The bitter pill of empiricism: health maintenance organizations, informed consent and the reasonable psychotherapist standard of care.

Abstract

Although adequate for holding most professionals to certain levels of conduct, the doctrine of negligence has traditionally been difficult to apply to treatment decisions in the mental health arena. The reasons offered for this difficulty all appear to revolve around the fact that psychology is still very much a philosophy and not a science, making it difficult to establish a clear standard of care. The advent of managed behavioral health care, with its accompanying emphasis on scientifically supported intervention, promises to rectify this situation. Managed behavioral health care is forcing the field of psychotherapy into changing its fundamental nature, from a philosophy-based profession into one emphasizing empirically supported "cures." HMO insistence upon empirical evidence will change psychotherapy in numerous ways. Two of these changes are the development of a discernable standard of care-what the reasonable therapist should do regarding treatment choice-and a concomitant change in the content of informed consent, with the therapist obligated to inform the patient about alternative treatments and their success rates. The idea of coupling alternative treatments and success rates arises out of the development of the standard of care, with its implication that some treatments have more empirical support than others. If a particular treatment has strong empirical support, it may be negligent for a therapist to fail to offer that treatment. This empirically supported treatment may thus become the standard of care, with the therapist negligent for offering anything else. In a profession in which the choice of treatment may be based on the philosophy of the therapist and not upon empirical data, this change may be cataclysmic.