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

Afterword: Our Own View

86 While our aim in this book is to explore informed consent in the psychoanalytic context and not to advocate for a particular view, it would perhaps make sense for us to lay out, in a preliminary way, our current thinking on the topic. We also briefly discuss the dilemma of the analyst who disagrees with what may be required by informed consent laws. As a normative matter, we believe that informed consent is necessary and important, but we would like to see a “process view” of informed consent implemented. Why is informed consent necessary for patients undergoing psychotherapy ? Simply put, it shows the patient dignity and respect. It arms her with the information to make an informed choice. And we must presume patients know themselves best and care about themselves most— so they are likely to make the best decision for themselves. It also allies the patient to the treatment from the start and can thus be therapeutic. Indeed, in our survey we found that analysts thought there were many benefits to having an informed consent requirement, even as they were concerned about some risks. We are also hopeful that a process view will minimize the costs to the therapy—the countertherapeutic effects of an informed consent. We also endorse a process view because, given that analysis is a longterm treatment, benefits, risks, goals, and viable alternatives are likely to change, at which point a new informed consent may be necessary. So, for example, medication may not be an appropriate alternative in the beginning, but if, over time, the patient has depression that has deepened , at that point a disclosure might become imperative. How would the process view work? More research is needed into the benefits and risks, and into the specific mode of implementation. Afterword: Our Own View Afterword: Our OwnView 87 But what we would envision is something like the following: At the beginning of the treatment, the analyst would minimally disclose. Of course he would talk about frame issues (the when, where, and how much). He would talk about free association. He might mention one or two risks (confidentiality might need to be breached at times, one might get worse for a time in analysis, and so on); one or two benefits (feeling less anxious); and one or two alternatives (short-term dynamic therapy). He would then tell the patient that it would benefit the therapy for the therapist himself not to disclose too much —that the therapy would work better if the patient made his own discoveries through the therapeutic process. He could ask if the patient was all right with that. So, for example, in the context of a first transference interpretation, the analyst could say something more about how transference works— for example, “I have suggested to you that some of what you are saying about us is rooted in your childhood relationships. I think we will probably see that in the future, too. And given that I have told you little about myself, what you are thinking probably has more to do with you than with me. This understanding may help you in your life with your friends and families, too, as you are likely to be doing some of the same things with them, too.” This is put somewhat intellectually, and each analyst will have her own way of saying it, but the main point to convey to the patient is that the past is relevant to the extent it is unhelpfully shaping the present. So, in the context of an observable transference distortion, the patient can be encouraged to consider if there is a familiar pattern here. Similarly, when the patient begins to regress, the analyst could explain that that is part of the process, and while it could be painful, it could also help over time. The analyst might also mention the risk that it could, on rare occasions, lead to overdependence and a bad outcome. Or, on a more pedestrian level, the analyst might mention medication as an adjunct or alternative only at the point at which it is clear that the patient needs medication. If it is the patient himself who is asking for medication, the analyst might at that point inform the patient whether medication is a viable alternative or adjunct. Alternatively, in certain contexts, the analyst might discuss the meaning of medications for the patient and advise him to consider an initial brief period of talk therapy before starting on medication. Another example—and something...