BRIEF
The
Psychotherapist
BY JOHN
0.
NOLL,
and
Informed
Consent
PH.D.
The author increasingly
points out that psychotherapists are being required by law tofunction as instruments ofsocial control. He believes it is incumbent on therapists to employfull and informed consent procedures with their patients in regard to the effects ofproviding psychiatric information to potential employers, insurance carriers, and other third parties.
transform
the
double
OF
THE
power
double sional
oven
usually tween
needs patient.
will almost invariably Bazelon (2) referred
al ways therapeutic
unacknowledged the individual
professional.
He also
the professional’s
tenmining
the
and
antagoni.stic the hospital
are
placing
those
who
seek
gave
illustrations
own
hidden
professional’s
patient, e.g., such concerns Halleck (3) stated,
ofthe
influence
agendas conduct
as public
have
in de-
toward
the
relations.
A patient . . . usually assumes that the doctor has no other purpose except to help him; he may not know or may easily forget that his psychiatrist also holds allegiance to an agency. Therefore, the patient may reveal things that can lead the psychiatrist to make decisions that result in denying the patient privileges. (p. 120)
In other words, the individual incriminates The double agent functions of psychiatry what Szasz (4) referred to as institutional contrasted xxiii). The
that
to what he called contractual distinguishing characteristic
individuals
who
independently
himself. represent psychiatry,
psychiatry of the latter
seek
any other outside interest. As a consequence, need not fear that what they confide to their will
be
used
against
With
rare
exceptions
correct,
Dr. Noll Department
Forks,
but
there
is Professor and of Psychology,
N.D.
58201.
them
in any
are
circumstances
psycho-
Director of the University
patients therapist
combine
Clinical Training of North Dakota,
Program, Grand
a
several
years
in the
jeopardy
as
therapists.
there
number
mental health (3, 7). These
are
problem? Individuals chotherapy
psychopracti-
has
apparently
of requests
for in-
professionals regarding requests emanate largely
are interested in prospective emon psychiatric backgrounds.
including
on
employment
application
following question: for an emotional
Have on men-
tal
who have on counseling
may answer est,” they
received have
or are receiving two alternatives:
yes on no to the question. will respond affirmatively;
psythey
Ifthey are “honif they feel that
this is a private matter, they may answer no. When individuals reply yes to the question they engage in their own incrimination and place their prospects for employment in jeopardy. Once they have indicated an aS-
firmative
response
they
a waiver
form
permits
that
to
on present
low the formation
ployen mation When
employer that
double
agent
may
If the
but
to sign
or his
with
no choice
the
applicant
to give
or hen
applicant’s wants
the
consent
to obtain highly sensitive be used repressively;
for
grant
also
risk
because
their
consent
converting
the
most
information
waiver.
The
to al-
personal i.e. , the
in-
psychiatrist
a former AmJPsychiatry
the
into
respond
the
a to
accompanied
that
how much to a request
by
therapist
for-
harm is done for information
to the can
for the therapist is illustrated comments regarding such
who
patient
will
are
of reply
process Halleck’s
by signing
therapist
therapists
that
kind
will determine That a reply
be an agonizing by some of requests (3): The
requested
employer
therapist.
individuals
they
about
the
emmay not hire the applicant because of the inforobtained from the individual’s therapist.
waiver
mulates patient.
are typically
communicate
he on she has
signed
to
in as much institutional
forms some variant of the you ever received treatment
requests
is undoubtedly that
past
increase
Employers
seek contractual independent private
from
from employers who ployees’ psychological
former
way.
this assumption
the
a vast
job,
therapeutic help make their own contractual arrangements with a mental health professional in private practice. In a contractual arrangement the therapist is presumed to place the interest of his on hen client above
into
circumstances
SITUATIONS
representative
(p. is
relationship
particular
themselves
AGENT
Oven
who an
help
formation from former patients
relationship beor institutional
These
individuals help from
tionen
been
supersede to a basic,
contractual
situation.
have been explored only recently (5, 6). A brief examination ofthese circumstances will reveal that in seven-
may exthe role of
agent (1). Whenever the mental health profesis employed by an agency on by an institution,
the institution’s those of the
that
in which psychotherapists others is by assuming
WAYS
private
agent
DOUBLE
ONE encise
COMMUNICATIONS
receives .
.
. is
133:12,
a request in a
difficult
December
for
information
moral
/976
position.
1451
a
BRIEF
COMMUNICATIONS
If the patient knows that some highly there will be science
will
his policy. cal.
Usually,
The
things the
reveal
a job
situation
could can
that
prevent
say
his
equivo-
some
of
former
the
patient
Sometimes
that
the patient
honestly,
is more
knows
or a policy.
psychiatrist
responds
the
frequently
might
getting
little
however,
psychiatrist he
from
was not too disturbed and if the psychiatrist he benefited from treatment, he can write commendatory things about his client and few complications. The psychiatrist’s conthus be clear and his patient will get hisjob or
would
loses.
there is very be favorable: if he (p. 125)
Although Halleck made this statement as an institutional psychiatrist, his comments reflect the dilemma of most private practitioners who are the recipients of requests for information accompanied by a signed
waiver. agent
The
therapist
becomes
bened
who
a double
potential
was
agent
for using
once
with
the
patient’s
virtually
unencum-
his or hen knowledge
about
the patient repressively. If the therapist was pleased with the outcome of his on hen contacts with the patient, a highly commendatory statement about the patient may overcome the stigma the patient may canry for having sought therapy in the first place. If the therapist was not pleased with the patient, the situation is more equivocal, and the communication written to the employer may be accompanied by a depreciating, stigmatizing label as well as a damaging character reference. Halleck’s statement also mentions another sphere of individual autonomy that may bejeopandized as a con-
sequence insurance, cations
ofhaving
seen
particularly almost invariably
the status the person
a therapist, life
of the person’s mental respond affirmatively
she the
will be required to sign insurance company to
the
therapist.
As
in the
the application
for
insurance. Insurance appliinclude a question regarding
health. Again, to the question
a waiver request
instance
form that information
of the
should he on
the application. One of the inherent
dangers
ing coverage
for mental
health
fully
of their
who
therapy.
been
The
1452
Am
J Psychiatry
/33:12,
December
above
double
examples
many
on treat-
patients
may
the consequences
tam inquiries patient are license.
are illustrative
that
agent.
LEGAL
not
be
of not hay-
place
Examples
the
of other
that may have those for college
of the many
therapist
in the
applications
untoward admission
othrole
that
of
con-
results for the and a driven’s
PRESSURES
There are other newly emerging pressures that might transform the psychotherapist into a double agent through legislative action and judicial decision. In essence, the new laws andjudicial decisions appear to be explicitly transforming the psychotherapist into an instrument of social control.
Two
/976
that
will suffer
en circumstances
care.
psychotherapists may find concept of informed consent
procedures
informed.
an
examples
may
be cited
to illustrate
emergent
and
growing
trend
‘If therapists that the
what
informed contheir patients
are
probability be put into a Medical Incomputer information Such infonincreasing been includ-
CONSENT appear to take
and
It is possible
for help
ing
ties
It would necessary
condition
full and inform
immediately concerned about the information that is sent to insurance carriers about themselves. However, this does not obviate the therapist’s need on responsibility to fulfill the obligation called for under the concept of full and informed consent. If nothing else, it does provide the patient with a choice; he on she may even decide to pay out of pocket. If the psychotherapist does not employ informed consent procedunes, he or she may act unwittingly as a double agent while the patient who sought him on her out in the first
be INFORMED
(8). In medicine, that physicians
ment will be required to help their condition. In addition, patients are to be informed of the risks involved as a result of the treatment. Patients may then give their consent to the treatment on may decide not to undengo treatment because in their view some of the consequences of the treatment are unacceptable. If we analogize to the psychotherapeutic relationship, it would seem that it is incumbent on the therapist to inform prospective patients of the risks they may take with reference to future employment possibilities or future insurability. A similar problem arises when potential patients wish to exercise their option of seeking psychotherapy under the provisions of a health insurance policy that covers mental health 1 If individuals wish to exercise this option it would appear that psychotherapists have an obligation to inform them of the potential hazands that exist with respect to diagnosing their condition initially and providing the insurance carrier with periodic information regarding the nature oftheir problems at any particular time throughout the course of
employer’s
for individuals
refused an insurance policy resides in the that the damaging information is likely to central computer system such as the sunance Bureau in Boston, Mass. A central system can make potentially repressive available to any other insurance company. mation is becoming more available because numbers of health insurance policies have
seriously demands
place
allows from
request, the therapist is forced into a double agent role. The information and diagnosis that the therapist provides will contribute to the insurance company’s decision to either grant the policy at the usual actuarial rates, grant the policy but with higher premiums, on ne-
ject
more sent
it
with
under
employed any
these
a policy
circumstances,
considerations.
payers
most
formed
consent
therapists
of having
there
However, will
procedures.
probably
would
what
no contact
prefer
the advent to
adopt
the
with third par-
be no particular
with
may
throughout
difficulty
of third-party full
and
in-
BRIEF
country. During the past several years many states have enacted child abuse and child neglect legislation. Typically, Such laws include the mandatory reporting by various professionals and others of suspected instances of child neglect or abuse. One such recently enacted law (9) states,
COMMUNICATIONS
The privilege’s exceptions, for all practical purposes, render the privilege a nullity. As a shield, it provides very little protection. Aside from no record keeping, one solution is that the psychiatrist also be a priest, for then he could, like a character in William P. Blatty’s book, The Exorcist say, ‘I can always tell the judge it was a matter of confession. (p. 70) ,
‘
‘ ‘
Any
physician,
aminer
or
nurse,
coroner,
professional,
or school
counselor,
social
dentist, any
optometrist,
other
teacher worker,
or day
child
coming
pacity stances
before
him
is abused
or
in
his
neglected
to the division.
center
official
shall
(italics
or
school or
enforcement cause to
cx-
health
administrator,
care
child care worker, police or law ing knowledge of or reasonable
medical
or mental
medical
any
other
officer haysuspect that a professional
report
the
One
patient is the
that
responsibility
third
party
threat
of the
on that
third
therapists
who
reject
would be to inplacing their
COMMENT
decision by the Supreme Court (10) provides another example of the making psychotherapists instruments of In this case the court held that if a
a death
for
added)
Tarasoff
expresses
of this
as agents of social control as a religious body, thereby under constitutional protection.
ca-
circum-
In The recent of California trend toward social control.
implication
functioning corporate services
toward
psychotherapist
party’s
a third to
responsible
party
it
inform
nela-
tives of the nature of the threat. If other states adopt this ruling, and if other legislative action is undertaken to provide for the reporting of other types of behaviors that society would like to control, the following implications for the practice of psychothenapy are immediately apparent: I) greater numbens of patients will incriminate themselves and be subject to legal action, 2) psychotherapists may well have to defend themselves in courts of law for making allegations about patients, 3) a basically antagonistic nelationship may develop between the patient and the psychothenapist, 4) therapists acting in accordance with the principle offull and informed consent may well deten patients from seeking their help, and 5) ultimately, fewer and fewer people will avail themselves of psychotherapeutic services because of the fear that they may talk about the “wrong” things on express unacceptable feelings on desires. In his discussion ofpnivileged communications, Sbvenko (11) said,
view
of
would
seem
which
most
several
that
of
the
the
above
considerations,
professional
psychotherapists
it
organizations
and
to
counselors
belong
might address themselves to the basic autonomy of the function of the psychotherapist. If this is not done, if the
basic
functions
of the
tected, psychotherapists and more instruments
psychotherapist
will, of social
are
in fact, control.
not
pro-
become
more
REFERENCES 1.
Szasz
TS: The psychiatrist
1967, pp 16-24 Bazelon DL: Psychiatrists 290:18-23, 1974 Halleck SL: The Politics House, 1971 Szasz TS: The Manufacture
2. 3. 4.
Row,
as double and
the
of
agent.
Trans-Action,
adversary
process.
Therapy.
New
of Madness.
New
Oct Sci
York,
Am
Science
York,
Harper
&
1970
5. Noll JO: Needed-a bill of rights chology 5:3-12, 1974
for clients.
Professional
Psy-
6. Fleming
JG, Maximov B: The patient or his victim: the therapist’s dilemma. California Law Review 62:1025-1068, 1974 Shaevitz MH: Letter to the editor. APA Monitor, Aug-Sept 1971, p 14 Hirsch BD: Informed consent to treatment: medicolegal comment. Tort and Medical Yearbook 1:631-638, 1961
7. 8.
9. ND Cent 10. Tarasoff 11
.
Code 50, 25.103,
Interim
v Regents of University 553, 129:529 P (Calif 1974) Slovenko R: Psychiatry and Co. 1973
Am J Psychiatry
Supp of California,
Law.
133:12,
Boston,
Decembe,
1975 I 18 Calif Little,
/976
Rptr
Brown
2d and
1453