Counselling contracts and informed consent: does your counselling contract make clear the boundaries of the therapeutic relationship?
I have recently joined a linked-in group “BACP workplace” and started making contributions in response to members’ requests for assistance or comments. I have responded, in particular, to requests for assistance on enforcement of a cancellation policy and a separate call for advice on how to deal with a client not paying their fees for the therapy received. queries emanating from a broad spectrum of sample counselling contracts.
My advice, in both cases, has centered on effective contracting and making sure that informed consent has been received. As readers of my blogs will already appreciate I place a lot of emphasis on the effectiveness of forming the therapeutic alliance through a which should be a thorough document covering all aspects of the therapy and which sets out and makes clear the boundaries of the therapeutic relationship. This comprehensive agreement is the basis on which informed consent is gained and as such is less likely to be subject of mis-understanding, dispute or not adhered to on the part of the client.
In truth this is not some unique revelation of my own making. The requirements for this are set down clearly in the BACP ethical framework. The existing framework says under the heading of “Autonomy” that we should “seek freely given and adequately informed consent; engage in explicit contracting in advance”, (i.e. not in the same session work commences), “of any commitment by the client”. The new draft form of the ethical framework builds upon this under the heading “Building an appropriate relationship”. It explicitly requires the provision of information in advance about the services the clients want to receive and how they will receive it. Attention is required to, amongst other matters, how agreement is reached, how terms and conditions are communicated in ways that can clearly be understood, keeping records of agreements reached and nature of the professional boundaries.
Although I am not a fan of use of words not in common usage and a keen advocate of the use of plain English in official documents, the words “beneficience” and “non-maleficence persist in the new draft ethical framework. This is, I presume, for the good reason that a commonly accepted test for obtaining informed consent is the use of the principles set out by Beauchamp and Childress (Beauchamp and Childress; Principles Biomedical Ethics, OUP, 5th edition 2001). Namely these are “Respect for Autonomy”, “Beneficence”, “Non malificence” and “Justice”. Which together with “self respect” are the self same principles that all counsellors must adopt in their work. So clearly put, the principles of the ethical framework in relation to obtaining informed consent are not just a ‘counselling thing’ but a requirement that can be tested in Law and a matter of essential practice for all healthcare professionals.
I quite like the following passage, which I have taken verbatim from the ministry of ethics website [accessed 1st January 2015]
Consent to treatment lies at the heart of the relationship between the patient and the health care professional. The patient relies on the professional’s expertise, knowledge and advice, but it is up to the patient to decide whether he/she will accept or reject treatment, or in some circumstances request that the professional make the decision.
The focus on patient centred care and shared decision-making highlights the importance of informed consent, and professional guidelines and the law reinforce this.
However, the issue of consent to treatment is not quite as straightforward as it may seem on initial inspection. For consent to treatment to be meaningful a person must be able to understand the information he/she is given, which must be sufficient for him/her to evaluate the available choices, and he/she must feel free to make that choice.
The final paragraph presents a degree of challenge to the counsellor. Generally the ability to consent is governed by the Mental Capacity Act (2005) and common law. As a profession we know that capacity means the ability to use and understand information to make a decision, and communicate any decision made.
A person can lack capacity if their mind is impaired or disturbed in some way, and this means the person is unable to make a decision at that time. Examples of how a person’s brain or mind may be impaired include: mental health conditions – such as schizophrenia, bipolar disorder dementia. A person’s capacity can also be temporarily affected by shock, panic, fatigue (extreme tiredness), substance abuse or medication, all of which are conditions commonly encountered in the counselling room. So the question is do the clients entering counselling with an emotional or mental difficulty lose their right to provide informed consent?
Schneider GW Snell CARE: an approach for teaching ethics in medicine. Social Science and Medicine. 2000; 51:1563-7) suggest that in these circumstances it may be possible to make decisions as to capacity based upon:-
- The counsellors’ core beliefs and how they relate to a situation,
- How they have acted in the past when faced with similar situations
- What are the reasoned opinions of others about similar situations
- What has been the experience of others in the past when faced with similar situations
This seems to be in line with the Bolam test, which is important in cases of negligence. In Bolam vs Friern Barnet Management Committee 1957 a patient suffered severe injuries as a result of receiving Electro Convulsant Therapy without muscle relaxants. The judge ruled that the doctor had not been negligent and noted that “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”
It seems clearly to be the case clients who have capacity have a right to make decisions about their treatment, even if their decisions would be considered unwise. Under the Mental Capacity Act 2005, a client is deemed to be competent if they can be shown to: –
- Comprehend and retain information that has been presented to them in a way that they understand
- Retain that information
- Be able to weigh up that information and use that to make an informed decision
- To communicate their decision (by any means including blinking)
People aged 18 and over are presumed to have capacity unless proven otherwise. Information must be communicated in a way and at a time that gives the person the best possible chance of taking it in. Lack of capacity needs to be shown for each individual decision that is made;
For these under 18 it is clear that children should be involved as much as possible about the processes entered into relating to their care and in any event counsellors should consider “Gillick” competency Gillick v West Norfolk and Wisbech Area Health Authority [1985] (1985) 3 All ER 402 (HL).
The NHS choices web site says:-
For consent to be valid, it must be voluntary and informed, and the person consenting must have the capacity to make the decision. These terms are explained below:-
Voluntary – the decision to either consent or not to consent to treatment must be made by the person themselves, and must not be influenced by pressure from medical staff, friends or family.
Informed – the person must be given all of the information in terms of what the treatment involves, including the benefits and risks, whether there are reasonable alternative treatments and what will happen if treatment does not go ahead.
Capacity – the person must be capable of giving consent, which means they understand the information given to them, and they can use it to make an informed decision.
As a final point I would like to stress the basic difference between consent and informed consent.
Informed consent requires the client to understand the proposed therapeutic process and uncertainties about it as well as the different treatment options (including doing nothing) and their advantages, disadvantages and achievable outcomes. The amount of information required to make consent informed may vary depending on complexity and risks of treatment as well as the clients’ wishes. Further, individual clients will have different intellectual capabilities and understanding of their problem.
It is therefore considered in some places as mandatory to tailor information provided to the individual client and the current situation. i.e risk of suicide
A medical intervention without valid informed consent is a criminal offence and the doctor can be charged with battery. I do not believe that this has been tested in counselling or psychotherapy but it is certainly food for thought !!
Conclusion
- The BACP current ethical framework and in its likely future format requires counsellors to obtain informed consent for the proposed methods of therapy and all matters relating to the counseling process.
- Consent and informed consent are different.
- The fact that, (save in extreme cases) that client will inevitably be experiencing some kind of emotional or mental difficulty does not exempt the requirement to obtain informed consent.
- This requirement has its basis in law and in good practice across the broad spectrum of the work of the health care professional.
- Counsellors cannot ethically profess one thing and do something different in practice and should in my opinion closely examine their client agreements for compliance and thoroughness.
- Gaining informed consent comprises more than just putting a few brief words about a few selected areas on 2 sheets of A4.
Click on the links for further information on the importance of using a standardised and to see an example of our .
How does your counselling contract measure up?
To get your counselling contract review visit the Calm Counselling shop at Transitional phrase indicating go to blog that we are still discussing arguments in favour of allowing genetic engineering.
Marc Preston
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