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The Nuremberg Code,
Applied to Mental Health Practices

Informed Consent in
Mental Health Practices Act

State Act
Indiana SB309 (RTF)

The Truth and Responsibility in Mental Health Practices Act Introduction
Barden Letter
State Act (text)
Contact Info

Answers to commonly asked questions and common objections regarding the


Will this legislation save or cost money? Will this legislation expand or shrink the role of federal and/or state government?

This legislation will save hundreds of millions of dollars as ineffective, unreliable and dangerous forms of psychotherapy will no longer be funded by taxpayer dollars.

The ACT requires no new government enforcement mechanisms because the burden of proving that practitioners are using safe and effective treatments is shifted to those seeking reimbursements from the public treasury.

Is this legislation designed for passage at the state or federal level?

Attached are copies of legislation designed for BOTH the state and federal level. BOTH the state and federal forms of this legislation are essential to eliminate the wasteful misuse of tax dollars on ineffective and hazardous forms of psychotherapy.

The federal form of the Truth and Responsibility in Mental Health Practices Act legislation requires states to pass the state version of the Truth and Responsibility in Mental Health Practices Act before receiving federal health care funds.

The state version of the Truth and Responsibility in Mental Health Practices Act mandates truly informed consent before therapy, mandates truthful disclosures to the insurance system in regard to the safety and effectiveness of psychotherapy treatments and mandates that mental health professionals tell the truth when providing information to the legal system.

Passage of the federal ACT will mandate passage of the state ACT throughout the U.S. thus protecting taxpayers and mental health consumers nationally.

Can consumer information be useful to the mental health customer? Isn't psychotherapy too subjective to be tested scientifically? How do you prove a mental health treatment reasonably safe and effective?

There are many reliable and valid ways to measure the effectiveness of psychotherapy and other mental health treatments. In fact, the American Psychological Association has a Task Force that has already compiled such data and prepared a list of therapies proven safe and effective by responsible scientific means. Not only can such research be done, it is not particularly difficult. To offer a simple example, one gives Treatment X to one randomly chosen group, Treatment Y to another, Treatment Z to another and assigns the final group to a no-treatment waiting list. Reliable tests of symptoms and other goals of treatment are taken before and after treatment. What could be simpler? Dozens of reputable studies have been conducted in this general manner and have reliably demonstrated that some treatments are more effective than others. Under the current system of indiscriminate reimbursement, mental health care providers have NO financial incentives to use the more effective treatments as they generally take less time. Note that irresponsible therapists who try to hide behind the false wall of "subjectivity" should remember that if a treatment is too subjective to evaluate scientifically, it is too subjective to be paid for with taxpayer dollars. We should note that the history of quack treatments contains many examples of treatments considered effective based upon "clinical judgment" rather than reliable scientific investigation. For example, snake oil salesman also used to argue that their "treatment" was too "subjective" to be scientifically tested. Likewise, early medical quackeries such as "bleeding" and "leeching" and lobotomies were based upon subjective "clinical experience" rather than reliable scientific measurement.

Who will decide what is a valid scientific method for testing psychotherapies?

The major components of reliable scientific investigations are well known and essentially universally agreed upon. The United States Supreme Court has written a fairly nice summary of the requirements of the basics of the scientific method in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 SCt 2786 (1993). Again, the effects of psychotherapy practices are NOT difficult to examine in a reliable and valid scientific manner. It is only the most scientifically ignorant practitioners that have any doubts about this. Again, most importantly, if it is too subjective to scientifically and reliably evaluated, it is too subjective and unreliable to be paid for with taxpayer dollars. Remember, the American Psychological Association has a Task Force that has already compiled such data and prepared a list of therapies proven safe and effective by responsible scientific means.

Will this legislation require additional bureaucrats to enforce the consumer protections?

Not at all. One of the goals of this bill is to reduce costs to the taxpayer while limiting the damage caused by indiscriminate government funding of both effective and dangerous treatments. Shifting the burden of proof to the provider eliminates the need for additional government staffing. If the provider fails to send in the necessary informed consent form (typically a one page document) with the reimbursement request, the request is denied.

Won't therapists be able to circumvent this consumer protection by forging informed consent forms?

Of course, a provider may forge an informed consent form but they may just as easily forge an entire reimbursement request. Either type of misrepresentation could and should have criminal and professional consequences. Our research has shown that most wayward therapists are well-intentioned yet inadequately trained individuals who would use appropriate methods if they only knew about them. By providing therapists with economic incentives to 1- learn the proven benefits (if any), risks and dangers of their favorite treatment procedures, 2- learn the proven benefits (if any), risks and dangers of alternative treatments, and 3- document a truthful discussion of such proven risks and benefits with each patient prior to treatment -- this ACT will eliminate most of the hazardous forms of treatment that are offered as a result of therapist ignorance. For example, under this ACT, therapists who offer hypnosis as a means of "recovering repressed memories" would be required to know the research regarding risks and hazards of this procedure including the 1985 public warning by the A.M.A. that such a procedure is likely to produce false memories which may be quite damaging to the patient. In addition, such therapists would be required to discuss the more than one hundred years of research demonstrating that, in fact, there is no reliable procedure for "recovering" childhood memories and all current procedures entail a very high probability of the induction of false memories. A completed informed consent page documenting a truthful discussion of such risks as well as a discussion of alternative treatments (there are far more reliable treatments for eating disorders and depression than "recovery" of so-called "repressed memories") must accompany each request for reimbursement under this ACT.

How will therapists prove to insurance systems that the treatment they use has been proven safe and effective by reliable scientific methods?

Easily -- with a one page summary of the research literature supporting the form of therapy they provide to patients. For example, let's say that a therapist is offering cognitive therapy for depression to a depressed patient. A number of valid and reliable research investigations have demonstrated that this treatment is generally safe and effective for this type of patient. Furthermore, treatment manuals exist that help to increase the reliability of the treatment process. A one page summary of the treatment plan offered to the patient and a brief list of research citations demonstrating the scientific support for such a plan would suffice as a Treatment Effectiveness Form. This one page summary could be photocopied and enclosed with requests for reimbursement for each depressed patient similarly treated with cognitive therapy. This system provides great protection for the consumer while adding little if any burden to the reputable therapist (who will be very familiar with the research supporting the treatment plan anyway).

Irresponsible providers using experimental treatments on unsuspecting and unwarned patients, will, of course, have problems with this system. A dangerous therapist using hypnosis to treat a suicidally depressed patient, for example, would have to either lie on the Treatment Effectiveness Form or change treatment strategies to receive reimbursement from the insurance systems. Similarly, a therapist using the unreliable "Draw-A-Person" test as part of a custody evaluation would have a hard time justifying this long-known-to-be-ineffective procedure.

The beauty of this system, again, is that the provider MUST DEMONSTRATE AT LEAST A BASIC MINIMUM KNOWLEDGE OF THE RESEARCH SUPPORT (or lack thereof) FOR THEIR TREATMENT PLANS in order to receive compensation. This basic consumer protection is sorely needed as the reimbursement systems have long rewarded the knowledgeable therapist and the ignorant therapist alike thus eliminating incentives to remain knowledgeable. This ACT will provide financial incentives for therapists to maintain at least a minimum of reliable knowledge in their fields of expertise.

What about the therapists who claim that they should be allowed to base their treatment plans on clinical judgment and experience alone?

Such therapists are, of course, free to offer their "subjectively based" treatment methods on the health care market. It is, after all, a free country. Under the ACT they would be required to inform the patient that the treatment offered is NOT based upon scientific research, professional association journal publications and falsifiable concepts tested with double-blind treatment outcome studies. Under the ACT such treatments (e.g., "past life regression therapy") could NOT receive reimbursements from any state, federal or private insurer receiving tax exemptions.

Decades of careful research indicate that "clinical judgment and experience" in the mental health professions are generally not useful.

See e.g., Rogers, R., & Ewing, C.P. (1989). Ultimate opinion proscriptions: A cosmetic fix and a plea for empiricism. Law and Human Behavior, 13, 357- 374. The authors state that, "Simply increasing the amount of clinical (subjective) information available to a psychologist does not appear to improve the reliability or validity of their judgments" (p. 370).

See also, Bolocofsky, D.N. (1989). Use and abuse of mental health experts in child custody determinations. Behavioral Sciences & the Law, 7, 197-213. The author notes that, "The present system of mental health regulation primarily relying on educational training, experience, and examinations in general psychology, social work or medicine, has not been found to bear any significant relationship to competence, particularly in forensic mental health services" (p. 210).

See also, Dawes, R.M., Faust, D., and Meehl, P.E. (1989). Clinical versus actuarial judgment. Science, 243, 1668-1674. These well known authors review research on clinical (subjective) versus actuarial (objective) judgment. This past president of the American Psychological Association and colleagues note that in the vast majority of the nearly 100 studies in the social sciences comparing the two methods, the accuracy of the actuarial method (objective evidence) has exceeded that of the clinical method (subjective impressions). They note that in contrast, clinicians may have considerable difficulties distinguishing valid and invalid variables. They further discuss factors that make it difficult for clinicians to appraise their own level of judgmental accuracy objectively, and which promote a sense of overconfidence. They note, for example, that individuals tend to recall their past predictions as more consistent with outcomes than is actually the case. They further note that various studies show that "clinical judgments based on interviews tend to be of low, or negligible, accuracy." Emphasis added.

See also, Bootzin, R.R. & Ruggill, J.S. (1988). Training issues in behavior therapy. Journal of Consulting and Clinical Psychology, 56, 703-709. These authors note that research on judgment shows that clinicians' decision-making processes are vulnerable to numerous biases. They indicate that therapists' conceptualizations may be influenced to a greater degree by expectations and judgment practices than by information about the client.

See also, Arnoult, L.H. & Anderson, C.A. (1988). Identifying and reducing causal reasoning biases in clinical practice, in D.C. Turk and P. Salovey (Eds.), Reasoning, Inference, & Judgment in Clinical Psychology (pp. 209-232). New York: The Free Press. These authors state that "recent research provides evidence that biased thinking is prevalent among both novices and experienced practitioners" (p. 209). They note that numerous factors may bias clinicians' judgment, including the treatment setting, demographic characteristics of the client (e.g., his race, gender, age, occupation, education, economic status, and marital status), and the clinician's personal experiences. They note that biases resting within the therapist may be quite difficult to recognize. They further note that if errors stemming from biases were corrected easily by exposure to cases, there would not be much cause for concern. They state, however, that "a large body of work from a variety of areas of psychology demonstrates that such expectation-based errors are extremely difficult to correct" (p. 220).

See also, Rock, D.L., Bransford, J.D. Maisto, S.A. & Morey, L.C. (1987). The study of clinical judgment: An ecological approach. Clinical Psychology Review, 7, 645-661. These authors note that various reviews of clinical judgment indicate that clinician biases exert a negative influence on judgmental accuracy and that judgment errors are common in clinical interviews and evaluations.

See also, Lanyon, R.I. (1986). Psychological assessment procedures in court-related settings. Professional Psychology: Research and Practice, 17, 260-268. Lanyon discusses problems in psychologists' participation in legal matters stating, "It is by now no secret that widespread dissatisfaction exists with the use of traditional psychological evaluation procedures in court-related settings (e.g., Poythress, 1981). Such procedures have often been justified on the basis of the psychologist's `experience,' a justification that nowadays has diminishing credibility in the absence of empirical back-up" (p.260).


Other recent reviews have appeared on the relation (or lack thereof) between experience and diagnostic or predictive accuracy. For example, Dawes states, "Mental health experts often justify diagnostic and predictive judgments on the basis of `years of experience' with a particular type of person. . . .However, research shows that the validity of clinical judgment and amount of clinical experience are unrelated" (p. 457). Emphasis added. See, Dawes, R.M. (1989). Experience and validity of clinical judgment: The illusory correlation. Behavioral Sciences & the Law, 7, 457-467

See also, Wedding, D. & Faust, D. (1989). Clinical judgment and decision making in neuropsychology. Archives of Clinical Neuropsychology, 4, 233-265. As these authors state, "Dozens of studies have failed to demonstrate any significant relationship between experience and judgmental accuracy [in the mental health field]" (p. 249).

See also, Garb H.N. (1989). Clinical judgment, clinical training, and professional experience. Psychological Bulletin, 105, 387-396. Garb also indicates that studies "generally fail to support the value of on-the-job experience in mental health fields" (p. 387).

In sum, those mental health practitioners who base their methods on "clinical judgment" are quite ignorant and potentially quite dangerous individuals.


Why haven't mental health practitioners been offering basic informed consent information regarding risks and dangers and alternative treatments all along?

For several reasons. First of all they have had no incentive to do so. As discussed above, state, federal and private reimbursement systems have not required mental health practitioners to prove that they have fairly, fully and truthfully disclosed known risks and alternative treatments to patients. Secondly, the training system for mental health professionals has, under the influence of these negative financial incentives, broken down to the point where therapists are not even aware of the research findings in their area of expertise. This dangerous state of affairs will be corrected by passage of this ACT. Finally, many therapists have arrogantly assumed that they are capable of "knowing" which treatments are effective based upon their own personal experience with patients. This is, of course, the golden road to quackery and was the basic rationale behind lobotomies, leeching, bleeding, rolfing, primal scream therapy, past life regression therapy and other known-to-be-ineffective or dangerous pseudo treatments. Even more importantly, it is critical to remember that the Nazi "scientists" mistakenly thought they "knew" that Jews were "inferior" based upon their "clinical experience and judgment." Professional witch-hunters roamed the cities of Europe during the Dark Ages "diagnosing" innocents as "witches" and having them burned at the stake based upon nothing more than their "clinical experience and judgment." In short, the most dangerous of all practitioners are those who rely only upon their "clinical experience and judgment" even when such judgments are directly contrary to reliable scientific evidence. American taxpayers should no longer be asked to fund any form of treatment that cannot meet even minimal standards of scientific reliability and safety.


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