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7.4 Informed Consent

What is Informed Consent?

Informed consent is an ongoing and collaborative process. Essentially, it is the intentional act of the client and counselor working together to define therapy. Counselors voice that clients make an autonomous, informed, voluntary, and rational decision to participate (Barnett, 2007; Fisher, 2008). With this in mind, one could refer to informed consent more accurately as a collaborative, informed choice. More formally, Barnett (2007) defines informed consent as “a shared-decision making process in which the counselor communicates sufficient information to the individual(s) about participating in services such that they can make an informed decision about taking part in the professional relationship”.

The timing of informed consent is essential. The best practice is for counselors to begin the informed consent process as early as possible as a foundation to build the therapeutic relationship (Barnett, 2007). At the outset of counseling work, counselors are unaware of where the work will go, and clinical outcomes, so informed consent continues over time as they attune and respond to the changes and needs of clients in real-time (Barnett, 2007). It is essential to include the client in making decisions about the course of treatment, their care plan, modality, and anything else that differs from the current agreement (Barnett, 2007; Fisher, 2008). Informed consent and ethical practice go hand in hand, as informed consent communicates respect and trust and reinforces client autonomy. All professional ethics codes outline the need for informed consent, and ACA and NAADAC codes are included below (ACA, 2014; NAADAC, 2021):

“Clients have the freedom to choose whether to enter into or remain in a counseling relationship and need adequate information about the counseling process and the counselor. Counselors must review the rights and responsibilities of both counselors and clients in writing and verbally with the clients. Informed consent is an ongoing part of the counseling process, and counselors appropriately document informed consent discussions throughout the counseling relationship” (ACA, 2014, Standard A.2.a.).

“Addiction professionals shall ensure that each client is fully informed about treatment and shall provide clients with information in clear and understandable language regarding the purposes, risks, limitations, and costs of treatment services, reasonable alternatives, their right to refuse services, and their right to withdraw consent within the time frames established within the consent. Providers shall review the rights and responsibilities of both the provider and the client with their client, both verbally and in writing. Providers shall have the client attest to their understanding of the information presented in the informed consent by signing the informed consent document” (NAADAC, 2021, Standard I-2).

Historical Context of Informed Consent

The counseling field moved away from the historical medical treatment model and toward a wellness model of human health. In the 19th and 20th centuries, the United States adhered to a medical model where physicians were not mandated to ask for permission or consent to treat a patient. The underlying message is that the “professional knows best,” and the patient’s beliefs and ownership of their life and body were discounted. Patients were passive recipients of care, which they may not have wanted in the first place (Barnett, 2007). The counseling field adopts a wellness-oriented approach that is values-based, person-centered, and focused on the person’s welfare (Barnett, 2007). These foundational values are aligned with counseling virtue ethics, including autonomy, beneficence, non-maleficence, justice, fidelity, and veracity, as discussed in Chapter 1, and reflect a need for informed consent.

In addition to ethics, legal statutes guide informed consent practices. Various case laws have shaped what must be included for valid informed consent. The Scholoendorf versus Society of New York Hospital case ruled in 1914 that “every human being of adult years and sound mind has an inherent right to determine what should be done with their own body” (Barnett, 2007). This marked the birth of informed consent and a trend toward client care being in the service of the person. Further, specific informed consent requirements outlined now in ethics and legal statutes were marked by various malpractice lawsuits throughout the 1950’s-1970’s (Barnett, 2007). In 1957, Saigo versus Leland Stanford Jr. University Board of Trustees ruled that a patient must thoroughly understand the information a counselor shares during informed consent (Barnett, 2007). This case also determined that counselors must share the risks and benefits of participating in services with valid informed consent (Barnett, 2007). Additionally, the Truman versus Thomas case (1980) established that clients must understand the risks and benefits of refusing services (Barnett, 2007). This is an addition to individuals knowing the risks and benefits of participating in treatment. The Osterhoff versus Chestnut Lodge case of 1985 solidified that clients must be aware of alternatives to treatment and the associated risks and benefits of those alternatives (Barnett, 2007). Ethical codes address these needs and are included below (ACA, 2014; NAADAC, 2021). More case law examples will be shared throughout this section to verify counseling ethics requirements around informed consent.

What is Included in Informed Consent?

Informed consent is both clinical and administrative. Of clinical relevance, counselors lay the groundwork for the therapeutic process by communicating specific information with clients to inform them about the process of counseling, their lens, and overarching goals and to begin building the helping relationship. Administratively, clients enter a binding contract by participating in services and must know what they are agreeing to. Part of informed consent also includes elements of the arrangement like billing, fee agreements, scheduling, and involvement of third parties (Barnett, 2007). Additional elements based on ethics and case law that professionals suggest to include in informed consent are outlined in Box 7.1.

Another administrative task is documenting informed consent, which must come directly from the client in verbal and written form (APA, 2003). The relevant ACA code detailing information counselors must provide during informed consent is included below (ACA, 2014). As always, counselors are responsible for knowing what is needed in their jurisdiction, taking steps to obtain it, and documenting all efforts.

The ACA (2014) highlights what is included in informed consent in its ethical code:

“Counselors explicitly explain to clients the nature of all services provided. They inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor’s qualifications, credentials, relevant experience, and approach to counseling; continuation of services upon the incapacitation or death of the counselor; the role of technology; and other pertinent information. Counselors take steps to ensure that clients understand the implications of diagnosis and the intended use of tests and reports. Additionally, counselors inform clients about fees and billing arrangements, including procedures for nonpayment of fees. Clients have the right to confidentiality and to be provided with an explanation of its limits (including how supervisors and treatment or interdisciplinary team professionals are involved), to obtain precise information about their records, to participate in ongoing counseling plans, and to refuse any services or modality changes and to be advised of the consequences of such refusal” (Standard A.2.b.).

Barnett (2007) proposed the following elements to include as part of informed consent:

  • Fee arrangements
  • Information regarding insurance coverage and managed care details
  • Any involvement of third parties (ie. billing or insurance personnel; parent/ guardian/ conservator status if applicable; probation or other legal people if applicable)
  • Client rights
  • Anticipated duration of therapy (if known), or keep open-ended if it would be harmful to share this information
  • What a client can expect from therapy; In a study completed by Miller (1996), 96% of clients wanted to know expectations for counseling before starting services. This eased some anxiety and de-mystified the rather ambiguous process of therapy.
  • Risks and benefits of participating in treatment
  • Client’s right to refuse or withdraw from counseling services at any time
  • Risks and benefits of not participating in treatment
  • Alternatives to treatment and their risks and benefits
  • Confidentiality- what it is and how it is protected,
  • Limitations to confidentiality- counselor’s status as a mandated reporter, duty to warn, and what breaking confidentiality entails in these situations
  • Accurate status of their degree and licensure
  • If the counselor is a student or pre-licensed counselor, they share this with the client, that they engage in regular supervision with a licensed supervisor, and provide contact details for this person
  • If counselors work as part of a multi-disciplinary care team, they inform clients that information is shared between team members for client care (refer to relevant ethical codes).
  • Counselors can determine additional relevant and ethical elements to include in their informed consent practices and are free to add them to this list

Box 7.1 Elements of Informed Consent (Barnett, 2007)

Why is Informed Consent Important?

Informed consent lays the foundation for the therapeutic process. Engaging in informed consent communicates personhood to a potential client by allowing their agency into the space, building mutual trust, an air of collaboration, dissipation of some power dynamics, and building a client’s sense of ownership, empowerment, and self-determination (Barnett, 2007; Fisher, 2008). Often, these are overarching therapeutic intentions. Research has demonstrated that interventions focused on personal agency and self-direction are correlated with positive therapeutic outcomes (Fisher, 2008). Clients have a right to make their own decisions, and they need sufficient information to weigh options about services to decide what is best for themselves (Fisher, 2008). Research has also shown that involving clients in decisions about their care is correlated with greater collaboration in the therapeutic relationship, less dependence on a counselor, and positive outcomes (Fisher, 2008). Doing so sets a tone of empowerment from the start. Further, counseling is a somewhat arbitrary process, as clients may need to figure out what to expect. Informed consent can “de-mystify” it by clarifying roles and expectations, thereby taming some anxious feelings associated with engaging. All of the above is done for the client’s beneficence, non-maleficence, and autonomy.

How Do I Obtain Adequate Informed Consent?

Legal statutes govern what constitutes valid informed consent from a client to participate in services (Barnett, 2007). For consent to be valid, the potential client must actively demonstrate to the counselor that they understand the content of informed consent. Per the Canterbury versus Spence ruling of 1972, counselors must ask clients to recall what they heard to validate consent. Asking them to answer questions about it is insufficient to prove their understanding. Per Fisher (2008), the following three conditions must also be met to warrant legally valid consent:

  • The client understands the presented content.
  • The client gives consent freely and voluntarily as an autonomous person. By definition, consent cannot be given if force, coercion, or manipulation is involved.
  • Clients are deemed competent to give consent.

Minors (under age 18, except emancipated minors) are incompetent to give consent. There are state laws that give minors the right to consent to substance use and mental health services at earlier ages, as discussed in Chapter 10. Parent(s)/ legal guardian(s) typically give consent for minors and are therefore involved in the informed consent process.

There are cultural elements at play in informed consent. Counselors are asked to balance their cultural lens and cultural competence codes with other ethics codes to determine person-centered best practices. In this case, counselors must attune their informed consent processes to the cultural needs of the person(s) sitting in front of them. They consider developmental status, age, language, cultural values, and background and adjust as necessary to provide adequate informed consent to each unique individual they work with (Barnett, 2007). As part of the Canterbury versus Spence case law mentioned above, counselors are indeed legally responsible for adapting their informed consent practice based on the needs of the people(s) they work with (Barnett, 2007).

Case Study: Vivienne and Informed Consent

Vivienne is a 35-year-old woman seeking counseling for anxiety and relationship issues. She is referred to a mental health clinic by her primary care physician and begins sessions with Dr. James, a licensed counselor.In the first session, Dr. James explains the process of therapy to Vivienne but does not provide her with written documentation outlining the full scope of informed consent. While Dr. James mentions confidentiality briefly, he does not explain the limits of confidentiality (e.g., situations involving harm to self or others, court orders). Additionally, the duration of sessions, fees, and the possibility of supervision by another therapist are not discussed.

Vivienne begins to open up about her struggles with anxiety, and the sessions proceed smoothly for the first few weeks. She feels she is making progress and becomes comfortable with Dr. James.

Three months into therapy, Vivienne casually mentions in a session that her partner has been physically abusive. Dr. James, adhering to mandated reporting laws in his jurisdiction, contacts the authorities without informing Vivienne beforehand. She learns about this action only when the police show up at her home for a welfare check. Vivienne feels shocked and betrayed, as she was unaware that Dr. James was required to report this information.

Additionally, Vivienne had not been made aware that Dr. James’s sessions were being supervised by a senior therapist, and some of her sessions were being recorded for supervision purposes. She finds out about this when she requests her records and sees notes that refer to discussions between Dr. James and his supervisor.

Vivienne feels that her trust in Dr. James is broken. She had believed that their sessions were private, and the sudden involvement of external authorities without her knowledge makes her feel violated. She expresses that, had she known about the limits of confidentiality, she would have approached her disclosure differently.

Vivienne decides to terminate therapy abruptly, stating that she no longer feels safe in the therapeutic environment. She also expresses concern about the recordings and supervision, which she had not consented to. This causes emotional distress and sets her back in her mental health journey. Dr. James is reported to the clinic’s ethics board by Vivienne, who claims that she was not properly informed about critical aspects of her treatment. The board finds that Dr. James failed to adequately obtain informed consent, as he did not thoroughly explain the limits of confidentiality, the possibility of third-party supervision, or the fact that some sessions were being recorded.

Discussion Questions

  1. How could have Dr. James communicated the limits of confidentiality more effectively to Vivienne?
  2. How can verbal explanations be supplemented to ensure clients fully understand and consent to the therapeutic process?
  3. What might Dr. James do differently in the future to prevent similar issues and ensure clients feel safe and informed?
  4. What can counselors learn from Vivienne’s experience to improve their practices and client relationships?
  5. What are the potential legal and professional repercussions for Dr. James due to the failure in informed consent?

 

 

Activity: Informed Consent Document

The informed consent document is a critical tool in establishing a clear, transparent relationship between counselor and client. It should be reviewed regularly and adjusted as necessary to reflect any changes in practice or legal requirements. Develop a comprehensive informed consent document for a counseling practice, ensuring it covers all critical aspects of the therapeutic process and aligns with ethical and legal standards. Include the following sections in your informed consent document:

1. Introduction

  • Provide a brief overview of the counseling services offered.
  • Include the purpose of the informed consent document.

2. Confidentiality

  • Explain the concept of confidentiality and its importance in counseling.
  • Outline the limits of confidentiality (e.g., mandatory reporting, safety concerns, legal requirements).
  • Detail any situations where information may be shared without the client’s consent.

3. Counseling Process

  • Describe the structure of sessions, including duration, frequency, and typical content.
  • Explain the therapeutic methods and techniques that may be used.

4. Fees and Payment

  • State the cost of services, payment methods, and any policies related to missed or canceled appointments.
  • Include information on whether insurance is accepted and how billing is handled.

5. Supervision and Recordings

  • Inform clients if sessions are recorded for supervision or training purposes.
  • Explain the purpose of supervision and how recordings will be used and stored.
  • Obtain explicit consent for supervision and recording if applicable.

6. Client Rights

  • Outline the client’s rights, including the right to ask questions, the right to withdraw from therapy at any time, and the right to review their records.
  • Detail the process for clients to raise concerns or complaints.

7. Emergency Procedures

  • Provide guidance on what clients should do in case of an emergency or if they need support between sessions.
  • Include contact information for crisis services and emergency contacts.

8. Consent to Participate

  • Include a section where clients indicate their understanding and agreement to the terms outlined in the document.
  • Provide space for clients to sign and date the document.

9. Review and Updates

  • State how often the informed consent document will be reviewed and updated.
  • Inform clients that they will be notified of any significant changes.

 

Key Takeaways

  • Informed consent is an ongoing, shared decision-making process that ensures clients make autonomous, informed, and voluntary choices about their care.
  • It is mandated by ethical codes (ACA, NAADAC) and legal statutes, highlighting client autonomy, understanding, and voluntary agreement.
  • A thorough informed consent document includes details about confidentiality, session structure, fees, supervision, client rights, and the limits of confidentiality.
  • Proper informed consent fosters trust, reduces power imbalances, and empowers clients, which contributes to positive therapeutic outcomes.
  • Counselors must tailor the informed consent process to meet the cultural, developmental, and individual needs of clients to ensure comprehension and validity.

 

License

Ethical Practice in Co-Occurring Substance Use Disorder and Mental Health Counseling Copyright © by Tom Hegblom; Zaibunnisa Ahmed; London Fischer; Lauren Roelike; and Ericka Webb. All Rights Reserved.

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