Informed Consent: Legal Issues and Applications to Clinical Practice
Crowhurst, Brenton, Dobson, Keith S., Canadian Psychology
The professional literature on informed consent has been critically reviewed and its implications for clinical psychology practice are discussed. The legal and ethical rights of patients and obligations of psychologists are detailed. Specific examples of possible problem areas in professional practice are highlighted, and practical recommendations are suggested for guiding the practitioner through issues on which legal doctrine is sometimes vague, ambiguous, or yet to be established.
Courts have traditionally "deferred to the presumed expertise of the professionals" when complained against on issues of patient rights (Bloom & Asher, 1982, p. 19). Recent years, however, have brought increases in litigation, court decisions and legislative statutes bearing on the rights of psychiatric patients. These changes have provided the impetus behind a proliferation of mental health and legal professional literature dedicated to patient rights, which has, in turn, led to the re - evaluation of patient care policies in mental health facilities (Bloom & Asher, 1982). One of the most important patient rights is that of informed consent (Ludlam, 1978). It must be noted that the law of informed consent is inherently medically oriented; explicit reference to the duties and rights of physicians and patients and to medical procedures is typical in most legislation and case law. This orientation derives from the prevalence of medical litigation in the case law defining the requirements of informed consent. Concomitantly, much of the professional literature discusses consent in a medical context.
Despite its emphasis on medicine, however, the legalities of informed consent are equally applicable to mental health care. This discussion will focus specifically on the legal doctrine of consent to treatment. Its implications for mental health professions, generally, and clinical psychology practice, specifically, will be highlighted. It will be argued that ensuring sound consent practices is both a legal and ethical obligation. Moreover, to the extent that consent is based on regard for autonomy, observing proper informed consent is consistent with fundamental goals for offering psychological services.
The definition of informed consent is a highly complex issue involving law, ethics, and morality (Ludlam, 1978); it is also a source of continuing controversy in the professional literature. Informed consent has been described as a myth, a fiction, and an unattainable goal that has become a legal requirement (Sprung & Winick, 1989). Less cynically, it has been typically construed as a process ideally involving the mutual participation of both the professional and the client in a shared decision making process regarding treatment (President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 1982; cited in Sprung & Winick, 1989).
The philosophical or moral basis of informed consent relies on an assumption of a fundamental right of autonomy, or self - determination (Arboleda - Florez, 1988). The legal right of autonomy, however, is not absolute, and each society has an obligation to set appropriate restrictions that balance the rights of the individual with the rights of society (Eth & Robb, 1986; Rozovsky & Rozovsky, 1990). In regards to the consent issue, there are five typical exceptions to the rule requiring that informed consent be obtained from the patient prior to treatment. They include: 1) medical emergencies, where there is immediate danger to life and the delay that would be necessary to obtain consent might be harmful; 2) incompetency, where the patient is unable to give a legally valid consent; 3) therapeutic privilege, where there is discretion to withhold information which might have a detrimental effect on patient health if disclosed; 4) waiver, where the patient can waive his or her right to be informed, to make the treatment decision, or both; and 5) mentally ill and dangerous, where mentally ill patients who are imminently in danger of harming themselves or others may be involuntarily committed and treated (Faden & Beauchamp, 1986; Sprung & Winick, 1989; Alberta Mental Health Act, 1990). …