Fall 2002 Health Law Supplement

FALL 2002 HEALTH LAW SUPPLEMENT

HIPAA FILING

Although there is still uncertainty about what the new regulations will be and how they will apply to New York health care professionals, such professionals are nevertheless required to comply with the new HIPAA privacy regulations by October 16, 2002 unless they file for an extension before that date. The extension will postpone the date for compliance to October 16, 2003. We are recommending, and most of our clients are, filing for the extension. The filing can be done online at:
http//cms.hhs.gov/hipaa/hipaa2/TCSFormInstructions.asp?

INFORMED CONSENT TO PSYCHOTHERAPY: ARE FORMS NECESSARY? A perennial question asked by our psychotherapist-clients is whether written informed consent forms are necessary. The answer, unfortunately, is that it depends.

There are two practical ways to assure and record that patients have been given adequate information and that they have actually given their consent to treatment. The first is to discuss informed consent fully with the patient in a specific ” consent interview. ” This conversation should be documented as such in the patient’s record.

If informed consent is obtained orally, it should nevertheless be obtained explicitly.

A psychotherapy patient’s consent might once have been inferred from his or her behavior in voluntarily visiting an office or a clinic, and in cooperating with treatment, but that is simply inadequate given current legal, professional and ethical guidelines. You should also specifically and explicitly give the patient information to decide about contracting for therapy, and then make the contract. For example, after the initial phase of intake consultation has ended, and the patient has been offered a formulation, diagnosis and treatment plan and information regarding benefits, risks and alternatives to treatment, you might ask “With the information I’ve given you about the therapy I’m recommending, its possible benefits for you, its cost and my office procedures, would you like for us to begin working together?” The patient’s expressed assent is a sort of “oral handshake.”

Many clinicians prefer to obtain consent only orally. They believe that oral communication is both a means and an end in therapy, a paradigm. They think that trust, confidentiality and the ability to resolve conflicts on a personal rather than formal level are essential to the therapeutic enterprise. To them, therapy is not an invasive procedure and should instead be considered a relationship that is entered into, and may be left, entirely voluntarily. Using written forms to obtain consent may either interfere with, or be unnecessary to accomplish, these purposes. Critics of written consent forms also focus on concerns patients may have. Signing any form presents an obstacle to some persons, who, despite any assurances, may feel it represents a commitment they are uncomfortable making. Some persons feel that there is something that they cannot understand hidden in every written contact.

Despite any drawbacks, I think that written forms, the second way to assure and record consent, are preferable for individual patients where legal involvement is possible, and for couple, family, child and group therapy. Individual adult patients for whom written consent forms are preferable, in my opinion, include patients who might divorce, parents at risk for child abuse or neglect, divorced parents who have disputes with their child’s other parent, patients charged with a crime or on probation, patients who abuse drugs or alcohol, patients who have sued or filed complaints against former therapists, and patients involved in worker’s compensation, personal injury, malpractice or other legal actions. In these cases there exists the possibility for disagreements between you and patients about the terms of the therapeutic relationship. These disagreements may jeopardize the therapeutic alliance or therapy itself, significantly inconvenience you or even lead to professional complaints or lawsuits.

For couple, family, group and child therapy, you may not have the sort of personal relationship with patients that mitigates the need for written forms. The clear advantages of written forms in these cases is that they are tangible, and can be saved for reference should a misunderstanding arise.

Written forms are not without legal drawbacks. In any legal dispute with a patient, written consent forms are vulnerable to charges that they were not comprehensive or comprehensible. Also from a legal point of view, the act of signing a consent form does not necessarily signify consent. Rather, the form is supposed to memorialize the terms of an actual agreement, and confirm that consent has been given. Thus, when consent forms are used, they should not be a substitute for a consent discussion. They should be given to patients and reviewed by you and the patient during the consent interview, and then signed with a copy given to patients.

Written informed consent forms are available from many sources. One that our do-it-yourself clients seem to like is The Paper Office by E. Zukerman. One potential problem with many written forms that I have reviewed is that they are not customized for practice in individual states. Our office has written consent forms on file; feel free to call for further information.

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