Informed Consent, Psychotropic Medications, and a Prescribing Physician’s Duty to Disclose Safer Alternative Treatments

The use of psychotropic medication to treat any presumed mental health disorder always involves serious risks of harm. Accordingly, before prescribing psychotropic medication to control the behaviors associated with a presumed mental health disorder, prescribing physicians are required, under various medical ethical guidelines and informed consent laws, to first disclose information regarding available alternative treatment options, and the risks and benefits of such alternative treatment options. Indeed, because psychotropic medications are themselves experimental treatments due to the concededly unknown etiology of most mental health disorders, disclosing safer alternative treatments would seem to be a particularly critical aspect of a prescribing physician’s informed consent obligations in the mental health arena. Unfortunately, numerous studies suggest that prescribing physicians rarely disclose any alternative treatment options to psychotropic medication, even where there is compelling evidence that such alternatives exist. For example, recent randomized controlled studies have indicated that dietary factors may play a more critical and beneficial role in the treatment of various presumed mental health disorders than the use of psychotropic mediation. Yet, such undoubtedly material information is rarely conveyed to the patients or their legal surrogates by the treating physicians prescribing psychotropic medication. While there may be varying individual physician rationales for the nondisclosure of this alternative approach, this article argues that the primary reason appears to be a broken informed consent system. Specifically, informed consent laws in the United States in general provide very little incentive for prescribing physicians to disclose information regarding alternative treatment options that might lie outside of their particular medical community’s recognized forms of treatment, and courts in turn provide very little legal recourse for patients or their legal surrogates deprived of such material information. This lack of legal recourse is even more pronounced for mental health patients deprived of material information regarding alternative treatment options to psychotropic medication, where a mental health patient would presumably also face the near-insurmountable burden of proving that any harm was caused by the medications given without true informed consent, and not by the underlying mental health disorder. This article is the first to propose that negligence-based informed consent laws are simply unsuitable in the mental health context and should be replaced entirely by dignitary-based statutory models that would recognize a legal harm for a physician’s failure to provide mental health patients and their legal surrogates with available and material information relating to safer alternative treatments to psychotropic medication. Unless informed consent laws governing mental health care are rewritten and enforced to protect patients, and not physicians, mental health patients will likely continue to be deprived of meaningful participation in their own mental health care.