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

The psychotherapist and informed consent.

BRIEF The Psychotherapist BY JOHN 0. NOLL, and Informed Consent PH.D. The author increasingly points out that psychotherapists are being re...
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