During the past several decades, informed consent has become an established principle of health law as well as clinical ethics, so much so that it has been the subject of a presidential commission (President's Commission, 1982). The requirement that a physician obtain a patient's informed consent to medical treatment (Canterbury v. Spence, 1972; Natanson v. Kline, 1960) is based on a consensus that individuals have the right to control access to their own bodies and to make informed decisions about their own health and well-being decisions with which others might disagree and live or die with the consequences. Moreover, the courts have repeatedly affirmed that a person (even one who is hospitalized for mental illness, if competent) has the right to refuse any and all medical treatment (e.g., Rogers v. Commissioner of the Department of Mental Health, 1983), and the right of refusal is recognized to varying degrees in many state statutes and regulations.
Although statute and case law concerning the scope and application of informed consent and the right to refuse treatment vary from one jurisdiction to another (cf. the U.S. Supreme Court's declining to promulgate uniform national standards in Washington v. Harper, 1990), basic principles are generally consistent (Appelbaum & Gutheil, 1991; Bursztajn et al., 1991; Deaton et al., 1993; Schwartz, 1994). The right to give or withhold informed consent is held by competent adults. Parents or guardians must give informed consent for minors, and a legal guardian must be appointed to give informed consent to treat a person who is adjudged incompetent to consent.
Competence is not a global trait. Separate judicial determinations must be made as to whether a mental disability renders a person incompetent (for example) to manage his or her finances, to make a will, or to stand trial. When it comes to giving informed consent to medical treatment, the requisite elements of competence include an appreciation of the situation and its consequences, together with the capacity to understand relevant information, to process that information rationally, and to communicate one's choices to care providers (Appelbaum, 1997; Appelbaum & Grisso, 1988; Grisso & Appelbaum, 1995).
Besides competence, two other elements are necessary to informed consent: information and voluntariness. In order to make an informed decision, a person must be informed about the nature of the treatment offered, its risks and benefits (i.e., possible outcomes, including side effects, and their probability of occurrence), and possible alternative treatments. The risks and benefits of no treatment at all must also be considered. The requirement of voluntariness means that consent must be given freely, and cannot be coerced. While physical coercion clearly violates this stipulation, establishing that psychological or emotional coercion has occurred in a given case is a clinico-legal judgment on which expert opinions may differ.
Statutory and judicial exceptions to the informed-consent requirement mainly involve emergencies in which the need to act quickly overrides the need for consent (Rogers v. Commissioner of the Department of Mental Health, 1983). The right to informed consent may also be overridden or compromised when others are directly endangered by a person's decisions. It is often on the basis of such supposedly emergency considerations as determined by the provider, who frequently stretches this concept to the breaking point that treatment is imposed on drug users and alcoholics.
In clinical ethics, the duty to obtain informed consent can be derived from at least four major ethical principles: beneficence, non- maleficence, autonomy, and justice. Of these four, the principle of respect for autonomy is the most central to informed consent. Today, this principle of autonomy is often associated with, and bolstered by, that of authenticity. That is, not only should one be free from external coercion in making health-care decisions, but one should feel free to make decisions that truly express one's inner values and convictions, one's sense of who one is and what one stands for (Bursztajn & Brodsky, 1994; Peele & Brodsky, 1991).
This is a deeper, more active conception of informed consent than that common in years gone by. It means that clinicians support the patient in a process of self-discovery rather than simply give the patient a checklist to sign (Gutheil et al., 1984). At one time, "doing good" and "not doing harm" were typically conceived of in paternalistic terms, whereby the clinician's sense of good versus harm mattered more than the patient's. But such imposition of values would be out of keeping with the social priorities of recent decades.
In terms of addiction treatment, therefore, this modern conception of client-centered care imposes on the provider an obligation to actively encourage the expression of the individual's values. To say that this is rarely the case in drug and alcohol treatment is an understatement. Simply for a provider not to combat and suppress the individual's values would be a great improvement in most treatment settings. Several clinicians have outlined the differences between such a client-centered approach and that typically used in standard drug and alcohol treatment programs (Miller & Rollnick, 1991; Peele et al., 1991).
One such set of contrasts between an approach that respects client choices and the standard 12-step approach is provided on the following page:
|Differences Between the 12-Step and Life Process Approaches to Addiction|
|12-Step/Disease Model||Life Process Program|
|Your addiction is inbred (genetic, biological)Your addiction is a way of coping with life experience|
|You get the same therapy as everyone else||You design a treatment that fits you|
|You must accept your identity as an addict/alcoholic||You focus on problems and not labels|
|Your therapy and cure are dictated to you||You arrive at your own goals and therapy plan|
|Either you are addicted or you aren't||Your addiction will vary depending on your situation|
|Your addictive symptoms are drummed into you||You identify the negative consequences of the addiction|
|Any claims you have to being okay are attacked as denial||Positive aspects of your self-image are accepted and amplified|
|Source: Peele et al. (1991, p. 174).|
In addition to its legal and ethical bases, informed consent should be a clinical imperative. A growing body of research shows the predictable result that patients participate more fully in treatment and experience better outcomes when they have the opportunity to choose a form of treatment they believe in. This has repeatedly been shown to hold true in the case of alcohol treatment. In particular, personal values and beliefs have been found to be critical in terms of whether people accept and succeed at abstinence or controlled drinking goals.
In terms of a client-centered approach to assessment and treatment, motivational interviewing and brief interventions (which follow similar principles) have been shown to be the most effective treatments overall (Miller et al., 1995). Moreover, since motivational interviewing and brief interventions respect individual choices and in fact build and rely on clients' efforts, these treatments are the most cost effective (by producing the best results at the least cost). Indeed, in the NIAAA's widely heralded Project MATCH (1997), which found all treatments to be equivalently effective under its highly structured research protocol, motivational enhancement had one-third as many scheduled sessions as the other two treatments (12-step facilitation and social skills training). In other words, motivational enhancement produced results as good as the other key therapies with a third the investment in treatment, even given that all therapies were administered under ideal conditions of therapy design and therapist training and supervision (Peele, 1998) (see Chapter 2).
With informed consent, clinicians need to recognize and respect patients' values and beliefs in particular, how they view the nature of their drinking problems (Heather et al., 1982). Indeed, research shows that an individual's "persuasion" as to what his or her drinking problem is and what outcome is most likely is a better predictor of outcomes viz. controlled drinking and abstinence than are objective measures of the severity of their alcohol dependence (Heather et al., 1983; Elal-Lawrence et al., 1986; Orford & Keddie, 1986). Beyond this, the exercise of autonomy can itself be therapeutic, promoting growth and responsibility (Booth et al., 1992; Miller, 1991; Sanchez- Craig & Lei, 1986; Sobell et al., 1992). By this empirical yardstick as well as on principle, clinicians who want to "do good" (beneficence) and "not do harm" (nonmaleficence) need to respect their patients' values, preferences, and decision-making autonomy.
A person who has been denied informed consent can seek administrative and legal remedies. One can report an alleged ethical violation to the state board of licensing or registration and to the national and state professional associations for the profession in question. Before doing so, it is prudent to read the ethics codes of those associations including, if applicable, those of a medical specialty field, such as psychiatry to formulate the precise wording of a complaint and to gauge how strongly the profession is likely to respond to such a complaint.
An example is provided in Appendix A of an ethics complaint submitted to the American Society of Addiction Medicine (ASAM, whose Principles of Medical Ethics are listed at its web site, http://www.asam.org). As that analysis shows, prominent members of the ASAM violate its stated ethical standards as a matter of course, without seeming to fear disciplinary action by this professional body. Thus, the best referral may be to the supervising physician's licensing body (usually a state medical board). As a last resort, a highly motivated individual may have to turn to the civil courts for redress. Professional referrals are also not available in the case of psychotherapists who do not belong to any regulated profession. In fact, the overwhelming bulk of assessment and treatment in addiction is conducted by counselors with certificates as addiction or alcoholism counselors (CACs), and referrals to their licensing bodies or governing boards may be of little use.
Under common law, unconsented touching during treatment is a form of battery, an intentional tort. Failure to obtain informed consent is an unintentional or negligent tort (Canterbury v. Spence, 1972; Natanson v. Kline, 1960). Notwithstanding the sensational cases in which patients are drugged and then violated, only a very small proportion of informed-consent cases reach the criminal courts. In civil law, informed consent is a cause of action separate and distinct from professional malpractice. In practice, however, it is not difficult to persuade a jury to view the absence of informed consent as part of a pattern of substandard care in a given case. Especially with non- routine procedures, properly obtaining informed consent has become part of the "standard of care" against which physicians' actions are measured in malpractice cases, and its denial a deviation from that standard (Bursztajn et al., 1997). Note that, when a case is brought against a physician on a theory of informed consent, the mere failure to obtain required informed consent is sufficient to establish liability. On the other hand, when failure to obtain informed consent is alleged as a deviation from the standard of care in a malpractice action, the same elements must be proved to sustain the claim as in any other malpractice case, i.e., a breach of the physician's duty of care that directly causes damage to the patient.
Standard of care is itself an evolving notion, as the old "community standards" of a locally oriented society have been supplanted by national standards for certified medical specialties (Restatement of Torts, 1965; Robbins v. Footer, 1977) and, in some cases, by an objective cost-benefit analysis (Helling v. Carey, 1974). But informed-consent laws actually came about in opposition to professional custom. Court decisions (Scaria v. St. Paul Fire and Marine Insurance Co., 1975; Zeleznik v. Jewish Chronic Disease Hospital, 1975) and even state legislation reaffirming professional custom as the standard of care in malpractice cases (Washington Revised Code, 1975) have generally upheld the patient's right to informed consent irrespective of customary professional practice.
The 1999 case of G. Douglas Talbott (Chapter 6), past President and a Board Member of ASAM, broke new legal ground in this regard. Talbott and associates were found liable for $1.3 million in actual damages and settled for an undisclosed amount in punitive damages. In this case, Talbott's physician treatment program coerced the client into alcoholism treatment through threats to his medical license, combined with a bogus diagnosis of alcohol dependence (which is typical for those who are assessed in alcohol treatment programs; cf. Sharkey, 1994). Talbott and a number of colleagues were found liable for fraud, malpractice, and a novel claim false imprisonment (Ursery, 1999b). The fraud judgment required a finding that errors in the diagnosis were intentional.
Talbott's and his colleagues' diagnosis of the plaintiff did not meet the standard of care. Moreover, in line with the trend noted above, in malpractice claims against substance abuse programs, informed consent could be cited (although it apparently was not in the Talbott case) as an essential and required element of care, and failure to gain full consent used as evidence of malpractice. As with an ethics complaint, however, a malpractice action cannot be brought against an unlicensed psychotherapist or most CACs, who have few or no professional standards to violate.
Differential Diagnosis and Treatment
Given the widespread insistence in the U.S. that alcoholism and other addictions are diseases to be managed medically, one would expect that they would be dealt with like other medical conditions, according to established medical principles and procedures. For example, the scientific framework of medicine would require documentation of treatment efficacy and individualized treatment planning. Individualized planning would, in turn, indicate that therapeutic measures correspond to the severity of the condition. Thus, treatment of a person who is occasionally bingeing, particularly when the person is young, would be entirely different from treatment given to a chronic, middle-aged alcoholic. A parallel is often drawn by those seeking reforms in alcohol treatment to "step care" for cholesterolemia (see Institute of Medicine, 1990), in which mildly elevated cholesterol is dealt with through dietary recommendations, and more severe cases through increasingly potent medications. Analogously, in the case of alcohol problems, young people with incipient problems would be administered a "secondary prevention" program, emphasizing training to avoid binge situations and to drink moderately on social occasions (Marlatt et al., 1998).
Absence of Informed Consent in Addiction Treatment
Just as a genuine medical model of clinical treatment is based on differential diagnoses and graduated levels of intensity of care, the legal and ethical framework of medicine would require a patient's informed consent to treatment. Fully informed consent involves assenting, first, to any treatment at all, and, second, to a particular form of treatment. Yet, just as step care and secondary prevention programs are rarely considered in standard alcohol and drug programs, informed consent is likewise almost completely ignored.
These lacunae in the real world of addiction treatment in the U.S. occur due to the ideologically charged nature of drug and alcohol abuse/dependency. Here the legal and ethical tenets of the clinical professions, like their scientific foundations, are honored in the breach rather than the observance. Each year hundreds of thousands of people are routinely mandated into treatment by the courts or coerced by private employers (Brodsky & Peele, 1991; Weisner, 1990) (see Chapter 1). The vast majority of these are given no meaningful choice of treatment. Specifically, they are not informed about alternative treatments that have had better outcome records in clinical research (Miller et al., 1995). Issues of outpatient versus inpatient treatment are similarly decided based on what the program offers (and the patient's insurance coverage) rather than on proven efficacy (Miller & Hester, 1986).
This failure to implement a true medical model across the board has occurred in part because the prevailing model of addiction treatment in the U.S. is primarily rooted not in science but in religion, or in quasi-religious "spiritual" folklore. As such, its practitioners promote it and it has largely been accepted as received wisdom, not as an issue for empirical study. Although Alcoholics Anonymous and like-minded voluntary mutual-support fellowships disavow any coercive intent, many of those in clinical, administrative, and referring roles in public and private institutions are true believers in AA's 12-step model who see it as the only way to approach addictions problems, and who brook no opposition.
Moreover, although the disease model disclaims moralistic intent, substance abuse and addiction are often nonetheless seen in moral terms. This perception derives in part from actual risks of violence, accidents, and deteriorating health (which in a true medical model would be assessed case by case) and in part from an ingrained cultural prejudice against states of intoxication as ipso facto sinful and dangerous. Supposed addiction experts' views are highly colored by their personal experiences. A large majority would likely agree with G. Douglas Talbott, who declares: "The ultimate consequences for a drinking alcoholic are these three: he or she will end up in jail, in a hospital, or in a graveyard" (quoted in Wholey, 1984, p. 19 and a direct echo of the AA belief that alcoholics' only alternatives to AA are "jails, institutions, or death").
Based on such claims, treatment providers feel justified in applying any sort of pressure to coerce an "addict" into treatment. But in fact, many people overcome drinking and drug use problems on their own, without treatment (see Chapter 2).
The most intense types of coercion are interventions, in which the individual is surrounded by friends and family (and usually addictions professionals) who insist that he or she is out of control; such sessions normally end with the person being whisked off to a treatment center. To say that such interventions violate standard practices of informed consent is, once again, a serious understatement. Interventions employ practices that are quite similar to the kinds of group-think pressures that occur in cults and that amount to brainwashing (see Bufe, 1998; Gerstel, 1982; Lifton, 1969; Ragge, 1998). It is unthinkable that any form of therapy other than that for drug and alcohol abuse would utilize this as a treatment modality. Yet leading practitioners in the field (see Johnson, 1980) strongly endorse interventions. Indeed, in his book about the excesses of chemical dependency and other mental health treatment, Sharkey (1994) described how, in Texas, treatment centers actually employed private security guards to round up suspected substance abusers. Assuming that they were being arrested, these unsuspecting individuals were then deposited in for-profit hospitals. Eventually, prodded by state senator Frank Tejeda, Texas became the first state to crack down on some of the excesses involved in private psychiatric hospitalizations.
American Society of Addiction Medicine
PRinciples of Ethics
Substance abuse and dependency as well as alcohol abuse and dependency are defined as psychiatric disorders in DSM-IV. State laws provide that if a mentally ill person is to be deprived of the right to make personal choices including that of giving informed consent to treatment, a court hearing must be held to determine that the person is incompetent (cf. Kaimowitz v. Michigan Department of Mental Health, 1973). If the person is to be deprived of physical freedom through involuntary hospitalization, hearings must be held at specified intervals to determine that the person is dangerous to self or others. As a rule, even an involuntarily committed person is presumed competent unless a court rules otherwise (Bursztajn et al., 1991).
Why are these legal safeguards routinely overridden in consigning people en masse to addiction treatment? Two elements of the addiction ideology provide an explicit or implicit rationale for this legal bypass. First, loss of control is a defining element in the 12-step definition of addiction or dependence, although it is not in DSM-IV (see Chapter 1). Like other aspects of addiction as popularly conceived (which have in turn imprinted themselves on medicine and law) and as promoted by treatment providers, loss of control over one's behavior is seen in all-or-nothing terms as a dichotomy rather than a continuum. Moreover, this concept is applied quite loosely and inclusively, not only to addicted (or substance-dependent) persons, but also to many who would qualify for lesser diagnoses as mere substance abusers. Once any such person has been classified as having lost behavioral discretion, he or she will be claimed to be a danger to self or others.
Second, denial has become fundamental in U.S. addiction orthodoxy a concept that, from the outset, excludes the person so labeled from having a say in treatment choices. Denial is listed as the first element in the first section in the Principles of Medical Ethics adopted by the American Society of Addiction Medicine (ASAM). (It is important to note that addiction medicine is not a recognized medical specialty, but is rather a self-designation on the part of the group's members.) ASAM's Principles read:
Even ASAM, however, recognizes that use of the concept places them in a somewhat awkward position in regard to ordinary medical ethics. Thus, in the same place in its Principles statement, it continues:Because of the prominence of denial in patients suffering from chemical dependence, treatment may be mandated or offered as an alternative to sanctions of some kind. In other circumstances, a chemically dependent person whose judgment is impaired by intoxication may be brought to treatment when unable to make a reasoned decision, or may be treated on an involuntary basis.
(American Society of Addiction Medicine, 1992)
It is the duty of the addictionist to advocate on behalf of the patient's best interest and to prevent any abuse of this coercive element. The goal for patients is to restore, as quickly and safely as possible, their ability to make responsible decisions about their own recoveries.
However, in forensic psychiatry, even a person diagnosed with a psychosis can be found to retain decision-making capacity in some life functions (Appelbaum & Gutheil, 1991). By contrast, in the world of addiction services as actually practiced, being "in denial" about one's illness is assumed to render one incompetent to make decisions about that illness. This blanket, a priori determination is then employed as a substitute for a court hearing. Thus, the two criteria applied in mental health law to deprive a person of normal personal liberties and prerogatives namely, dangerousness and incompetence are routinely ignored in favor of the principles of loss of control and denial. In this way, standard treatments for substance abuse in the U.S. circumvent informed consent.
Among the interesting aspects of the ASAM ethics code is that it says nothing about whether a particular type of treatment may be mandated or refused. This is because, essentially, the ASAM reckons that there is only one possible type of treatment for substance abuse.
In other areas of the ASAM Principles, vacuous assertions are made that in fact are regularly violated. The Principles specify that the patient is to be treated with respect, "regardless of possible conflicts in values between patient and physician." Furthermore, the physician has a duty to uphold patient rights while working in an inter- disciplinary team and "should not delegate to any nonmedical person any matter requiring the exercise of professional medical judgment." This element of the code is routinely disregarded through the reliance of treatment programs on alcoholism and addiction counselors who are themselves AA members preoccupied with their own recovery. As an example, G. Douglas Talbott and "many physicians on the Talbott team are recovering alcoholics" (Sibley, 1999).
Similarly notable, more for their violation than observance, are the code's injunctions to physicians to conduct public education "without any potential exploitation of patients through emotional appeals or misrepresentations" and, in public consultations, to "make clear whether their statements are based on scientific evidence, individual profession[al] or personal experience, or personal belief." Indeed, much of the code sounds as if it were derived from a list of common abuses in the field. In particular, the ASAM ethics code affirms the necessity of informed consent in standard medico/legal/ethical terms:
Addictionists should treat individuals only with their consent, except in emergency and extraordinary circumstances in which the patient cannot give consent and in which the withholding of treatment would have permanent and significant consequences for life and health. In cases where the patient has been found to be incompetent by appropriate mental health professionals and/or by the judicial system, physicians may assist in their care.
(American Society of Addiction Medicine, 1992)
It is difficult to reconcile this statement either with some of those made elsewhere in the Principles or with actual practice. In Chapter 6, we review the case of G. Douglas Talbott. Talbott, Past President and board member of ASAM (along with a number of professional colleagues) seemingly violated, without compunction, informed consent and other of what ASAM claims to be its ethical principles. There is additional irony in that Talbott's program is for "impaired" physicians and other health professionals, and that he is co-author of the definitive chapter in ASAM's Principles of Addiction Medicine concerning treatment of such professionals (Angres et al., 1998).
The best hope of reconciling practice in this area of medicine and therapy with the more broadly accepted (and legally enforced) standards of the medical profession may lie in the ASAM ethics claim that addictionists "carry the responsibility to be aware of the laws that govern both their professional practice and everyday lives and to respect and obey these laws." If those supposedly bound by ASAM's Principles took this guidance seriously in regard to the laws on informed consent, we would see an end to the special status of addiction treatment as a de facto exception to those laws.