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
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).
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:
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,
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.
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.
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
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.
Breaking it all down…
1.
2.
3.
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
Breaking it all down…
3.
The mental health consumer must be:
1.
Competent – The capacity to accurately and completely
understand both his/her consumer rights and the process of
psychotherapy
a)
b)
c)
d)
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
Breaking it all down…
3.
The mental health consumer must be:
2. Of Legal Age
a)
b)
18 years of age or older
Under age 18 the client must have the written consent of
the parent or legal guardian
i. Minors 14 yrs of age and older have the right to due
process to protest involvement in treatment.
ii. Parents of minors 14 and over also have the right to
due process if their minor child refuses treatment.
Breaking it all down…
4.
The mental health consumer must be:
3.
Voluntary
a) 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
Breaking it all down…
5.
6.
Informed consent must be signed by all
consumers participating in the treatment
process
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
Breaking it all down…
7.
Consumer’s have the right to file a formal
grievance (DHS 94.28 & 94.29):
1.
2.
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:
a)
b)
c)
d)
e)
Clinician
Clinic Administrator
Patient’s Rights Specialist
DRL
DHS
Breaking it all down…
8.
Consumer’s must be informed of any potential risks
or negative outcomes associated with psychotherapy
1.
2.
3.
4.
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)
Breaking it all down…
9.
Consumer’s must be informed of any potential
benefits associated with psychotherapy (E.g.)
1. Symptom reduction
2. Improved functioning
3. More effective coping strategies
4. Improved relationships
5. Improved self-esteem and affect
Breaking it all down…
10.
Consumer’s must be informed of any potential side
effects of NOT receiving psychotherapy (E.g.)
1. Worsening of symptoms
2. Deterioration in functioning
3. Increased relationship problems
4. Potential for crisis
5. Increased health risks
Breaking it all down…
11.
Consumer’s must be informed about your
qualifications to provide psychotherapy:
1.
2.
3.
4.
12.
Credential / License
Level of Education
Years of Experience
Specific Training as it relates to a specialty
Consumer’s must be informed about your therapeutic
approach:
1.
2.
Model of Therapy (e.g. systems, CBT, narrative, etc.)
Religious / Spiritual Orientation (if its integrated into your approach,
I.e. Christian counseling)
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
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:
1.
2.
3.
4.
Treatment Costs (therapy, testing, etc.)
Insurance Copays / Co-Insurance / Deductibles
Policy and Fees regarding No Shows / Late Cancellations
Policy Regarding Schedule of Payments
Breaking it all down…
16.
Consumer’s need to be informed and educated about
confidentiality as it relates to protected health
information.
1.
HIPAA
http://www.hhs.gov/ocr/privacy/index.html
2.
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
Breaking it all down…
17.
Consumer’s need to be informed and
educated about confidentiality as it relates to
protected health information.
3.
Exceptions:
a)
b)
c)
Imminent Harm to Self or Others
Subpoena by a Judge
Suspected Child / Elder Abuse / Abuse of a Vulnerable
Adult
Breaking it all down…
18.
Give consumer’s options should they ever feel a lack
of progress in psychotherapy:
1.
2.
3.
4.
5.
Develop a New Treatment Plan
Incorporate Consultation / Supervision
Expanding the Client System
Expanding the Therapist System
Terminating Treatment
a)
b)
Transferring to another Provider (internal)
Transferring to another Provider/Agency (external)
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:
1.
2.
3.
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
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.
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.
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.
–
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
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.
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.