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Informed Consent for Psychologists in WashingtonBrett C. Trowbridge, Ph.D., J.D. This article supported by The Trowbridge Foundation Presented at the Washington State Psychological Association, October 2000 Introduction: It has long been the common law rule that a physician has a duty to obtain permission from a patient before proceeding with treatment. If the doctor breaches this duty to obtain an "informed consent" from the patient before proceeding with treatment, the patient has a cause of action for damages against the doctor even if the doctor has performed the treatment properly within the standard of care of his profession. This cause of action can arise against a doctor for failing to obtain the patient's knowledgeable permission to the treatment even though the doctor's actions have not been negligent and would not give rise to a cause of action in any other way. As part of the duty of giving informed consent, the doctor must inform the patient of the treatment's risks before obtaining the consent. As Justice Cardozo observed in the seminal case in this area, this doctrine is premised on the fundamental principle that:
The United States Constitution does not explicitly mention the right of informed consent to medical care, and scholars do not agree as to whether the right to self-determination in medical practice is a "fundamental right" which is "implicit in the concept of ordered liberty" arising under the right to privacy, as in Roe v. Wade, 410 U.S. 113 (1973), or whether it is a "liberty interest" arising under the Fourteenth Amendment's due process clause. This is an important issue, since U.S. principles of judicial review state that a "fundamental right" such as privacy, can only be over-ridden by a "compelling" governmental interest, but a right classified as a "liberty interest" may be outweighed by a mere rational or legitimate governmental interest. For example, the right to refuse unwanted antipsychotic medication has been classified by the U.S. Supreme Court as a "liberty interest" in Washington v. Harper, 110 S.Ct. 1028 (1990), and that court has also stated that "the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment can be inferred from our prior decisions." Cruzan v. Director Mo. Dep't. of Health, 110 S.Ct. 2841 (1990). It appears that the U.S. Supreme Court is reluctant to classify the right to self-determination in health care as a privacy right, but it can at least be said that the right is protected constitutionally as a liberty interest, which can only be over-ridden by a legitimate governmental interest. See Kitamura, et al, "Method for Assessment of Competency to Consent in the Mentally Ill", International Journal of Law and Psychiatry, Vol. 21, No. 3, pp. 223-244 (1998). Informed consent consists of three basic elements: 1. Disclosure of information, 2. the patient's competency to give consent to treatment, and 3. the voluntariness of the consent. See Appelbaum, P.S., Lidz, C.W., & Meisel, A., Informed Consent: Legal Theory and Clinical Practice, N.Y., Oxford Univ. Press (1987); Grisso, T., Evaluating Competencies: Forensic Assessments and Instruments, N.Y., Plenum Press (1986); Kaimowitz v. Michigan Dep't.of Mental Health, 42 U.S.L.W. 2063 (Civil Action No. 73-19434-AW, Circuit Court, Wayne Co. Mich., July 10, 1973). In the early stages of the enunciation of this doctrine it was the first element (what was disclosed) that was given the most attention, with cases stressing the physician's duty to disclose. Salgo v. Leland Stanford Jr. University Board of Trustees, 317 P.2d 170 (Cal.Ct.App. 1957); Natanson v. Kline, 350 P.2d 1093 (Kan. 1960); Mitchell v.Robinson, 334 S.W.2d 11 (Mo. 1960). It was not until; 1972 that the first case appeared which stressed the second element, the patient's competency. Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). Canterbury has been cited with approval several times by Washington State Courts in developing or law of informed consent. Miller v. Kennedy, 11 Wa.App. 272 (1974), cites Canterbury for the proposition that "due care requires the physician to alert the patient to abnormalities in his body", because:
The doctrine of informed consent does not include problems of mistaken diagnosis, so the physician is not required to disclose the risks of making an erroneous diagnosis. Gates v. Jensen, 20 Wa.App. 81 (1978). Obviously, a case of improper diagnosis may give rise to a malpractice claim. A doctor is not liable for failure to disclose risks to third parties or to non-patients, so in Crawford v. Wojnas, 51 Wa.App. 781 (1988) a doctor who gave a live polio vaccine to a patient which caused a case of actual polio in another family member, and had not disclosed the risk of that happening, was not found to have violated the doctrine of informed consent. A wrong diagnosis is not in itself negligence. Skodje v. Hardy, 47 Wa.2d 557 (1955). However, if the doctor does not inform the patient of diagnostic procedures which could be utilized to improve the likelihood of a correct diagnosis, he can be liable under the informed consent doctrine. Keogan v. Holy Family Hosp., 95 Wa.2d 306 (1980). AS physician is not required to disclose his experience in providing a proposed treatment. Whiteside v. Lukson, 89 Wa.App. 109 (1997). Statutory Codification of the Tort of Failure to Obtain Informed ConsentWhile the above case law applied arguably only to physicians and hospitals,
when the legislature adopted RCW 7.70, which codified actions for injuries
resulting from health care (which became effective in 1976), it made
it applicable to all health care providers, including psychologists
and mental health counselors. RCW 7.70.020(1).
While the use of a written and signed consent form was not made mandatory, use of such a form was deemed prima facie evidence that the patient gave his informed consent. RCW 7.70.060 provides:
Licensing Board Disciplinary Action for Failure to DiscloseIn 1986 the legislature adopted RCW 18.83.115, which made it a psychology licensing board violation for psychologists to fail to provide a written informed consent form and to obtain the patient's signature on it before initiating treatment.
Virtually identical language was adopted in 1987 pertaining to "counselors", which include certified marriage and family therapists, social workers, and mental health counselors. See RCW 18.19.050. WAC 246-810-030 requires that the disclosure form be "in language that can be easily understood by the client", and WAC 246-810-031 mandates a fairly lengthy list of required items that must be included in the disclosure form:
Although the required items for psychologists' disclosure forms have not been codified in a WAC, essentially the same requirements exist for psychologists as well. RCW 7.70.060 requires that the written disclosure form be written in language the patient could be expected to understand. One wonders how it is possible to explain complicated concepts such as the psychologist's theoretical orientation, the limits of confidentiality, and the types of unprofessional conduct a psychologist might commit in language that most of our patients could be expected to understand, including patients who might be retarded or psychotic. The psychologist may not know in advance which patients might not understand the form, since this form is to be presented to them as the very first item for discussion during the first session.
Also to be provided is a statement that patients are responsible for choosing the providers and the treatment modality that best suits their needs. The form should also include the limits of confidentiality, which include if the patient is dangerous to himself or others, if information is provided concerning abuse of a child, developmentally delayed person, or dependent adult, or if the psychologist is required by court to disclose information. The relevant education and training of the psychologist must be included, which include what degrees the psychologist holds, what specialty training the psychologist has if the practice is a specialty practice, and what licenses and certifications the psychologist holds. The "therapeutic orientation" of the practice must be detailed. The proposed course of treatment must be included where known, which should include the type of assessment and treatment to be used, when the psychologist will become more specific about the treatment, and how and when treatment will end. Policies about fees (including missed or canceled appointments) are also to be detailed. Although there is apparently no requirement that the types of unprofessional conduct be set forth (as required for counselors, see above), the department of health publishes a brochure entitled, "Considering Seeking Help From a Psychologist?", in which it suggests psychologists distribute to their patients or that they merge the information contained in the brochure into their mandatory disclosure form, and this publication lists five types of possible unprofessional conduct clients should be told about:
Thus, it appears that the Guidelines for Disclosure require on psychologists' disclosure forms all the items required on counselor disclosure forms in WAC 246-810-031 (detailed above). It is unclear whether these "guidelines" are mandatory or merely suggested, as the document apparently has not gone through a formal rule-making process as would be required for a WAC. In any case, it immediately becomes clear that since all items on the form must be "discussed" as well as read, the amount of time spent on the disclosure form will be a large proportion of the first session! One wonders why such requirements as providing clients the address and phone number where complaints may be lodged is not required of physicians, lawyers, accountants, teachers, etc., but is required of psychologists and counselors. Similarly, one would not expect other health care providers, such as physicians, dentists, or nurses, to disclose exact details of their degrees or credentialing to all patients, to provide a written list to all patients as to what constitutes unprofessional conduct, to detail to all patients limits of confidentiality, or to provide to all patients a description of their "theoretical orientation". One wonders to what extent these rules are actually followed in practice, particularly in today's managed care environment, where the length of treatment is often limited to as few as three sessions. One also wonders how the psychologist is supposed to set forth what the treatment will be before even having had an opportunity to discuss the case with the patient or to make a diagnosis. WAC 308-122-630(4) formerly provided that providers employed by a "medical center, hospital, community mental health center, or organization that develops its own disclosure statement are exempted from having to provide individual disclosure statements." However, that WAC has been repealed, so providers employed by hospitals or agencies are now required to provide individual disclosure statements. Competency to Consent to TreatmentThe fact that these exhaustive disclosure rules apply only to counselors and psychologists is made even more problematic by the fact that a high percentage of patients presenting for treatment with those professionals will arguably be incompetent to make an informed decision about their treatment due to major mental illness or retardation, or because they are children or disabled elderly. It is apparently the clinician's job to make an initial determination each time he sees a patient or client in one of these classes as to whether that person is competent to give an informed consent. It the person is not thought to be competent to give consent, the clinician must look to a guardian, parent, or an individual who has a valid durable power of attorney to make treatment decisions for the incompetent person. (see RCW 11.94.010 and RCW 7.70.065) How does the clinician make this initial determination as to whether the patient or client is competent to consent to treatment? Unfortunately, the law gives us little in the way of a standard for determining competency to consent to treatment. The guardianship statute, RCW 11.88.010(1)(e) provides:
The subsection "(a)" referred to reads:
Thus, "incompetent" is defined as "any person who is incompetent", providing little guidance as to how to decide if that person is capable of "managing his own property", or "caring for himself", or is too incapable to "adequately provide for health". Commentators have frequently mentioned this lack of any well defined standard to determine whether a person is competent to give informed consent. See Appelbaum, P. and Grisso, T. (1995), "The MacArthur Treatment Competence Study. I: Mental Illness and Competence to Consent to Treatment", Law and Human Behavior, 19, 105--126. Clinicians are left, then, to a logical analysis of the scope of the evaluation. See Melton, et al, Psychological Evaluations for the Courts, Chapter 11, Guilford Press N.Y., 1997. Roth, Meisel and Lidz identified five possible competency standards: expression of a preference, understanding, appreciation, reasonable decision making process, and reasonable outcome. Roth, L., et al, "Test of Competency to Consent to Treatment", 134 Am. J. Psychiatry 279 (1977). Under the "expression of a preference" standard any patient who expressed a wish would be considered competent, and only those who say nothing would be considered incompetent. The standard of "understanding" is intended to reduce the risk that individuals may be permitted to make decisions without knowing what they are doing. Individuals must have a "reasonable knowledge" of the information disclosed. An even stricter standard would be an "appreciation" standard, under which the meaning to the individual of the information disclosed is also factored in. In other words, a person could understand all of the disclosed information, but still might not consent to treatment because he held fake beliefs, such as that treatment would kill him. Such a person might pass the "understanding" test for informed consent, but would not pass the "appreciation" test. An even stricter standard would be a "reasonableness of decision making process" test, which would require that patients not only understand and appreciate the information disclosed to them, but that they also weigh that information "rationally" in making their decisions. Finally, the strictest possible test, a "reasonable outcome" standard, would require the patient to choose treatment that a "reasonable person" would accept, which would take away individual autonomy by leaving no room for choices that are idiosyncratic. For a fuller exposition of these competing standards, see Melton, et al Psychological Evaluations for the Courts, Chapter 11,Guilford press, N.Y., 1997. One commentator has argued that "a person should be found competent as long as he or she understands the relevant facts and holds no patently false beliefs about them.... Only a person who does not understand the relevant facts, or who understands them but holds a belief about them for which there is no evidence is incompetent." Slobogin, (1996), "Appreciation" as a measure of competency; some thoughts about the MacArthur Group's approach, Psychology, Public Policy and Law, 2, 18-39. A clinician confronted with this bewildering jumble of competing possible standards might conclude it is safer to presume that all patients are competent to give informed consent unless they have had a guardian appointed or have executed valid durable powers of attorney over their health care. This presumption may be dangerous. When a 25 year old woman with an IQ of 62 challenged her sterilization, stating she had not given informed consent to the procedure, the plaintiffs contended that since she had never been found legally incompetent, she was presumed to have the capacity to consent. However, the court disagreed, stating her mere signature on the consent form was not sufficient to establish consent. Morinaga v. Vue, 85 Wa.App. 822 (1997). Patients who voluntarily sign themselves into mental institutions cannot be presumed to be competent to make that decision, so the United States Supreme Court has ruled that all psychiatric hospitals which accept voluntary patients must "ensure that the proper procedures are afforded to both those patients who are unwilling and to those who are unable to give consent." Zinermon v. Burch, 494 U.S. 113 (1990). What to do if the Person is Incompetent to Give Informed ConsentIt is clear that if a patient is incompetent to consent to voluntary inpatient psychiatric hospitalization, the hospital should simply follow the involuntary commitment procedures. What is a clinician to do who decides that an individual asking for outpatient treatment is incompetent to give informed consent? Obviously, if a guardian already exists, or a person with a durable power of attorney has been appointed, consent in writing to the treatment is obtained from that person. In the more common circumstance where no such person exists, so informed consent must be obtained from a (competent) family member. RCW 7.70.065 controls how the decision is to be made as to who can give informed consent for a person incompetent to give informed consent.
The provider must make a reasonable effort to locate any secure authorization from a person in the first or in one of the succeeding classes with authorization being acceptable from any person(s) in the class with priority. RCW 7.70.065(2). Given the difficulties inherent in applying that statute, it is not surprising that clinicians generally conclude that their clients are competent to give an informed consent. Otherwise, the clinician will have to determine if there is a guardian, or whether a durable power of attorney over health care has been appointed, and if not to consult the spouse, or if there is no spouse, to consult the parents. If both parents agree in writing the problem will be solved. If no parents exist written consent could be obtained from all living adult siblings if all agree, but if the parents or the children do not do not agree, a guardianship should be pursued. Informed Consent when the Client is a ChildIn Washington a minor thirteen years of age or older can legally consent to mental health services if he or she is competent to do so. RCW 71.34.030. For children younger than thirteen written consent must be obtained from the parents. Presumably the psychologist must also make a decision as to the parents' competence to give informed consent. In cases where the parents are divorced or separated the clinician must attempt to determine which parent has legal authority to make health care decisions for the child. In that regard the clinician is allowed to "rely, without incurring any civil or criminal liability for such reliance, on the representation of a parent that he or she is authorized to consent to health care for the minor patient regardless of whether (a) the parents are married, unmarried, or separated at the time of the representation, (b) the consenting parent is, or is not, a custodial parent of the minor." (cite omitted) WAC 246-924-363(4) provides:
Similarly, APA's Ethical Principles, Standard 4.02(c) also requires that "psychologists (1) inform those persons who are legally incapable of giving informed consent about the proposed interventions in a manner commensurate with the person's psychological capacities, (2) seek their assent to those interventions, and (3) consider such persons' preferences and best interests." American Psychological Association (1992), "Ethical Principles of Psychologists and code of Conduct", American Psychologist, 47, 1597-1611 (p. 1605). These ethical principles do not mandate that "assent" be obtained; rather, it is to be sought. The therapist with written parental consent may still proceed with treatment even if the child does not agree if that therapist believes it is in the child's best interests and that the child's preferences should not be honored in this circumstance. Research has suggested that involving children in their own treatment decisions can have positive results for increasing positive treatment outcomes. See Weithorn, L.A. (1983), "Involving Children in Decisions Affecting their own Welfare" Guidelines for Professionals, in Melton, G.B. and Koocher, G.P. and Saks, M.J., Children's Competence to Consent, N.Y., Plenum Press, pp. 235-260. See also Coleman, D.J. and Kaplan, M.S.(1990) "Effects of Pretherapy Videotape Preparation on Child Therapy Outcomes", Professional Psychology: Research and Practice, 21, 199-203 RCW 71.34.030 and RCW 71.34.050 define the process for involuntary detention and commitment of minors. Since 1995 parents have had statutory authority to admit minors thirteen and older to a mental health facility against their will. However, once a minor demands release in writing, continued detention beyond an additional twenty-four hours can only occur under the involuntary commitment process. RCW 71.34.050. The minor has the right to counsel and to access to his medical records. RCW 71.34.050(3) and RCW 71.34. 060(4), and T.B. v. Fairfax Hospital, 129 Wa.2d 439(1996). Informed Consent for EvaluationsThe law requiring a written disclosure statement applies on its face only to "treatment", and thus probably does not apply to evaluations. See RCW 18.83.115, cited above. RCW 18.83.115(3) states that he Examining Board of Psychology "shall provide for modification of the guidelines as appropriate in cases where the client has been referred by the court, a state agency, or other governmental body to a particular provider for specified evaluation or treatment." As far as I have been able to determine, however, the Board has as yet not promulgated any a "modification of the guidelines" under that section, leaving the issue as to whether informed consent is required for evaluations an open one in Washington. However, a number of commentators have indicated a belief that informed consent should apply to evaluations as well as to treatment. See James Ogloff, "Ethical and Legal Contours of Forensic Psychology", in R. Roesch, S. Hart and J. Ogloff (eds.), Psychology and Law: The State of the Discipline (1999), Plenum Publishers, N.Y., p. 409. The Specialty Guidelines for Forensic Psychologists (1991), Law and Human Behavior, 15, 655-665, require at least informed "assent" in the context of court-ordered evaluations. Furthermore, the client's legal representative must be given "reasonable notice ...of the nature of the anticipated forensic service before proceeding. If the client's legal representative objects to the evaluation, the forensic psychologist notifies the court issuing the order and responds as directed."
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