Judicial Notebook

Most psychologists are aware of the importance of obtaining informed consent before treating a client. However, recent developments in the law may significantly expand the scope of the information that must be disclosed to obtain informed consent, including disclosure of what may be perceived to be relatively personal information.

The psychologist's duty

A health-care provider must generally obtain a client's or patient's informed consent before proceeding with treatment. Under this doctrine, the health-care provider has an affirmative duty to disclose certain information about a proposed treatment, regardless of whether the individual has asked for this information. Failure to obtain this consent may subject the health-care provider to liability even when the provider did nothing wrong in providing treatment. This doctrine has developed as courts have given increased weight to patient autonomy in treatment decision-making.

Informed consent requires a health-care provider to disclose the material risks associated with a proposed treatment. Thus, the likelihood that a treatment will be successful, any harms that might be associated with the treatment based on the probability and severity of the harm, and feasible alternatives to the proposed treatment must generally be disclosed.

In the last few years, however, a number of state courts, albeit with mixed results, have wrestled with the question of whether personal information about the treatment provider must also be disclosed. For example:

  • A California court ruled that a physician must disclose a financial conflict of interest (Moore v. Regents of the University of California, 1990).

  • A Wisconsin court determined that a physician must disclose a lack of experience with a given procedure (Johnson v. Kokemoor, 1996).

  • A Louisiana court held that a physician must disclose alcohol abuse (Hidding v. Williams, 1991).

But conversely, a Hawaii court (Ditto v. McCurdy, 1997) and a Washington court (Whiteside v. Lukson, 1997) ruled that physicians are not required to disclose their relative experience with a particular treatment, and a Pennsylvania court held that physicians are not required to disclose their alcohol abuse (Kaskie v. Wright, 1990).

A new wrinkle

In the most recent of this line of cases, the Supreme Court of Georgia issued its opinion in Albany Urology Clinic v. Cleveland, 528 S.E.2d 777 (Ga. March 6, 2000). Although the case focused on a physician's failure to disclose his addiction to cocaine, the court indicated that its ruling pertained to any health-care provider for whom the doctrine of informed consent applied. At the same time, unlike many states, the Georgia legislature had modified common law in that state by delineating six specific categories of information that must be disclosed to patients before they undergo certain specified surgical or diagnostic procedures. The court found that this statute governed this case and that this statute did not include a requirement that health-care providers disclose any aspect of their personal lives, even though it might adversely affect their professional performance. Thus, in an arguably narrow ruling that limits its precedential value in other states, the court concluded the defendant was not required to disclose his substance abuse to the patient absent a specific inquiry to that effect from the patient.

There was, however, a vigorous dissenting opinion filed in this case. The dissent argued that a physician and a patient share a confidential relationship, and where such a relationship exists, the statutory list of risks to be disclosed was not exclusive. Thus, a physician must disclose information pertaining to a lack of qualifications to perform a procedure. The dissent asserted that the qualifications of the particular physician, no less than the general and inherent risks of the suggested medical procedure, are of concern and relevance to the patient whose authorization is being sought.

The doctrine of informed consent is generally considered to apply equally to psychologists treating clients as to physicians treating patients. Because psychologists also face potential financial conflicts of interest, may be tempted to or need to expand their practice into areas in which they have limited experience, or may abuse alcohol or drugs, these recent evolutions in the law of informed consent should be of interest to psychologists as well. The issues raised by these cases have not yet been addressed in most states, but probably will be in the near future, particularly in an era when increased attention is being given to the rights of patients and clients. Furthermore, the boundaries of informed consent are frequently addressed by state legislatures as part of tort reform packages.

Further Reading

Judicial notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.

The issues raised by these cases have not yet been addressed in most states but probably will be in the near future.