Legal and Ethical Issues in Psychiatry
I. Introduction
There are four major factors that fall within the realm for forensic psychiatry: (1) the psychiatrist’s professional, ethical, and legal duties are to provide competent care to patients; (2) the patient’s 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.
II. Medical Malpractice
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 and created a duty of care; (2) a deviation from the standard of care occurred; (3) the patient was damaged; and (4) the deviation caused the damage.
These elements are often referred to as the 4 Ds of malpractice (duty, deviation, damage, direct-causation). Each of the four elements of a malpractice claim must be present or there can be no liability. For example, a psychiatrist whose actions cause direct harm is not liable if no doctor–patient relationship has been established. In addition to negligence, psychiatrists may be sued for intentional torts such as assault, battery, false imprisonment, defamation, fraud, or misrepresentation in a case; invasion of privacy; and intentional infliction of emotional distress.
III. Split Treatment
In split treatment, the psychiatrist provides medication, and a nonmedical therapist conducts psychotherapy.
The psychiatrist retains full responsibility for the patient’s care in a split treatment situation.
It is important that the psychiatrist does a thorough evaluation, including obtaining prior medical records.
Prescribing medication, outside of a working doctor–patient relationship, does not meet generally accepted standards of good clinical care and may lead to malpractice action.
It is important that the psychiatrist remain thoroughly informed of the patient’s status and efficacy of any prescribed drug treatments. It is also imperative that the psychiatrist maintain a direct involvement in the patient’s care.
IV. Privilege and Confidentiality
A. Privilege.
The right to maintain secrecy and confidentiality in the face of a subpoena.
Privileged communications within a relationship, such as husband–wife, priest–penitent, doctor–patient, are protected from forced disclosure on the witness stand.
The right to privilege belongs to the patient, not the physician, and the patient can waive the right if they choose.
Privilege does not exist at all in military courts, regardless to whether or not the physician is military or civilian.
B. Confidentiality.
The long held promise of medical ethics, which binds the physician to hold secret all information given by the patient.
Confidentiality applies to a population sharing information without specific permission of the patient. The circle of confidentiality does not only include the physician, but also encompasses all staff members, clinical supervisors, and consultants involved in the patient’s care.
A subpoena can force a psychiatrist to breach confidentiality.
Physicians are usually served with a subpoena duces tecum, which requires that they also produce their relevant records and documents.
In bona fide emergencies, information may be released in as limited a way as possible in order to carry out the necessary interventions. Clinical practices dictate that, if at all possible, the psychiatrist should make an effort to obtain the patient’s permission and should debrief the patient after the emergency situation has been resolved.
Though oral permission is sufficient, it is always best to obtain written permission from the patient. It should be noted that each release is only good for one piece of information and permission should be obtained for each subsequent release, even to the same party.
Finally, release constitutes permission and not obligation. If the psychiatrist feels that releasing said information would be destructive, the matter may be discussed, and the release may be refused, with some expectations.
C. Child abuse.
Many states require that all physicians take a course on child abuse for medical licensure. All states legally require that psychiatrists, among others, who have reason to believe that a child has been abused, sexually or otherwise, immediately report their suspicions to the appropriate agency. In this situation, the potential harm to a child greatly outweighs the value of confidentiality in a psychiatric setting.
V. High-Risk Clinical Situations
A. Suicidal Patients.
Psychiatrists can be sued if their patient commits suicide, particularly in the case of inpatient suicide, where psychiatrists are expected to have greater control of the patient’s behavior. Suicide is a rare event, and the evaluation of a suicide risk is one of the most complex, dauntingly difficult clinical tasks, and as of now, there is no way to accurately predict whether or not a patient will commit suicide.
B. Violent patients.
Psychiatrists treating violent or potentially violent patients can be sued for failure to control aggressive outpatients, for the discharge of violent inpatients, and for the failure to protect society from a patient’s violent actions. In most states, if a patient threatens to harm another person, it is required that the physician intervene to prevent harm from occurring. The options to warn and protect include voluntary hospitalization, involuntary hospitalization, warning the victim of the threat, notifying the police, adjusting medication, and seeing the patient more frequently.
VI. Hospitalization: Procedures of Admission
The American Bar Association has specifically endorsed four procedures of admission to psychiatric facilities: informal admission, voluntary admission,
temporary admission, and involuntary admission. These procedures are intended to safeguard civil liberties and to ensure that no person is railroaded into a mental hospital. Though each of the 50 states has the power to enact its own laws in regards to psychiatric hospitalization, the above-mentioned procedures are gaining much acceptance.
temporary admission, and involuntary admission. These procedures are intended to safeguard civil liberties and to ensure that no person is railroaded into a mental hospital. Though each of the 50 states has the power to enact its own laws in regards to psychiatric hospitalization, the above-mentioned procedures are gaining much acceptance.
A. Informal Admission.
Informal admission operates under the general hospital model, in which a psychiatric patient is admitted to the psychiatric unit in the same way that a medical or surgical patient is admitted to a medical ward.
B. Voluntary Admission.
Patients who are voluntarily admitted to the psychiatric unit either do so under the advice of a physician or they seek treatment on their own. Such patients apply in writing for admission to the psychiatric unit and maintain an ordinary doctor–patient relationship, and are free to leave, even against medical advice.
C. Temporary Admission.
A temporary form of involuntary commitment for patients who are senile, confused, or unable to make their own decisions. In an emergency admission, the patient cannot be hospitalized against his or her will for more than 15 days.
D. Involuntary Admission.
If patients are a danger to themselves (suicidal) or others (homicidal), they may be admitted to a hospital after a friend or relative applies for admission and two physicians confirm the need for hospitalization. It allows the patient to be hospitalized for 60 days, after which a board consisting of psychiatrists, nonpsychiatric physicians, lawyers, and other impartial parties must review the case.
VII. Right to Treatment
The right of an involuntarily committed patient to active treatment has been enunciated by lower federal courts and enacted in some state statutes.
Wyatt v. Stickney (1971) set the pattern of reform by requiring treatment in addition to hospitalization. It also required specific changes in the operations of institutions and their programs, including changes in physical conditions, staffing, and quality of treatment provided.
Donaldson v. O’Connor (1976). The U.S. Supreme Court held that an involuntarily committed person who is not dangerous and who can survive by himself or herself with help must be released from the hospital.
VIII. Right to Refuse Treatment
The right to refuse treatment is a legal doctrine that holds that, except in emergencies, persons cannot be forced to accept treatment against their will. An emergency is defined as a condition in clinical practice that requires immediate intervention to prevent death or serious harm to the patient or another person or to prevent deterioration of the patient’s clinical state.
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