the truth, loses confidence in the doctor; other people, seeing that doctors lie to their patients, lose confidence in the profession; once deception is allowed in some cases, it is hard to place limits on it. Hooker disagreed with Percival and others who said that deception is acceptable in urgent cases. He pointed out that deception succeeds only if patients believe that doctors tell them the truth. If they realize that patients are deceived in some cases, they will not trust what they say in any cases. Thus, lying becomes self-defeating.

Despite arguments of this sort, the doctrine of therapeutic privilege remained an important principle of medical practice. Joseph Collins, writing in the 1920s, defended lying to patients. He argued that patients say “tell me the truth” but usually do not mean it. Even if they do, some would be injured by the truth. He commented, “The longer I practice medicine the more convinced I am that every physician should cultivate lying as a fine art” (Collins, 1927, p. 321).

Beyond the debate about outright deception, physicians tended to think that the patient would not have much to offer about what treatment should be administered. In fact, patients were discouraged from informing themselves so that they might have something to say. This is evident in the first Code of Ethics of the American Medical Association, published in 1847. Although such codes are designed to inform and guide professionals, this code was as much concerned about obligations of patients to their physicians as those that doctors have to their patients:

The obedience of the patient to the prescriptions of his physician should be prompt and implicit. He should never permit his own crude opinions as to their fitness to influence his attention to them. . . . A patient should never send for a consulting physician without the express consent of his own medical attendant. He should never converse [with other physicians] on the subject of his disease, as an observation may be made . . . which may destroy his confidence in the course he is pursuing. (American Medical Association, 1847)

The legal system has been somewhat more demanding of doctors with regard to consent. Silverman reports that, in 1767, a British judge said, “A patient should be told what is about to be done to him, that he may take courage and put himself in such a situation as to enable him to undergo the operation.” Once the patient had been told, the judge said, he could “vote with his feet.” Voluntary submission was taken as proof of consent (Silverman, 1989, p. 6).

A landmark ruling came at the beginning of the twentieth century, when Judge Benjamin Cordozo, writing in a New York case, said, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” As Pope and Vasquez (1991) point out, Judge Cordozo made it clear that it was the patient rather than the doctor who had the right to decide about a specific treatment approach. But, they add, “The implications of this principle lay dormant for decades” (p. 76).

The courts, as well as health professionals, often take a paternalistic attitude toward persons thought to be in need of treatment. Judge Cordozo’s principle has sometimes been upheld, but in other cases it has been ignored. Courts have ruled that patients of sound mind can be compelled to have treatment if they have dependent children or if the judge takes the view that treatment is what they really want as opposed to what they say they want (Appelbaum, Lidz, and Meisel, 1987).

The Influence of Nuremberg

The major change in thinking that emphasized free and informed consent occurred after World War II. The Nuremberg trials were held to judge and expose the abuses of human rights in Nazi Germany. Among other abuses, the trials dealt with the notorious medical experiments in concentration camps, some of which were done in the context of “treatment.”

Out of the trials came the Nuremberg Code on Medical Intervention and Experimentation (1964/1945). This Code specified that voluntary consent of the human subject is absolutely essential in medical research and treatment. The person involved should be so situated as to able to exercise free power of choice and should have sufficient knowledge and comprehension of the treatment or research to permit an understanding and enlightened decision (Nuremberg Code 1964/1945).

The two main ways of protecting the public from the healer are oversight and consent. Throughout most of the history of healing, the emphasis was on oversight: monitoring of professional activity by professional associations, regulatory bodies, or the courts. The Nuremberg Declaration gave a new, privileged position to consent, putting control into the hands of the client.

The ideas found in the Nuremberg Code were echoed in the World Medical Association’s Helsinki Declaration, which was drafted in 1964 and later revised several times. (The latest incarnation is the Helsinki-Tokyo Declaration, usually called “Helsinki II.”) This declaration is directed at research and combined research-treatment situations. Potential subjects, says the Declaration, must be adequately informed of the aims, methods, anticipated benefits, and potential hazards of the study. They must be told that they are free not to participate and free to withdraw at any time (World Medical Association, 1975).

The importance of free and informed consent has been enshrined in a wide variety of professional codes of ethics, such as those of the American Psychiatric Association (1989) and the American Psychological Association (1990). The most recent revision of the code of the American Psychological Association spells out these requirements for consent:

4.02(a) psychologists obtain appropriate informed consent to therapy or related procedures, using language that is reasonably understandable to participants. The content of informed consent will vary depending on the circumstances; however informed consent generally implies that the person . . . has been informed of significant information concerning the procedure . . . has freely and without undue influence expressed consent. (American Psychological Association, 1990)

Other codes contain the same basic material with various flourishes and additions. The National Association of Social Workers (1989) adds that consent includes agreement regarding the goals of treatment. The Canadian Psychological Association (1991) gives rationales drawn from moral philosophy for each of its main principles. Its first principle, based on the writings of Immanuel Kant, is “respect for the dignity of persons,” which includes the right to self-determination and thus to informed consent.

Health providers have been encouraged to give importance to informed consent by external bodies such as granting agencies and the courts.

The Changing Legal Situation

Before 1950 the duty to inform the client and to get the client’s consent was primarily what is called in law a negative duty. That is, false information was prohibited; one could not say that a treatment was something that it was not or that it would have an outcome that the therapist knew to be unlikely or impossible. But no specific information, even about possible risks, had to be provided.

A group of cases in the 1950s changed the duty from a negative to a positive one. In a North Carolina case, Hunt v. Bradshaw (1955), the judge asserted that it was no longer sufficient merely not to deceive; now, it was necessary to provide information about the condition and the treatment—especially the risks involved.

The North Carolina case provided a precedent for a number of others that followed. One of these, Salgo v. Stanford University (1957), is noteworthy because it gave us the phrase “informed consent.” Aside from coining this phrase, though, the Salgo case merely muddled matters. The court decreed that a doctor may withhold alarming information from a patient, “consistent, of course, with the full disclosure of the facts necessary to an informed consent” (cited in Appelbaum, Lidz, and Meisel, 1987, p. 39). Here, the court was trying to uphold both therapeutic privilege (the right to withhold information) and the right of the patient to know all the facts. Other courts became quite confused when trying to use the Salgo decision as a precedent. In a New York case the following year, a physician was found liable for mental anguish caused by information he disclosed to the patient about her condition and its treatment (Appelbaum, Lidz, and Meisel, 1987).

Some 1960 cases finally tipped the balance in favor of the client’s right to know. One of these was Mitchell v. Robinson, which involved a woman who received insulin shock and electroconvulsive therapy (ECT) as a treatment for schizophrenia; the treatment fractured several vertebrae. The judge established the notion of an affirmative duty, a requirement to inform the patient about the possible hazards of treatment.

The courts were now telling practitioners that they had to provide “sufficient” information, rather than try to spare the patient’s feelings. But what should be the standard for how much information is sufficient? There are two ground-breaking cases on this point; one established the “reasonable doctor” standard in 1960, and the second replaced it with the “reasonable patient” standard a dozen years later. These are very different standards, and they have ethical and legal consequences for health practitioners.

The “reasonable doctor” standard had been implicitly relied on by the courts for some time before it was clearly articulated in Natanson v. Kline (1960):

The duty to disclose is limited to those procedures which a reasonable practitioner would make under the same or similar circumstances . . . the physician’s choice of plausible courses should not be called into question if . . . the physician was motivated by the patient’s best therapeutic interests and he proceeded as competent medical men would have done in a similar situation. (Cited in Pope and Vasquez, 1991, p. 76)

Using this standard, a professional was expected to provide the sort of information that other members of the profession typically gave to their clients in similar situations. Pope and Vasquez (1991) refer to this as the community standard rule: “Informed consent procedures must adhere only to what the general community of doctors customarily do” (p. 76).

When the community standard went out, the “reasonable patient” standard came in. The landmark case was Canterbury v. Spence (1972), in which the court found that it is not enough to tell one’s patient what other professionals would tell similar patients. For one thing, there might not be a professional consensus for a particular procedure. Further, if the patient is to have a right to self-determination, that right must be set by the law rather than by the community of physicians. Most important, informed consent is founded on the idea of the patient as decision maker. This notion leads to the position taken by the judge in the Canterbury case: True consent about what happens to one’s self is the informed exercise of a choice; to make that choice, the patient must be given any information about a proposed treatment or its alternatives that a reasonable person in the patient’s circumstances would find material to the decision.

The same line of argument has been used in other cases to reinforce the reasonable patient standard. In Cobbs v. Grant (1972), the judge said, “It is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interests lie” (cited in Pope and Vasquez, 1991, p. 77). The Canadian Supreme Court took note of the Canterbury standard in two 1980 cases. In Reibl v. Hughes, the Canadian high court reinforced the primacy of the patient as decision maker and said that in order to make a sound choice the patient must have all the information that the average prudent person, the reasonable person in the patient’s particular position, would need.

These legal cases and the ethical codes they have influenced provide a backdrop for consideration of informed consent in psychotherapy.

Psychotherapy, Where Consent Unfolds over Time

Psychotherapy is a process that provides special challenges beyond those we have considered so far. These challenges arise out of some essential features of the process, such as its extension over time, during which views change about the problem and what should be done about it. To appreciate these complexities, consider Mitchell v. Robinson (1960). You will recall that a woman suffering from schizophrenia was given insulin and ECT. These caused a convulsion that fractured several vertebrae. The court ruled that she should have been informed of the risk of such physical effects before she consented to the treatment. Note how different this case is from one that involves a course of psychotherapy. There was a clear diagnosis that preceded a discrete intervention (the intervention may have included several sessions of ECT and insulin, but it did not change over time).

In psychotherapy, on the other hand, it may be unclear what the client’s problems are at the outset—unclear to both therapist and client. A “presenting problem” may change shape over the course of therapy. One problem may be solved, only to have some other problem emerge. The client may decide to change focus. A therapist may come to realize that the problem is not what it seemed to be at the beginning and may recommend such a change in focus. In this book, we will see examples of clients who have been sexually abused in childhood but who come to therapy for treatment of an eating disorder. The earlier abuse may be seen as a factor in the eating disorder or as a separate problem, and the therapist and client may have different opinions about just what is going on.

One of the participants in our study discussed this on going negotiation process. He was a male psychologist working in a university counseling center. His clients often came because they had eating disorders such as bulimia or anorexia, but over the course of therapy other problems became apparent. Here is how he described the situation:

Informed consent comes through negotiating. You really can’t do anything without their active participation and collaboration. You have to agree on what you’re working on. But there can be negotiation there, in collaboration with them, encouraging them to change the treatment goals they had in mind when they first came in. (T⁹)

As the problem may change during the course of therapy, so may the nature of therapy itself. Psychotherapy involves the building of a relationship, often called a therapeutic alliance; like any relationship, it develops and changes over time. Since the relationship is a component of the treatment (or, in the view of some therapists, essentially is the treatment), the intervention also changes over time.

Given these features of psychotherapy, it is evident that it fits poorly into the model of a one-time consent given before th...