Informed Consent to Psychoanalysis: The Law, The Theory, and the Data

Elyn R. Saks, University of Southern California Gould School of Law


To describe our project briefly, we explore the issue of informed consent to psychoanalysis. (Informed consent, roughly, requires that information about the nature of a treatment, its risks and benefits, and its alternatives be disclosed to a patient.) Our discussion has theoretical and empirical components. In our theoretical analysis, we consider several dimensions of an informed consent to psychoanalysis. What are the values behind an informed consent requirement, and do psychoanalysts share them? Can patients really understand, say, the nature of transference or regression at the beginning of the process? And once they do, is it perhaps too late—are they in a psychological space where they can really elect to exit the treatment? To assess these questions empirically, we conducted an empirical survey of sixty-two analysts on informed consent to psychoanalysis. The survey data yields some counterintuitive results. We find that respondents often do not mention cognitive behavioral therapy as well as some important risks, such as a malignant regression and the limits of confidentiality. We also test whether analyst “ambivalence” drives the considerable variability we find in our results.

We believe this study sheds important light on informed consent to psychoanalysis and that it will be of use in other psychotherapeutic contexts—and indeed, medical contexts in general. Informed consent doctrine has revolutionized the delivery of medical treatment. Psychoanalysis has a lot to offer in the way of insight about a practice like informed consent. This article may return psychoanalysis to its rightful place as a premier tool for studying the psychological dimensions of the law.