Malpractice suits against therapists for either instilling or recovering false memories of sexual abuse have increased in the last few years, with several multi-million dollar settlements and awards. Increasingly, informed consent, or the lack of it, is one of the main allegations made against therapists in recovered memory cases. The risk of recovering false memories is one of the pivotal allegations in this type of professional negligence. That is, former patients and their families are suing psychotherapists, saying the therapists didnít warn them that memories of sexual trauma, recovered during therapy, may be false.
Although informed consent in the mental health fields had been reserved for somatic therapies, such as ECT or psychotropic medication, this is quickly changing. It is certainly true that giving such consent has not been standard practice among psychotherapists. However, the fact that such informed consent was not usually or customarily given may not be a viable defense. Unlike standards of care for professional practice, informed consent standards use a reasonable person standard, not a prudent practitioner standard.
Unlike the standards of care in malpractice cases, standards of care for informed consent are based on what a reasonable person might consider as being material to his decision. In the landmark case on informed consent, Canterbury v. Spence (Court of Appeals for the District of Columbia),1 the standard of disclosure was focused on how material the potential warnings were to the patientís decision. The court specifically stated the standard would be determined by the law, not by the profession: "Thus the test for determining whether a particular peril must be divulged is its materiality to the patientís decision: all risks potentially affecting the decision must be unmasked. And to safeguard the patientís interest in achieving his own determination on treatment, the law must itself set the standard for adequate disclosure."2
To the extent this case sets precedent, it would seem that the fact that few therapists give informed consent concerning false memories might be irrelevant. The Canterbury decision, which was reviewed by the United States Supreme Court and allowed to stand, further explained: "From these consideration we derive the breadth of the disclosures of risks legally to be required. The scope of the standard is not subjective as to either the physician or the patient; it remains objective with due regard for the patientís informational needs and with suitable leeway for the physicianís situation. In broad outline, we agree that: [a] risk is thus material when a reasonable person, in what the physician knows or should know to be the patientís position, would likely attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.3
Thus the "risk or cluster of risks" must be disclosed to the patient in a manner that meets the patientís "informational needs." However, defendants in false memory cases point to the lack of any published study clarifying the extent and nature of false memories of sexual abuse as a defense against not giving informed consent. After all, they reason, how can one inform a patient of a risk if that risk is, as yet, un-quantified.
Although the court may not credit a forensic expertís opinion on what constituted adequate informed consent, the expert may be called upon to describe to the jury the information a therapist had, or should have had, concerning the risks of recovering false memories of sexual abuse. Few would currently argue against informing patients about the fallibility of memory and the dangers involved with recovering memories of sexual abuse, especially when most of the major professional organizations have issued warnings concerning false memories.4,5,6 In 1993, two well known cognitive psychologists explicitly warned the therapist community concerning false memories.7,8
Juries are often more interested in hearing how Sigmund Freud resolved the issue. It was more than one hundred years ago when Freud first proposed that repressed memories of sexual abuse cause certain neurotic illnesses, including hysteria. His based this "seduction theory" on his clinical experience of treating young women, some of whom - in the course of their analysis - apparently recovered memories of sexual abuse. They recovered these memories with great demonstration of feelings (abreaction) and with apparent alleviation of symptoms.
However, after a lifetime of study, Freud rejected his own theory, admitting: "When, however, I was at last obliged to recognize that these scenes of seduction had never taken place, and that they were only phantasies which my patients had made up or which I myself had perhaps forced upon them, I was for some time completely at a loss. . ."9
Freud based his conclusions on four reasoned observations.10 He observed that, unlike what he previously thought, the patients did not get better with the treatment, in fact their treatments became "interminable." Secondly, he said the unconscious mind can not distinguish fact from fiction. Third, the incidence of implied father-daughter incest was improbable ("Öin every case the father, not excluding my own, had to be blamed as a pervert"). Fourth, he had never had patients speak about incest during "even the most confused delirium," a time when such memories, if true, might be expected to emerge from the unconscious.
What is relevant to juries in formulating an opinion concerning informed consent is that Sigmund Freud, the father of psychoanalysis, had concluded that recovered memories of sexual abuse were false and gave well-reasoned explanations of why he had changed his mind. After learning about Freudís conclusions, a jury, even if they disagree with him, may feel Freudís opinion was relevant to warnings patients should receive concerning false memories.