Informed consent with people judged incapable of legally consenting

Published date06 April 2023
Date06 April 2023
Subject MatterHealth & social care,Learning & intellectual disabilities
AuthorAmy Bittick,Ryan Holliman
Informed consent with people judged
incapable of legally consenting
Amy Bittick and Ryan Holliman
Purpose The purpose of this study is to consider informed consent with those who may be
legally judged incapable of consent. Frequently individuals with traumatic brain injuries and
intellectual disabilities may fall into this category. This paper seeks to consider aspects of
guardianship, moral and legal implications and best practices for mental health professionals.
Design/methodology/approach This practice piece reviews literature regarding infor med
consent, as well as pertinent issues in the professi onal literature regarding types of guardianship as
well as the occurrence of ‘‘Lucid intervals.’’ Furthermore, l iterature from moral philosophy and
current legal research was examined to fully provide readers with a grasp of the legal and ethical
landscape of thisissue.
Findings The paper finds that treating consent as a one-time binary event is lacking in both
practicality and nuance. Moral philosophy and issues regarding paternalism are raised, as well as
practice approaches to assessment of capability and how to engage in therapy in meaningful
Originality/value This paper provides insight into providing dignity-affirming thera py with a
population that is often not consideredin the literature of mental health ethics. When it is considered,
the suggestions areso vague as to be of limited use. This manuscript provides nuance and practical
applications to be a therapist that promotes dignity in those wh o might have varying levels of
capacity to consent.
Keywords Mental health, Traumatic brain injury, Intellectual disability, Guardianship, Informed consent,
Lucid intervals
Paper type Conceptual paper
Informed consent is arguably one of the most fundamental elements of therapy, as it
sets the foundation for the therapeutic relationship (Corey et al., 2019;Herlihy and
Corey, 2006;Remley and Herlihy, 2010). In order for therapy to be an effective
treatment in which the client takes an active role, clients must be provided with
pertinent information regarding the therapist, the therapeutic process, possible
outcomes of therapy and alternatives to the proposed therapeutic methods (Arciniegas
et al., 2013;Corey et al.,2019;Herlihy and Corey, 2006;Remley and Herlihy, 2010).
When providing a robust informed consent process, the consent must be understood
by the client, the client must consent to the terms voluntarily and the client must be
legally competent to give consent to treatment, which poses ethical and legal dilemmas
for some specific populations of clients (Arciniegas et al.,2013;Cooper and McNair,
2018;Corey et al.,2019;Ghesquiere et al., 2019;Herlihy and Corey, 2006;Morris et al.,
2021;National Council on Disability (NCD), 2018;Palmer et al., 2017;Remley and
Herlihy, 2010;Wheeler et al., 2020). However, adults who experience cognitive
disabilities provide a challenge for the counselor who wishes to engage in informed
consent. In this manuscript, the author set out to discuss the impact of cognitive
impairments and informed consent, the guardian process and the ethical/practical
implications of informed consent with clients experiencing cognitive impairments.
Amy Bittick and
Ryan Holliman are both
based at the Department of
Counseling, Tarleton State
University, Stephenville,
Texas, USA.
Received 23 October 2022
Revised 2 March 2023
Accepted 14 March 2023
DOI 10.1108/AMHID-10-2022-0040 VOL. 17 NO. 2 2023, pp. 95-108, ©Emerald Publishing Limited, ISSN 2044-1282 jADVANCES IN MENTAL HEALTH AND INTELLECTUAL DISABILITIESjPAGE 95

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