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

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

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

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

Synopsis

The goal of this book is to shed psychoanalytic light on a concept - informed consent - that has transformed the delivery of health care in the United States.Examining the concept of informed consent in the context of psychoanalysis, the book first summarizes the law and literature on this topic. Is informed consent required as a matter of positive law? Apart from statutes and cases, what do the professional organizations say about this?Second, the book looks at informed consent as a theoretical matter. It addresses such questions as: What would be the elements of a robust informed consent in psychoanalysis? Is informed consent even possible here? Can patients really understand, say, transference or regression before theyexperience them, and is it too late once they have? Is informed consent therapeutic or countertherapeutic? Can a "process view" of informed consent make sense here?Third, the book reviews data on the topic. A lengthy questionnaire answered by sixty-two analysts reveals their practices in this regard. Do they obtain a statement of informed consent from their patients? What do they disclose? Why do they disclose it? Do they think it is possible to obtaininformed consent in psychoanalysis at all? Do they think the practice is therapeutic or countertherapeutic, and in what ways? Do they think there should or should not be an informed consent requirement for psychoanalysis?The book should appeal above all to therapists interested in the ethical dimensions of their practice.

Excerpt

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.

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