Informed Consent (part 1): its origins and development

When asked about informed consent, most clinicians readily identify it as a piece of paper that is signed toward the beginning of a professional encounter. This is true. However, the real truth is that informed consent is actually much more. Surprisingly, an explanation of informed consent also requires a bit of an excursion into the legal worlds of battery and contracts.

Like much of the law that governs mental health practice, the doctrine of informed consent has its origin in laws concerning medicine and the physician-patient relationship. Some aspects of the physician-patient relationship don’t precisely match that of the psychotherapist-patient relationship (or even the evaluator-evaluee relationship), but the law is loathe to create new bodies of law to fit new situations. Instead, what tends to happen is that the existing law is adapted to suit new situations. Relative to traditional medicine, mental health practice is the new kid on the block and gets the legal hand-me-downs. With that perspective in mind, let’s look at how informed consent is a combination of a defense against battery and a contract:

Most of the time people are not permitted to touch another person, especially when the touch is a harmful one. Because of this, a harmful touch is traditionally known as a “battery” and is actionable in a court of law. This presented a theoretical problem for physicians and surgeons who performed procedures that could be seen as a harmful touching, such as surgeries, bloodletting, leeches, etc. To get around this problem, the law allowed patients to consent to what would otherwise be a harmful touching. This consent afforded physicians a defense against battery, but the condition was that their patients would have to be informed about what they were consenting to. Physicians could only perform procedures to which the patient consented. Thus, if a patient had to have his/her right leg amputated and consented to the surgery, it wasn’t a battery. However, if the surgeon mistakenly amputated the left leg, that was a battery (among other things). Physicians had to provide their patients with a reasonable amount of information upon which a the patient could make an informed decision. From this we get the term we currently use, “informed consent.”

As is painfully obvious to most clinicians, this single-procedure model upon which the doctrine of informed consent is based does not adequately describe the model for psychotherapy. Mental health services are rarely provided as discrete treatments. Similarly, the methodologies of non-prescribing mental health practitioners rarely involve physical contact, and thus a battery might not be the best analogue. Nevertheless, we still use the medical model for informed consent.

In addition to being a defense against battery, informed consent also has some elements of a contract. Note that this does not mean that the informed consent is a contract. Rather, it bears some resemblance to a contract. (California courts have held that one of the bases of the doctor-patient relationship is contractual, and this basis has been used to determine whether consulting physicians may be liable for the acts or omissions of the treating physician. However, this doesn’t have so much to do with informed consent as it does the “privity” of relationships.) The primary resemblance to a contract is that the informed consent forms that clinicians currently use often contain much more than a discussion of the basics of informed consent.

A bare-bones informed consent is a discussion between a clinician and patient about the nature of the treatment, the risks and benefits, alternative treatments and their attendant risks and benefits. Most clinicians memorialize this discussion. But in addition to this, many clinicians add additional information to the memorialization such as the methods of preferred payment, the cancellation policy, the limits of confidentiality, scheduling, emergency numbers, etc. This information is extremely helpful for clinicians and patients alike, but it is important to note that these added terms more accurately reflect the terms of the professional relationship than a traditional informed consent. Instead of a pure documentation of informed consent with a little extra information about practicalities, the forms that many clinicians currently use is the opposite: a lot of information about practicalities and a relatively small amount about treatment. It appears to be creeping toward becoming increasingly “contractualized.”

The result is that informed consent has changed dramatically from its first incarnation as a discussion between doctor and patient, to its current form as used by today’s mental health clinicians. It has gradually transformed into a multi-purpose document that includes much more than the technical discussion about treatment that was first envisioned. It now resembles a hybrid of consent and quasi-contract and continues to change.

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