Clinical Informed Consent and ABA: What Behavior Analysts Need to Know

In Applied Behavior Analysis (ABA), informed consent is more than just a routine formality—it is a fundamental ethical and legal obligation. Behavior analysts must ensure that clients and their families fully understand interventions and have the right to make informed decisions about care. However, the legal principles that shape informed consent are often overlooked in ABA discussions.

A recent article by Graber and Maguire (2024) sheds light on the legal foundations of informed consent and how they apply to behavior analysis. By understanding case law and its implications, behavior analysts can strengthen their ethical practice while minimizing legal risks.

The History of Informed Consent

Informed consent has evolved significantly over the past century. Some key milestones include:

1. The Nuremberg Code (1947) & Belmont Report (1979) – These ethical frameworks emerged in response to historical abuses in medical research, emphasizing voluntary participation and respect for individuals.
2. Shift from Medical Paternalism to Patient Autonomy – Earlier medical practices often prioritized physician decisions over patient rights. Modern ethics demand that individuals actively participate in decisions about their own care.
3. Core Legal Requirements:
   • Disclosure of Information – Professionals must provide a clear explanation of risks, benefits, and alternatives.
   • Competence to Decide – Individuals must have the capacity to understand and make informed choices.
   • Voluntariness – Consent must be free from coercion or pressure.

Informed Consent in ABA

The Behavior Analyst Certification Board (BACB) lays out ethical expectations in its Ethics Code for Behavior Analysts (2020):

• Principle of Respect – Clients have the right to make decisions about their care.
• Transparency Obligation – Behavior analysts must fully inform clients of treatment risks and alternatives.
• Autonomy Support – Practitioners should ensure that clients (or their guardians) provide voluntary and knowing consent.

However, obtaining informed consent in ABA is not always straightforward. There are challenges such as:

1. Non-Traditional Interventions – ABA treatments may include procedures that do not have well-established legal precedents, making consent requirements less clear.
2. Parental Consent vs. Client Assent – Children and individuals with disabilities may lack legal decision-making power, but their preferences and assent still matter ethically.
3. Legal Ambiguity in Behavior Analysis – Unlike medicine, ABA does not always have well-defined rules for what must be disclosed or how risks should be communicated.

Legal Cases That Shape Informed Consent

Several landmark legal cases have clarified the requirements of informed consent. While most of these cases come from medicine, their principles also apply to behavior analysis.

1. Schloendorf v. Society of New York Hospital (1914)

This case established that treating a patient without consent could be medical battery—a serious legal violation. The ruling suggests that any physical intervention in ABA (e.g., restraint, hand-over-hand prompting) must have explicit consent. However, ABA procedures that do not involve physical contact remain a legal gray area.

2. DiFilippo v. Preston (1961)

This case introduced the Community Disclosure Standard, which meant that doctors (not patients) determined what information should be disclosed about risks. In ABA, this raises concerns: Should behavior analysts be held to industry norms, or should they disclose information based on what a reasonable person would want to know?

3. Canterbury v. Spence (1972)

This case replaced the Community Disclosure Standard with the Reasonable Person Standard, meaning that the level of disclosure is based on what a typical person would find relevant. It also clarified three important principles:

• Alternative treatments must be discussed. Clients should be informed of different available procedures, not just the one the practitioner prefers.
• The risks of inaction should be disclosed. Clients deserve to know what could happen if they choose not to proceed with a recommended intervention.
• Consent must be given for each intervention separately. A general consent for ABA services is not enough—each major procedure requires distinct informed consent.

For ABA professionals, this precedent suggests that parents and guardians should be explicitly informed about potential alternatives, risks, and unknowns related to intervention choices.

4. Gates v. Jensen (1979)

This case emphasized the importance of disclosing even rare risks. If a potential side effect—no matter how uncommon—has severe consequences, professionals must inform clients.

For behavior analysts, this means disclosing risks such as:

• Potential for increased problem behaviors in early intervention phases.
• Possible emotional distress associated with certain extinction procedures.
• The limits of ABA effectiveness for specific concerns.

Implications for Behavior Analysts

These legal cases underscore the importance of fully informing clients and families about treatment. Here’s what ABA professionals should consider:

1. Ensure Informed Consent Covers All Key Elements

   • Disclose risks, benefits, and alternatives.
   • Obtain informed consent for each specific intervention, not just general treatment.
   • Provide opportunities for questions and revisions before obtaining consent.

2. Respect Assent, Even When Consent is Given by Guardians

   • While children or individuals with disabilities may not have legal decision-making power, behavior analysts should still seek their assent whenever possible.
   • If a client resists or shows distress, analysts should reconsider intervention strategies.

3. Document Everything

• Written consent forms should be clear, detailed, and client-centered.
• Session notes should reflect ongoing consent discussions.
• If new risks or alternatives emerge, updated consent should be obtained.

Final Thoughts

Informed consent is not just about legal protection—it is an ethical commitment to transparency and respect. As behavior analysts, we must ensure that clients and families truly understand interventions and have the opportunity to make informed choices. The legal cases discussed here offer valuable lessons that can help strengthen ethical and professional practices in ABA.

For a deeper dive into this topic, check out the original research by Graber and Maguire (2024) in Behavior Analysis in Practice: https://doi.org/10.1007/s40617-023-00902-0.

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