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

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

Conclusion

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

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