Abstract
Healthcare professionals manage medicolegal risk related to many different clinical issues and outcomes. Critical to risk management is an awareness of the duties we have as providers to our patients, and the steps that are considered standard practice for any particular clinical issue by similar health professionals. Included below are several considerations related to risk management and suicide related outcomes
A Introduction
Healthcare professionals manage medicolegal risk related to many different clinical issues and outcomes. Critical to risk management is an awareness of the duties we have as providers to our patients, and the steps that are considered standard practice for any particular clinical issue by similar health professionals. Included below are several considerations related to risk management and suicide-related outcomes:
Legal systems and standards have considerable variability across countries, and this chapter addresses medicolegal issues related to suicide within the US context. Practitioners in the UK and other countries should familiarize themselves with any standards of clinical suicide-related practice. As in the USA, following standards of practice with attention to communication and documentation is the best way to protect both the patient’s health and your own risk.
Most healthcare professionals, even outside the field of mental or behavioral health, take care of patients at risk of suicide. Among patients who die by suicide, 60% had been seen by primary care, 40% in an emergency department, and 35% by a mental health professional in the several months prior to their death.1 Health professionals in any discipline can be implicated in an adverse suicide-related outcome and the key is following best practice for one’s given area of practice.
In general, psychiatrists account for the lowest risk for malpractice suits of any medical specialists,2 but suicide attempts and suicide deaths are among the more common reasons for malpractice suits for psychiatrists.
Notably though, depending on the practice setting, suicide and suicidal behavior do not necessarily account for the majority of psychiatric malpractice claims: among claims one psychiatric malpractice insurance company received from 2006 to 2015 only 15% involved suicides or attempts. More than a third of the claims involved accusations of incorrect treatment, 20% were for medication-related issues, and 6% were for misdiagnosis.3 Other reports do assert suicide accounts for the most common malpractice claim among psychiatric practices, specifically the failure to provide reasonable protection to a foreseeable outcome of patient suicide.4
Avoiding suicide screening and risk assessment does not protect providers in the case of suicide or suicidal behavior. In many cases of suicide, the patient’s risk was “latent” with no spontaneous expression of suicidal ideation or obvious sign of suicidal distress; other times clinicians may consciously or unconsciously avoid assessing suicide risk in their patients when clearer signals of risk are present, related to their own anxiety or other reasons such as lack of training or knowledge about standard practice related to suicide prevention. Therefore it is important to follow up on any clinical indications of suicide risk and follow best practices as outlined in this chapter and in greater detail in Section 2 of this book.
In general, the plaintiff in a malpractice claim must show that the provider breached the duty of reasonable care or, in other words, was negligent. And, the plaintiff must show that he or she (or their loved one) was injured – either physically or mentally – by this negligence.
B Principles
By following recommended clinical care for patients during periods of suicide risk the provider can optimize patient outcomes and mitigate medicolegal risk.
Standards of care for suicide prevention are touched on in this chapter and fully outlined in Chapters 6–9. These care standards should serve as clear guide posts for medicolegal risk management related to suicide.
Learn the minimum recommended care steps for patients with suicide risk.
Avoiding suicide screening and risk assessment does NOT protect providers in the event of suicide or suicidal behavior.
Know who and when to screen for suicidal ideation.
In behavioral health settings, suicide risk assessment should occur upon intake and should be updated and revised at key times throughout the care of patients. In primary care and other clinical settings, screening and assessment can occur either routinely or as indicated following your health system’s policies and procedures.
Stop using the out-of-date, ineffective “contracting for safety” and instead conduct Safety Planning Intervention.
Document, document, document.
If a patient does attempt or take their life, remember these are health outcomes that can occur even with appropriate care, like other health outcomes (e.g., myocardial infarction) that do still occur in some patients despite best care.
In the event of patient suicide, follow the practical steps outlined in this chapter and also consider connecting with a community of clinicians who have experienced patient loss to suicide, to debrief and remain optimally healthy and active in clinical practice.
C Brief Recommendations for Mitigating Risk for Patients and for Providers
Know who and when to screen for suicidal ideation: It is recommended practice (for example, in the current standards of The Joint Commission’s National Patient Safety Goal NPSG 15.01.01) to screen all patients for suicidal ideation in behavioral health settings. In other health settings (including in general medical/surgical hospitals, emergency departments and primary care settings in health systems), the requirement is to screen as indicated, such as when a patient presents with a primary mental health concern or condition or when there are other indicators of risk in the clinical history or current examination (e.g., recent job loss or other acute stressor and new symptoms of hopelessness, patient’s affect atypical compared to baseline, or family reports concern about suicidal thoughts or preparations).
Know when to further assess suicide risk: Another element of recommended practice is to more fully assess suicide risk when indicated, by an evidence-based process that goes beyond just focusing on the patient’s current suicidal ideation.5 The indications for conducting a suicide risk assessment include when suicidal ideation is present or when other clinical indicators point to possible increasing suicide risk (as discussed in Chapter 6).
It is ok that we cannot predict behavior or suicide, but we must follow standards of care by identifying when suicide risk increases and providing key care steps. Science tells us there is no way for anyone – mental health professionals, primary care providers, or family/friends – to predict suicide in the near term (days to weeks). The key is to identify and address suicide risk to a feasible and reasonable extent, and document the steps taken to assess and mitigate suicide risk.
Managing medicolegal risk related to suicidal patients is similar to managing the risks related to other clinical scenarios: The key is demonstration of good faith effort in identifying when patients’ risk increases, and in providing the best care possible (including the steps in the National Action Alliance Recommended Practice document and The Joint Commission’s 2019 Suicide Prevention National Patient Safety Goal, which include safety planning, lethal means counseling, referral, communication with family when possible, and following up with the patient even by telephone or other methods), and in documenting the process diligently.6, 7 These are currently considered the best care steps to employ in order to minimize the medicolegal risks associated with suicide.
Applying the ethical principles of autonomy, non-maleficence, and beneficence to suicide preventive clinical care means using the most patient centered and least restrictive interventions.
Key Steps to Mitigate Risk for Both Patients and Providers
Know who to screen (depends on clinical setting)
Know when to screen for suicidal ideation (also depends on clinical setting)
Know when to further assess with suicide risk assessment
Use clinical judgment to screen and assess patients above and beyond what is “required” by policy or regulatory mandates
Apply good faith effort to follow standards of care for patients who screen positive for either suicidal ideation screen or suicide risk assessment
Stay patient centered in your approach and use the least restrictive measures as appropriate to the level of risk and the patient’s specific foreseeable changes and options (outlined in Chapters 6–7).
Key Point:
Prevention is Possible without Prediction.
There has been a conflating of prevention and prediction when it comes to suicide.
While predicting suicide in the near term is an area of intense interest in the suicide prevention scientific field, it is not currently possible to predict who will die by suicide or when. This does not mean prevention is not possible.
The same holds true for many other health-related causes of death, with a lack of precision for predicting mortality and timing. Just as cardiologists and primary care do not overly concern themselves with the lack of ability to predict which patients will die of heart disease or when, but remain focused on aggressively identifying and addressing risk factors in order to increase health outcomes (including mortality), the same can be done for preventing suicide. The key is monitoring risk and responding appropriately. Stick to recommended clinical assessment and care, and do so continuously over time while working with patients.
Just remember: Healthcare professionals are not expected to predict suicidal behavior or death, but are expected to practice and document reasonable steps according to accepted standards of practice. Practicing in an unduly defensive manner can paradoxically distract the clinician from staying the course with appropriate care. Fortunately, solid clinical care that is patient centered, supports the therapeutic alliance, and is consistent with current recommendations, is the best way to manage medicolegal risk.
D General Legal Considerations in Patient Care Related to Suicide
Legal Standards
Courts recognize that the prediction of future events and actions is not possible.
However, physicians and other healthcare providers are held to standards of practice when clinical presentations indicating risk of suicide occur.
The Issue of Foreseeability
Am I expected to predict suicide? No but in the legal arena the issue is preventing a “reasonable foreseeability.”
– When is suicide a “foreseeable outcome”? Physicians can be held liable if the courts determine a patient’s suicide was “foreseeable,” and the physician’s negligence in preventing the suicide was the actual and proximate cause of the patient’s suicide.
– See Chapter 6 for details about risk determination. If a patient has expressed a specific plan and an accessible and potentially lethal method with a stated time frame, along with other indicators of elevated suicide risk, this would likely be considered “reasonably foreseeable” unless other protective factors are present and documented.
Typical Claims in a Wrongful Death Suit
The following are common claims in a wrongful death suit:
Inadequate assessment: the provider failed to assess or document the risk of suicide.
Failure to treat aggressively: the provider should have employed more intensive treatment or hospitalized the patient.
Failure to refer for consultation: the provider should have referred the patient to a specialist.
Failure to communicate between providers: two providers did not share enough information so that the primary provider did not realize the risk.
Failure to reassess suicide risk: the provider failed to reassess the patient’s risk and thus did not see that the risk had recurred or increased.
Failure to follow patient safety protocols: in a hospital setting, the provider did not follow the policies and protocols related to suicide care, monitoring, or environmental inspection.
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