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

Introduction

Psychoanalysts have been up in arms about certain legal intrusions into the analytic space. For instance, inroads on confidentiality have been a great concern (see, for example, Bollas and Sundelson, 1995); indeed, the American Psychoanalytic Association has devoted considerable resources to lobbying in Congress and intervening in lawsuits so that privacy may be better protected (see the American Psychoanalytic Association’s “Essential Privacy Principles for Quality Health Care” and the American Psychoanalytic Association amicus brief in Jaffee v. Redmond [1996] and in Maryland v. State Board of Physicians v. Eist [2007]). At the same time, legal actions have turned on the failure to disclose alternatives in the case of psychiatric and psychological treatments for certain conditions (see, for example, Klerman, 1990; and Packman, Cabot, and Bongar, 1994). The issue here is whether patients claiming injury from the treatment procedure would have refused the treatment had they been adequately informed, among other things, of the nature of, and iatrogenic problems associated with, the treatment. The fundamental legal and ethical problem is whether informed consent (IC) is a good idea and what constitutes adequate informed consent. There are a small number of court cases that discuss informed consent to therapy. There are also a considerable number of state statutes and regulations that imply IC is required. In addition, the clinical organizations’ ethical codes do require informed consent of some kind (American Psychoanalytic Association, American Psychiatric Association, American Psychological Association, National Association of Social Workers; see Appendix A), and in many states, Codes of Ethics are incorporated into state law. So it would appear that a full informed consent is a requirement for therapy in many states, and it is not unthinkable that it could come to be so in many other places as well. 1 Introduction 2 Introduction Whether informed consent is required by law or professional ethical standard, it is important to consider whether it is a good idea: If it is not, we should repeal or not enact informed consent laws in this context . In other words, we would do well to ponder the desirability of an informed consent1 requirement in this context so that we may better inform a public debate. Could a requirement for informed consent actually impair an analysis in destructive ways? Or is it rather the only proper course, given the need to respect patients and ally them with the goals of the treatment? Indeed, is adequately informed consent a condition as well as an effect of a therapeutic alliance? We might think of the matter another way. Most psychoanalysts say something early in the treatment process about the psychoanalytic procedure . The question is not whether to inform patients about treatment but exactly what information to give a patient and how to present that information. Perhaps more important, why should clinical psychoanalysts disclose everything they do? Note, in this connection, that we focus on “psychoanalysis” and “psychoanalytic procedure” but recognize that many of the same issues and concerns apply to psychoanalytic psychotherapy. We also don’t make a distinction between psychoanalysis and psychoanalytic psychotherapy . This issue is controverted but beyond the scope of our work. The central goal of this book is to examine the advantages and disadvantages of an informed consent requirement for psychoanalysis. The book is divided into several chapters. In Chapter 1, we review the law and literature on informed consent: What can we learn from the law about whether informed consent is necessary and what informed consent should look like? What do the legal and psychologic/ psychiatric commentators say about the elements of informed consent and the pros and cons? The review of the law will help us determine if informed consent is now required as a matter of positive law in the various states. The review of the literature will reveal what others have identified as important issues in considering the informed consent doctrine in the context of therapy. For example, what do commentators identify as the main components of informed consent in the psychoanalytic context? 1 By speaking of “an” informed consent, we do not mean to imply that this is something done only at the beginning of the process. In a “process view” of an informed consent, an informed consent unfolds over time in the course of the treatment. Introduction 3 Chapter 2 of this book, the theoretical part, will explore the psychoanalytic dimensions of informing patients, among other things, of the benefits and risks of psychoanalysis...