Informed Consent in Counseling: Key Legal Cases Explained

Introduction: Informed Consent in the Counseling Profession

Many people seek counseling each year without fully understanding what services are offered, or even that the counselor they see is required by law to maintain the confidentiality of their conversations. These issues have historically been unclear and have led to numerous court cases that have helped counselors in every state define exactly what an informed consent document must contain. The American Counseling Association (ACA) and its state affiliates have specific ethical guidelines requiring members to provide new clients with an informed consent document to sign. State and federal legal cases have demonstrated the need for a document that spells out what a practice's counseling services entail, what confidentiality means, and — in many instances — how services will be paid for (Walsh & Dasenbrook, 2005).

The American Counseling Association recently updated its Code of Ethics, which includes Section A.2 outlining informed consent requirements. According to that section, counselors must:

ACA Ethical Guidelines on Informed Consent

"inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor's qualifications, credentials, and relevant experience; continuation of services upon the incapacitation or death of a counselor; and other pertinent information. Counselors take steps to ensure that clients understand the implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements. Clients have the right to confidentiality and to be provided with an explanation of its limitations (including how supervisors and/or treatment team professionals are involved); to obtain clear information about their records; to participate in the ongoing counseling plans; and to refuse any services or modality change and to be advised of the consequences of such refusal" (ACA, 2005).

This is a comprehensive listing of a counselor's duties as required of an ethical practitioner — duties that have also been shaped by legal precedent.

Canterbury v. Spence: A Landmark Legal Precedent

Counseling law follows medical law, and most cases involving informed consent have been brought against physicians. One landmark case is Canterbury v. Spence (1972). In that case, Dr. Spence operated on Mr. Canterbury, who was 19 years old at the time. The patient was treated in Washington, D.C., but — being considered a minor at the time of the incident — he required his mother's consent before the operation could be performed. The plaintiffs argued that the doctor was negligent because he had not fully explained the risks of the procedure to either the mother or the son. The district court initially found that the doctor had adequately informed the parties, but on appeal the doctor was found to have been negligent in his discussion of the operation's dangers (Wilder, 2000).

This decision was landmark because it established exactly what must be explained to a patient before they enter a course of treatment. It laid the groundwork for informed consent as it is understood today. A client must understand what a treatment process entails so that they can either accept or reject its conditions. That is why counseling professionals are required, under the ACA's ethical guidelines, to disclose payment arrangements, the course of treatment, and their credentials. The client has the right to know everything about the proposed treatment.