Informed Consent in Mental Health: The Osheroff Case

By Ivan Perkins on May 16, 2018

Consent

Raphael Osheroff was a highly successful doctor in Northern Virginia. For about two years, he had been suffering from anxiety and depression. In January 1979 he voluntarily admitted himself to Chestnut Lodge, a private psychiatric hospital in Maryland.

At the time, Chestnut Lodge was a well-known center for the theory and practice of psychoanalysis. It had housed luminaries such as Harry Stack Sullivan and Frieda Fromm-Reichmann.

According to the lawsuit that Osheroff eventually filed, the “psychotherapy” he received at Chestnut Lodge was horrifying. The hospital psychiatrists, practicing an allegedly doctrinaire Freudianism, decided that Osheroff needed to be “regressed” in order to “disintegrate and then restructure his personality.”

The psychiatrists focused on Osheroff’s “narcissism,” and they attributed it to the special treatment he received from his mother. Their treatment plan, Osheroff alleged, was designed to make him realize that he was no different from anyone else. “This was done,” Osheroff’s lawsuit noted, “by confining Dr. Osheroff to a locked ward where he was subjected on a 24-hour a day basis to an environment populated by clients with a severe chronic schizophrenia.”

The treatment plan for Osheroff at Chestnut Lodge was for intensive psychoanalysis, four days a week. When Osheroff complained, he was apparently threatened with restraints and cold wet sheet packs—now-outdated methods of therapy. His therapist “repeatedly told him he was symbolically dead.” And even though Osheroff asked for medication to treat his depression and anxiety, the psychiatrists refused, allegedly on the grounds that it would interfere with his treatment. As Osheroff alleged, “Chestnut Lodge completely disregarded and derided the numerous requests by both client and by his family for a trial of anti-depression medications, telling his family that they would wait another year and if the client was still depressed, then they would consider a course of anti-depression medication.”

Osheroff fared poorly on his treatment regimen of regression, no medication, and confinement to a schizophrenic ward. He paced, for twelve to fifteen hours per day, causing injuries to his feet and hip. He lost 45 pounds. For seven months at Chestnut Lodge, he continued to deteriorate.

Finally, Osheroff’s mother and stepfather intervened. They had him transferred to another hospital in Connecticut, where Osheroff received medication as well as psychotherapy. He began to improve within 10 days. After several weeks, his depression had lifted, and he was discharged from the hospital.

But his life was in ruins. Dr. Osheroff had owned 11 kidney dialysis clinics when he entered Chestnut Lodge, but during his stay there, his employees took his entire medical practice. His wife divorced him. His children were sequestered from him, destroying the relationships he had built with them.

Embittered, Dr. Osheroff sued Chestnut Lodge. He alleged that the hospital psychiatrists were negligent because they failed to properly diagnose his major depression, and failed to provide medications that were known to be effective. He also alleged that they violated his right to informed consent.

The Osheroff case generated considerable attention. It highlighted a fundamental divide within psychiatry, between traditional psychoanalysis and the emerging methods centered on evidence, randomized controlled trials, and brain chemistry. Leaders of the field were lined up to testify on both sides. The case set no legal precedents, however, because it settled (for a confidential sum) before going to trial.

But in the mental health field, the case underscored the need for informed consent. Osheroff’s strongest claim was probably the absence of informed consent, not malpractice. It was entirely debatable whether it was “negligent” to treat Osheroff with intensive psychoanalysis, rather than turning immediately to medication. Psychoanalysis was obviously a major theoretical orientation, and Chestnut Lodge had a storied past. Also, it was only clear in retrospect that Osheroff would fare better with alternative treatments. According to one of Chestnut Lodge’s experts, moreover, Osheroff may have improved because of a stronger therapeutic alliance at the second hospital, not because of medication. Establishing negligence was going to be dicey.

But informed consent? That was a slam-dunk for Osheroff. (Being locked up is pretty much incompatible with informed consent.) Even if Osheroff had been technically able to leave—and this issue was murky—he still appears to have been imposed upon and subject to undue influence through the punishing treatments themselves. Also, Osheroff alleged that his condition deteriorated so profoundly at Chestnut Lodge that he was no longer able to provide effective consent.

The Osheroff story seems extreme, even outlandish. Even so, it provides useful lessons for regular outpatient mental health practitioners—who might err in ways that replicate, in a more subtle manner, the errors of Chestnut Lodge.

First, strenuously avoid a parochial or dismissive attitude towards alternative treatments or other therapeutic schools of thought. This will inhibit any full and frank airing of the pros and cons of potential treatments. A therapist may say, “I believe this course of treatment will be most helpful for you,” but should at the same time explain, in an even-handed manner, the treatments that other therapists might recommend. If you essentially tell clients that there is only one “good” way to treat their condition, you are not laying the foundation for an informed choice. The problem at Chestnut Lodge may have been psychoanalytic snobbery.

Second, make sure of two things: (1) that your client has the capacity to consent, and (2) that you are not imposing any “undue influence” upon their decision-making. The bottom line is that, even if a therapist believes that a client’s treatment decisions are being derailed by some aspect of the client’s psychological condition, the therapist must provide ample room for that client to make his or her own choices. Still, the therapist may, in a respectful and non-belittling manner, explicitly address this concern with the client.

Third, remember that informed consent is an ongoing requirement, and the client must provide informed consent to all the treatment modalities they experience. Osheroff may have consented to hospitalization the day he arrived at Chestnut Lodge, but this did not give the hospital a blank check to impose treatments at will, from that day forward. Similarly, your clients may put themselves into your hands and consent to one form of therapy, but this does not end the matter. If new information surfaces about the client’s condition—for example, you discover that they have an eating disorder—you must explore the various treatment options, and obtain the client’s informed consent to whichever course is selected.

Osheroff thus brought together several egregious failures: the failure to provide a neutral and balanced overview of treatment options, the failure to respect the client’s choice of therapy, and the failure to obtain informed consent at each step. Each failure is sufficient, on its own, to create liability for a therapist. For clients like Raphael Osheroff, the consequences can be personally devastating.

For guidance on effectively and efficiently obtaining informed consent from clients in psychotherapy—and for a model informed consent form—see our Law & Ethics CE No. 1, Minimizing Legal-Ethical Risk in Psychotherapy.

 


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