Ethics in Psychotherapy: Informed Consent, Digital Professionalism, and Sexual Misconduct

1.1 Which of the following is not one of the core components of informed consent?

1.2 Which of the following is not a factor contributing to the added complexity of informed consent for psychotherapy in comparison with pharmacological intervention?

1.3 What is the most appropriate next step for Dr. Smith?

2.1 Which of the following best distinguishes BCs from BVs?

2.2 Which of the following is a common pattern seen in cases of psychiatric sexual malpractice?

1.1 The answer is D. Information, voluntariness, and competence are the three core elements of informed consent (8). Information refers to the appropriate disclosure of relevant information regarding the benefits and risks of a proposed treatment, any reasonable alternatives to the proposed treatment, and the risks of no treatment at all. Voluntariness refers to the concept that informed consent must be freely given, without any coercion. Competence refers to a patient’s decision-making capacity. Documentation of informed consent has become an important and essential component of psychiatric practice. There are two generally accepted ways to document informed consent: a signed consent form (response D) and a note in the patient’s chart documenting the informed consent discussion (9). It is a misconception that a signed consent form is generally sufficient, by itself, to protect physicians legally: “a signed, generic consent form, in and of itself, rarely provides adequate legal protection against malpractice claims of failure to obtain informed consent” (8). Documenting an informed consent discussion in the chart is one way to demonstrate that such a discussion has taken place, and courts generally accept this practice as evidence of the informed consent discussion (9).

1.2 The answer is D. Informed consent for psychotherapy (as opposed to medication or procedures) has been an area of controversy in the history of psychiatric ethics. Various arguments in favor of obtaining informed consent in psychotherapy include promoting patient autonomy, explaining the various risks of psychotherapy, and providing reasonable alternatives to psychotherapy for the patient’s illness (9). One argument against obtaining informed consent, coming from the psychoanalytic tradition, is that such a discussion might interfere with the naturally unfolding transference reaction (10). There are multiple reasons why informed consent for psychotherapy might be viewed as more complex than informed consent for a pharmacological or procedural intervention. In psychotherapy (addressed in response A), the informed consent discussion is not necessarily distinct from the intervention itself (11): “In psychotherapy, both informed consent and the treatment itself necessarily involve the same cognitive and affective functions, so that informed consent and treatment are more intertwined than in nonpsychotherapeutic treatment.” Another complicating factor of psychotherapy is that its duration and course are often unknown (response B). As Freud recounted the Philosopher’s answer to the Wayfarer in Aesop’s fables: “When the Wayfarer asked how long a journey lay ahead, the Philosopher merely answered ‘Walk!’ and afterward explained his apparently unhelpful reply on the ground that he must know the length of the Wayfarer’s stride before he could tell how long his journey would take” (12). Different modalities of treatment have different methods and structures that make a one-size-fits-all approach to psychotherapy consent unrealistic (response C). Psychotherapies do have risks that can be incorporated into an informed consent discussion (response D). Various psychotherapeutic modalities, including exposure-response prevention or insight-oriented treatment, may cause increased symptoms (e.g., anxiety) or discomfort before patients start to feel better.

1.3 The answer is A. A psychiatrist’s online presence can be helpful for many reasons, such as making one’s practice information available for prospective patients. One of the costs of the increased digital footprint lies in the increased availability for easily published, and quite public, reviews of your services. When working with a patient, seeing a negative review online about your care could lead to feelings of sadness, guilt, or anger. Such emotions may complicate or adversely affect the therapy. Of all the item responses provided, the only ethical choice would be to discuss the matter privately with the patient (response A). One possibility is that the patient’s online review represents information the patient wants to communicate to you but does not feel able to discuss with you in session. In situations such as this, it is advisable to seek clinical supervision or consultation to navigate the clinical, ethical, and legal issues at play. Regarding the other choices, it must be emphasized that, although the patient is choosing to disclose information about his treatment publicly, that does not relieve the physician of the ethical duty to maintain confidentiality. Confirming that the patient is in treatment, through a public response, would violate patient-doctor confidentiality (response C). The option of creating false positive reviews (response B) to drown out the negative review should be avoided (13). As Vanderpool noted, one plastic surgeon was fined $300,000 for such practices, “as the New York Attorney General found this practice to be ‘cynical, manipulative, and illegal’” (13). Terminating treatment with the patient (response D) without giving adequate notice, referrals, and a reasonable explanation for the termination risks abandonment of the patient. It would also create a missed opportunity to gain deeper understanding of the patient and further the treatment process.

2.1 The answer is B. The answer that best distinguishes BCs from BVs is that BCs are generally nonexploitative, whereas BVs exploit the patient in a harmful manner and place the psychiatrist’s needs above the patient’s needs. Most BCs do not lead to BVs, although there is a risk that they might, particularly if not done thoughtfully and skillfully for the patient’s benefit. Engaging in a business venture with a patient would be a clear BV and not merely a BC. Whereas BCs are unlikely to result in a malpractice action, BVs can lead to a civil malpractice suit, criminal charges, and medical board sanctions such as revocation of licensure.

2.2 The answer is E. Most research and anecdotal reports suggest that psychiatrist-patient sex does not typically begin in a flash after the first session. Rather, the more common scenario involves progressive BCs leading to BVs over time. As Simon stated, “the road to therapist–patient sex is paved with progressive treatment [BVs]” (17). For example, the path to sexual BVs may initially begin with therapy sessions that become extended past the typical visit times. Other progressive BVs include meeting outside the clinical office, meeting in informal settings for coffee, or having dinner together. The subject of “digital boundaries” has become critical in psychiatric practice. Although the issue of e-mails and social media professionalism is paramount, Gabbard has noted that “text messages are perhaps of even greater concern than e-mails” (18). Texting represents a double-edged sword of sorts for psychiatrists. It is an efficient, time-saving means for accomplishing some tasks of clinical care, such as prescription refills or appointment changes. On the other hand, texting may present unforeseen challenges to confidentiality. Furthermore, texting may encourage patients to reach out for “reassurance” or complex exchanges that are better suited for a formal therapy session. Finally, texting after business hours presents boundary challenges and may create a more informal and unrestrained manner of communication that paves the way for further BVs. Thus, most recommend restricting text messages to purely practical matters such as appointment changes or prescription refills if the psychiatrist chooses to engage in texting with patients. Dixon et al. recommend discussing the concept of acceptable communication with patients in terms of texting, e-mails, and social media friend requests (19).