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Limiting Legal Risk: Informed Consent – The Single Most Important Risk Management Tool You Have At Your Disposal

December 09, 2018 9:00 AM | Emily Fell

Frances Schopick, JD, MSW 

The questions I hear most often about Disclosure and Informed Consent are:  1) Why do we have to bother with a long Informed Consent? and 2) Can’t I at least cut it down to one page?

This is a really important topic, so I want to be clear: A well-written Informed Consent that is properly administered is very likely to be the single most important risk management tool that you have at your disposal. And here’s why:

First of all, let’s answer the underlying question: “What is Informed Consent?”

Informed Consent is a contract between you and your client--the State refers to it as Disclosure; Codes of Ethics (COE) use the term Informed Consent (IC). Strictly speaking, “disclosure” refers to your act of disclosing to the client the basics of your practice, and “IC” is the permission the client gives to you to treat. For the purposes of this article, I shall use the term Disclosure. Whichever term you use, the document should provide the basic information a client needs to understand your scope of practice and how you work. With that information, clients can independently decide, free of coercion, undue influence, or duress, whether they want to work with you. In so doing, you minimize and manage your own risk. IC is not just a signature. Proper administration of IC is an ongoing process that can--and in my experience should--be re-visited throughout the course of treatment in a transparent, conversational format that normalizes discussion of sensitive issues.

The document has three main functions: clinical, legal, and ethical. Clinically, disclosure initiates the therapeutic alliance as you demonstrate to the client(s) that you want him/her/them to have what needs to be known in order to make an informed decision about initiating therapy: You must clearly explain your scope of practice, both what you do and don’t do; you explain that therapy is a process that requires the active participation of both the therapist and the client; you discuss clients’ rights along with boundaries, confidentiality and its limits; you invite the client to ask questions and to articulate expectations so that you can address them with respect, authenticity, and clarity. This should be an opportunity that gives both you and your client the chance to explore expectations and ambivalence in a transparent way. If a client has unreasonable expectations, or reasonable expectations that you cannot fulfill (for example, experience that may be out of your scope or expertise), you can address the discrepancy. If the client is not receptive to reassessment, you can determine if the clinical “fit” is workable or not. In doing all these things, you model both client and self-care.

The document also has a legal function. Washington State statutes and administrative codes require some form of disclosure and that disclosure must be written in language that is easy to understand. I would add that the language may also be personable, conversational, and professional. Basic information must be included: For example, you must include your name, your agency/business name, business address, contact information, WA State license number, methods or treatment modality and therapeutic orientation, your relevant education and training, course of treatment when known, and billing information. Importantly, the law states that you have to inform clients that they have the right to refuse treatment, as well as the right and responsibility to choose the provider and treatment modality that best suits their needs.* You must inform the client that you keep a record and they have the right to access it (with some limits), the extent and limits of confidentiality, including mandatory reporting of abuse,** consultation or supervisory agreements, the fact that they can complain about you to the DOH and how to complain to the DOH, final acknowledgment, signed and dated by both you and your client(s). Remember, you WANT your clients to understand the terms of your practice. This is protective for them and for you.

*A short comment about the language of “right” and “responsibility” to choose a treatment provider and modality that best suits the client’s needs: This language is actually used in the statute (responsibility) and WAC (right). I often encourage social workers to include this language because it helps to reinforce that the client has both the right and responsibility to be active, and should not just transfer all responsibility to you. You don’t want them to later claim you caused undue anxiety, acted without permission or, worse, against their will. You’d be surprised how easily the seed of misunderstanding can grow or be mischaracterized in later telling: A therapist’s casual touch to express condolence, a client’s request for a hug, a child’s spontaneous gesture. If a client should later assert that your approach to therapy had been unacceptable, you want to be able to respectfully remind the client(s) that he/she/they understood and agreed when you administered Disclosure regarding the right and responsibility to choose the treatment provider and modality that best suited need and that you had explicitly asked him/her/them to say if you did not meet those needs so as to correct your approach.

** It may be good practice to inform clients immediately that law requires mandatory reporting of child abuse (48 hrs), in case a client reveals past or present abuse before review of the IC.

The ethical function of the IC is signaled through the COE. An ethical practice reflects the mission of the profession and adheres to professional guidelines. The COE may be used as a measure of your adherence to standards of care. Social Work is a systems approach to social justice, clients’ rights, and self-determination. Some social workers think the COE supersedes confidentiality law, but the NASW COE states clearly that the counselor should generally observe confidentiality “to the extent permitted by law.”

In addition to the items that are required by law, you may choose to include other items that are personal to you and your practice. For example, you may want to provide your stance on dual roles, custody recommendations, legal involvement, rates of pay if court ordered, rules of collateral visits, policies regarding electronic communication, secrets, and touch. If you work with couples, children, or  families, you may want to include how you address issues particular to those contexts.

I hope you’re getting the idea that the DISCLOSURE IS YOUR FRIEND. I realize a lot of people see Disclosure as an annoying burden and pain. I, however, see it as an opportunity. I don’t mean this in some romantic, hypothetical sense--I’m absolutely serious. It’s a precious and practical opportunity for you to state in writing what you’re obliged to do, willing to do or not willing to do, as well as to convey what you expect of your client. All these things can be written into the document. How often can you do that in life? When was the last time you told a friend, date, spouse, colleague, or other adult exactly where the line is and will always be in your relationship? We rarely set forth our terms in writing, and we break our own unwritten rules in relationships all too often. But here, where you are engaging in a therapeutic relationship with another person you’ve only just met, dynamics and expectations can get extremely complicated. This is like participating in a mystery novel, but you can’t flip to another page to learn about what the character is really after or how the story ends. Being a therapist takes skill and care; to do it best, you must be safe. You know how they tell you on a plane to put the air mask on yourself before helping others? The Disclosure is the air mask that keeps you breathing freely as you usher your clients to improved health.

I invite you to view Disclosure as an opportunity to limit legal risk while you help your clients define and meet their therapeutic goals.

copyright©2018 francesschopick

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Disclaimer: This article is not intended as legal or clinical advice, consultation, or supervision. Every situation is fact-specific, and must be considered individually. If you have any questions, please feel free to contact me at fschopick@comcast.net or 425-891-3411. I give free consultations, and am happy to respond to your concerns.

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Frances Schopick, JD, MSW is an attorney with a strong background in Social Work and psychiatric research. She represents counselors who have DOH complaints against them. She also provides consultation for risk management, setting up disclosure forms for your practice, and witness prep for subpoenas and testimony in court.

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