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Informed Consent and the Legal System

Clinical Update June 2015
By Zur Institute

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Informed Consent


When patients become involved in litigation, whether by their choice or not, they often request that the psychotherapist disclose the therapy records. If the request is in the form of a court order or signed patient authorization, most therapists expediently disclose the records, without giving it much thought. However, this may not be in the best interests of the patient, due to the substantial risks inherent in such disclosures - both to the patient and the therapeutic relationship.

In fact, there are significant risks associated with either decision - to disclose or to refuse. For example, disclosure could cause the patient to lose their lawsuit, and could forever destroy the therapeutic relationship. These risks are substantially greater than when records are disclosed to third parties. Because of the increased risk, the fact that informed consent is a legal and ethical requirement for healthcare providers, and because true informed consent is inherently difficult to obtain, providers should try to obtain informed consent when records are to be disclosed to the legal system.



Informed Consent & the Legal System:

  • Informed consent is an ethical requirement of all major mental health associations
  • True informed consent is difficult to obtain...
    • when psychotherapists do not provide the information needed by patients to make the decision
    • because statutory requirements are often unclear
    • because patients often do not understand and/or remember the information provided
  • Patients can or may be harmed when...
    • PHI is improperly requested and the therapist inadvertently discloses the information
    • the court incorrectly interprets the laws regarding privilege and/or confidentiality, and orders disclosure of the patient's private information
    • their attorney does not protect their privacy rights, and their private information is improperly disclosed
    • the opposing attorney uses the patient's private information to embarrass, intimidate, or harass the patient, or uses the information to undermine the patient's case
    • they resist disclosure of their private information, but then that refusal has negative implications for expert testimony
    • their information is appropriately disclosed, but then the patient's mental illness is used against them in the case
    • their information is appropriately disclosed, but then their information becomes known to others outside the legal system, resulting in various collateral losses



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