Understanding Informed Consent in Outpatient Mental Health

1. Understanding Informed Consent in Outpatient Mental Health Presented by: Robert W. Marrs, MS, LMFT AAMFT Approved Supervisor On Behalf of Wisconsin Association for Marriage and Family Therapy

2. Wisconsin Law – DHS 94 DHS 94.02(22), Wisconsin Administrative Code - "Informed consent" or "consent" means written consent voluntarily signed by a patient who is competent and who understands the terms of the consent, or by the patient's legal guardian or the parent of a minor, as permitted under s.51.61(6) and (8), Stats., without any form of coercion, or temporary oral consent obtained by telephone in accordance with DHS 94.03 (2m).

3. Wisconsin Law DHS 94.03, Wisconsin Administrative Code - "INFORMED CONSENT. (1) Any informed consent document required under this chapter shall declare that the patient or the person acting on the patient’s behalf has been provided with specific, complete and accurate information and time to study the information or to seek additional information concerning the proposed treatment or services made necessary by and directly related to the person’s mental illness, developmental disability, alcoholism or drug dependency, including:

4. Wisconsin Law (a) The benefits of the proposed treatment and services, (b) The way the treatment is to be administered and the services are to be provided, (d) Alternative treatment modes and services, (e) The probable consequences of not receiving the proposed treatment and services,

5. Wisconsin Law (f) The time period for which the informed consent is effective, which shall be no longer than 15 months from the time the consent is given, and (g) The right to withdraw informed consent at any time, in writing. (2) An informed consent document is not valid unless the subject patient who signed it is competent, that is, substantially able to understand all significant information which has been explained in easily understandable language, or the consent form has been signed by the legal guardian of an incompetent patient or the parent of a minor, except that the patient’s informed consent is always required for the patient’s participation in experimental research, subjection to drastic treatment procedures or receipt of electroconvulsive therapy.

6. Wisconsin Law (2m) In emergency situations or where time and distance requirements preclude obtaining written consent before beginning treatment and a determination is made that harm will come to the patient if treatment is not initiated before written consent is obtained, informed consent for treatment may be temporarily obtained by telephone from the parent of a minor patient or the guardian of a patient. Oral consent shall be documented in the patient’s record, along with details of the information verbally explained to the parent or guardian about the proposed treatment. Verbal consent shall be valid for a period of 10 days, during which time informed consent shall be obtained in writing.

7. Wisconsin Law (3) The patient, or the person acting on the patient’s behalf, shall be given a copy of the completed informed consent form, upon request. (4) When informed consent is refused or withdrawn, no retaliation may be threatened or carried out.“ *Also refer to DHS 35.18 & 35.24 regarding Outpatient Mental Health Clinics

8. AAMFT Code of Ethics AAMFT Ethical Code 1.2 Marriage and family therapists obtain appropriate informed consent to therapy or related procedures as early as feasible in the therapeutic relationship, and use language that is reasonably understandable to clients. The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented. When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible.

9. Breaking it all down… • Informed consent is required by any mental health consumer prior to receiving psychotherapy treatment • Informed consent should be obtained for both admission and treatment. • Informed consent includes both written documentation AND a conversation with the treatment provider

10. Breaking it all down… • The mental health consumer must be: • Competent – The capacity to accurately and completely understand both his/her consumer rights and the process of psychotherapy • Mental Capacity – intelligence, information-processing, memory, mental status (not impaired by mental illness) • Special Needs – hearing or visually impaired • Cultural / Language Capacity – informed consent is discussed and explained in a way that is understood within the client’s own cultural framework • Developmental Stage – informed consent is discussed and explained in a way that is understood according to the client’s age and stage of development

11. Breaking it all down… • The mental health consumer must be: • Of Legal Age • 18 years of age or older • Under age 18 the client must have the written consent of the parent or legal guardian • Minors 14 yrs of age and older have the right to due process to protest involvement in treatment. • Parents of minors 14 and over also have the right to due process if their minor child refuses treatment.

12. Breaking it all down… 4. The mental health consumer must be: • Voluntary • Consumers may be treated involuntarily if the treatment is ordered by a court of law. Written documentation must be provided by the court prior to the start of treatment

13. Breaking it all down… 5. Informed consent must be signed by all consumers participating in the treatment process 6. Informed consent includes an explanation of the consumer’s rights (DHS 51.61): http://www.legis.state.wi.us/statutes/Stat0051.pdf http://dhs.wisconsin.gov/clientrights/index.html

14. Breaking it all down… 7. Consumer’s have the right to file a formal grievance (DHS 94.28 & 94.29): • Every agency, clinic, and independent practitioner must have a written grievance process • Formal grievances may be submitted, in writing, to the following persons and entities: • Clinician • Clinic Administrator • Patient’s Rights Specialist • DRL • DHS

15. Breaking it all down… 8. Consumer’s must be informed of any potential risks or negative outcomes associated with psychotherapy • You might leave appointments feeling worse than when you arrived • Things may get worse before they get better (e.g. Hospitalization) • Change can sometimes have unexpected outcomes (e.g. loss of relationships, loss of job, etc.) • Providing individual therapy to someone struggling with relationship issues may do more harm to the relationship (I.e. couples therapy, family therapy with adolescents)

16. Breaking it all down… 9. Consumer’s must be informed of any potential benefits associated with psychotherapy (E.g.) • Symptom reduction • Improved functioning • More effective coping strategies • Improved relationships • Improved self-esteem and affect

17. Breaking it all down… 10. Consumer’s must be informed of any potential side effects of NOT receiving psychotherapy (E.g.) • Worsening of symptoms • Deterioration in functioning • Increased relationship problems • Potential for crisis • Increased health risks

18. Breaking it all down… 11. Consumer’s must be informed about your qualifications to provide psychotherapy: • Credential / License • Level of Education • Years of Experience • Specific Training as it relates to a specialty 12. Consumer’s must be informed about your therapeutic approach: • Model of Therapy (e.g. systems, CBT, narrative, etc.) • Religious / Spiritual Orientation (if its integrated into your approach, I.e. Christian counseling)

19. Breaking it all down… 13. Have a discussion about expectations and preferences (both the client’s and the therapist’s) 14. Explain any limitations in your approach or services

20. Breaking it all down… 15. Consumer’s need to be informed about any and all financial costs and responsibilities associated with receiving mental health services: • Treatment Costs (therapy, testing, etc.) • Insurance Copays / Co-Insurance / Deductibles • Policy and Fees regarding No Shows / Late Cancellations • Policy Regarding Schedule of Payments

21. Breaking it all down… 16. Consumer’s need to be informed and educated about confidentiality as it relates to protected health information. • HIPAA http://www.hhs.gov/ocr/privacy/index.html • DHS 51.30 & DHS 92 http://www.legis.state.wi.us/rsb/code/dhs/dhs092.pdf http://www.legis.state.wi.us/statutes/Stat0051.pdf

22. Breaking it all down… 17. Consumer’s need to be informed and educated about confidentiality as it relates to protected health information. • Exceptions: • Imminent Harm to Self or Others • Subpoena by a Judge • Suspected Child / Elder Abuse / Abuse of a Vulnerable Adult

23. Breaking it all down… 18. Give consumer’s options should they ever feel a lack of progress in psychotherapy: • Develop a New Treatment Plan • Incorporate Consultation / Supervision • Expanding the Client System • Expanding the Therapist System • Terminating Treatment • Transferring to another Provider (internal) • Transferring to another Provider/Agency (external)

24. Breaking it all down… The purpose of informed consent is to honor the patient’s legal right to be informed about all aspects of his/her mental health treatment so that he/she can: • Decide whether or not to receive mental health treatment, • Participate in the planning and delivery of treatment • Make educated decisions about the course of treatment

25. Breaking it all down… Providing individual therapy when couple or family therapy is indicated has the potential of destabilizing the patient’s relationships because individual therapy can oftentimes promote individuation and differentiation. It’s important to help patients consider the potential consequences of not providing couple and family therapy.

26. Breaking it all down… With changes in both federal and state law, please be sure to verify that your informed consent form is both HIPAA and Wisconsin compliant before implementation in your practice.

27. Confidentiality of Treatment Records (Ss 51.30 & HFS 92.05) • Access of Records During Treatment • Clients must have full access to all records regarding medications and health-related treatments. • The Director of Treatment may deny access to other records IF it is determined to be harmful to the client. The reasons for the denial must be noted in the clinical record. *Note: Ss 51.61 states that a client must be “fully informed of his or her treatment and care, and to participate in the planning of his or her care.” Any restriction of a client’s treatment record may NOT interfere with this right.

28. Confidentiality of Treatment Records (Ss 51.30 & HFS 92.05) • Access of Records After Treatment • Clients have a right to a complete record of all medications and health-related treatments. • Upon request, clients have a right to: • Access their treatment record • Have a photocopy of their treatment record

29. Confidentiality of Treatment Records (Ss 51.30 & HFS 92.05) • Access of Records After Treatment • Any request for records must be processed within 5 working days. • A “reasonable and uniform charge” for reproduction of the records may be assessed at a cost of no more than 35 cents per page. Medicaid beneficiaries cannot be charged for the first copy. • The Director of the Facility has the right to be present during the inspection of the record.

30. Conclusion • Please consult with an attorney specializing in health care law prior to implementing any of the above protocols. • You may also consult with the Division of Quality Assurance at Wisconsin Department of Health Services.