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

By Elyn R. Saks; Shahrokh Golshan | Go to book overview

1.
Law and Literature on Informed Consent

The Cases, Statutes, and Regulations

Is there a legal requirement to obtain informed consent? Reviewing relevant cases and statutes bearing on informed consent to psychotherapy should help us gauge that. Naturally, there is less urgency for mental health professionals sorting through what to disclose or not if there is no legal informed consent requirement. There are very few cases that imply such a duty on the part of mental health professionals in the context of psychotherapy. On the other hand, many state statutes and regulations seem to require informed consent to therapy. In addition, Ethics Codes of the professions raise their own expectations, and many states incorporate the disciplines’ Ethics Codes into state law. (Of course, even if the statutes do not incorporate the Ethics Codes, the codes themselves impose an informed consent duty or the professional risks disciplinary sanctions.) Naturally, if the law is unclear and things are in flux, our study might enable us to better shape the direction of the law. Even if the law is clear, thinking about whether there should be an informed consent requirement may lead us to advocate for change.

We turn first to a discussion of informed consent cases.


Informed Consent Cases

Every human being of adult years and sound mind has a right to
determine what shall be done with his own body.

Schloendorff v. Society of New York Hospital, 1914

We showcase two general informed consent cases here, drawing out the important features of this doctrine. We then spend time on the most famous informed consent case in the therapy context, the Chestnut

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