Informed Consent: Records and Fees

By Jeffrey Zimmerman, Ph.D., Steven Walfish, Ph.D.
January 20, 2016



Informed Consent: Records and Fees Providing informed consent to a client can be a complex process that can emerge as an issue at the outset of treatment, during treatment and after the termination of psychotherapy. In this brief article we will highlight two areas of the treatment relationship and provide issues related to informed consent for the psychotherapist to consider. These will be in the areas of providing records when requested and in establishing fees.

Scenario #1: You receive a request for information signed by your client for whom you provided marital treatment. The request is from an attorney who states he is involved in a case between your client and her employer.

Question: Do you release the records?

On the surface, this can seem like a straight forward request. You provided the treatment and have a signed release. However, on closer look it is fraught with ethical landmines.

Some considerations

Do you know to whom the information is being sent and for what reason? In this example, it is possible that the attorney does not even represent the client, but rather represents the employer and might be using the information against your client.

Do you have consent from all appropriate parties? First, a signed form in a circumstance such as this does not constitute authorization to release the records. Many times a client will sign a blank release that is later filled in by the attorney. The client may not even know that a release was sent to you, let alone truly approve the record being sent to the attorney. Second, the client’s spouse was also present in the sessions and mentioned in the chart notes. The spouse may by statute also need to sign a release before the records are sent.

Do you have informed consent? Consent is different than informed consent. It is important to actually discuss with the client the implications of releasing the record. The pros and cons of releasing the information should be discussed. It is often important to explicitly go over the sensitive information that is in the file and how that information might be used against the client and moreover how the confidentiality of that information cannot be assured once it leaves the office.

Have you documented the informed consent process? Simply having a signed form does not document your attempts to be sure you have informed consent. The discussions you have had with the client (and spouse in the above example) should be documented in the record.

Scenario #2: In 2014 you provided 12 sessions of psychotherapy with a client. In 2015 the client informs you that he or she is filing a civil suit against his or her employer for not fixing a hostile workplace and the emotional harm endured as a result of working in this environment. Since this was the focus of their psychotherapy the client (and attorney) wants you to testify about your assessment process, diagnosis, the nature of the treatment and outcome of treatment and prognosis. They are not requesting a forensic evaluation (which would bring up the ethical issue of blending treating and forensic roles) but rather just a reporting of your professional work with the client.

Question: How much do you charge to respond in deposition or testify in court?

Some considerations

What does it say about this issue in your Disclosure Agreement that the client signed when they started treatment with you? Most clinicians state their therapy and assessment fees in this document. Most do not state anything about forensic fees because they conceptualize the case as a treatment case and not a forensic case.

Are your in-office treatment fees similar or different than your forensic fees? If there is no difference between the two then no thought has to go into what to charge. However, many people have forensic fees that are far higher than their usual and customary office assessment and treatment fees.

We believe that if you have not informed your client in your initial Disclosure Agreement that if you are asked to testify in a forensic context the fees will be higher then the clinician cannot charge these higher forensic fees. The initial disclosure document serves as a contract between client and psychotherapist. All of the ethics codes for the four mental health professions require that information about fees that may be charged should be agreed upon as early as possible in the treatment relationship.

If a clinician’s office fees are $150 per hour and forensic fees are $300 per hour, this should be stated in the Disclosure Agreement. To double fees at a later date (especially when the client may be vulnerable and need your testimony in court) may appear as a “bait and switch” and go against the spirit of the initially agreed upon fee structure. It may also appear exploitive, which could put the clinician at risk of an ethical violation.

It is far better to be sure that informed consent is obtained in advance of taking the actions discussed in this article.
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Jeffrey Zimmerman, Ph.D., and Steven Walfish, Ph.D., are partners in The Practice Institute LLC. The issues discussed in this brief article are elaborated in greater depth in Walfish, S. and Barnett, J. (2009) Financial Success in Mental Health Practice: Essential tools and strategies for practitioners. Washington, D.C. APA Books and Barnett, J., Zimmerman, J. and Walfish, S. (2014), The Ethics of Private Practice: A practical guide for mental health clinicians. New York: Oxford University Press. The authors may be reached through their website: http://thepracticeinstitute.com/

Thoughtful woman photo available from Shutterstock

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