Article: Informed Consent: Recent Legal Changes, Complaints and Dilemmas by Phillip Cox

Recent legal changes intended to clarify issues around informed consent have resolved some issues, yet also created new dilemmas. This article will briefly comment on the upward trend in formal complaints within the UK mainland and Ireland, highlight the legal changes and the dilemmas they create, and then consider the impact of these issues upon practising therapists. Next, I will consider upcoming legal changes to our professional registration bodies, the experiences of the Psychotherapy and Counselling Union, and how the Psychologists Protection Society (PPS) offers potentially unique support to its members. 

 

Formal Complaints 

It may surprise therapists to hear that irrespective of a client’s presenting issue, the therapeutic modality applied or therapy’s context within the Western world, around 10% of people attending therapy report experiencing their therapy as harmful.1 For therapists reporting on their personal therapy, the figure ranges between 27%2 to 40%.3 As feeling harmed can be a subtle and therefore difficult to define subjective experience, our perceptions of it can change over time or contexts. Within or between session distress may be part of the therapeutic encounter and so for purposes of this article, harm must be relatively lasting i.e. this definition excludes transient effects ... [such as in-session anxiety or between session sadness, and] must be directly attributable to ... the quality of the therapeutic experience or intervention”.4

 

Therapists’ Complaints 

All the key professional registration bodies report an increase in the number of formal complaints. What may surprise therapists is that across the registration bodies, the largest group of complainants are typically therapists. For example, Raffles5 reports that 71% of complaints made to the British Association of Counselling and Psychotherapy (BACP), are made by people associated with counselling. Similarly, while practitioner psychologists are the seventh largest professional group (of 16) on the Health Care and Professions Council6 (HCPC) register, they are the second largest group complained about. Around half of complaints are made by professionals. The situation is similar for the United Kingdom Council for Psychotherapy (UKCP).7 As far as I am aware, only the Irish Association for Counselling and Psychotherapy (IACP) publishes complaint outcomes and notifies the therapists “current Supervisor” (IACP,).8 

 

Legal changes & informed consent 

In the past, the Bolam test, whereby a professional’s actions were deemed acceptable if other professionals would have acted similarly, has now been superseded by case law. Recently, in Montgomery v Lanarkshire9, an NHS patient who was also a health professional won her claim that she should have been presented with the uncertainties and not just risks of her treatment. The outcome of this case impacts on what is now considered informed consent. The case has also created new dilemmas for our professional practices. 

 

Dilemmas 

At last year’s PPS CPD event, Dawn Devereux10 gave an interesting talk in support of informed consent. Given the upward trend in complaints and new case law, there seems a question of what informed consent actually looks like. For example, when physicians deliver a painless treatment yet say that it may hurt you, patients can “experience distress, which can tax the coping mechanisms of even well-functioning individuals”.11 This presents a dilemma; as therapists, should we be warning our clients that therapy could engender harm?  Also, when we add the words, ‘to a significant number of people’, could that increase the risk of harm? It’s a bit like going to the dentist and being told ‘this may hurt’, and then it hurts. When it doesn’t hurt, its possible that a client might question the dentist’s expertise. This creates a double-bind for the professional. Also, the idea of harm is introduced into a room just by mentioning it. I suggest this is an important dilemma facing therapists today, and I believe we need to say more about ow best to manage exceptions – our own, and that of our clients.  

 

Naming & shaming 

Foulkes12 suggests that what can heal can also harm. In a field that is inherent with risks because we are working in relation-with-others, the therapists who get the delicate balance of doing good work vs. poor work wrong, can become enmeshed in a formal complaint procedure. The current lack of clarity regarding how to inform our clients of the uncertainties and not just risks of attending therapy, can itself lead to difficulties. Formal complaints are dealt with by our professional registration bodies. However, they apply a quasi-legal approach, and the new case law has created dilemmas around what constitutes informed consent? When having to face a grey area, and a potential professional ‘name and shame’ process, therapists may turn to others for support. 

 

Psychotherapy and Counselling Union 

The Psychotherapy and Counselling Union13, whose motto is ‘Standing up for Therapists’ offers support to members who have received a complaint. In my role as the lead for complaints, it feels sad that in a profession committed to openness, honest and transparency, all of our members who have been involved in a complaints process feel damaged but it. This is irrespective of the professional registration body, which suggests it is a regulatory issue rather than relating to any one professional body. 

 

Professional Standards Authority  

While beyond the scope of this study, it is worth noting that the Professional Standards Authority (PSA)14, which oversees all the regulatory bodies, has drawn up a Bill to put before Parliament that intends to change the landscape of complaint procedures. Titled, Right-touch Regulation, the PSA considers “[t]there is a real need for legislative reform ... [because] The confrontational nature of proceedings and the stress that hearings engender can affect the health and wellbeing of all concerned ... [and] runs counter to our growing understanding of the situations where things go wrong, and the inter-connections”.15 Curiously, while the legal process in Montgomery v Lanarkshire has created new dilemmas, the PSA aims to apply the law to resolve such dilemmas. 

 

Is anxiety driving the complaints process? 

The PSA has recognised that there is no resolution for any stakeholder in the current approach. The underlying fears and anxieties remain unaddressed, because the emphasis is on examining the complaint, and not the interaction in the therapeutic space. The potential is for this to engender increasingly vigorous complaints procedures, which in turn may further fuel the fears and anxieties of health professionals.15 Fearing being ‘named and shamed’ for getting the delicate therapeutic balance wrong, health professionals may increasingly be inclined to practice in a defensive way. The lack of clarity around informed consent could unintentionally drive the upward trend of complaints. The uncertainty around the way complaints are treated itself risks further difficulties and conflict, and so may engender more complaints. Unfortunately for our profession, a profession that works to heal relationships and reduce distress, the issues remain unsolved. To address the circular process of anxiety-complaints-anxiety, our profession would appear to require external intervention because we have been unable to resolve the problem ourselves. I suggest this sends a poor signal to the public and perhaps other professionals. (For an alternative process to formal complaints procedures, I highly recommend Robin Shohet’s article).16  

 

Personal reflection 

For transparency, it is important to state my personal position and own my personal assumptions about these issues, and where these assumptions come from. I consider that I myself, and “[w]e are the bad therapists too. If there is someone who says he [she or they] has never done bad therapy (whatever that is), then this is someone who is likely to be doing bad therapy (whatever that is)”.16 While I feel it is appropriate to be concerned about what our profession delivers to the public, I am also concerned at the lack of caring for therapists caught in ethical dilemmas. By extension, the professional bodies may not be fully caring for clients. In my personal position being a client who has received some questionable as well as great therapy, I have come to appreciate that caring for therapists caught in ethical dilemmas also extends care to clients. 

 

As a therapist who believes in the work we do, I am troubled by the implications and dilemmas regarding the issues above. In recent research, therapist’s form many registration bodies reported ethical quandary: not sharing errors is unethical, yet sharing errors can feel very uncomfortable and can be humiliating; particularly when publicly shamed.17 I feel empathy for those who have years, even decades of good practice, yet whose reputations can be damaged by a single complaint. Other professions manage complaints in far more constructive ways. I suggest we need to assure practitioners that it is alright to disclose their errors. Only by feeling free to disclose our errors are we then free to own up to them and reflect upon them. The airline industry and the House of Commons Public Administration Select Committee (NHS)18, have produced supportive frameworks to reduce and learn from errors. Both interventions are relevant to therapy practitioners because they introduce a ‘no blame culture and open process’. The intention is to minimise reputational damage to the individual or an organisation, so that mistakes can provide an opportunity to learn. 

 

Psychologists Protection Society  

I was honoured to be invited by the PPS to write this article. I believe in the work we collectively do and fully support the aims to PPS, which is run for therapists, by therapists.  As the PCU lead on complaints, I believe that when most therapists receive a formal complaint they would like to openly and transparently respond. Most, in such circumstances, also think of how to support the client. Yet the first response letter is often written under pressure and at a time when the recipient is feeling confusion and anxiety. Early disclosures can harm a therapist’s defence. It is for this reason that I suggest it is vital to seek support before initially responding. Few insurance companies offer this first support; the PPS does.  

 

My parting thought is to say that at this year’s PPS AGM and CPD event, Heather Dale19 will be giving a talk titled: The hidden virtue: Towards a new understanding of humility in counselling and psychotherapy. The title captured my imagination because this article and therapy in general could benefit from being supported with greater humility. As I view the above issues through my own narrow lens, you may look through a different lens - and I believe that, with humility, we can open a dialogue. It seems that the anxieties within the therapy space are paralleled by the processes outside of the therapy room. I suggest that, with humility, we can work together to support all the stakeholders in our chose profession. 

 

References 

  1. Cox, P. K. (2012a). Is unintended harm the last taboo of Counselling Psychology? A literature review of iatrogenesis. Unpublished manuscript in part fulfilment of Professional Doctorate in Counselling Psychology, University of Surrey,
  2. Macaskill, N. D., & Macaskill, A. (1992) Psychotherapists-in-training evaluate their personal therapy: Results of a UK survey. British Journal of Psychotherapy, 9(2), 133–138. 
  3. Williams, F., Coyle, A., & Lyons, E. (1999). How counselling psychologists view their personal therapy. The British Journal of Medical Psychology, 27(3), 545-555. 
  4. Strupp, H. H., Hadley, S. W., & Gomes-Schwartz, B. (1977). Psychotherapy for better or worse. New York: Jason Aronson, Inc. 
  5. Raffles, K. (2015). Working with ethical dilemmas in supervision. Presentation at, the Psychologists Protection Society’s Annual General Meeting & CPC event, 11th September 2015. London, UK. Available at: theprofessionalpractitioner.net/ index.php/cpd-activities/30-cpd-event-working-with-ethical-dilemmas-in-supervision-dr-kathy-raffles
  6. Health and Care Professions Council. (2016). Standards of conduct, performance   and ethics. London: HCPC. Available at: hcpc-uk.org/publications/ standards/ index.asp?id=38
  7. United Kingdom Council for Psychotherapy. (2015). Handling complaints about therapists. Report of the UKCP professional consultation committee. London: UKCP. Available at: psychotherapy.org.uk/wp-content/uploads/2016/09/ Professional-conduct-committee-annual-report-2014-15.pdf. 
  8. Irish Association for Counselling and Psychotherapy. (2017). IACP complaints procedure. Available at: irish-counselling.ie/iacp-complaints-procedure
  9. Medical protection. New judgement on patient consent (Montgomery v Lanarkshire). Available at: medicalprotection.org/uk/for-members/news/news /2015/03/20/ new-judgment-on-patient-consent
  10. Devereux, D. (2016). Managing the Erotic Transference: Preventing Escalation and Avoiding Harm. Psychologists Protection Society. CPD video. Available at: theprofessionalpractitioner.net/index.php/newsletters
  11. Lang, E. L., Benotsch, E. G., Lauri, J. F., Lutgendorf, S., Berbaum, M. L., Berbaum, K. S., Henrietta L., & Spiegel, D. (2000). Adjunctive non-pharmacological analgesia for invasive medical procedures: a randomised trial. The Lancet, 355(9214), 1486-1490. 
  12. Foulkes, P. (2010). The therapist as a vital factor in side-effects of psychotherapy. Australian and New Zealand Journal of Psychiatry, 44(2), 189. 
  13. Psychotherapy and Counselling Union. (2016). Inaugural conference. 6th February 2016, London UK. Available at: http://heyevent.uk/event/mhtv6i7gkaohwa/ psychotherapy-and-counselling-union-founding-conference
  14. Professional Standards Authority. (2015). Right-touch regulation: Revised. London: Professional Standards Authority. 
  15. Professional Standards Authority. (2016). Regulation rethought: Proposal for reform. London: Professional Standards Authority. 
  16. Shohet, R. (2017). Exploring the dynamics of complaints. Self & Society, 45(1), 69-71. 
  17. Cox, P. K., Ogden, J., & Semlyen, J. (under review). First do no harm: A thematic analysis of therapists’ perceptions of unintended harm. Counselling Psychology Review.
  18. House of Commons Public Administration Select Committee. (2015). Investigating clinical incidents in the NHS. Sixth Report of Session 2014-15, HN 866. London: The Stationary Office, Limited. 
  19. Dale, H. (2017). The hidden virtue: Towards a new understanding of humility in counselling and psychotherapy. Psychologists Protection Society. CPD event. Available at:ppstrust.org/index.php/about-the-trust/189. 

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