Clinical-Legal Issues in Psychiatry

Psychiatric practice is influenced by four major factors: (1) the psychiatrist’s professional, ethical, and legal duties to provide competent care to patients; (2) the patients’ rights of self-determination to receive or refuse treatment; (3) court decisions, legislative directives, governmental regulatory agencies, and licensure boards; and (4) the ethical codes and practice guidelines of professional organizations. All of these issues fall within the realm of forensic psychiatry. The word forensic means belonging to the courts of law, and at various times psychiatry and the law converge.

MEDICAL MALPRACTICE

Medical malpractice is a tort, or civil wrong. It is a wrong resulting from a physician’s negligence. Simply put, negligence means doing something that a physician with a duty to care for the patient should not have done or failing to do something that should have been done as defined by current medical practice. Usually, the standard of care in malpractice cases is established by expert witnesses. The standard of care is also determined by reference to journal articles, professional textbooks, such as the Comprehensive Textbook of Psychiatry, professional practice guidelines, and ethical practices promulgated by professional organizations.

To prove malpractice, the plaintiff (e.g., patient, family, or estate) must establish by a preponderance of evidence that (1) a doctor-patient relationship existed that created a duty of care, (2) a deviation from the standard of care occurred, (3) the patient was damaged, and (4) the deviation directly caused the damage.

These elements of a malpractice claim are sometimes referred to as the 4 Ds (duty, deviation, damage, direct causation).

Each of the four elements of a malpractice claim must be present or there can be no finding of liability. For example, a psychiatrist whose negligence is the direct cause of harm to an individual (physical, psychological, or both) is not liable for malpractice if no doctor-patient relationship existed to create a duty of care. Psychiatrists are not likely to be sued successfully if they give advice on a radio program that is harmful to a caller, particularly if a caveat was given to the caller that no doctor-patient relationship was being created. No malpractice claim will be sustained against a psychiatrist if a patient’s worsening condition is unrelated to negligent care. Not every bad outcome is the result of negligence. Psychiatrists cannot guarantee correct diagnoses and treatments. When the psychiatrist provides due care, mistakes may be made without necessarily incurring liability. Most psychiatric cases are complicated. Psychiatrists make judgment calls when selecting a particular treatment course among the many options that may exist. In hindsight, the decision may prove wrong but not be a deviation in the standard of care.

In addition to negligence suits, psychiatrists can be sued for the intentional torts of assault, battery, false imprisonment, defamation, fraud or misrepresentation, invasion of privacy, and intentional infliction of emotional distress. In an intentional tort, wrongdoers are motivated by the intent to harm another person or realize, or should have realized, that such harm is likely to result from their actions. For example, telling a patient that sex with the therapist is therapeutic perpetrates a fraud. Most malpractice policies do not provide coverage for intentional torts.

SPLIT TREATMENT

In split treatment, the psychiatrist provides medication, and a nonmedical therapist conducts the psychotherapy. Psychiatrists must do an adequate evaluation, obtain prior medical records, and understand that no such thing as a partial patient exists. Split treatments are potential malpractice traps because patients can “fall between the cracks” of fragmented care. The psychiatrist retains full responsibility for the patient’s care in a split treatment situation. This does not preempt the responsibility of the other mental health professionals involved in the patient’s treatment. Section V, annotation 3 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry states, “When the psychiatrist assumes a collaborative or supervisory role with another mental health worker, he/she must expend sufficient time to assure that proper care is given.”

In managed care or other settings, a marginalized role of merely prescribing medication apart from a working doctor-patient relationship does not meet generally accepted standards of good clinical care. The psychiatrist must be more than just a medication technician. Fragmented care in which the psychiatrist only dispenses medication while remaining uninformed about the patient’s overall clinical status constitutes substandard treatment that may lead to a malpractice action. At a minimum, such a practice diminishes the efficacy of the drug treatment itself or may even lead to the patient’s failure to take the prescribed medication.

PRIVILEGE AND CONFIDENTIALITY

Privilege

Privilege is the right to maintain secrecy or confidentiality in the face of a subpoena. Privileged communications are statements made by certain persons within a relationship—such as a husband-wife, priest-penitent, or doctor-patient relationship—that the law protects from forced disclosure on the witness stand. The right of privilege belongs to the patient, not to the physician, and so the patient can waive the right.

Psychiatrists, who are licensed to practice medicine, may claim medical privilege, but privilege has some qualifications.
For example, privilege does not exist at all in military courts, regardless of whether the physician is military or civilian and whether the privilege is recognized in the state in which the court martial takes place.

Confidentiality

A long-held premise of medical ethics binds physicians to hold secret all information given by patients. This professional obligation is called confidentiality. Confidentiality applies to certain populations and not to others; a group that is within the circle of confidentiality shares information without receiving specific permission from a patient. Such groups include, in addition to the physician, other staff members treating the patient, clinical supervisors, and consultants.

A subpoena can force a psychiatrist to breach confidentiality, and courts must be able to compel witnesses to testify for the law to function adequately. A subpoena is an order to appear as a witness in court or at a deposition. Physicians usually are served with a subpoena duces tecum, which requires that they also produce their relevant records and documents. Although the power to issue subpoenas belongs to a judge, they are routinely issued at the request of an attorney representing a party to an action.

In bona fide emergencies, information may be released in as limited a way as feasible to carry out necessary interventions. Sound clinical practice holds that a psychiatrist should make the effort, time allowing, to obtain the patient’s permission anyway and should debrief the patient after the emergency.

As a rule, clinical information may be shared with the patient’s permission—preferably written permission, although oral permission suffices with proper documentation. Each release is good for only one piece of information, and permission should be reobtained for each subsequent release, even to the same party. Permission overcomes only the legal barrier, not the clinical one; the release is permission, not obligation. If a clinician believes that the information may be destructive, the matter should be discussed, and the release may be refused, with some exceptions.

Child Abuse.

In many states, all physicians are legally required to take a course on child abuse for medical licensure. All states now legally require that psychiatrists, among others, who have reason to believe that a child has been the victim of physical or sexual abuse make an immediate report to an appropriate agency. In this situation, confidentiality is decisively limited by legal statute on the ground that potential or actual harm to vulnerable children outweighs the value of confidentiality in a psychiatric setting. Although many complex psychodynamic nuances accompany the required reporting of suspected child abuse, such reports generally are considered ethically justified.

HIGH-RISK CLINICAL SITUATIONS

Suicidal Patients

Psychiatrists may be sued when their patients commit suicide, particularly when psychiatric inpatients kill themselves. Psychiatrists are assumed to have more control over inpatients, making the suicide preventable.

The evaluation of suicide risk is one of the most complex, dauntingly difficult clinical tasks in psychiatry. Suicide is a rare event. In our current state of knowledge, clinicians cannot accurately predict when or if a patient will commit suicide. No professional standards exist for predicting who will or will not commit suicide. Professional standards do exist for assessing suicide risk, but at best, only the degree of suicide risk can be judged clinically following a comprehensive psychiatric assessment.

A review of the case law on suicide reveals that certain affirmative precautions should be taken with a suspected or confirmed suicidal patient. For example, failing to perform a reasonable assessment of a suicidal patient’s risk for suicide or implement an appropriate precautionary plan will likely render a practitioner liable. The law tends to assume that suicide is preventable if it is foreseeable. Courts closely scrutinize suicide cases to determine if a patient’s suicide was foreseeable. Foreseeability is a deliberately vague legal term that has no comparable clinical counterpart, a common-sense rather than a scientific construct. It does not (and should not) imply that clinicians can predict suicide. Foreseeability should not be confused with preventability, however. In hindsight, many suicides seem preventable that were clearly not foreseeable.

Violent Patients

Psychiatrists who treat violent or potentially violent patients may be sued for failure to control aggressive outpatients and for the discharge of violent inpatients. Psychiatrists can be sued for failing to protect society from the violent acts of their patients if it was reasonable for the psychiatrist to have known about the patient’s violent tendencies and if the psychiatrist could have done something that could have safeguarded the public. In the landmark case Tarasoff v. Regents of the University of California, the California Supreme Court ruled that mental health professionals have a duty to protect identifiable, endangered third parties from imminent threats of serious harm made by their outpatients. Since then, courts and state legislatures have increasingly held psychiatrists to a fictional standard of having to predict the future behavior (dangerousness) of their potentially violent patients. Research has consistently demonstrated that psychiatrists cannot predict future violence with any dependable accuracy.

The duty to protect patients and endangered third parties should be considered primarily a professional and moral obligation and, only secondarily, a legal duty. Most psychiatrists acted to protect both their patients and others threatened by violence long before Tarasoff.

If a patient threatens harm to another person, most states require that the psychiatrist perform some intervention that might prevent the harm from occurring. In states with duty-to-warn statutes, the options available to psychiatrists and psychotherapists are defined by law. In states offering no such guidance, health care providers are required to use their clinical judgment and act to protect endangered third persons. Typically, a variety of options to warn and protect are clinically and legally available, including implementing voluntary hospitalization, implementing involuntary hospitalization (if civil commitment requirements are met), warning the intended victim of the threat, notifying the police, adjusting medication, and seeing the patient more frequently. Warning others of danger, by itself, is usually insufficient. Psychiatrists should consider the Tarasoff duty to be a national standard of care, even if they practice in states that do not have a duty to warn and protect.

HOSPITALIZATION

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