To the Editors:
As in so many situations confronting our profession, what on the surface appears to be a simple issue, further study reveals to be complex. One would think that common sense dictates a rigorous legal document for a prospective clinic patient to sign, giving informed consent to the future use of clinical material for scientific and training purposes, thereby discharging one's obligations for the civil rights and respect of an adult patient, and at the same time protecting oneself from the legal onslaughts of potentially litiginous patients. Many lawyers see no problem with this approach and have advised us accordingly.
More sophisticated lawyers, however, have pointed out (as was discussed in the December Newsletter article to which Dr. Barnard takes exception) that there are no legal guidelines for informed consent. The Roe v. Doe and Poe case, in which our Association is participating as an amicus curiae, is the first instance in which relevant issues have been formally argued. In a few States there are statutes protecting the confidentiality of communications between patient and psychotherapist. Also, there are Federal Regulations defining informed consent for the protection of human subjects at risk in activities supported by HEW. But there is no case-law to define these issues. For example, can a psychoanalytic patient really give “informed consent”? How can a patient know what will be disclosed in the future or what it will mean? Can a patient under the pressure of seeking relief from psychological distress, and unable to afford private care, give a realistically informed consent to the use of his material?
Suppose one does write a consent contract. Then how shall we stipulate consent for presentation before a supervisor, a vignette presented casually before a class, or the whole case study before a continuous case seminar, or in an orally-presented scientific paper, or for publication? Would one have to consult dyadically with the patient for each of these exigencies and review each intended communication to assure really informed consent?
One can begin to understand why one of our senior lawyer-consultants advised us not to look to the law or the bench for answers to these questions.
Thus far, I have confined my discussion to the legal aspects of the problem. But if we focus on the psychoanalytic elements, we soon become aware of the complications to motivation, to the ability to free-associate, to the transference and countertransference, should we, out of a sense of responsibility for the patient's rights as a person, try to spell out what is in prospect should he agree to become a clinic patient. The solution seems to aggravate the problem.
In an age of computerized collection and dispersal of personal information, informed consent is a realistic concern. In addition, the consumer advocacy movement has educated the public to protect itself against the paternalism of some health agencies. But the pendulum seems to have swung too far, as anyone who has received the ministrations of an overly-conscientious surgeon sharing with the patient and family an “informed experience,” can attest. And yet, the consumer has a right to be informed about his own interests. So where do we draw the line?
Our studies indicate that each psychoanalytic community has its own style of coping with the problem. In some cities, the prospective patients come from sophisticated academic backgrounds, and are quite informed. For a candidate to be asked the name of his supervisor and the frequency of supervision, is not uncommon. In such a community, clinic administrators advise, making an issue of informed consent would be counterproductive.
In a less sophisticated community, a deliberate effort toward informed consent seems indicated. It was with this situation in mind that the majority of our committee recommended that “sometime during the intake procedure, the clinic applicant be informed casually and verbally that the clinical material, with all due precautions to protect privacy, will be used in a training context.” For those patients requiring it, this would provide an opening for further questions.
One must also keep in mind that there can be no complete insurance against potential litigation. Also, we can minimize potential litigation by maintaining high professional standards of training,
treatment and research, which must include a sensitive awareness of the patient's constitutional right to privacy.
In the exceptional instance in which litigation might eventuate over an issue of informed consent, the law is a living organism, and it will respond to the reasoned presentation of the complexities inherent in our professional relationships. In such an instance, albeit perhaps at some expense, we would participate in the shaping of the law.
As is readily apparent, there are no final generally-applicable answers to the problem of clinic patients and informed consent. Each psychoanalytic clinic will have to customize its own policies. In the meantime, we will continue to collect data, and eventually new developments and insights will help us come to newer recommendations.
Jerome S. Beigler
Chairman
Joint Ad Hoc Committee on Confidentiality