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

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

Elyn R. Saks
Shahrokh Golshan
Copyright Date: 2013
Published by: Fordham University Press
Pages: 144
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  • Book Info
    Informed Consent to Psychoanalysis: The Law, the Theory, and the Data
    Book Description:

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

    eISBN: 978-0-8232-5050-9
    Subjects: Law

Table of Contents

  1. Introduction
    (pp. 1-4)

    Psychoanalysts have been up in arms about certain legal intrusions into the analytic space. For instance, inroads on confidentiality have been a great concern (see, for example, Bollas and Sundelson, 1995); indeed, the American Psychoanalytic Association has devoted considerable resources to lobbying in Congress and intervening in lawsuits so that privacy may be better protected (see the American Psychoanalytic Association’s “Essential Privacy Principles for Quality Health Care” and the American Psychoanalytic Association amicus brief inJaffee v. Redmond[1996] and inMaryland v. State Board of Physicians v. Eist[2007]).

    At the same time, legal actions have turned on the...

  2. 1. Law and Literature on Informed Consent
    (pp. 5-23)

    Is there a legal requirement to obtain informed consent? Reviewing relevant cases and statutes bearing on informed consent to psychotherapy should help us gauge that. Naturally, there is less urgency for mental health professionals sorting through what to disclose or not if there is no legal informed consent requirement. There are very few cases that imply such a duty on the part of mental health professionals in the context of psychotherapy. On the other hand, many state statutes and regulations seem to require informed consent to therapy. In addition, Ethics Codes of the professions raise their own expectations, and many...

  3. 2. Analysis of the Concept of Informed Consent: The Theory
    (pp. 24-50)

    This chapter, in essence, is an exploration of the concept of informed consent. What are the values behind it? Is it possible? Is it desirable? The first section presents background material on an informed consent requirement: the values behind an informed consent requirement and whether psychoanalysis shares those values. The second section discusses what the standard elements of informed consent are in the psychoanalytic context. The third section considers whether informed consent to psychoanalysis is even possible. The fourth section discusses the likely (or possible) effects of an IC requirement, while keeping in mind alterations in certain technical precepts, such...

  4. 3. Empirical Study: Methods and Results
    (pp. 51-64)

    The empirical part of this project surveys a significant number of analysts throughout the country. We discuss first the development of our survey instrument. We then discuss our most general hypotheses and explain how our subjects were randomly selected. Then we describe demographic characteristics of the sample respondents.

    We then lay out the data, both descriptive and inferential, in the Results section. We describe our data analytic methods here. We report descriptively the findings on the survey questions. For example, what percentage of survey participants gives an informed consent and what percentage includes malignant regression as a risk? In an...

  5. 4. Empirical Study: Discussion
    (pp. 65-79)

    In this chapter, we discuss some of the more interesting and important aspects of our findings in both the descriptive and inferential data sections. Our most basic hypothesis was that the results would show considerable variability. We so hypothesized because there are pressures on both sides in the context of informed consent—pressures pulling toward and pulling against giving informed consent. This hypothesis was amply confirmed. Our further hypothesis was that these pressures would result in ambivalence in individual analysts. That is, each analyst may have felt both pressures. (The alternative is that roughly half felt unambivalently in favor of...

  6. 5. Limitations of Our Study and Directions for Future Research
    (pp. 80-85)

    In this chapter, we address some important limitations of our study, suggest future studies that might address those limitations, and offer other suggestions for future research.

    First, and perhaps most important, analysts may have different conceptions of informed consent when they answer questions such as whether they provide an informed consent to their patients. The first question of our survey asks, “Do you give an informed consent to your patients?” noting that “By ‘informed consent’ we mean a disclosure, roughly, of the nature of analysis, its risks and benefits, and alternatives.” So, although the essential elements of informed consent are...

  7. Afterword: Our Own View
    (pp. 86-90)

    While our aim in this book is to explore informed consent in the psychoanalytic context and not to advocate for a particular view, it would perhaps make sense for us to lay out, in a preliminary way, our current thinking on the topic. We also briefly discuss the dilemma of the analyst who disagrees with what may be required by informed consent laws.

    As a normative matter, we believe that informed consent is necessary and important, but we would like to see a “process view” of informed consent implemented.

    Why is informed consent necessary for patients undergoing psychotherapy? Simply put,...

  8. Conclusion
    (pp. 91-92)

    In this book, we reviewed the law and literature on informed consent to psychotherapy. In terms of case law, there is actually only one reported case that speaks of an adult’s informed consent to therapy in general. There are a few child cases, as well as cases where a specific item—the limits on confidentiality—is said to be a necessary item of disclosure for therapy patients. One case that settled,Osheroff v. Chestnut Lodge, strongly suggests that informed consent is necessary for therapy. There are also at least twenty-one statutes or regulations that say or imply that there is...

  9. A. Ethics Codes: Informed Consent Provisions
    (pp. 95-97)
  10. B. Statutes and Regulations on Informed Consent to Psychotherapy
    (pp. 98-102)
  11. C. The Survey Instrument: Informed Consent to Psychoanalysis
    (pp. 103-118)