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

Psychotherapy is a potentially powerful treatment that uses language and a special therapeutic relationship to relieve psychological suffering. Like much of psychiatry, it is a relatively new endeavor. It is new enough that there is currently “no consensus about mechanisms of change in psychotherapy” (1). Thus, it follows that there is also no general consensus on how to obtain informed consent for psychotherapy (2). Nevertheless, obtaining a “minimal standard” for informed consent in psychotherapy does appear to be widely accepted (3). Psychiatrists train for many years to do this work while maintaining physical and psychological safety. The intimate and confidential nature of the psychotherapeutic material is fertile ground for the complete range of human emotions, both within the patient and within the therapist. Psychotherapists may have to endure hearing a siren’s call while maintaining professional bearings. Just as Ulysses tied himself to the mast, psychotherapists tie themselves to the boundaries and framework of treatment to ensure safe passage and effective treatment for patients.

At any given point throughout psychotherapy, there is the potential for a therapist to deliberately or unintentionally cross boundaries. As Gutheil and Gabbard have noted, the process of crossing boundaries “may at times be salutary, at times neutral, and at times harmful” (4). This column provides an overview of boundary crossings (BCs), boundary violations (BVs), and their implications. The column also introduces the topic of informed consent for psychotherapy. How can informed consent be obtained if the course of proposed psychotherapy is not completely known from the start? What information about the psychotherapy should be disclosed and in what manner? These issues continue to be debated by experts in the field (5). Finally, the column explores the challenges of maintaining appropriate boundaries in an era of social media and instant communications.

Case 1, Part 1

Mr. D is a 45-year-old man who presents to Dr. Smith’s outpatient private psychiatry practice with a chief complaint of bothersome obsessions and compulsions. Mr. D reported that, since the beginning of the COVID-19 pandemic, he has experienced increased anxiety. He states that he worries constantly about being infected with COVID-19. His worry and intrusive contamination thoughts are ego dystonic and cause him great distress. Mr. D reported that he washes his hands at least 100 times per day and adds, “I never really feel better, no matter how much I wash my hands.” He has difficulty leaving the house to go to work for fear of contamination. His boss told him that he is at serious risk of being fired from his job for missing too many days of work. Mr. D’s family has become frustrated with him because he is too anxious to perform household errands such as getting groceries or going to his children’s school or sports-related events. He and his family have been fully vaccinated against COVID-19 and take reasonable precautions. Nevertheless, his worries and compulsions have been creating problems in his personal and professional life.

Dr. Smith diagnoses Mr. D with obsessive-compulsive disorder (OCD) and explains the illness and the various treatment options to Mr. D.

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

  1. Information

  2. Voluntariness

  3. Competence

  4. Signed consent form

Case 1, Part 2

Dr. Smith explains to Mr. D that there are various treatment possibilities for OCD, including medications, psychotherapy, and combination therapy. After discussing the risks, benefits, and alternatives for each treatment modality, including the risk of no treatment at all, Mr. D decides to pursue cognitive-behavioral therapy (CBT) for his symptoms; specifically, exposure and response prevention.

Discussion: Event Model versus Process Model of Informed Consent

There are two general models that describe the implementation of informed consent in clinical practice: the event model and the process model (6). Obtaining informed consent is thought of by many practitioners as a time-limited event that occurs when a physician discusses the proposed treatment, relevant information is disclosed, a decision is made, and a consent form is often signed. This is known as the event model of informed consent. According to Lidz et al., “The event model of informed consent treats medical decision making as a discrete act that takes place in a circumscribed period of time, usually shortly before the administration of a treatment, and emphasizes the provision of information to patients at that time . . . the consent form, with its detailed recital of risks and benefits, can be seen as the central symbol of the event model” (6). In contrast, the process model considers informed consent as an ongoing process of the therapeutic relationship, becoming a “facet of all stages of medical decision making” (6). The process model is well suited to psychotherapy. Since the psychiatrist and patient meet regularly and relatively frequently over time, therapy goals and even styles of therapy can be revisited. The process model helps prioritize patient autonomy and the therapeutic working alliance as part of the unfolding psychotherapeutic process.

• 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. Psychotherapy utilizes the same mode of communication as informed consent discussions.

  2. The duration and frequency of psychotherapy may be less clear than the duration of a medication trial.

  3. There may be multiple psychotherapy approaches for a given disorder.

  4. There are no risks involved in psychotherapy to discuss with the patient.

Dr. Smith obtained full informed consent for the CBT intervention and began seeing Mr. D weekly for treatment. After several months, Mr. D’s OCD symptoms were significantly attenuated. He was able to leave his house without excessive fear of COVID-19 and was able to complete basic tasks and errands for his family outside their home.

One day, Dr. Smith decided to look himself up on the internet to see if his practice information was listed correctly on his website. While browsing, he noticed a shockingly negative review from Mr. D about his current treatment. Dr. Smith was surprised, as he was under the impression that their therapeutic relationship was strong. Dr. Smith also became worried that the negative review might damage his reputation and decrease new patient referrals.

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

  1. Discuss the review privately with Mr. D in the next session.

  2. Have his office staff post fake positive reviews to “drown out” the negative review.

  3. Respond to the negative review online, addressing Mr. D’s concerns.

  4. Terminate the patient.

Case 2, Part 1

Ms. E is a 32-year-old divorced woman with a history of persistent depressive disorder and generalized anxiety disorder. She began seeing Dr. F a few years after her father passed away after a lengthy battle with cancer. Dr. F is a 47-year-old recently divorced man who treats patients in his outpatient private practice with both medications and psychotherapy. To save money after his divorce, Dr. F began seeing patients in his home office. Dr. F’s divorce was emotionally taxing, and he periodically struggled with low mood and increased use of alcohol. Dr. F found that he began to look forward to Ms. E’s sessions, as he found her pleasant, intelligent, and responsive to his therapy interventions. Ms. E began to feel as though Dr. F was a major stabilizing force in her life. She was grateful for his attentive care and became convinced that Dr. F had helped her avoid a hospitalization for overwhelming anxiety and feelings of hopelessness.

After approximately 1 year of twice-weekly visits, Ms. E notices that her sessions have been lasting about 1.5 hours, whereas they typically lasted 50 minutes when she and Dr. F first began her treatment. Ms. E was moved to tears during one session, when Dr. F told her he had been feeling a bit “lost” after his wife of 15 years left him for a younger man. Ms. E began to have feelings of wanting to help Dr. F, since he had helped her. After one session, she felt compelled to hug Dr. F because he had seemed especially sad to her. Ms. E was surprised yet felt oddly pleased when Dr. F hugged her back for an extended period. Several weeks later, Dr. F and Ms. E found themselves texting each other late in the evenings.

• 2.1 Which of the following best distinguishes BCs from BVs?

  1. Most BCs ultimately lead to BVs.

  2. BCs are generally nonexploitative, whereas BVs exploit the patient in a harmful manner.

  3. A BC might involve engaging in business relationships with the patient, whereas BVs typically involve sexual intimacy.

  4. BCs may result in psychiatric malpractice, whereas BVs may result in criminal charges.

Discussion: BCs Versus BVs

BCs are a deviation from the standard psychotherapy custom of empathic neutrality. BCs are generally harmless and nonexploitative, and they can sometimes be used in a therapeutically productive way if they are processed appropriately in therapy. Examples include accepting a small termination of therapy gift or making a home visit to a bedridden patient. Not all BCs lead to BVs, and some degree of boundary flexibility may allow for an individually tailored response to a patient’s needs (7). In contrast, BVs are usually harmful (ultimately, to both patient and psychiatrist) and involve a pattern of the psychiatrist placing their needs above the patient’s. Examples include not only sexual intimacy but also engaging in business deals or hiring patients to engage in work that benefits the psychiatrist. Psychiatric malpractice claims of BVs are rare in psychiatry. It is possible that BVs are underreported in psychiatry; however, their rarity may be because sexual BVs with patients now result in a variety of serious sanctions. If a psychiatrist is found to have engaged in sexual BVs with a patient, both civil and criminal actions may follow. Psychiatrists may be expelled from professional organizations and have their licenses revoked. Over half of the states now have explicit criminal statutes focusing on sexual BVs by therapists.

Case 2, Part 2

A few months later, Dr. F agreed to meet Ms. E, at her request, for dinner at a restaurant. Not long after that, Dr. F informed Ms. E that he would be attending an important psychiatric conference on anxiety and thought she might benefit from attending it with him. Dr. F and Ms. E became sexually intimate while staying at the conference hotel. On returning home, the two continued to be sexually intimate for several weeks. One evening at Dr. F’s home, Ms. E happened to see pictures of Dr. F and his ex-wife together. Ms. E suddenly felt anxious and uncomfortable being in Dr. F’s bedroom. The following week, Ms. E felt troubled and talked with friends about what had transpired between her and Dr. F. After listening to her friends’ concerns and negative comments about Dr. F’s actions, Ms. E decided to stop seeing Dr. F. She then reported Dr. F’s romantic relationship with her to his local office of professional medical conduct.

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

  1. Progressive BCs leading to BVs over time

  2. Extending therapy sessions or meeting outside the therapy session

  3. Self-disclosure not intended solely for the patient’s benefit

  4. Text messages not adhering to practical matters such as appointment changes or prescription refills

  5. All of the above

Answers

• 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.

As stated in the American Psychiatric Association’s Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry: “The necessary intensity of the treatment relationship may tend to activate sexual and other needs and fantasies on the part of both patient and psychiatrist, while weakening the objectivity necessary for control. Additionally, the inherent inequality in the doctor-patient relationship may lead to exploitation of the patient. Sexual activity with a current or former patient is unethical” (14). As recently as the 1970s, it was estimated that about 5%–10% of psychiatrists engaged in sex with patients (15). Psychiatrists such as Dr. F may be more likely to engage in BVs when they are experiencing increased stress due to personal or professional crises (16).

• 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).