This page contains learning objectives, course outline and complete text for this CE course. You can read the course online, print the course or save it to your computer.
At the bottom of the course there is a link that allows you to purchase the test. You will be required to create an account (using your email address) so that you will be able to complete the test immediately, or on your schedule. You may also begin the test and save it to finish at a later time.
Once you submit the online test, it will be automatically graded. You may take the test up to 3 times in order to pass (80% correct out of 25 questions). Once you pass, you will be required to complete an evaluation form, after which you will be able to immediately download a certificate of CE credits.
This is a beginning to intermediate course. After completing this course, you should be able to:
- Describe some of the “ethical basics” about obtaining informed consent for psychotherapy.
- Name two ethical requirements about the types of information that must be provided to prospective psychotherapy patients.
- Name two types of information that might be among the legal requirements affecting the informed consent conversation in your state.
- Describe one “impediment to informed consent” that you would like to avoid in your own practice.
Introduction: Are We Missing the Point?
Do Psychotherapists Understand & Respect the Informed Consent Process?
Reviewing the Ethical Basics About Informed Consent
Informing About What?
Obtaining Consent from Informed Patients – When & How?
Clarifying the Legal Requirements About Informed Consent
State Laws & Regulations
Federal HIPAA Regulations
Legally Binding Contracts
Group Practice & Agency Employment Contracts
Managed Care Provider Contracts
What are Some of the Impediments to “Truly Informed” Consent?
Lack of Information
Treating Legal Requirements as Sufficient Information
Confusing Language in the Professional Literature
Lack of Preparation
Over-Reliance on Written Forms
Failure to Involve the Prospective Patient in the Process
Ignoring the Patient’s Right to Give “Informed Refusal.”
Re-Opening the Informed Consent Conversation
Implications for Training & Supervision
Conclusions & Recommendations
Appendix 1: Adolescent Informed Consent Form
Appendix 2: Links to Ethical Materials
TEXT OF CE COURSE
Introduction: Are We Missing the Point?
Ethically, the whole point of obtaining informed consent for psychotherapy is to protect patients and their rights. Many seem to believe that informed consent is primarily a legal requirement, and that the whole point is to be legally compliant. Certainly, there are now very relevant legal requirements in state licensing regulations, as well as in the federal HIPAA regulations. But this legal focus on informed consent can be an impediment to understanding its ethical importance. In fact, long before the existence of these legal requirements, the ethics codes for mental health professionals contained requirements about informing prospective patients about certain things, in order to foster autonomy and self-determination.
So if this is the whole point, it seems ethically important to ask the next question: Are we missing the point? This course is being provided because, regrettably, there is evidence that, from the patient’s point of view, the informed consent process is too often conducted in a quite unprotective manner. There are numerous possible explanations. Some of those are based on causes that have long been present, and some are based on more recent complications. For example, current attorney-devised consent forms can turn the focus away from the protection of patients toward self-protective legal compliance and risk management. This has also led to the development of consent forms full of “legalese,” making them unreadable by many therapy patients. Meanwhile, careless language in the professional literature can also contribute to psychotherapist misunderstandings about the informed consent process and can obscure its ethical center.
This course contains a chart outlining the actual ethical standards, summarizes some of the relevant legal requirements, and includes discussion of possible impediments to a “truly informed” consent process. It concludes with recommendations about (1) ending the reliance on informed consent forms containing legal-based language unintelligible to patients; (2) avoiding the use of potentially misleading language in the professional literature; (3) encouraging psychotherapists to self-monitor and to educate colleagues about the informed consent process; and (4) using graduate training, continuing education, peer supervision, and mentoring to help the next generation of clinicians be better prepared to begin their relationships with an informed consent process that is more protective of patients and their rights.
* * *
All mental health professionals, regardless of their role(s), are ethically required to begin each relationship with an informed consent conversation. When conducted well, the informed-consent process fosters patient autonomy and provides the opportunity for collaborative goal setting and decision making.
Yet, there is evidence that the informed consent process is often misunderstood in theory and mis-applied in practice. This leaves patients’ rights less protected, and it thereby places patients more at risk.
It is important to note that the concept of informed consent is not new. The requirement to inform prospective patients about certain things has been present in professional ethics codes since their inception. Its ethical importance has been discussed for many years in the professional literature. For example, in 1964, in discussing issues related to counseling in the schools, Peters noted the difference between “competent guidance seeking to gain informed consent versus authority misused toward uninformed coercion” (p. 3, emphasis added). In 1975, Strupp was among those who advised that “clients have a right to know what they are buying, and therapists have a responsibility to address this issue explicitly. The psychotherapist fails his client if he does not make an effort to specify in advance what is being offered” (p. 39).
Yet, in 1987, the book Informed Consent began with this sentence: “Few issues affecting the therapeutic professions are as much discussed and as little understood as informed consent” (Appelbaum, Lidz & Meisel, p. 1). Fourteen years later, the second edition begins with the same sentence (Berg, Appelbaum, Lidz & Parker, 2001).
So, perhaps predictably, in 1996 many mental health professionals reacted in horror against the newly-enacted HIPAA regulations on the basis that beginning a relationship with a “Notice of Privacy Practices” was clinically inappropriate. As an ethics consultant I began receiving complaints that this new legal requirement that requires informing prospective patients about the limits of confidentiality would undermine the process of beginning a psychotherapy relationship. However, although there are many very valid reasons for objecting to the HIPAA regulations, this is not one of them. The ethical requirement to inform prospective psychotherapy patients about the potential limits of confidentiality was not new. It had existed long before the legal requirement appeared in HIPAA.
In fact, as early as 1958, the APA Ethics Code had contained statements such as these about psychologists’ ethical responsibilities: “The psychologist is responsible for informing the client of the limits of the confidentiality” (Principle 6,d) and “The psychologist informs his prospective client of the important aspects of the potential relationship that might affect the client’s decision to enter the relationship” (Principle 8). By 1980, the NASW Ethics Code similarly required social workers to “inform clients fully about the limits of confidentiality in a given situation, the purposes for which information is obtained, and how it may be used” (Principle II. The Social Workers Ethical Responsibility to Clients, #2).
Had psychotherapists been ignoring those ethical requirements all those years? Admittedly, there was one positive outcome of the enactment of HIPAA requirements: Psychotherapists did begin taking seriously the necessity of providing prospective patients with information about when their psychotherapist might not be able to keep secrets about everything a patients confides to them. The negative outcome was that the focus was now on legal requirements, not ethical requirements; and although the two are overlapping, they do not completely coincide. This legal focus seemed to become more and more pronounced. In 2010, Handelsman et al. found that the majority of informed consent forms “contained the legally mandated information; fewer forms contained ethically desirable information. . . Therapists are obeying the law, but do not appear to be taking advantage of the opportunity to provide their clients useful information in an accessible way” (p. 119).
Furthermore, the HIPAA-required Notice was never intended to be an informed-consent form. Unless adapted by the psychotherapist, the patient’s signature on that form simply confirms that the form was received; it does not ask the signer to give consent to receive services.
Regrettably, HIPAA also introduced psychotherapists to attorney-created forms that are quite unintelligible to the average patient. For years, researchers have tested the readability and ethical appropriateness of various consent forms. Many psychotherapists still use borrowed HIPAA forms which contain information they do not completely understand, and which likely do not accurately describe their own policies. (See discussion below, “Over-Reliance on Written Forms.)
After spending a professional lifetime conducting ethics-based continuing education, and after 40 years of providing ethics consultation and psychotherapy in a range of outpatient and inpatient settings, I have come to the conclusion that psychotherapists’ behaviors about informed consent are too often unprotective of patients’ rights. I have observed what seems to be a growing trend toward over-reliance on unreadable printed forms and a tendency toward obtaining consent signatures from patients who have not been adequately informed – in other words, obtaining “uninformed consent” rather than “truly informed” consent.
The intent of the informed consent process is to protect patients. If the process is misunderstood, psychotherapists are not only missing that ethical point. Clinically, they are missing the opportunity to begin the relationship in an honest and collaborative posture. Informed consent is sometimes described as “empowered collaboration” and “collaborative decision making” (Knapp, VandeCreek & Fingerhut, 2017, p. 83) that protects patient autonomy. Clearly, the clinical relationship can be compromised if it begins with an insufficient sharing of information.
If the informed consent process is being ignored, or if it is being handled in ways that abridge patients’ rights and leave them uninformed and unprotected, we have a professional responsibility to try to understand the origin of the problems and to correct them.
Do Psychotherapists Understand & Respect the Informed Consent Process?
Across the years, whole books have been written about informed consent, not to speak of many more articles and book chapters than will be cited here. It is sometimes hard to wade through all the words to find the core definition, so we will begin by presenting the five-word definition that will be used in this article: Informed consent is nothing more or less than this: “consent given by an informed person.” The informed consent process can involve many complexities, but the big problems begin when that very simple definition is forgotten or ignored.
When that definition is taken seriously, it becomes obvious that, at its core, “informed consent” involves a very simple process: Clinicians provide information, and then the informed person gives consent – informed consent. This simple notion applies whether the psychotherapist is obtaining an informed patient’s consent to allow disclosure of confidential information or obtaining informed consent to receive psychotherapy services.
Note that it is important to be clear about exactly “who does what” during this process: Clinicians give information; informed patients then give consent. As discussed later, if we are careless about our language, it confuses the issues and makes the differential responsibilities of psychotherapists and patients less clear.
The informed consent process may be this simple in concept, but it can become very complicated in practice. Prospective psychotherapists must not only (1) provide information and then (2) obtain the patient’s voluntary consent (or refusal) to accept services, given the rules and conditions that were described. Obviously, each of these two steps involves several sub-steps. The first step involves such things as preparing to provide accurate and complete information in language understandable to the client; inviting questions; verifying that the information is understood, etc. The second step includes ensuring that the client is competent to provide consent and that the consent is given voluntarily, and protecting the informed client’s right to give “informed refusal” of services instead of giving informed consent. Further steps in the informed consent process involve (3) documenting the consent; and (4) re-opening the conversation throughout the relationship whenever circumstances change, or if the client seems not to understand or not to remember the information that was provided.
Psychotherapists must draw on their clinical skills as they interact with patients who may be surprised or upset upon hearing some of the information about fees or third-party payments or limits of confidentiality. The goal is to create a collaborative process in which the prospective patient not only receives information, but also becomes a partner in goal-setting. To achieve this, psychotherapists must allow enough time and bring enough patience to invite questions, answer them honestly, and clarify any misunderstandings. Meanwhile, patients may become impatient if they want to skip this process altogether.
Finally, the informed consent process requires that once prospective patients have received information about the relevant policies and potential risks, they have a right to give “informed refusal” instead of giving consent to receive psychotherapy services (Pope & Vasquez, 2016, p. 185). Most importantly, if psychotherapists obtain consent without first adequately informing patients, then instead of obtaining “truly informed consent,” they are actually obtaining “uninformed consent,” which is unethical because it leaves prospective patients entirely unprotected. In later sections, we will elaborate on both of those circumstances and their potential for harm.
How well do psychotherapists understand and respect these informed consent concepts? The research is limited, and much of it is decades old, but historically, the record is not very good. When I first wrote about the topic of informed consent (Fisher, 2008), my focus was on the ethical importance of informing prospective patients about “limits of confidentiality,” and at that time, the most prominent research had been published fifteen years before. Somberg, Stone & Claiborn (1993) had found that 80.2% of psychologists did consider it “very important” to inform prospective patients about potential limits of confidentiality, but that only 59.5% always did so. As bad as this sounds, it is at least an improvement: some earlier research had found that only 36% of psychologists reported they always discussed confidentiality with their clients (Baird & Rupert, 1987).
And now? The more recent research suggests that there may have been too little progress. In 2007, Johnson-Greene suggested that psychotherapists still underestimated the importance of informed consent. “There appears to be an overemphasis on content issues (i.e., what do I need to include to make this a valid consent?) and comparatively little attention paid to process issues (i.e., what does a specific patient need to know to have a full appreciation for the parameters of this professional relationship?)” (p. 183). In 2007, Barnett reported that “informed consent is not uniformly applied” and that “confusion appears to exist concerning the specifics of informed consent” (p. 180). In 2008, Goddard, Murray & Simpson described informed consent as a “significant, yet somewhat neglected principal of psychological therapy” (p. 189). In 2015, Traschtel stated that “informed consent for psychotherapy is still not routine. Psychotherapy often begins and proceeds without formal informed consent of the patient” (p.776). In 2016, Blease, Lilienfeld, & Kelley cited evidence that there were divergent views and significant disagreement among psychotherapists about “the importance and feasibility of informed consent,” and urged that “the profession of psychotherapy must find ways to meet the moral obligation of providing adequate informed consent to patients” (p. 183). In 2018, Blease, Kelley, & Trachsel advocated “debate in professional psychotherapy about necessary revisions of ethical codes with respect to information disclosure” (p. 69) and urged more discussion, both about the nature and potential outcomes of specific interventions, and about the implications for informed consent.
As suggested by Goddard et al., in 2008, informed consent still seems to be a “significant, yet somewhat neglected principal of psychological therapy” (p. 177). There is evidence that views about informed consent, as well as resistance to initiating the process, vary greatly depending upon theoretical orientation (Croarkin, Berg, & Spira, 2003; Goddard et al. 2008), with the most negative reactions coming from psychodynamic psychotherapists.
Reviewing the Ethical Basics About Informed Consent
Informing When? The APA Ethics Code requires that in psychotherapy relationships, the informed consent conversation should be conducted at the beginning of the relationship, “as early as is feasible” (Standard 10.01). When it comes to informed consent, some topics are more urgent than others. For example, regarding discussion of confidentiality and its limits, the APA Ethics Codes requires that it occur not only “at the outset of the relationship” but also “thereafter as new circumstances may warrant” (Standard 4.02b). Regarding discussion of the potential limits of confidentiality, Fisher reminds that “the initial informed-consent interview is the first—and sometimes the only—opportunity to protect the confidentiality rights of clients whose confidences may later be unprotectable” (Fisher, 2008, p. 8).
This is why Fisher has recommended that preferably, the discussion of “limits of confidentiality” takes place as soon as the prospective patient enters the first meeting with the psychotherapist — before the prospective patient has begun to confide information the psychotherapist may later be legally required to disclose. (Fisher 2008, 2012, 2016). Otherwise, prospective patients will enter psychotherapy relationships under false pretenses, because silence about limits of confidentiality can imply that there will be no limits. For a patient who has made that assumption, any future disclosures, including legally required reports or court-ordered disclosures, will be experienced as broken promises and acts of disloyalty unless this was discussed beforehand, possibly with reminders later by re-opening the informed consent conversation about this risk if it became obvious that circumstances and risks had changed.
Another somewhat urgent topic might involve the use of electronic technology, because that topic overlaps with issues of privacy and confidentiality. This includes not only informing prospective patients about the risks of electronically-based “distance services,” but also informing that about other possible risks from use of electronics, including such things as electronic storage of patient information and electronic transmission of confidential patient information for billing or other services. The following ethical requirement is from the ethics code for social workers, but it would be good advice for all psychotherapists: “Social workers who use technology to provide services should obtain informed consent from the individuals using these services during the initial screening or interview and prior to initiating services” (NASW Ethical Standard 1.07f., emphasis added).
In addition to these ethical requirements, there can also be legal requirements about timing. HIPAA requires discussion of “limits of confidentiality” in the “Notice of Privacy Practices,” which (for those clinicians who use electronic technology) must be provided to all prospective patients in advance of providing services. Sometimes legal requirements about the timing of the informed consent discussion can also be found in state licensing board regulations and other state laws.
Pomerantz (2005) responded to the fact that “although psychologists believe that they are capable of presenting some information, such as payment and confidentiality policies, at the outset, they believe that a discussion of more substantive issues, such as psychotherapy duration, goals, orientation, and activities, can take place only after some therapy has transpired” (p. 351).
If, as these results suggest, “therapists may be able to predict that some pieces of information can be addressed with clients earlier than others, therapists should begin the informed consent process by informing prospective clients about this ongoing, staggered nature of informed consent” (Pomerantz, 2005, p. 357).
This advice is consistent with APA and ACA Ethics Code recommendations that the process of informed consent continue throughout the relationship, with discussion re-opened whenever appropriate. In other words, there is no singular answer to “When?” (See below “Re-Opening the Informed Consent Conversation.”)
Informing About What? Figure 1 (below) lists some of the types of information that must be provided to prospective psychotherapy patients, listed by separate columns listing the standard numbers for the requirements from the ethics codes for psychologists (Ethical Principles of Psychologists and Code of Conduct, APA 2017), social workers (NASW Code of Ethics, 2017), and counselors (ACA Code of Ethics, 2014).
These lists of topics and ethics standard numbers are current as of 2020, but it will be important to consult your own professional ethics code for yourself: First, check the date, because your profession may have published a more recent version of the ethics code; and second, check the list of standards against the requirements of your own ethics code, because we may have inadvertently omitted an important topic or specific standard containing information that you are ethically required to inform patients about.
Some of these topics have been on the list for a long time. For example, informing prospective patients about “limits of confidentiality” has been a requirement in ethics codes since their inception; and in early research, clients themselves reported that confidentiality was one of the most important topics that should be included in the informed consent conversation (for example, (see Braaten, 1997). For this reason, that topic is given priority at the top of the list in Figure 1.
In contrast, some of the topics listed on Figure 1 are fairly recent additions to the list. Among those would be the topics of “technology” and “distance services.” As noted above, this covers any use of electronic technologies in your practice, whether for storage or transmission of patient information, or as a means of providing “distance services,” or as a technology you use for interventions when you are present with the psychotherapy patient.
The ACA Ethics Code for counselors has the most extensive additions about technology. First, in the general section about informed consent, there is a list of “Types of Information Needed,” which include “the role of technology” (A.2.b). Then, there is an entirely separate lengthy “Section H: Distance Counseling, Technology, and Social Media. Within that section there is a lengthy sub-section “H.2. Informed Consent and Security.” Finally, there is sub-section “H.2.a. Informed Consent and Disclosure.” This section includes a list of seven topics to be included in the informed consent conversation if they apply in your own practice. But the section begins with the following introductory explanation:
Clients have the freedom to choose whether to use distance counseling, social media, and/or technology within the counseling process. In addition to informed consent between counselor and client for face-to-face counseling, the following issues, unique to the use of distance counseling, technology, and/or social media, are addressed in the informed consent process:
- distance counseling credentials, physical location of practice, and contact information;
- risks and benefits of engaging in the use of distance counseling, technology, and/or social media;
- possibility of technology failure and alternate methods of service delivery;
- anticipated response time;
- emergency procedures to follow when the counselor is not available;
- time zone differences;
- cultural and/or language differences that may affect delivery of services;
- possible denial of insurance benefits; and
- social media policy. (ACA, 2014, Section H.2.a)
‣ Note that to be prepared to inform patients about the last item on this list, you will need to have already established a policy about social media participation.
The informed consent requirements about technology contain reminders about another item that many psychotherapists are reluctant to discuss: the risks of consenting to receive services. These can include the technologically risk, as noted above, as well as risks of intrusions of privacy and confidentiality created by policies in the setting or by legal disclosure requirements that can arise based on the laws of the state in which you practice.
“Risks” is a topic that psychotherapists are often reluctant to mention at all, much less inform prospective patients about. “But, as all professional services bring with them some risk of adverse impact, however small it may be, prospective participants need adequate information at the outset to help them weigh the potential benefits and risks of both participation and lack of participation” (Barnett et al., 2007, p. 180). As you can see from Figure 1, this is not an optional topic. Counselors are ethically required to inform prospective clients about “potential risks, and benefits of services” (ACA Ethical Standard A.2.b). Similarly, social workers are ethically required to “use clear and understandable language to inform clients of the purpose of the services, risks related to the services, . . . reasonable alternatives, clients’ right to refuse or
withdraw consent, and should provide clients with an opportunity to ask questions” (NASW Ethical Standard 1.03a).
Including a discussion of potential risks can also be important when providing types of interventions that can increase the risks. For example, the APA Ethics Code requires that “When obtaining informed consent for treatment for which generally recognized techniques and procedures have not been established, psychologists inform their clients/patients of the developing nature of the treatment, the potential risks involved, alternative treatments that may be available, and the voluntary nature of their participation” (APA Ethical Standard 10.01b).
Finally, in addition to the formal ethical requirements in psychotherapists’ ethics codes, there are more extensive recommendations in professional ethics texts and articles in professional journals. For example, often recommended are other things that most patients would like to know about, such as therapist availability (or not) between sessions. Pomerantz and Handelsman (2004) recommended that the informed consent conversation should also include such issues as details about insurance and managed care. Koocher and Keith-Spiegel (2016) would agree, noting that there are among the potential disclosures of confidential information that are outside patient control:
In some circumstances, insurers or companies designated to manage mental health benefits may have authorization to seek detailed information from case files, including a client’s current symptom status, details of a treatment plan, or other sensitive material. HIPAA regulations address many of these concerns, but once information leaves a practitioner’s office it lies beyond the practitioner’s control, and insurance companies may not exercise the same caution and responsibility as the individual practitioner. Some insurance companies for example, participate in rating bureaus or similar reporting services that may become accessible to other entities at some future date. (Koocher & Keith-Spiegel, 2016, p. 173)
Before leaving the informed consent conversation, it is important for the psychotherapist to determine whether the patient understands the information that has been provided. “Clinicians may wish to ask questions after providing information to ensure understanding and to increase the opportunity for patients to ask questions. Such techniques will ensure that the informed-consent process is not passive; rather, it is an active interchange of information between psychologists and their patients” (Johnson-Greene, 2007, p. 184).
Pope & Vasquez (2005) provide reminders that “the information provided during the consent process will differ according to the professional service (e.g., assessment, therapy) and other factors. However, any consent process can be evaluated in terms of whether it adequately addresses certain questions” (p. 194). This abbreviated list of their recommended questions is available on the “informed consent” page at kspope.com: https://kspope.com/consent/index.php
- Does the person understand who will be providing the service and the psychologist’s qualifications (e.g., license status)?
- Does the person understand the reason for meeting with the psychologist? Most people consulting an independent practitioner will have scheduled their own appointment on their own initiative, but some may show up because they were told to by an internist, an attorney, or a court and have no clear idea why they are there.
- Does the person understand what services the psychologist will be offering and what the effects of these services may be?
- Does the person understand the factors that may limit or significantly affect the services (e.g., the managed care coverage only authorizing five sessions of therapy)?
- Does the person understand the relevant fee policies, including those for unpaid bills and for missed or canceled appointments?
- Does the person understand the limitations to privacy, confidentiality, or privilege (e.g., conditions under which the psychologist either must or may disclose information to a third party)?”
Informing How? Note that most of the Ethical Standards listed in Figure 1 relate to the required contentof the informed consent conversation. The emphasis is on the specific information that must be provided, but not on creating an interactive process while providing it. In 2018, Blease, Kelley, & Trachsel stated that “there is still a widespread default tendency in clinical psychology and psychotherapy to assume a patternalistic attitude towards informed consent” (p.77). This attitude tends to leave the patient out of the process rather than creating a more helpful collaborative process. In the risk-management manual published by The Trust (formerly the APA Trust) it is discussed this way:
Traditionally, informed consent was viewed as a passive event that required giving patients information. . . Although it is still necessary to give patients information, informed consent in psychotherapy is best viewed as an ongoing interactive process and not a one-time event. . . One of the salient tasks is to get general agreement on the goals of therapy. Discussions of therapy goals should continue throughout the course of therapy. A meaningful discussion of goals should strengthen the therapeutic alliance. Patients’ ownership and participation in treatment are enhanced when they understand treatment options and risks and agree on the goals and processes of treatment.
The manner of implementing the informed consent process can be as important as the content itself. The tone of voice, choice of words, and nonverbal communication should reflect a willingness to receive patients’ questions, hear their concerns, and join with them as partners in treatment. Psychologists who view the informed consent process as an annoyance will find it harder to convey a participatory attitude. (Knapp, Younggren, VandeCreek, Harris & Martin, 2013, pp. 39-40, emphasis added)
Pomerantz and Handelsman (2004) recommended a format for involving the prospective patient in the process by providing them with a list of questions they might want to ask. This revised version of the questions list “is intended to be illustrative rather than prescriptive and includes new questions addressing insurance/managed care issues, manualized and evidence-based psychotherapy, and psychopharmacology (p. 201). As described by Barnett (2007), “they did not suggest one set of questions to be addressed by all clients in all psychotherapy situations. Rather, they offered their advice as guidance for what Pope (1991) described as a dynamic process that can be tailored to best address each individual client’s needs and circumstances” (p. 181). Similarly, Trachsel, Holtforth, Biller-Andorno, and Appelbaum (2015) suggest that clinicians can tailor their information to the specific patient. “Because of the less foreseeable course of an insight-oriented therapy, a more complex and contingent informed consent might be required before therapy begins, whereas a more straightforward one might be pursued for symptom-focused psychotherapy that more closely resembles informed consent for pharmacological treatment. Rather than implicitly consenting to psychotherapy, a capable patient should be provided with transparent and customized information if he or she is to consent voluntarily to an upcoming psychotherapeutic treatment” (p. 776).
From a risk-management perspective, Pomerantz emphasizes that “when it is well conducted, informed consent has the potential to benefit the therapist as well as the client. Not only is clinical outcome enhanced, but also the risk of questionable practice and a subsequent complaint, lawsuit, or other such action against the therapist is reduced” (2012, p. 329).
Sometimes the information that must be provided can be difficult to explain, and for some patients the amount of information can seem overwhelming if simply handed to them in a multi-page for full of details written in paragraphs in a multi-page form. The list of potential limits of confidentiality can be especially lengthy and confusing if provided in a HIPAA-type format and in the “legaleze” of the standard version of the form. In fact, although many clinicians erroneously presume otherwise, they are free to revise language of the standard HIPAA “Notice of Privacy Practices” to help it be more intelligible to their average clients, as long as the forms include the legally-required information. (See Walfish & Ducey, 2007, below in Section “Overreliance on Printed Forms.”
In addition, we have provided in Figure 2 the outline of a sample handout that can simplify matters for prospective patients when it comes to providing information about the potential limits of confidentiality. This must be adapted to match each clinician’s actual disclosure policies, and in some situations can be adapted to match the nature of the presenting clinical case. For example, cases involving confidentiality rights of minors can have a different information list that includes policies and laws that are not relevant to other cases.
Obtaining Consent from Informed Patients: When & How? This discussion, as well as most of the literature, focuses on the “informing” side of the informed consent process. But once the patient has been provided with the necessary information, the second step is to obtain “consent” from the informed patient.
One criticism about this part of the process – obtaining consent – is that too often this second step is relegated to a request that patients sign a consent form, often a form they haven not read or do not understand. A signature on a consent form is not, in itself, informed consent. The ethical goal is to obtain consent from an informed patient, not to obtain a signature on a form from an inadequately informed patient. In their risk-management text, Knapp, Younggren, VandeCreek, Harris, & Martin (2013) “identified the belief that informed consent only consists of getting a patient’s signature as a false risk management principle” (p. 39). Regrettably, this mistaken presumption appears to be widely held.
Too often ‘consenting’ a patient is reduced to the mechanistic imparting of information from clinician to patient or, worse still, the mere signing of a consent form, rather than the two way, meaningful conversation between clinician and patient it should be. If we can change this mindset and view obtaining consent as an ethical duty first and foremost, one that is central to respecting the autonomy and dignity of patients, then we will have taken a major step towards first class consent and uninterrupted lunches. (Sokol, 2009, p. 3224)
The patient’s signature is supposed to signify that s/he is giving consent to accept the services that have been described. Ideally, the patient has participated (or will soon participate) in devising the goals of the planned intervention. So the signature is not, in itself “informed consent.” It is very misleading to describe informed consent as “obtaining a patient’s signature on the consent form.” The patient’s signature is merely documentation of a collaborative process that has already happened. The patient is entering a relationship in which both psychotherapist and patient have responsibilities, and this understanding is “commemorated” by the patient signing a form consenting to accept the collaborative plan.
Some Ethics Codes require that with clients who are not capable of giving consent, the psychotherapist has certain responsibilities. Social workers must “provide an appropriate explanation to the participants,” inform clients “consistent with the client’s level of understanding” and “obtain the participants’ assent to the extent they are able” (NASW Ethical Standards 1.03(a) and 5.02 (f)). Counselors, “when counseling minors, incapacitated adults, or other persons unable to give voluntary consent” must “seek the assent of clients to services and include them in decision making as appropriate” (ACA Ethical Standard A.2.d). Similarly, for marriage and family therapists, “When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible” (AAMFT Ethical Standard 1.2).
Psychologists, before working with clients for whom “services are court ordered or otherwise mandated” must “inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated, and any limits of confidentiality, before proceeding (APA Ethical Standard 3.10(d)). Psychologists providing services to “persons who are legally incapable of giving informed, are ethically required to “(1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such person’s preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare” (APA Ethical Standard 3.10(b)).
Clarifying the Legal Considerations in Obtaining Informed Consent
In addition to the ethical requirements described above, psychotherapists have some legal requirements that affect their decisions about how to begin clinical relationships. These can arise from both state and federal laws and regulations. In some respect these can mirror (and therefore can legally reinforce) the professional ethical requirements described above. In other respects, however, they can be very different from (or sometimes be in conflict with) professional ethical standards. These legal requirements must be taken into consideration in preparing to inform prospective patients.
It is therefore important to remember that ethical requirements and legal requirements have two very different sources, with ethical requirements arising from one’s own profession whereas legal requirements arise from legislatures and judges whose primary focus is not always the best interest of psychotherapy patients. This is why most Ethics Codes contain provisions which make it a professional’s ethical responsibility to respond in certain ways when laws conflict with ethical standards. Knapp and colleagues also addressed this possibility in their 2007 article, “When ethics and laws collide.”
At times the laws under which psychologists function may appear to contradict generally recognized ethical values and/or good clinical care. When these circumstances arise, psychologists must determine if a conflict really exists and, if so, seek solutions that reconcile respect for the law with their ethical values. (Knapp, Gottlieb, Berman, and Handelsman, 2007, p. 54)
It is not unusual for this ethical-legal conflict to arise regarding issues of confidentiality. Psychotherapists who take the time to consider this possibility in advance will be prepared, not taken by surprise. This will also help them to be ready to discuss the possibility of such legally-created disclosure demands when describing the limits of confidentiality with prospective clients.
Meanwhile, it remains important for psychotherapists not to confuse legal requirements with ethical requirements when preparing their informed consent forms. For example, Handlesman (1995) noted years ago that although “the majority of forms contained the legally mandated information, fewer forms contained ethically desirable information” (p. 119). In the current “post HIPAA” climate, in which forms reflect more of a legal emphasis than ever before, this is an increasing risk. (See below “Treating Legal Requirements as Sufficient Information” and “Over-Reliance on Written Forms.)
- State Laws & Regulations. Unlike Ethics Codes, which apply nationally to all psychotherapists of a given profession, laws and licensing regulations vary widely from state to state. In spite of these differences, there are some consistencies across states. For example, every state has statutes and/or licensing regulations that require mental health professionals to inform prospective patients about certain things before providing services. There is considerable overlap across states, and one item on every state’s list is “limits of confidentiality”. (See links to examples of such state laws and regulations in “Examples of Federal and State Laws Affecting Confidentiality” on the website of the Center for Ethical Practice.)
Some state licensing boards also provide guidance about specific topics for psychotherapists. For example, the Virginia licensing boards for psychologists, social workers, and counselors each provide guidance documents for providers who are considering whether to begin a case that would involve use of technology in the provision of intervention or supervision services.
States also sometimes have jurisdictional regulations that govern whether services can be provided to persons who are not licensed in that state. This can affect whether a therapist is legally free to begin a relationship with a prospective patient (or continue a relationship with a current patient) if the patient is sitting in another state where the therapist is not licensed. Each state’s rules are different, making it legally important for prospective psychotherapists to inform themselves before beginning a long-distance therapeutic interaction. The American Psychological Association Practice Organization (2013) has provided a very useful state-by-state chart regarding the jurisdictional regulations, which can be a very useful resource when considering whether to begin providing distance services: “Telepsychology: 50-State Review.”
If your state already provides a list of all the laws and regulations that might create limits of confidentiality, that will certainly be helpful in preparing for the initial informed consent discussion. Otherwise, perhaps the list provided in Figure 2 (above) will be helpful in searching for relevant examples in your own state’s statutes and regulations. Otherwise, it will be difficult to be adequately prepared for the initial ethically- and legally-required conversation about confidentiality and its limits.
- Federal HIPAA Regulations: Any mental health professional who electronically transmits patient-identifiable information will have numerous legal requirements under HIPAA (the Federal Health Insurance Portability and Accountability Act). The HIPAA Regulations were developed by the U.S. Department of Health and Human Services to fulfill the requirements of that Act, but enforcement rests with the U.S. Office of Civil Rights. (For links to useful information about HIPAA, see the website of the U.S. Office of Civil Rights: http://www.hhs.gov/ocr/hipaa/links.html. )
Under the HIPAA Regulations, patients have certain legal rights and psychotherapists are legally responsible for informing prospective patients about these rights in a “Notice of Privacy Practices.” The rights include the following:
- Right to be informed in advance about the provider’s privacy/confidentiality policies;
- Right to obtain access to their own records;
- Right to place certain conditions on how they are to be contacted;
- Right to request limitations on disclosures;
- Right to obtain documentation of disclosures made without patient consent
- Right to request amendments to their records
Regarding the first item on the above list, note that the HIPAA “Final Rule” (or “Omnibus Rule”) has a new requirement: Any disclosure the prospective patient was not informed about in the initial “Notice of Privacy Practices” will require the patient’s explicit consent at the time of the disclosure.
The “Notice” given to prospective patients must now inform patients of this fact, so it must now include a statement such as: “Uses and disclosures not described in this Privacy Notice will be made only with your authorization.”
This means the initial “Notice of Privacy Practices” must include an accurate description of the actual disclosure policies and potential confidentiality limits in their own setting. This makes it very important that practitioners create a setting-specific “Notice” rather than using a “canned” HIPAA form.
These Federal HIPAA Regulations, although supposedly designed to protect clients’ privacy rights, actually allow broad disclosure of confidential information without the client’s consent in many circumstances. Many have complained that, in this respect, the HIPAA Regulations actually reduced client confidentiality rights because the HIPAA list of “legally-allowed disclosures” goes far beyond those ordinarily considered “ethically-allowed” by most mental health professions.
Note, however, that the HIPAA Regulations do not require you to disclose anything. Be sure to note this difference between “legally-allowed” and “legally-required ” disclosures. It is ethically important to remember that whereas your profession’s Ethics Code may allow you to disclose confidential information whenever you are legally required or legally allowed to do so, your Ethics Code does not require you to disclose something simply because disclosure is legally allowed in a particular situation. The fact that HIPPA legally allows broad disclosures without the client’s consent does not mean you are legally required to disclose in all those situations; and certainly you are not ethically required to do so. If someone presses you to disclose information without the client’s consent and quotes a HIPAA section that allows you to do so, you are free to refuse to provide the information unless/until the client gives consent, except when you are legally required to disclose it (e.g., by reporting child abuse as required by law).
One advantage of the HIPAA Regulations is that they require prospective clients/patients to be informed in advance about the potential “limits of confidentiality.” The downsides of HIPAA include the following facts:
(1) The legally-required “Notice of Privacy Practices,” if constructed well and adapted to the setting, can provide accurate information, but it is not a consent form. By signing the form, patients are simply acknowledging that the “Notice” was received. It is not a consent form.
(2) many practitioners use a HIPAA form that is too complicated for most patients to understand and too long for them to bother to read, so patients may give consent to receive services without understanding important details about the true “limits of confidentiality” that might apply; and
(3) when practitioners borrow forms from others they may be using a “Notice of Privacy Practices” that they do not themselves understand or which they have not actually read carefully, and which does not accurately describe their own actual confidentiality policies.
- Legally Binding Contracts: Mental health professionals sign legally binding contracts that can limit their options about numerous things, including insurance coverage, ownership of records, and limits of confidentiality. Such important contractual relationships that should be explained to prospective clients can include contracts such as those listed here:
- Group Practice Contracts & Agency Employment Contracts: Psychotherapists who belong to a group practice or who work for an agency or institution must be clear about their employment agreement and know how that affects the promises that can be made to patients at intake. For example, practitioners who change employment settings are sometimes surprised to learn that their contract stipulates that the patient records generated by their work belong not to them but to their group practice or agency. They also may not know that their contract prevents them from leaving and establishing a new competing practice nearby.
In employment settings where there is no contract, such matters are often not discussed or clarified in advance. However, some of these involve things that patients have a right to be informed about before they begin a therapy relationship. This makes it ethically important to be clear in advance about any employment conditions that would affect patients’ rights. This would include any disclosure or access policies in the agency or setting that will affect patients’ confidentiality rights.
- Managed Care Provider Contracts: If you are a managed care provider, you have signed contractual agreements which allow many of the decisions about fees, services, and confidentiality to be made by others. As a result, the informed consent conversation becomes more complex and requires more preparation.
In order to be prepared to inform prospective patients honestly, you must understand the terms and limitations imposed by your own contractual agreements with managed care organizations. Read your managed care contracts carefully. If you have questions, you can request clarification, preferably in writing.
Managed care contracts can affect all the subjects that must be covered with prospective patients:
- Regarding professional services: How will you explain to prospective patients that the nature of services they receive may be guided more by their reimbursement plan than by optimum treatment that might otherwise be available for their problem? How will you explain that they may be reimbursed for significantly fewer sessions than the number they will actually need? What will you say to prospective patients who will obviously need further services, but who will be unable to afford your fee? If you have a “capitated contract” with any third party payor, how do you explain that this creates financial incentives to limit treatment?
- Regarding fees: Does your provider contract allow you to discuss the disadvantages of using the available benefits? Are you contractually free to bill the patient for “uncovered” services? Are you prepared to provide patients in advance with a statement of your “intended fees after managed reimbursement ends”?
- Regarding billing arrangements: What do your provider contracts say about billing for services beyond those covered by the managed care reimbursements? What will you say in advance about billing arrangements after the managed reimbursement ends (e.g., will you bill on a “partial payment plan” schedule if the patient requests? Will you charge interest on the unpaid balance?)?
- Regarding patient records: Who owns the records? Who will have access to them? How long will they be retained?
- Regarding limits of confidentiality: In addition to the “standard” limits of confidentiality, what will you tell prospective patients about further limits that can be imposed by the managed care entity, as stipulated in your provider contract (e.g., the patient’s treatment file can be audited and read by non-clinicians as part of a compliance review) ? (Davidson & Davidson, 1996)
What are the Impediments to a Truly Informed Consent Process?
Nothing blocks a patient’s access to help with such cruel efficiency as a bungled attempt at informed consent. . . Not even the hardiest patients can make their way past intimidating forms (which clerks may shove at them when they first arrive), our set speeches full of noninformative information, and our nervous attempts to meet externally imposed legalistic requirements such as HIPAA. (Pope & Vasquez, 2016, p. 185)
This sounds all too familiar. How have we allowed this to happen to a professional process that is designed to protect patients and their rights? In my experience, it began with too little attention paid to this process. My own graduate school clinical training included excellent ethics training in general, but with little or no emphasis on informed consent. Of course, that was years ago during the 70s, when there were almost no state reporting laws to inform patients about, and certainly no HIPAA requirements. But into that relative ethical vacuum came an emphasis on new reporting laws and other legal requirements, and somehow the ethical perspective about informed consent took a back seat and has never caught up. Currently, attorney-created informed consent forms and attorney-led risk-management training can obscure the fact that informed consent is about professional ethics – the protection of patients from harm (Fisher, 2008). If professional ethics has taken a back seat, it seems time for us to rescue that perspective and help it regain its front-seat status.
Numerous factors can interfere with carrying out the ethical responsibilities. Below is a list of potential impediments to a “truly informed” consent process. Some of these raise overlapping issues, and this list is certainly not exhaustive. So you may likely be very aware of others that arise in your own clinical setting.
Several of the sections below use as examples the informed consent sub-topic of “limits of confidentiality,” even though this is only one of the many things that psychotherapists must inform prospective patients about. It was chosen as an example because among the required topics to be discussed, “limits of confidentiality is (1) a topic that psychotherapists are often unprepared to discuss clearly, in understandable language; (2) a topic that creates defensiveness in psychotherapists who consider it too much like a “Miranda Warning” that will stifle communications; and (3) a topic that raises many objections and about which adequate information is often provided to patients too late or not at all. As far back as 1992, psychologists were reporting that confidentiality created their most serious ethical problems and was the source of more ethical dilemmas than any other aspect of clinical practice (Pope & Vetter, 1992). This makes it an aspect of clinical practice that is especially important for psychotherapists to be prepared to talk about.
Lack of Information. When conducting workshops about informed consent, I begin by providing participants with two things: a list summarizing the kind of information they are ethically required to provide to prospective patients (as in Figure 1); and a copy of their own ethics code for consulting the actual language. Many psychotherapists express surprise about some of the things they are ethically expected to inform prospective patients about. That may be because they don’t have a copy of their profession’s ethics code and never visited it online. But the problem is exacerbated by the fact that the Ethical Standards about informed consent are scattered throughout each ethics code, never all listed in one section called “Informed Consent.” Furthermore, ethical standards related to informed consent deal primarily with the content of the informed consent conversation, not details about the process.
When asked which topic from Figure 1 they find most difficult to inform prospective patients about, many psychotherapists name “limits of confidentiality.” One complication about this topic is that unlike ethical standards and HIPAA regulations which apply nationally, each state has very different reporting laws and other laws that can limit confidentiality. Sometimes psychotherapists ae not aware of all the relevant laws. In some states, a list of such laws is easily available (e.g., for Virginia, see Center for Ethical Practice, 2014), but not in all states. However, a list alone does not prepare psychotherapists to discuss with prospective patients all of the ethical implications of each of these laws.
Even when helpful information is available, psychotherapists are sometimes reluctant to use it. For example, the most visited resource on the website of the Center for Ethical Practice is an Adolescent Informed Consent Form (Kraft, 2005). (For the purposes of this discussion, it is provided here as Appendix 1.) It is designed to be read and discussed with both adolescents and their parents. Most of the information in that form is about the topic adolescents are most concerned about: “When will you protect my secrets and when will you disclose things to my parents?” Obviously, such a form must be adapted to reflect the laws and policies in each psychotherapist’s own setting. Regrettably, however, some of the psychotherapists who obtained that form have later reported that they decided not to provide that much information to prospective teen patients and their parents.
Instead of seeing this written material as a helpful tool for preparing to begin the relationship in a truthful and protective way – instead of using it to clarify their own policies and plan their intake conversation – instead of using it to explain to both the teen and the parents why it is important for them to have this information in advance rather than being surprised later – many clinicians are afraid that providing such information will prevent the relationship from ever beginning. Some are fearful that discussing any limits of confidentiality with teens will prevent them from trusting a prospective psychotherapist; others are fearful that providing such information to parents will lead them to refuse to allow their teenagers to even begin the relationship.
Clinically, discussion of such concerns is exactly where the psychotherapy relationship needs to begin. Psychotherapists who do use such a consent form have reported that discussing it is a very good way to begin the relationship. Yet there is evidence that many clinicians are reluctant to adequately inform prospective psychotherapy patients about what their own rules and policies will actually be. Others are reluctant to explain how state laws might require disclosures of their confidential information. This issue will be discussed further in the sections below on “Therapist Reluctance” and “Lack of Preparation.”
Treating Legal Requirements as Sufficient Information. The enactment of HIPAA placed psychotherapists at risk for focusing on legal responsibilities rather than ethical responsibilities (Fisher, 2008). Sometimes the legal requirements are given priority over ethical requirements in professional articles or texts. Furthermore, “HIPAA brought forth the growth of attorney-led HIPAA-compliance training that overshadowed ethics training” (Pope & Vasquez, 2016, p. 310). Continuing education training for mental health professionals is now often sponsored by law firms. The training may be advertised as “Ethical and Legal Issues,” but in fact, attorneys are often unfamiliar with mental health ethics codes, and the workshop outline reflects a focus on legal issues.
When it comes to consent forms, one of the disadvantages of the enactment of HIPAA was that the legally required “Notice of Privacy Policies” began to replace previous forms that contained some of the much broader information required by professional ethics codes (as reflected in Figure 1). In fact, the HIPAA “Notice” is not actually a consent form at all – it is only an “information form” which patients sign only to indicate that they have received it, not to indicate that, having been so informed, they consent to receive services.
Just before the enactment of the federal HIPAA Regulations (1996), Handlesman (1995) noted that although “the majority of forms contained the legally mandated information, fewer forms contained ethically desirable information” (p. 119). In the current “post HIPAA” climate, in which forms reflect more of a legal emphasis than ever before, this is an increasing risk. While the enactment of HIPAA legal regulations “substantially adds to the amount of information that should be presented to patients” (Knapp et al., 2013, p. 124), it is important for psychotherapists to remember that the legally-required Notice of Privacy Practices is not a substitute for providing information about other ethically-required and professionally-recommended topics during the informed consent process. Knapp et al., (2013) recommend that instead of combining the legal and ethical requirements, psychotherapists can provide two separate documents: the legally-required “Notice” and the ethically-required informed consent agreement “which is a more user-friendly informed consent document” (p. 124). This would include the relevant ethically-required items from Figure 1 which are not present in the legal documents.
Confusing Language in the Professional Literature. Not all authors use the same language about informed consent. Only if published resources present the topic of informed consent in consistent ways can we be clear with each other and with others about “who has responsibility for what?” in the informed consent process.
Surprisingly, one possible source of misunderstandings about informed consent can be found in language used in our professional literature. In conducting a literature review before writing this article, I discovered how often language can confuse the issue and possibly create misunderstandings about the informed consent process.
I feel I owe an apology about using some of the quotations below. We all sometimes mis-speak. Some of these quotations come from my favorite professional ethics authors, who ordinarily use very clear language. I owe some of them a great deal for what I have learned about ethics across the years, including what I have learned about informed consent. I nevertheless have included here examples of language I consider confusing, including in quotations from highly respected ethics authors, because I wanted to emphasize that we all sometimes make mistakes in our language about informed consent. In spite of how careful I try to be, a personal editorial assistant once called me on my mistake. If I “slip up” with my language while writing this article, I hope it will be corrected. But hopefully, spending this much time on the language of informed consent will lead all of us to pay better attention to the process itself.
Language can create problems in numerous ways. First, authors sometimes simply use the wrong verb when writing about informed consent. This includes language implying that we give informed consent: “Do you give an informed consent to your patients? (Saks, 2011, p. 89); or “has the client been given adequate informed consent?” (Koocher & Casserly, 2003, p. 166); or “clients . . . must be given full informed consent . . .” (Koocher & Keith-Spiegel, 2016, p. 225). Similarly there may be language stating that we provide informed consent: “provide informed consent both verbally and in writing” (Wise, 2007, p. 183); or “failing to provide informed consent” (Pope & Vasquez, 2016, p. 195); or “providing adequate informed consent” (Blease et al., 2016, p. 1170); or “provide appropriate informed consent” (Foote, 2011, p. 166); or “informed consent should be provided (Barnett, 2007, p. 179). Still another verb was used by Johnson-Greene (2007), who referred to “conveyance of informed consent” (p. 183). In all fairness, these authors may have been referring to the “informed consent process,” which we do provide. However, as explained above, clinicians do not “give” or “provide” or “convey” informed consent itself; they receive consent, which they obtain from an informed person.
Secondly, the language sometimes seems to imply that the informed consent process involves only one part of what is actually ethically required, as in: “‘Informed consent’ is a process of sharing information with patients that is essential to their ability to make rational choices” (Bears & Gutheil, 2001, p. 4); or “Informed consent refers to the process of informing clients about the therapeutic process . . .” (Perilla, 2011); or “The extent to which clients understand the nature and anticipated course of therapy is referred to as informed consent” (Lustgarten et al., 2017, p. 281). Actually, these quotations are accurate only about the first part of the informed consent process: providing information. This leaves out the second part of the process: obtaining the patient’s consent to accept services, based on the information that was provided.
Similarly, the entire discussion of informed consent is sometimes reduced to one detail about that first part of the informed consent process. For example, the discussion may focus on whether we should provide clients with information orally or in writing or both; or focus on only issues such as how to construct our written information forms; or considers whether the consent forms should be provided and signed in advance of the intake visit. As noted by Pomerantz (2012), “Little agreement exists about how to go about fulfilling our obligations about informed consent;” and “discussions of how to obtain informed consent to psychotherapy generally focus on the dichotomy of written forms and oral discussion” (p. 322).
Thirdly, sometimes the language seems to entirely ignore that first part about adequately informing the prospective patient and instead focuses on obtaining a signature on an informed consent form. Actually, that is only the final step in an ethically appropriate informed consent process, because obtaining a prospective patient’s signature should simply document the informed consent that we have already obtained verbally. Obtaining a signature on a form is never, in itself, synonymous with obtaining informed consent. Furthermore, as noted earlier, if we obtain that signature without first providing adequate information, we have obtained “uninformed consent.”
Barnett (2007) suggests that “informed consent is not uniformly applied” and that “confusion appears to exist concerning the specifics of informed consent” (p. 180). He is obviously correct that confusion exists; but in this quotation he introduces another new verb. I am not sure what it means to “apply” informed consent. Perhaps this is referring to “applying” a process. But in the service of clarity, it is helpful to stick to the language that is more specific about what is being done and who is doing it: Psychotherapists provide a process that involves giving information and then obtaining consent from the informed patient.
Therapist Reluctance. In one early national survey (Somberg, Stone, & Claiborn, 1993), the psychotherapists who neglected to tell prospective clients that confidentiality might be breached reported that they either considered the conversation “not relevant or necessary” or were deliberately avoiding what they considered the “negative impact” of explaining confidentiality’s limits (p. 157). Such rationalizations reflect a blatant disregard for the client’s informed consent rights. Clinically speaking, it may be preferable to begin a relationship by listening, not by explaining that what is about to be said may not remain confidential. Ethically speaking, however, psychologists who place conditions on confidentiality are not free to treat discussion of this risk as irrelevant or unnecessary, no matter how clinically inconvenient.”
Of those who skipped the informed consent conversation about confidentiality, 13.3% did so because they believed the client “already has knowledge of the issue” and 7.5% because they believed clients were “unable to understand” (Somberg et al., 1993, p. 157). The problem with the first rationalization is that limits of confidentiality can now vary from clinician to clinician and from setting to setting. Each clinician is therefore the client’s only possible source of accurate information, so no prospective client can “already know” what exceptions will be imposed. Regarding the second rationale, the fact that the subject matter is complex does not absolve psychologists of the ethical responsibilities about informed consent. (Fisher, 2008, p. 4)
Some complain that it feels too much like beginning the relationship with a Miranda Warning. Conversely, some therapists argued that discussing the limits of confidentiality will be unnecessary because patients already know the rules and limits about confidentiality.
Therapists offer numerous rationales for short-cutting or omitting the ethically-required informed consent conversation about confidentiality. Sometimes these involve rationalizations that reflect a blatant disregard for the client’s informed consent rights. For example, one study indicated that of those who sometimes neglected to tell prospective patients that confidentiality might be breached, 46.7% either considered the conversation “not relevant or necessary” or were deliberately “avoiding the negative impact” of explaining confidentiality’s limits. Of those therapists who completely skipped the informed consent conversation about confidentiality, 13.3% did so because they believed the patient “already has knowledge of the issue” and 7.5% because they believed patients were “unable to understand.” (Somberg, Stone & Claiborn, 1993, p. 157)
Note that some of these rationales ignored the fact that the limits of confidentiality can vary from clinician to clinician, and from setting to setting, so it is actually impossible for any prospective patient to already have accurate knowledge of the limits that a particular therapist will impose on confidentiality.
More recently, Pope and Vasquez (2016) suggested that one trap can involve “resenting consent as a formality to be gotten out of the way” (p. 185). This posture can lead to any number of behaviors that fall short of protecting the patient’s informed consent rights. Others have brought similar concerns. Sokol (2009) suggested that if we consider informed consent as a “chore” to be gotten out of the way, we are at risk for reducing the informed consent process to “the mechanistic imparting of information from clinician to patient or, worse still, the mere signing of a consent form, rather than the two-way, meaningful conversation between clinician and patient it should be” (p. 3224).
What is the most redoubtable obstacle to valid consent? It is the still-prevalent attitude that obtaining consent is a necessary chore, a . . . hurdle to jump over. . . . If we can change this mindset and view obtaining consent as an ethical duty first and foremost, one that is central to respecting the autonomy and dignity of patients, then we will have taken a major step towards first-class consent. (Sokol, 2009, p. 3224).
Pope & Vasquez (2016) concur: “Viewing consent as an obligation and burden makes it hard to meet the needs of patients . . “a first step in remedying the situation is to recognize that informed consent is not a static ritual but a useful process” (p. 186).
Clinical Concerns. Some clinicians fear that beginning with an informed consent conversation will undermine the clinical process. It is important for therapists to understand that regardless of how well based their clinical concerns or other worries might be, ethically speaking, such clinical concerns are completely irrelevant! Prospective patients have a right to be informed in advance about information that might affect their decision to begin therapy, and therefore such conversations are ethically required, regardless of their clinical impact.
Clinically speaking, it may be preferable to begin a relationship by listening, not by explaining that what is about to be said may not remain confidential. Ethically speaking, however, psychologists who place conditions on confidentiality are not free to treat discussion of this risk as irrelevant or unnecessary, no matter how clinically inconvenient. (Fisher, 2008, pp. 3-4).
“We may as clinicians fear that providing adequate information to patients and explicitly obtaining their consent will somehow derail therapy and may in fact have detrimental consequences for our patients. The research has not supported those fears. The process of informed consent tends to be beneficial” (Pope & Vasquez, 2016, p. 196). For example, Pinals wrote that “when executed properly, informed consent can enhance the therapeutic alliance and help improve treatment adherence” (2009 p. 33)
Actually, the informed consent process offers psychotherapists an important opportunity, because when carried out appropriately, it is a place where ethical responsibilities and clinical responsibilities can overlap. Pomerantz (2012) writes about informed consent as “empowered collaboration” (p. 311). ”Empowered collaboration is a good example of good clinical skills and excellent ethics coinciding. Involving patients in important treatment decisions is consistent with respecting their decision-making autonomy. It also fosters a good working relationship in which patients feel free to raise issues of concern” (Knapp, Gottlieb & Handelsman, 2015, p. 57).
In psychotherapy, not only is informed consent a moral duty, but it also has obvious benefits for patients and therapists. An appropriate informed consent that includes an agreement about goals and tasks is instrumental for augmenting mutual trust and contributes substantially to the formation of a strong therapeutic alliance as a central component of a successful psychotherapy. (Trashctel et al., 2015, pp 775-776)
In other words, with good preparation and absence of defensiveness, the informed consent conversation can be a helpful way to develop a trusting clinical relationship. Prospective patients respond well when therapists provide important information, with copies in writing that prospective patients can take home with them; invite questions and respond to them undefensively; and then obtain the patient’s signature to document their voluntary consent to receive services under the described conditions. Research across the years has suggested that prospective patients perceive such therapists as more trustworthy and more expert (Barnett, 2007; Handelsman, 1990; Pomerantz, 2012; Sullivan, Martin, & Handelsman, 1993; Wagner, Davis, & Handelsman, 1998).
Lack of Preparation. If providers do not respect the concept of informed consent, or if they consider it a “burden” rather than an ethically important process that protects the patient, then they are less likely to prepare in advance for the initial conversation (Fisher, 2013). In fact, a well-executed informed consent process can require a great deal lot of preparation, because the clinician must be ready to provide adequate information and able to answer questions fully and honestly. For example, psychotherapists must be prepared to describe in simple and understandable language such things as the flexibility or inflexibility of their fees; the complications of third-party requirements; differences between their goals and the patient’s goals; potential risks of proceeding with psychotherapy; all the circumstances in which they might disclose the secrets a patient confides; the limits in their availability outside regularly scheduled psychotherapy hours, etc.
As noted above, “nothing blocks a patient’s access to help with such cruel efficiency as a bungled attempt at informed consent” (Pope & Vasquez, 2016, p. 185). Psychotherapists who have not engaged in adequate preparation are less likely to present the necessary information in a clear and organized way. They will also be more likely to “bungle” the process because they will be unable to present the necessary information and unable to answer questions honestly and undefensively. Those unprepared for the informed consent conversation are more likely to dread questions rather than invite questions as part a collaborative proves.
Figure 1 does not mention “preparation” for the informed consent conversation because ethics codes do not acknowledge the extensive preparation that may be required, much less provide a summary of the planning necessary for an ethically adequate initial informed consent conversation. Psychotherapists must not only understand their ethical standards but must also learn the laws that can affect the content of the informed consent conversation. In learning the relevant state laws, it is important to obtain consultation about their ethical implications. For example, “psychologists who misunderstand their state’s laws may disclose information believing it is legally required, when actually it is not” (Fisher, 2012, p. 354). For example, it may be a law that simply allows disclosure but does not demand it, and this is an ethically-important legal distinction.
Beyond the ethical requirements in Figure 1 and the legal requirements described above, most ethics texts contain other recommended topics that might be important to cover in an initial informed consent conversation. (For example, see Knapp, VandeCreek & Fingerhut, 2017, pp 93-94; Pomerantz, 2012, 317-321; Pope & Vasquez, 2016, pp.194-195.) Such decisions can vary across patient populations. The general rule of thumb is that the information should include what the average patient would want to know.
How can psychotherapists integrate all this information into the clinical goal of establishing a relationship with a new client? Their preparation checklist for the informed consent conversation might include items such as these:
___ Learn relevant Ethical Standards (e.g., Figure 1)
___ Learn relevant state laws and regulations, and federal HIPAA regulations
___ Clarify relevant policies in your setting (e.g., fees, privacy, confidentiality)
___ Consider clauses in third-party payer contracts (e.g., deductibles, audits)
___ Create simple handouts in understandable language (e.g., Figure 2)
___ Plan the conversation you will have with prospective patients
___ Practice the conversation until you can enter it positively and undefensively.
Over-reliance on Written Forms. An unprepared therapist may be more likely to rely on written forms, rather than creating an informative and collaborative conversation. “Many of us may be so eager to start doing therapy that we try to avoid talking with our clients about consent issues. We try to push all the responsibility off onto a set form and let the form do the work” (Pope & Vasquez, 2016, p. 199).
The prospective psychotherapist must provide certain information to prospective patients, as ethically required by professional Ethics Codes and legally required by HIPAA. If desired, the psychotherapist can decide to provide this information to prospective patients in advance, before the first meeting. But it is the psychotherapist’s responsibility to be sure the prospective patient understands this information from the beginning, especially the information about potential risks, including the potential limits of confidentiality.
Sometimes psychotherapists in clinics, agencies, or hospitals may not even handle the intake forms themselves. “The client who shows up for an initial appointment may be handed an imposing-looking form by the receptionist, asked to read it, sign it, and return it before seeing the therapist. The form itself may have been crafted by the clinic’s or hospital’s attorney and may not even have been reviewed by a clinician” (Pope & Vasquez, 2016, p. 199).
In such cases it is important for the therapist to take responsibility for reviewing the main points covered on the informed consent forms, inviting prospective patients to ask questions, and being sure they understand what they have signed. As discussed above, a patient’s signature on that form is not synonymous with “informed consent.” (See “Obtaining Informed Consent: When & How” above.)
In the informed consent conversation, clinicians are ethically required to provide the necessary information using language that is intelligible to their prospective patients. That ethical requirement would apply to written forms, as well as to oral presentations.
As a result of today’s statutes and regulations, psychologists may have to give patients such a large amount of written material that even some of the more sophisticated patients are unable to understand how it applies to them (Harris, 2003). Consequently, psychologists should not rely on the documentation alone to ensure that patients understand the important features of their service. (Knapp, Younggren, VandeCreek, Harris & Martin, 2013, p. 37)
Often, this information is provided in a written form. However, as noted by Pope & Vasquez (2016), “not only must the client be able to read, but the form itself must be readable” (p. 199). In fact, research studies across the years have consistently shown that HIPAA notices and other consent forms are typically written in language that is beyond the reading ability of the average psychotherapy patient.
For example, in early research, Handelsman et al. (1986) found that the average readability of consent forms was in “the ‘difficult’ range, equivalent to an academically oriented magazine” and that the forms failed to satisfy “the requirements of informed consent” (p.514). Later, Handelsman et al. (2010) found average reading levels on informed consent forms to be “upper level college,” with 64% of forms at “the most difficult readability grade.” Their conclusion was that “results indicate therapists are obeying the law, but do not appear to be taking advantage of the opportunity to provide their clients useful information in an accessible way” (p. 119). Meanwhile, Hochhauser (1999) found “unacceptably high college reading levels, making them incomprehensible to the average reader who may be reading at a junior high reading level” (p. 1).
More recent research suggests that the problems still persist. Lustgarten et al. (2017) found that “informed consent documents in university counseling centers are rated as challenging to read for college students” (p. 281). Martin (2005) found reading levels of consent forms to be at grade level 13.2. Walfish & Ducey (2007) found that the majority of forms studied were at the “difficult range of reading ease” (p. 205).
Such findings make it important for psychotherapists to monitor the forms used in their own setting to assure their “readability,” because attorney-designed forms are likely to use “legalese that often is intended to protect the therapist but that can befuddle or daunt some prospective clients” (Pomerantz, 2012, p. 322).
For patients to be adequately informed, psychotherapists have a responsibility to make sure their own forms are “readable.” This is not an impossible task. Walfish & Ducey (2007) have provided sample forms and describe how they can be created. In addition, they provide some information that can be welcomed by psychotherapists, because it removes an impediment that has been created by misinformation about HIPAA requirements.
With an understanding of what makes a form readable, psychologists may revise their [HIPAA Notice of Privacy Practices (NPP)] to include more concise sentences and fewer polysyllablic words. In this way they avoid risking an ethical violation, reduce their liability, and improve their informed consent process. . . There is a misunderstanding that the federal government requires certain boilerplate language that is mandated for inclusion in these forms. However,what is mandated is that certain concepts be included, but the language is not specifically stated [in the HIPAA Regulations], other than that the forms should be written “in plain English.” (Walfish & Ducey, 2007, p. 205, emphasis added.)
Walfish & Ducey (2007) provide samples of rewritten HIPAA documents for easier readability. (See their Table 2.) By creating a readable HIPAA “Notice,” clinicians can better help clients understand how information shared with them will be treated or protected. This takes away any reluctance to make one’s own informed consent form more readable!
Engaging in forethought, and then participating in the preparation of the written forms, can benefit the psychotherapist as well as the patient, because it encourages the psychotherapist to reflect carefully on the practices and policies that will be described to the prospective patient.
The informed consent process can ensure that clients have an accurate grasp of some of the ground rules of psychotherapy. In the process, the therapist can be informed as well . . . A prerequisite to communicating information to clients is to develop that information in the first place. As such, creating and exercising an informed consent process helps therapists think through the various aspects of their practices, in the process clarifying the process for themselves more thoroughly than it might have been if informed consent was not sought. (Pomerantz, 2012, p. 316)
Patient Reluctance: Prospective patients who were previously in psychotherapy elsewhere may say “I already know all that stuff.” Interestingly, psychotherapists may be especially likely to hear such objections from prospective patients who are themselves mental health professionals: “I make that speech all the time myself, so you don’t need to repeat it.” As noted earlier, however, each clinical setting has somewhat different policies, including rules about when confidentiality will be protected and when not. This means no prospective patient can actually know exactly what this psychotherapist’s policies may be.
Lane (2007) has suggested that we have “become conditioned in recent years to ignoring the implications of providing our consent and skirting past the tedious details. . . . We just sign (or click the checkbox) and hope there is nothing nasty in the fine print” (p. 10). It is important not to encourage this practice, no matter whether or how much prospective patients might encourage them to move in that direction/.
Failure to Involve the Prospective Patient in the Process. To be truly protective of patients, the informed consent process should be a collaborative process. We described above the psychotherapist’s responsibilities in this process, but prospective patients also have responsibilities. Failure to adequately involve them in the process can lead to difficult issues later, some of which can be connected to premature patient-initiated terminations.
According to Younggren, informed consent forms should not only outline what the psychotherapist is willing to provide to the patient, but also “the patient’s obligations as part of the treatment dyad.” Younggren also believes that “patients have a duty of compliance with treatment if they expect to get better and to have their psychotherapist remain in a relationship with them” (Younggren, Fisher, Foote, & Hjelt, 2011, p. 161).
In contrast, “patient–therapist goal consensus and collaboration enhance psychotherapy outcome” (Tryon et al., 2018, p. 372). Furthermore, as noted by Boswell et al. (2015), “There is evidence that promoting honest dialogue between psychotherapists & patients about the nature of psychotherapy improves both the therapeutic appliance and patient outcomes.”
Respecting the Patient’s Right to Give “Informed Refusal.”
Once prospective patients have been adequately informed, they can either give consent to participate in the services being offered or they can refuse to give consent to participate. The requirement to respect the patient’s right to refuse services was in the APA Ethics Code from the beginning: “Clinical services must not be imposed upon an individual, nor should a person be unduly urged to avail himself of such services. (1) The ethical position assumes that a person is free to enter, not to enter, or to withdraw from a clinical relationship” (APA, 1953, Ethical Standard 3.21-2). Currently, however, this appears in the APA and AAMFT Ethics Codes only as it relates to refusing or withdrawing consent to participate in research (AAMFT, 2015, Ethical Standard 5.4; APA 2017, Ethical Standard 8.02).
Some current Ethics Codes do require that prospective therapy clients be informed about their right to refuse. For example, social workers are ethically responsible for informing clients of their “right to refuse or withdraw consent” (NASW Ethical Standard 1.03(s)). For counselors, all clients must be informed of their right to refuse services, and even mandated clients can choose to refuse services (ACA, 2014, Standard A-2-b, e).
“A client who does not like the specifications and risk-benefit statement offered by the therapist can generally decide not to seek treatment or to seek alternative care” (Koocher & Keith-Spiegel, 2016, p. 69). This right to an informed decision is abridged if there is no risk-benefit discussion.
Informed refusal is the antithesis of informed consent, a natural extension of the doctrine. . . The concern is that the informed refusal process is not approached similarly or regarded with the same degree of importance as informed consent. . . Although informed consent has received much more attention than informed refusal, practitioners must realize that case law supports the importance of obtaining and documenting an appropriate informed refusal whenever a patient refuses all care offered or a critical portion of their evaluation or treatment. (Klauer, 2013, no pagination)
Re-Opening the Informed Consent Conversation
Years ago, there were frequent discussions about whether informed consent should be treated as a one-time event at intake (“event model”) or as an ongoing process that continues throughout the relationship (“process model”) (Applebaum, Lidz, & Meisel, 1987, p. 151). But now, ethically speaking, the requirements are clear: For the duration of the relationship, the informed consent discussion must be re-opened whenever warranted, whenever it is unclear whether the client/patient understood the initial discussion, or when changes occur. This includes changes in the patient’s circumstances, or in the providers own policies, as well as changes in agency policies or state laws. Fisher recommends that discussion of the limits of confidentiality should be reopened whenever a change in circumstances increases the risk of disclosure, “thus allowing the client to weigh the risks of confiding further” (Fisher, 2016, p. 39).
Conducting an informed consent conversation, especially about confidentiality, is ethically important not only “at the outset of the relationship” but also “thereafter as new circumstances may warrant” (APA 2017, Ethical Standards 3.10 and 4.02b). The ACA Ethics Code indicates that “Informed consent is an ongoing part of the counseling process, and counselors appropriately document discussions of informed consent throughout the counseling relationship (Standard A.2.a).
In other words, informed consent is “a process that should occur throughout the relationship between clinician and patient” (Willliams, 2008, p. 11). Pomerantz (2005) suggests that “therapists may be able to predict that some pieces of information can be addressed with clients earlier than others” and in such circumstances “should begin the initial informed consent process by informing prospective clients about this ongoing, staggered nature of informed consent (p. 257).
Similarly, in their risk-management text published by The Trust, Knapp et al. (2013) issued this advice:
At times patients may not be able to make informed decisions immediately. The processes of preparing them for decision making may involve processes analogous to developing a scaffold or the titration process (in which bits of information are added and processed over time). If the patient responds poorly to the additional information, more time should be taken before the effort for full information is undertaken again. (p. 39)
Implications for Training & Supervision
In the training of mental health professionals, there are many opportunities for helping the next generation better understand and apply the informed consent process with patients in their own clinical cases. Educators can not only emphasize the importance of informed consent as part of the classroom ethics education, but they can also model informed consent practices in their own relationships with trainees. During their training, budding clinicians in supervision can not only benefit from experiencing an informed consent process in their own supervision relationships, but they can also take those experiences into their own relationships with future patients. “Providing supervisees with relevant information at the outset helps to minimize risks for supervisors and supervisees and to maximize benefits for supervisees and their clients.” (Thomas, 2007, p. 221).
Blease et al. (2020), in research about students’ attitudes about informed consent, found that student’s responses suggested the presence of “a hidden ethics curriculum”—referring to the unintended transmission of norms and practices within training that undermine the explicit guidance expressed in formal professional ethics codes.” They also found “major gaps in students’ ethical, conceptual, and procedural knowledge were identified, and comments suggested the influence of a hidden curriculum in shaping norms of practice” (p. 184-184).
Below are some recommendations about how educators, supervisors, consultants, colleagues, and mentors can help change and improve their trainees’ understandings of the importance of informed consent in developing their own clinical relationships.
- As educator, provide clear, explicit classroom training about informed consent that emphasizes its importance. Then as ongoing mentor, practice informed consent in your own relationships that allow students see behavior that reflects that teaching. As training director, be sure that students’ various training sites are modeling appropriate informed consent processes so that there will be no “hidden agendas” that conflict with their classroom training about how new clinical relationships should begin and about how informed consent forms should be constructed.
- For clinical supervisors, Thomas (2010) recommends initiating an informed consent process with each new supervisee, which can not only “establish rapport and trust in the supervisory relationship” but can also help supervisees “learn the skills necessary for professional collaboration” in their own future relationships. “Taking supervisees and consultees through the process of obtaining their informed consent provides a model for them to use in obtaining the consent of those they serve” (p. 145). Supervisors can also monitor supervisee’s cases to be sure each clinical relationship begins with an appropriate informed consent conversation and that the forms are readable.
- As a colleague, be willing to engage fellow mental health professionals in instructive conversations about informed consent. Clinicians can help each other by sharing information about their intake experiences, proof-reading each others’ consent forms for readability and intelligibility, and providing each other with opportunities to role-play the initial informed-consent conversation and practice responding to prospective patients’ questions.
Conclusions and Recommendations
For many psychotherapists, the initial informed consent conversation has come to be dreaded as a chore. “If we can change this mindset and view obtaining consent as an ethical duty first and foremost, one that is central to respecting the autonomy and dignity of patients, then we will have taken a major step toward first class consent” (Sokol, 2009, p. 3224).
Like few other topics in the ethics of psychology, informed consent illustrates the range between the ethical floor and the ethical ceiling. It is possible to view informed consent as a mandate, a chore to be completed near the outset of psychotherapy to avoid legal trouble and ensure minimal adherence to the ethical standards set forth in the [Ethics Code]. Yet it is equally possible to view informed consent as a golden opportunity to strive for the highest level of ethical ideals, which in turn may maximize positive clinical outcome. (Pomerantz, 2012, p 311)
For authors, editors in professional journals and texts, and other professional publishers, we encourage careful monitoring of the language about informed consent to ensure that it does not confuse the issues. For professors, supervisors, and mentors who participate in the training of the next generation of psychotherapists, we stress the importance of these first-impression experiences and encourage them to lead by example, as well as by clear and detailed instruction.
For psychotherapists themselves, our recommendations include those such as the following:
- Engage in careful forethought and planning. Fumbling through the informed consent discussion is not a helpful way to begin a clinical relationship. Good preparation can prevent therapist hesitation and defensiveness, can ensure that the information given to prospective patients will be accurate and complete, and can avoid over-reliance on written forms at the expense of a collaborative conversational process. Remember that this initial informed consent conversation is the beginning of a clinical process. It is in the patient’s best interest that you conduct this initial conversation well. That means it is also in your own best interest to enter it well prepared.
- Develop intake forms that accurately reflect your actual policies. If you borrow forms, be sure to carefully adapt them to your own setting. Include the information required by your professional ethics code, legal information applicable to your state and setting, limitations imposed by your third party contracts, and any additional information specific to your own practice setting. Do not exclude information lightly. For example, although it may be easy to presume that the services you offer will involve no risk, Barnett (2007) suggests that “all professional services bring with them some risk of adverse impact, however small it may be, [so] prospective participants need adequate information at the outset to help them weigh the potential benefits and risks of both participation and lack of participation” (p. 180).
- Before the initial contact, when scheduling the first appointment, explain to prospective patients that the first meeting will be an evaluation session, during which you will be deciding whether or not you think you can be helpful, and prospective patients will be deciding whether or not to choose you as their therapist. It others will be scheduling the initial appointment for you, they can explain that clearly during the scheduling process. (This will avoid misunderstandings created if prospective patients think that by providing an initial meeting date you have already agreed to be their psychotherapist.)
- Provide prospective patients with simple, understandable written information about your availability in emergencies and the potential limits of confidentiality, including disclosures made voluntarily in your setting, as well as those that can be imposed by law. (See example list in Figure 2, above.) In settings where the initial forms will be presented to prospective patients for signature, provide detailed ethics-based training to both clinical and non-clinical staff who participate in that process, especially if they will be answering patients’ questions (Fisher, 2009). Furthermore, do not presume that a signature on the consent form represents informed consent obtained by others. Begin your own initial interview by reviewing the printed information with the patient and determining whether it was understood.
- Engage prospective patients in conversation about the information you have provided and invite them to ask questions. Clarify your role with each involved party: Define your role with each party clearly and specifically, especially in multi-client cases (e.g., are you their individual psychotherapist, couple/family psychotherapist; consultant if a minor is your psychotherapy patient, etc.?); clarify the limits of confidentiality in each role (e.g., limits of confidentiality for minors will be different from the confidentiality offered to adult patients; collateral parties will not be offered the same level of confidentiality as patients, etc); and in multiple-party cases indicate any role differences across parties.
- Maintain a clinical perspective and professional posture throughout the process. Remember that the goal of this informed consent process is to protect the patient’s right to be informed about policies and risks before consenting to accept your services; but it is also a clinical beginning, and it helps set the tone/structure for the therapeutic relationship going forward. Do not “belittle” the discussion or provide excuses for the informed consent process (e.g., “I wish we didn’t have to begin this way, but this is legally required,” etc.). Instead, introduce it as a way of being sure that prospective patients understand important some of the things they need to know about for deciding whether to begin therapy with you. (e.g., “Before you begin telling me what brought you here, I need to explain some important things, especially about the fact that while confidentiality is the rule in psychotherapy, it will have some limits, because there are some things I can’t keep secrets about . . . .”).
For psychotherapists who also serve as educators, supervisors, or mentors, see the recommendations in the above section, “Implications for Training and Supervision.”
ADDENDUM – For those still “reluctant”
“A first step in remedying the situation is to recognize that informed consent is not a static ritual but a useful process” (Pope & Vasquez, 2016, p. 186).
Across the years, I slowly moved from dreading the initial informed consent discussion at intake to a posture of welcoming it as a very rewarding and appreciated way to begin a psychotherapy relationship.
It was a steep learning curve, because I had been trained to begin the relationship by listening, not by providing information. But with practice, we can progressively learn how to help it be less awkward and more protective of prospective patients. We can also learn the clinical value of re-opening the conversation throughout the relationship, as appropriate.
I live in a state with many unprotective legal requirements, where subpoenas seem to be a dime a dozen. I quickly learned that prospective patients especially appreciated receiving clear information about limits of confidentiality, both limits legally imposed in my state, as well as those voluntarily imposed in my own practice setting. I also learned the hard way that such a conversation needs to happen before the patient begins confiding things that I might later be legally compelled to disclose.
Beginning early wasn’t the only answer. I once might have said things like, “I’m sorry to have to begin this way, but I am required to do this paperwork first…..” Gradually, I learned to say instead – using simple words and an undefensive posture – “I thank you for being here, and I look forward to hearing what brings you here. But first I need to tell you some things you need to know, especially things about when I can keep secrets and when I can’t. My rule is that I do not disclose what you tell me unless you give me permission to do that. But sometimes I make an exception to that rule on purpose, and other times I am legally required to break that rule, so I need to tell you what some of those times are.” If necessary, or if the client presents with urgent needs, the other aspects of the informed consent conversation can wait for later, but as appropriate will be presented before this session ends, and if needed will continue further, as the relationship continues. (See above section “Re-Opening the Informed Consent Conversation” where the last paragraph describes the possibility of telling the prospective patient that the informed conversation may be a progressive process”)
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Pomerantz, A.M. & Handelsman, M.M. (2004). Informed Consent Revisited: An Updated Written Question Format. Professional Psychology: Research and Practice, 35(2), 201-205. DOI: 10.1037/0735-7028.35.2.201
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Adolescent Informed Consent Form
Privacy of Information Shared in Counseling/Therapy:
Your Rights and My Policies
What to expect:
The purpose of meeting with a counselor or therapist is to get help with problems in your life that are bothering you or that are keeping you from being successful in important areas of your life. You may be here because you wanted to talk to a counselor or therapist about these problems. Or, you may be here because your parent, guardian, doctor or teacher had concerns about you. When we meet, we will discuss these problems. I will ask questions, listen to you and suggest a plan for improving these problems. It is important that you feel comfortable talking to me about the issues that are bothering you. Sometimes these issues will include things you don’t want your parents or guardians to know about. For most people, knowing that what they say will be kept private helps them feel more comfortable and have more trust in their counselor or therapist. Privacy, also called confidentiality, is an important and necessary part of good counseling.
As a general rule, I will keep the information you share with me in our sessions confidential, unless I have your written consent to disclose certain information. There are, however, important exceptions to this rule that are important for you to understand before you share personal information with me in a therapy session. In some situations, I am required by law or by the guidelines of my profession to disclose information whether or not I have your permission. I have listed some of these situations below.
Confidentiality cannot be maintained when:
>You tell me you plan to cause serious harm or death to yourself, and I believe you have the intent and ability to carry out this threat in the very near future. I must take steps to inform a parent or guardian of what you have told me and how serious I believe this threat to be. I must make sure that you are protected from harming yourself.
> You tell me you plan to cause serious harm or death to someone else who can be identified, and I believe you have the intent and ability to carry out this threat in the very near future. In this situation, I must inform your parent or guardian, and I must inform the person who you intend to harm.
>You are doing things that could cause serious harm to you or someone else, even if you do not intend to harm yourself or another person. In these situations, I will need to use my professional judgment to decide whether a parent or guardian should be informed.
>You tell me you are being abused-physically, sexually or emotionally-or that you have been abused in the past. In this situation, I am required by law to report the abuse to the Virginia Department of Social Services.
>You are involved in a court case and a request is made for information about your counseling or therapy. If this happens, I will not disclose information without your written agreement unless the court requires me to. I will do all I can within the law to protect your confidentiality, and if I am required to disclose information to the court, I will inform you that this is happening.
Communicating with your parent(s) or guardian(s):
Except for situations such as those mentioned above, I will not tell your parent or guardian specific things you share with me in our private therapy sessions. This includes activities and behavior that your parent/guardian would not approve of — or would be upset by — but that do not put you at risk of serious and immediate harm. However, if your risk-taking behavior becomes more serious, then I will need to use my professional judgment to decide whether you are in serious and immediate danger of being harmed. If I feel that you are in such danger, I will communicate this information to your parent or guardian.
Example: If you tell me that you have tried alcohol at a few parties, I would keep this information confidential. If you tell me that you are drinking and driving or that you are a passenger in a car with a driver who is drunk, I would not keep this information confidential from your parent/guardian. If you tell me, or if I believe based on things you’ve told me, that you are addicted to alcohol, I would not keep this information confidential.
Example: If you tell me that you are having protected sex with a boyfriend or girlfriend, I would keep this information confidential. If you tell me that, on several occasions, you have engaged in unprotected sex with people you do not know or in unsafe situations, I will not keep this information confidential. You can always ask me questions about the types of information I would disclose. You can ask in the form of “hypothetical situations,” in other words: “If someone told you that they were doing ________, would you tell their parents?”
Even if I have agreed to keep information confidential – to not tell your parent or guardian – I may believe that it is important for them to know what is going on in your life. In these situations, I will encourage you to tell your parent/guardian and will help you find the best way to tell them. Also, when meeting with your parents, I may sometimes describe problems in general terms, without using specifics, in order to help them know how to be more helpful to you.
[You should also know that, by law in Virginia, your parent/guardian has the right to see any written records I keep about our sessions. It is extremely rare that a parent/guardian would ever request to look at these records.]
Communicating with other adults:
School: I will not share any information with your school unless I have your permission and permission from your parent or guardian. Sometimes I may request to speak to someone at your school to find out how things are going for you. Also, it may be helpful in some situations for me to give suggestions to your teacher or counselor at school. If I want to contact your school, or if someone at your school wants to contact me, I will discuss it with you and ask for your written permission. A very unlikely situation might come up in which I do not have your permission but both I and your parent or guardian believe that it is very important for me to be able to share certain information with someone at your school. In this situation, I will use my professional judgment to decide whether to share any information.
Doctors: Sometimes your doctor and I may need to work together; for example, if you need to take medication in addition to seeing a counselor or therapist. I will get your written permission and permission from your parent/guardian in advance to share information with your doctor. The only time I will share information with your doctor even if I don’t have your permission is if you are doing something that puts you at risk for serious and immediate physical/medical harm.
* * * * *
Adolescent Consent Form
Parent Agreement to Respect Privacy
Adolescent therapy client:
Signing below indicates that you have reviewed the policies described above and understand the limits to confidentiality. If you have any questions as we progress with therapy, you can ask your therapist at any time.
Minor’s Signature _______________________________________ Date__________
* * *
Check boxes and sign below indicating your agreement to respect your adolescent’s privacy:
/__/ I will refrain from requesting detailed information about individual therapy sessions with my child. I understand that I will be provided with periodic updates about general progress, and/or may be asked to participate in therapy sessions as needed.
/__/ Although I know I have the legal right to request written records/session notes since my child is a minor, I agree NOT to request these records in order to respect the confidentiality of my adolescent’s treatment.
/__/ I understand that I will be informed about situations that could endanger my child. I know this decision to breach confidentiality in these circumstances is up to the therapist’s professional judgment and may sometimes be made in confidential consultation with her consultant/supervisor.
Parent Signature ________________________________________ Date__________
Parent Signature ________________________________________ Date__________
Therapist Signature ______________________________________ Date__________
*NOTE: This is a sample form, designed for training purposes.
To the best of our knowledge, it is consistent with Virginia laws and regulations.
For use in your own setting, this form must be personalized
to reflect your own state’s laws and your own actual policies about confidentiality.
Drafted for The Center for Ethical Practice
by Sherry Kraft, Ph.D. (2005, 2018)
APPENDIX 2: Links to Ethical Material
- Ethics Codes (as of 2020)
- Professional Guidelines & Recommendations re: Telehealth: Informed Consent & Confidentiality
ACA (n.d.) Telebehavioral Health Information and Counselors in Health Care. https://www.counseling.org/knowledge-center/mental-health-resources/trauma-disaster/telehealth-information-and-counselors-in-health-care
APA Practice Directorate, Legal & Regulatory Affairs, (2010, March). “Telepsychology: 50-State Review.”
Campbell, L.F., Millán, F, & Martin, J.N. (2017). A Telepsychology Casebook: Using Technology Ethically and Effectively in Your Professional Practice, American Psychological Association, Washington DC. ISBN: 978-1-4338-2858-4
Felton, E.(2020). “Telemental Health”(Advice re Informed Consent & Confidentiality). National Association of Social Workers (NASW) Office of General Counsel.
NASW (n.d.).“Clinical Social Work Practice Tools: Technology. https://www.socialworkers.org/Practice/Clinical-Social-Work/Technology
Reed, G.M., McLaughlin, C.J., & Milholland, K.M. (2000). Ten Interdisciplinary Principles for Professional Practice in Telehealth: Implications for Psychology. Professional Psychology: Research and Practice, 31, 170-178. DOI: 10.1037//0735-7028.31.2,170
(© 2020), Mary Alice Fisher, Ph.D.
The Center for Ethical Practice is approved by the American Psychological Center for Ethical Practice is approved by the American Psychological Association (APA) to sponsor continuing education for psychologists. The Center maintains responsibility for this program and its content.
The Center for Ethical Practice has been approved by National Board for Certified Counselors (NBCC) as an Approved Continuing Education Provider (ACEP No. 6768). The Center is solely responsible for all aspects of the programs. Programs that do not qualify for NBCC credit are clearly identified.
The Center for Ethical Practice (provider #1287), is approved to offer social work continuing education by the Association of Social Work Boards (ASWB) Approved Continuing Education (ACE) program. Organizations, not individual courses, are approved as ACE providers. State and provincial regulatory boards have the final authority to determine whether an individual course may be accepted for continuing education credit. The Center for Ethical Practice maintains responsibility for this course. ACE provider approval period: 3/21/2021-3/21/2024. Social workers completing this course receive 4 ethics continuing education credits.
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