Informed Consent

Under the principle of informed consent, the client/patient should have enoughinformation to make a knowledgeable, informed choice about whether toproceed with the services offered by the psychologist.

The psychologist may make a judgment
about what information a specific client/patient
s likely to find relevant in making this decision.
Accordingly, it is appropriate to tailor the information to
the client/patient’s particular needs and ability to understand.
The psychologist should answer all client/patient questions
relevant to the services being offered and their potential
effect on him or her.

Informed consent forms and notices may facilitate
this process and the psychologist may choose to use
them. Documentation that the client/patient was provided
with information about the services and agreed to receive
the services is essential.

In addition to their own professional judgment,
psychologists must abide by the APA Ethics Code (APA,
2002) in obtaining informed consent. Psychologists are
also advised to adhere to certain principles from case
law, as described below.

The principle of informed consent rests upon
the assumption that the client/patient has the ability
to make a decision about whether or not to accept the
psychologist’s services. That is, the client/patient must
be cognitively competent and not mandated to accept the
services. Other principles, established in the APA Code
(Sections 3.10 (b) and 3.10 (c)), apply when the client/
patient does not have the ability to make this decision.

1- APA Ethical Principles and Code of Conduct:

Psychologists should be familiar with the sections
of the APA Ethical Principles and Code of Conduct
governing informed consent.

Standard 3.10 establishes standards for informed
consent in all the psychologist’s professional activities.
It requires that informed consent be obtained using
language that is reasonably understandable. Further, the
psychologist follows specific procedures in situations
where the client/patient is legally incapable of giving
consent or where services are mandatory. It also requires
that informed consent be documented in writing, though
the consent itself may be oral.

Standard 8.02 governs informed consent to research. It
establishes eight types of information that must be given
to all psychologists’ research subjects and an additional
five types when the subjects will undergo an experimental
treatment.

Standard 9.03 governs informed consent to
assessments. The standard requires an adequate
explanation of the nature and purpose of the assessment,
fees, third party involvement and limits of confidentiality.
Client/patients must be given an opportunity to ask
questions and receive answers. Informed consent should
be obtained from the client/patient regarding the use of
an interpreter and confidentiality must be assured.
Standard 10.01 governs informed consent to
therapy. It establishes that the following information
must be provided “as early as is feasible:” the nature
and anticipated course of therapy, fees, involvement of
third parties, and limits of confidentiality It establishes
additional standards for treatment provided by trainees
and for treatment “for which generally recognized
techniques and procedures have not been established.”

Case Law: Court decisions have established a legal consensus
about additional aspects of informed consent. This legal
consensus, has, in turn, influenced our professional
ethics. Psychologists may be guided by these additional
principles in their efforts to achieve the highest level of
ethical practice and for purposes of risk management.

• Types of information to be provided:

The client/patient should be aware of risks and benefits of,
and alternatives to, the services being offered. As
noted above, the psychologist may use professional
judgment in determining the pertinent risks, benefits
and alternatives to present to client/patients. For
example, information the client/patient already knows
does not need to be presented. On the other hand,
information that he or she may not know and that
appears reasonably likely to be something he or she
would consider in making his or her decision, should
be provided. Sometimes, a psychologist may need to
disclose the fact that there are other schools of thought
about how to treat a particular condition.
In addition, a psychologist must disclose personal
interests, including research and economic interests,
unrelated to the client/patient’s health that would
be reasonably likely to affect the psychologist’s
judgment.

• Consent should be fully voluntary:

Psychologists should avoid coercive pressure on the
client/patient to accept services. For example,
conditioning a recommendation for a leave of absence
from work on the acceptance of psychotherapy might
pressure the client/patient into accepting psychotherapy.
On the other hand, telling the client/patient that
psychotherapy may make it more likely that he or she
will be able to return to work is appropriate, if that is
the psychologist’s assessment.

Reference:
American Psychological Association. (2002). Ethical
principles and code of conduct. American Psychologist,
57, 1060-1073.
Bram Fridhandler, Ph.D., and the 2004
Expertise Series Task Force.
Board of Psychology Update June 2006
http://www.fridhand.net

2- Consumer Right to Informed Consent:

You have the right to know all risks, benefits and treatment alternatives before consenting to any treatment. You have the right to refuse treatment by withholding your consent.

WHAT IS INFORMED CONSENT?

Informed consent is more than merely your agreement to a particular treatment or procedure. Informed consent is your agreement to a proposed course of treatment based on receiving clear, understandable information about the treatment’s potential benefits and risks.1 You must also be informed about all treatments available for your health condition, and the risks of receiving no treatment.

WHY IS INFORMED CONSENT IMPORTANT TO ME?

The decision to accept (consent to) or reject (refuse to consent to) a treatment, therapy or medication is ultimately yours to make — not your doctor’s or other health care provider’s.

You must take an active role in order to receive high quality health care. The first step is having the appropriate information about your medical condition. Once you know about all the risks, benefits and treatment alternatives, you may decide the risks are too great or the benefits too few to justify undergoing the treatment. With this kind of information, you may choose to refuse the treatment by withholding your consent.

IS MY INFORMED CONSENT ALWAYS REQUIRED FOR ALL MEDICAL TESTS OR PROCEDURES?

Most of the time, yes. While your informed consent is usually required, there are two exceptions where your doctor does not need to have your informed consent before beginning treatment.

Simple and Common Exception: The first occurs when a “simple and common” procedure, such as a typical blood screening is performed. When risks from such procedures are commonly understood to be remote, your doctor need not discuss the risks, benefits or alternatives to the procedure with you. You must still agree to the procedure, however, before it is done.

If you are incapable of giving informed consent, the law presumes that you would consent to life-saving treatment, and the physician is authorized by law to provide it.

Emergency Exception:The second situation is in a life-threatening emergency. This is known as the Emergency Exception.

An “emergency” is defined for purposes of this exception as a situation requiring immediate treatment of a medical condition that would otherwise lead to serious disability or death.

There are two specific limitations on the Emergency Exception: If the patient is unable to give consent, the physician must make a reasonable effort to locate a family member or legally authorized representative who can give informed consent on behalf of the patient before treatment.

No treatment can be given if the doctor knows or has reason to know that the patient has previously executed a Durable Power of Attorney for Health Care or a Declaration under the Natural Death Act that expressly refuses life saving treatment.

IS THE DOCTOR REQUIRED TO TAKE THE TIME TO TALK TO ME ABOUT INFORMED CONSENT?

Yes. Your doctor has a duty to fully inform you about all of the risks and benefits of suggested treatments in terms you can understand.

HOW DO I GIVE THE DOCTOR INFORMED CONSENT?

Informally: Often, your informed consent comes informally in the course of discussion with your doctor during a routine office visit or similar situation.

Formally: Informed consent can also be given formally, by signing a document that states your doctor has fully discussed a treatment or procedure with you and that you have acknowledged and agreed to the risks. In a formal consent, you are usually asked to sign a form titled “Informed Consent to Treatment,” or something similar. This is especially true in situations involving hospitalization, surgery or invasive testing.

California law requires that your consent be obtained in writing for several specific procedures and treatments for specific types of conditions, including:

sterilizations,
hysterectomy,
breast cancer,
prostate cancer,
gynecological cancers,
psychosurgery, and
electroconvulsive therapy.

If a physician has a personal interest in treating you, either financial or research-related, then he or she must disclose those interests to you. Because any such interest might influence your physician’s judgment about treatment decisions, he or she is required to tell you about that interest before a procedure is performed and obtain your informed consent when you participate in a medical research study.

Another circumstance in which specific disclosures and obligation of physicians to you are mandated by law is the area of human experimentation and research.15 Federal law has established extensive regulations governing federally funded biomedical and behavioral research.

WHEN SHOULD MY DOCTOR DISCUSS THE RISKS AND BENEFITS OF A PROPOSED COURSE OF TREATMENT AND ANY TREATMENT ALTERNATIVES WITH ME?

Any discussion of a proposed course of treatment must take place BEFORE the treatment is given.

You are sometimes asked, as a routine part of filling out medical history and personal information forms, to sign an informed consent document. This sometimes happens before you see the doctor or care provider and before you have had the treatment and/or any alternatives explained and before there has been any chance to ask any questions.

Never sign any such document until AFTER there has been a full opportunity to have all of your questions answered and concerns discussed.

WHAT KINDS OF QUESTIONS SHOULD I ASK SO I CAN GIVE “INFORMED CONSENT?”

The key here is to ask for the information you need to decide whether or not you want to agree to treatment. Below are some examples of questions that will help you. This is not intended to be a complete list, as appropriate questions will differ depending on the medical condition or treatment being considered. These questions will help begin a discussion with your physician or care provider in order to make a truly “informed” decision about your body and health care:

What is the condition, disease, or problem called?
How do you recommend treating it?
What are the risks of this type of treatment?
What are the benefits?
What is the complication (morbidity) rate for this treatment?
What is the mortality (death) rate for patients in my condition using this treatment?
What other treatments are available? Why are those not recommended?
What will happen if I don’t do anything?
How many patients have you cared for with this problem? How many patients have you performed this surgery or this test on?
What is your success rate in treating this problem?
If I undergo this treatment, will it prevent me from using an alternative treatment if needed?
Are you board certified in the specialty that treats this disease or condition?
What can I expect if I undergo this treatment?
Will I be able to work and/or care for myself?
Will my activities be restricted?
How much pain or discomfort will I be in?
Will this treatment cause other problems?
What kind of side effects should I expect?
What should I do if I experience side effects?
Will you personally perform the surgery, test, or procedure?18
Is anesthesia necessary?
Who will be the anesthesiologist?
What can I expect if I don’t undergo this treatment?
What are the alternatives to this treatment?
What are the potential risks, complications or side affects associated with the alternative treatment?

Doctors are not required by law to disclose their own record of complications or outcomes with you to obtain informed consent. Therefore, you should always ask questions to determine the competency of your doctor in performing a particular procedure or caring for a particular disease or condition. You should always investigate the doctor with the appropriate licensing or regulatory board before engaging medical services. (see list at the end of this chapter)

IS THE DOCTOR LIMITED BY MY INFORMED CONSENT?

Yes. The doctor is limited by the scope of your informed consent. This means that the doctor cannot perform any procedure or treatment other than those discussed with you to which you agree.

This is also true under the Emergency Exception previously discussed. Your doctor may only do what is necessary to stabilize you and eliminate the emergency situation. If a procedure can safely be postponed until informed consent is obtained, then it must be postponed. If the doctor does not postpone the procedure when it is safe to do so, you may sue him for battery if you would have refused to give consent.

WHAT ARE MY RIGHTS IF THE DOCTOR DOESN’T GET MY CONSENT, OR PERFORMS SERVICES BEYOND THE SCOPE OF MY INFORMED CONSENT?

You may be able to sue the doctor for battery and recover damages for any injury to you caused by the doctor’s failure to get your informed consent, or by the doctor’s performance of procedures or treatments beyond those to which you agreed.

If your physician fails to get proper informed consent, this is considered negligence, and may be the basis for a medical malpractice lawsuit. If you think that this has happened to you, immediately consult an attorney who specializes in medical malpractice. The statute of limitations (the time within which the law allows lawsuits to be filed) for medical malpractice is one year from the time you knew or should have known that malpractice had been committed.

http://www.calpatientguide.org/ii.html

3- HMO Consumer Complaint Hotline:

In the interest of consumer protection,
the Board of Psychology enthusiastically
supports the Consumer Complaint
Hotline of the Department of
Corporations.

The Board encourages all
licensees to post the hotline number in
their offices so that HMO patients are
aware of the recourse they may have in
dealing with their managed care
insurance carrier.

The hotline number is: 1-800-400-0815

A formal complaint may be filed with the
Department of Corporations after a
patient has attempted all available
remedies within the HMO grievance
system.

HMO personnel who are licensed psychologists
must adhere to all ethical principles applicable to the
profession, as well as all laws relating to
psychology licensure.

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