Informed Consent to Psychoanalysis: The Law, the Theory, and the Data

Conclusion

91 In this book, we reviewed the law and literature on informed consent to psychotherapy. In terms of case law, there is actually only one reported case that speaks of an adult’s informed consent to therapy in general. There are a few child cases, as well as cases where a specific item—the limits on confidentiality—is said to be a necessary item of disclosure for therapy patients. One case that settled, Osheroff v. Chestnut Lodge, strongly suggests that informed consent is necessary for therapy. There are also at least twenty-one statutes or regulations that say or imply that there is an informed consent requirement to psychotherapy. Also, twenty-eight states (which may overlap with the twenty-two statutes or regulations) read the Professions’ Ethics Codes into state law. (And, of course, these codes subject professionals to sanctions if they are not followed .) As we have noted, the existence of statutes or regulations means a breach of the standard of care is negligence per se in this context. In Chapter 2, we examined an informed consent requirement as a matter of theory. We asked what the elements would be of a robust informed consent, as is required in other medical specialties, and we explored the possible conditions and effects of an informed consent requirement in a psychoanalytic context. Is it even possible to obtain it? Is it therapeutic or countertherapeutic? In what ways? Is it all much ado about nothing? Should we adopt a “process” view of informed consent, and what would that mean? Chapter 3, the data chapter, then asks analysts what they think about this issue. We looked at issues raised in Chapter 2, such as whether analysts provide an informed consent, what the elements are if they do, why they give an informed consent (for example, do they think the law requires it?), whether informed consent is even possible, whether Conclusion 92 Conclusion informed consent is therapeutic or countertherapeutic, whether it is much ado about nothing, whether analysts think informed consent should be given over time, whether they think it should be required, and, if so, whether it should be minimal or robust. We reported on the descriptive data concerning these questions, finding some counterintuitive results—for example, that CBT as an alternative is often not mentioned, and neither are some important risks, such as a malignant regression and the limits of confidentiality. Our main hypothesis—that there would be considerable variability in responses—was amply borne out. Our speculation was that this would be the result of pressures on analysts from both sides, which make them internally conflicted—ambivalent—about informed consent. The findings were consistent with this speculation, although other interpretations might be possible. Further study would be required to substantiate the ambivalence hypothesis. We also discussed the limitations of our research in Chapter 5—for example, subjects may have had in mind different concepts of informed consent (IC) when answering our questions—and directions for future research. And we sketched out our own preferred view—the “process view of informed consent”—and what that would mean and how it would work. In conclusion, we have undertaken an extensive study of informed consent to psychoanalysis, which included legal research and a review of literature, an examination of the theory behind informed consent, and a review of data collected. Our hope is that this study will shed light on informed consent to psychoanalysis and that this will be of use in other psychotherapeutic contexts—and indeed, medical contexts in general. Psychoanalysis has much to offer in terms of insight about a practice like informed consent. This study may return psychoanalysis to its rightful place as a premier tool for studying the psychological dimensions of law. ...