A malpractice suit falls into the legal category of an action in tort. A tort is a civil (i.e., noncriminal) wrong, not based on a breach of contract, that has led to harm to another person. An action in tort is a request for compensation for the harms that have occurred. Malpractice is a negligent tort, committed by a physician or some other professional, that leads to damage to a patient or client. As a subcategory of tort law, malpractice litigation must conform to all of the complex procedural and substantive requirements that have evolved over centuries of Anglo-American jurisprudence in this field and proceed under some rules peculiar to this area. Four basic elements must be proven to sustain a claim of malpractice.

a. Duty. Before a patient can claim that a clinician’s negligent act caused him damage, the patient must first establish that he and the clinician entered into a relationship in which the clinician undertook to treat the patient. In other words, the clinician must have assumed a duty to care for the person. Many people are surprised to discover the restricted scope of duty in Anglo-American (as opposed to Continental) law. Ordinarily, no individual is obligated to care for
another. Thus, a passerby who sees a toddler trip in a wading pool and begin to drown is subject to no legal penalty if she does not help the child. The same is true for a physician who, except in rare instances where the law specifies otherwise, is not obliged to render assistance to all the persons needing medical attention he comes across. Once the physician has agreed to provide aid, however, whether by working in an emergency room where that promise is implicit in the setting, by explicitly agreeing to treat an individual who has come to his office, or by acting in some other way such that the patient might reasonably be led to assume that a doctor-patient relationship has been established, a duty to act nonnegligently applies. When a duty to care has been initiated, it can be terminated by outright discharge (but only if medically appropriate) or by the transfer of the patient to the care of another physician. The same rules apply generally to all the mental health professions.

b. Negligence. The clinician who has agreed to care for a patient cannot act negligently toward her, but because negligence is a relative concept, some external standard against which to measure care is required. A deliberately exaggerated example may clarify this point. A large number of medical tests exist that a psychiatrist could order before starting a patient on lithium. Because toxic effects of lithium on the function of the brain have been reported, particularly in those patients with preexisting lesions, an electroencephalogram and a magnetic resonance imaging scan might be obtained. The kidneys are another source of concern; although serum creatinine and blood urea nitrogen tests might be sufficient as a measure of renal impairment, perhaps an intravenous pyelogram, or even a renal biopsy, would yield additional data. A bone marrow biopsy could rule out a preleukemic state, a possible source of concern. What determines if a physician is negligent in omitting one of these procedures if a complication that could theoretically have been avoided later develops? Malpractice law has traditionally held, with some important exceptions (see Sec. II-B-2-a), that the custom of the profession, as reflected in the standard of care common to other professionals of the practitioner’s training and theoretical orientation, is to be taken as the benchmark against which negligence is to be measured. Thus, if all psychiatrists who prescribe lithium began on reasonable grounds to order brain magnetic resonance imaging scans before beginning treatment, as in our exaggerated example, that would become the standard by which the defendant-physician would be judged.

All jurisdictions formerly accepted one qualification as to the nature of the peer group to which the comparison was made: only the practices of clinicians in the defendant’s own locality were considered to be relevant. More recently, the homogenization of practice made possible by widely disseminated professional journals, continuing education programs, national professional meetings, and uniform standards for peer review has led many, but not all, jurisdictions to abandon the locality rule. Clinicians are generally judged by the standards of their confreres of similar training and orientation throughout the country. This is true for all the clinical professions.

That standards of care are judged according to one’s specialty does not imply that a psychiatrist necessarily will be judged not to have been negligent if he performs as well as other psychiatrists would have in an entirely different context. Although the psychiatrist is a physician, there are medical procedures, for example, cardiac catheterization, that a psychiatrist is simply not trained to perform. The standard of the profession requires psychiatrists to refer patients in need of catheterization to qualified interventional cardiologists. To have done otherwise almost certainly constitutes negligence in its own right.

c. Harm. Even a clearly negligent act (e.g., a psychiatrist’s prescribing antipsychotic medications by telephone for a patient whom he has never seen) does not leave the clinician liable for damages unless some harm occurs. The harm can be physical (e.g., a dystonic reaction in a patient who did not require neuroleptics in the first place that causes the patient to lose control of her car and crash) or emotional (e.g., the anguish that the patient’s spouse suffers after hearing about the crash). Potential damages can be astronomical. In this example, in addition to the cost of replacing the totally ruined car, the psychiatrist can be liable for the patient’s hospital bills, a lifetime of lost wages, compensation for a future filled with days of pain and suffering, and compensation to the spouse for his anguish and loss of the usual marital relationship (or, in legal terms, loss of consortium). The tendency of juries to grant large amounts of money for pain and suffering—even $100 a day over 30 years amounts to more than one million dollars—has contributed to the enormous inflation in damages awarded.

d. Causation. Causation is the most complicated of the four elements of malpractice. In brief, even a negligent act committed by a clinician with a duty to care for a patient-plaintiff who has suffered a permanent harm is not compensable unless the negligent act in question caused the harm. Although that may sound simple or self-evident, it is neither. A psychiatrist who hospitalizes a suicidal patient in a facility that fails to observe him closely enough to prevent the patient’s ultimate demise can, in one sense, be said to be a causative agent of the patient’s death. If the psychiatrist knew, or reasonably should have known, that the facility was likely to be negligent in observing the patient, a court might conclude both that the psychiatrist was negligent and that her negligence was so closely related to the patient’s death as to constitute a proximate cause (the term indicating a sufficiently close link as to establish causation for legal purposes). Some courts believe proximate cause to be present whenever the harm might have been or should have been predicted in advance—or in legal terms, when the harm was foreseeable. If the patient’s death, however, resulted from being pushed by another patient down a flight of stairs and that act could not have been reasonably foreseen or prevented, the psychiatrist could not be held liable despite the practitioner’s original negligent act in committing the patient to a facility he knew to be inadequate and despite the fact that “but for” his action, the patient would still be alive. “But for” causation is not sufficient to establish proximate cause.

The existence of each of the four elements of malpractice must be proven by the plaintiff—the party who is suing—by a preponderance of the evidence, i.e., that the assertion is more likely than not true. Certain difficulties of proof are inherent in the usual therapeutic setting.

a. Lack of witnesses. Common to many medical situations, and certainly the rule in psychiatry, is that the interactions in question have not been observed by anyone other than the two parties to the case: the plaintiff-patient and the defendant-clinician. Only they can give direct evidence of whether a duty of care was assumed and if the negligent act alleged was actually committed. Because the testimony of each party can be assumed to be self-serving and is often directly contradictory of the other’s, corroborative evidence assumes tremendous significance. As a result, the patient’s records, which represent the clinician’s ongoing description of the relationship, can be determinative of the ultimate findings in the case (see Sec. III-A-3). The importance of complete and accurate records cannot be exaggerated.

b. Res ipsa loquitur. Problems of proof that are difficult in the usual clinician-patient relationship become overwhelming when one of the two parties cannot testify directly as to what has occurred. Take, for example, the case of a patient who suffered a respiratory arrest during the administration of ECT and who was subsequently revived. Although the patient may have reason to suspect that the behavior of her physicians contributed to the arrest, she has no way of proving that the physicians were indeed negligent, e.g., by administering too large a dose of anesthesia, except by reference to the medical record of the treatment. Because the formulation of that record, was under the control of the doctors accused of negligence in the first place, however, it may not accurately reflect everything that occurred. The law, which has as its primary concern the compensation of those who have suffered injuries, has provided a way out of this dilemma.

The doctrine of res ipsa loquitur (meaning, literally, “the matter speaks for itself”) can be invoked in such a case. Res ipsa requires four elements to be present: (1) that the harm that has occurred rarely happens in the absence of negligence (a requirement not likely to be met in the ECT example but one that could be the subject of dispute in court); (2) that the defendant (i.e., the physician) had exclusive control of the means that caused the injury; (3) that the plaintiff did not contribute to the bad result; and (4) that only the defendants, and not the plaintiff, have access to the information about what actually occurred. Although some commentators claim that res ipsa represents nothing more than a complicated codification of common sense, it does have several important technical legal functions. First, in some courts, once the four elements have been established, the burden of proof shifts to the defendant, who must prove that the negligent act alleged did not occur. Second, it prevents a plaintiff’s case from being thrown out of court in the absence of direct evidence of negligence. Finally, res ipsa is one of the means that the courts have developed to circumvent the usual requirement for expert testimony to establish negligence; when a surgeon has left a hemostat inside the patient’s abdomen, expert testimony is not required to establish a
violation of the standard of care. Even when an expert may be required to prove the first element of res ipsa, namely, that the act in question is unlikely to have occurred without negligence on the part of the physician, one is not needed to answer the more difficult question of whether the particular physician in question was actually negligent.

c. Expert testimony. Courts in the past generally have required expert testimony to prove at least one element of malpractice: that the performance of the defendant did not conform to the standard of care of the profession. Under the traditional rules, the expert had to be of the same theoretical school as the defendant (a particularly important requirement in psychiatry, where practices among various schools may diverge, albeit not as widely as in the past) and practicing in the same locale or at least a similar one (e.g., a nearby small town or a comparably situated small town in a neighboring state). Combined with the natural reluctance of colleagues to testify against one another in court (deemed by frustrated plaintiffs a “conspiracy of silence”), the requirement for an expert’s testimony could be a formidable barrier to the successful waging of a malpractice suit (see Chap. 8, Sec. II-A).

The barrier has been substantially lowered since the 1990s, however, as the result of several changes in evidentiary requirements in malpractice cases. The locality rule has all but disappeared, in part in response to the need to broaden the pool of professionals from which potential witnesses can be drawn. A physician or other mental health professional who is willing to testify in malpractice cases for either the defense (although under the traditional rules, defendants had many fewer problems finding experts to support their cases) or for the plaintiff can travel around the country to fill that role. Trial lawyers’ magazines, in fact, display many advertisements from physicians and other experts who are eager to be called on to testify. (Ethical questions in this area are addressed in Chap. 8, Sec. II-C-2.)

In addition, the requirement for an expert’s testimony has been done away with altogether in those instances in which the court determines that the alleged negligence is of such dimensions that even uninstructed laypersons could recognize it. Cases of this sort are rare in psychiatry, but the following is an example: a physician who, while drunk, examines a patient and prescribes medication for a condition that the patient does not have; the medication subsequently leads to an adverse reaction.

Finally, even in cases of psychiatric malpractice in which expert testimony is still required to establish negligence, some inroads are being made in the use of nonmedical mental health professionals, primarily psychologists, to testify to the standard of care. As the psychologists’ role in the care of people with mental illness expands (in many areas they are permitted to testify in commitment or competency proceedings and to admit patients to mental hospitals, and in a small number of states they can acquire prescribing privileges), the increasing congruence between their activities and those of psychiatrists makes them, from the lawyer’s viewpoint, even more attractive as potential witnesses.

The incidence of malpractice litigation in the mental health professions is rising and settlements are growing in size. Knowledge of the bases on which suits are brought is, thus, increasingly important to understand trends in malpractice litigation and to develop strategies to correct underlying problems. Growing awareness of the number of allegations against mental health professionals (e.g., concerning sexual contact with patients) has led to concerted efforts by the professions to deter such potential grounds for litigation (see Sec. II-A-3-f).

Despite the obvious importance of data on the frequency of particular types of malpractice claims, much is lacking in our ability even to rank order the most common causes of suits. A number of reasons exist. Only the rare malpractice suit contains a single allegation; most state several related claims against the clinician. Furthermore, the same negligent acts might be described differently in otherwise similar suits. A patient’s death by overdose with a medication that was prescribed by his psychiatrist, but was not indicated for his condition, might be characterized as misdiagnosis, negligent prescription of medication, failure to properly monitor medication, failure to assess suicidal ideation, or any combination of these.

Even if common categories could be agreed on, getting comprehensive information about malpractice cases is a daunting task. It is estimated that only 10% of cases get to trial, and only
a fraction of these result in appeals with published opinions. Insurance companies, which have records of all claims lodged against policyholders, are often reluctant to allow researchers to read their files, although they may publish periodic summaries of claims lodged against them. Our knowledge about the relative frequency of malpractice claims is based on these data and the rare independent research studies.

Because categories differ from company to company and are subject to biases, the result is little consensus on the relative importance of types of malpractice. Hence, we make no effort here to offer a hierarchy of causes of psychiatric malpractice by frequency of allegations. Rather, the major categories of malpractice for mental health professionals are reviewed, with special attention to those categories that raise problems unique to mental health care.

a. Misdiagnosis of psychiatric disorders. Misdiagnosis usually refers to a negligent failure to recognize the nature of the patient’s condition, with harm resulting from the consequent failure to implement proper measures of care. A psychiatrist, for example, may be held liable for negligently diagnosing a patient with obsessive-compulsive disorder as having schizophrenia, but only if the misdiagnosis affects treatment in a manner that leads to subsequent harm. If, as a result of the diagnosis, the patient receives neuroleptic medication and later develops tardive dyskinesia, liability may well be imposed. Liability may also be imposed if the patient is deemed likely to have improved had the correct diagnosis been made. The mistaken diagnosis, however, must be the result of the clinician’s negligence. Had the psychiatrist properly inquired about the signs and symptoms of both schizophrenia and obsessive-compulsive disorder, only to have the patient lie about the presence of delusions, the resulting mistake could not be attributed to the psychiatrist’s misfeasance. Similarly, if after conducting an evaluation that conformed to the standard of care, the psychiatrist was left with a difficult diagnostic dilemma and made a reasonable judgment that turned out to be incorrect, liability should not accrue.

The advances in biological treatments of demonstrated efficacy have heightened the importance of proper diagnosis. If the negligent failure to consider a diagnosis (e.g., the possibility that a psychotic illness represents bipolar disorder and not schizophrenia) leads to a failure to use a potentially efficacious agent (e.g., a mood stabilizer), with prolonged suffering and repeated hospitalization as a result, good potential for a malpractice claim would seem apparent. If anything prevents such cases from proliferating, it is probably (1) the condition of many of these patients, who are chronically ill and socially impaired and thus unlikely to initiate legal remedies, and (2) that still no absolute one-to-one correlation exists between specific illness and specific treatments of certain efficacy. Otherwise, misdiagnosis would seem to be a ripe area for future litigation.

The term misdiagnosis does not always refer to the failure to make a proper diagnosis of mental disorder in the psychiatric sense. It can also refer to alleged failure to detect a patient’s suicidal or homicidal propensities, or an unnoticed side effect of prescribed medication (see Secs. II-A-3-d and II-A-3-e for a discussion of these issues).

b. Negligent use of somatic treatments. Most of the issues in cases of negligent use of somatic treatments differ little from those faced by physicians in any other medical or surgical specialty. Use of the wrong medication for a patient’s condition, prescription of improper dosages (i.e., too high, leading to toxicity, or too low, leading to delayed improvement), failure to monitor side effects, failure to take proper precautions to prevent side effects from developing (as by using insufficient amounts of muscle-relaxant in administering ECT), and prescription of medication despite contraindications can, in psychiatry as in the rest of medicine, be construed as actionable under malpractice law.

One issue relatively specific to psychiatric practice, although less prominent than in the past, is the negligent failure to use somatic treatment. Practitioners who rely entirely on psychotherapeutic approaches for all of their patients, and who do not refer to more biologically oriented colleagues those patients for whom pharmacotherapy might be appropriate, are at risk for suits of this sort. Such suits are not common, in part because of the “respectable minority” rule. If a respectable minority of a profession follows certain practices, even if those practices are rejected by the majority of practitioners, the courts have been reluctant to find members of the minority to be negligent. This deference to minority opinion is a reflection of the courts’ disinclination to be used to enforce orthodoxy among the professions. But the clearer the evidence for efficacy of medications or other
somatic treatments, and the less apparent the benefit from the alternative approaches used, the greater the risk run by a clinician who fails to consider somatic treatments. Similarly, in conditions for which psychotherapeutic interventions of demonstrated efficacy exist (e.g., cognitive-behavior therapy for obsessive-compulsive disorder), failure to consider their use, alone or with medication, may form the basis for a malpractice claim.

c. Negligent use of psychotherapy. The number of possible permutations of negligent behavior by a psychotherapist constitutes an obsessive’s nightmare and a scholar’s delight. Although many articles and books are filled with speculations about the kinds of harm that might be induced by negligent psychotherapy, such works almost always conclude with the barely noted caveat that malpractice cases alleging negligence in psychotherapy were, historically, exceedingly rare. Among the explanations for this are the good relationships most patients have with their psychotherapists (although negative transference reactions of significant severity are hardly unusual); patients’ low index of suspicion for negligent acts, given their usual unfamiliarity with technical aspects of psychotherapy; the difficulty in proving that the act was negligent, because of the absence of witnesses and other corroborative data and because the techniques of many forms of psychotherapy have diverged so greatly from the original analytically oriented model that a professional consensus on what constitutes an adequate standard of care is difficult to obtain; the crucial role of the patient’s own participation and, hence, responsibility; and the difficulty in establishing a causal link between a therapist’s statements and the subsequent harms that accrue to the patient. In fact, so rare are reported cases of actual suits about the psychotherapy process itself that most discussions of this topic concentrate on cases involving nonpsychotherapeutic interactions between patients and therapists, such as sexual intercourse (see Sec. II-A-3-f) or other abuses of the fiduciary relationship.

Nonetheless, it is possible to be negligent in conducting psychotherapy, just as it is possible to be negligent in any other form of treatment. A divergence from the standard of care for psychotherapists usually flows from an intrusion of countertransference feelings into the treatment process. Thus, a therapist who, in anger at a patient’s provocative behavior, berates that patient or suggests that the patient undertake some action that is not in the patient’s best interest would, problems of proof aside, be liable for whatever harm occurs. Although it is possible to imagine a suit stemming from a patient’s belief that, even absent any such extraordinary events, the psychotherapy was conducted so poorly as to inhibit the patient’s recovery, the problems of proof in such a case are so overwhelming as to make a successful action extremely unlikely.

A growth in malpractice claims against psychotherapists has stemmed from the “recovered memory” controversy. Patients who develop memories of childhood abuse during therapy, when those memories have been absent for many years, sometimes come to doubt the truthfulness of the recovered memories. These patients may make accusations against their alleged abusers, only to retract the charges subsequently. Turning on their therapists, whose behavior they blame for inducing memories they now reject, such patients may file suits claiming that improperly suggestive techniques were used in their care; the accused parents, as noted later, may also serve as plaintiffs. Unfortunately, some therapists engage in dubious practices that reflect their own presuppositions about the etiology of their patients’ problems (e.g., believing that every patient with an eating disorder was sexually abused as a child). The result has been substantial verdicts for plaintiffs in a number of high-profile cases, although as greater caution has grown among therapists, the frequency of such cases may now be diminishing. (See Sec. II-D-4 for a discussion of liability to third parties in these cases and Sec. III-B-2 for consideration of steps that can be taken to reduce liability risks.)

d. Negligent failure to prevent patients from harming themselves. Of the many categories of psychiatric malpractice, allegations related to patients’ attempts at suicide are probably the most common and, in many respects, the most perplexing. Such allegations may be cast in a variety of ways, generally encompassing failure to detect suicidal propensities and failure to act appropriately to control them. Unlike the previously discussed malpractice categories, however, harm to the patient as a result of suicidal behavior requires the patient himself to act as a causal agent. That is, whatever errors the clinician makes in the course of treatment, harm would not accrue were it not for the ultimate actions of the patient. Generally in tort law, such behavior would
be considered contributory negligence by the patient, rendering the clinician, even if negligent, free from liability, or, at most, apportioned some fraction of resulting damages.

Why is contributory negligence not often considered where suicide is concerned? Although not usually explicated clearly by the courts, the governing assumption seems to be that psychiatric patients whose suicide attempts are motivated by their disorders lack either the ability to control their impulses or the capacity to think clearly about their options. Put somewhat differently, it might be said that they are incompetent to determine their own behavior. Thus, the legal significance of a suicidal patient’s actions as contributory negligence is diminished, leaving clinicians who committed negligent acts solely responsible for the outcome.

The difficulty of predicting suicidality was discussed in Chap. 2 (see Sec. II-E-2-b). Needless to say, clinicians are not considered negligent merely for having failed to predict suicidal acts, as long as they take the steps considered necessary by their profession. In general, patients should be asked at the time of initial evaluation about the signs and symptoms of depression and about suicidal history and current suicidal intent. Should patients falsely deny suicidal ideation, without evidence to the contrary, and later act on it, the clinician can hardly be held responsible. If suicidal ideation is present, the difficult task of assessing its degree and seriousness remains (see Chap. 2, Sec. III-B).

Just how far a clinician must go to prevent a patient from attempting suicide is unclear, although the burden is clearly greater in an inpatient setting, where the clinician is presumed to have a greater degree of control over the patient’s behavior. Most experienced clinicians believe that a patient who is set on killing herself will find a way to do so, regardless of the precautions taken. The patient determinedly bent on suicide, moreover, may see treaters as enemies rather than allies, who will interfere with her lethal intention. Thus, the task is to design responses to decrease the likelihood of successful suicide among those who are deterrable, while recognizing the limitations of the clinician’s realistic capabilities and the need to balance safety concerns with other requirements for effective treatment.

Must involuntary hospitalization be pursued if it is the only means of deterring suicide? Many suits have been decided under the assumption that civil commitment of the seriously suicidal represents the standard of care, although some decisions have challenged that standard as a matter of law. At present, it is safe to assume that commitment may be necessary if other courses of action are likely to be ineffective, although this is an issue to be watched in the courts.

e. Negligent failure to prevent patients from harming others. Psychiatrists have always faced the potential for suits as a result of negligently allowing patients to be released or to escape from inpatient facilities when those patients later cause harm to others. The California Supreme Court decision in Tarasoff v. Regents of the University of California, in 1976, extended the duty to protect third parties to situations in which clinicians (not just psychiatrists) had never exercised physical control over their patients. The court ruled that when clinicians know or should know that their patients represent a danger to others, they have a duty to take whatever steps are reasonably necessary to protect those identifiable persons. Since the California decision, most states have adopted some version of the Tarasoff rationale by case law or statute. In those few jurisdictions where no state law exists on the matter, most experts agree that it is prudent to behave as if a duty to protect exists anyway (see also Chap. 1, Sec. II-B-5-d).

The Tarasoff decision has been subjected to a great deal of criticism from the mental health professions on two grounds. First, it is argued that the inability of clinicians to predict future dangerousness saddles them with a responsibility that they cannot reasonably fulfill. Even when predictions of possible violence are made, clinicians have a limited range of abilities to protect potential victims, many of whom are intimates of their patients. Second, opponents of the duty to protect maintain that the harm from imposing a duty outweighs whatever benefits may be obtained. Faced with the threat of breaches of confidentiality, those patients most in need of treatment may decline to seek it. In addition, other patients may be deterred by an unfounded fear of disclosure, and clinicians may overuse maximally protective options (e.g., hospitalization) from fear of liability.

These arguments have had relatively little impact on the courts. In response to claims of inability to predict dangerous behavior, they point to assertions by many clinicians, documented repeatedly in surveys, that they can predict violence. The courts then note that they are asking clinicians to live up to the standard of their colleagues (i.e., to do as well at prediction as would
any reasonable mental health professional). Of course, this standard becomes problematic when expert witnesses testify at trial, in retrospect, that they, and therefore other reasonable clinicians, would certainly have known that the patient would be violent and that the defendant should have as well. The courts have been willing to tolerate the putative negative effects of imposing a duty to protect (while noting that they have not been demonstrated) to avoid the harms that might result from clinicians failing to act to protect likely victims when they believe that danger may exist.

Legislatures have been somewhat more responsive to clinicians’ concerns, particularly claims that court decisions often left it unclear when the duty arose and what means were sufficient to discharge it. A growing number of states have adopted roughly similar legislation to limit the duty to circumstances in which patients make overt threats against identifiable victims, thus diminishing the problems of prediction. Furthermore, the statutes generally provide that the duty is fulfilled if one or more of a small number of options is selected, including warning the victim or the police, or both, and hospitalizing the patient, voluntarily or involuntarily. These statutes may provide an acceptable compromise between public safety concerns and clinicians’ fears of unreasonable imposition of liability.

Clinical approaches to dealing with the requirements of the duty to protect are considered in Sec. III-A-2-g.

f. Sexual activity between patients and therapists and other boundary violations. Surveys of mental health professionals have shown that 5% to 10% of therapists admit to sexual activity with patients, with male therapists confessing such behavior outnumbering female therapists between 2:1 and 5:1. Other work suggests that patients who engage in sexual activity with their therapists almost uniformly suffer adverse effects, frequently severe. The idea that sexual contact may constitute a beneficial aspect of treatment has been rejected entirely. Thus, a consensus has developed that sexual contact between patients and therapists is never acceptable, a view reflected in the codes of ethics of all the major mental health professions.

It is possible, of course, for any two people who work together intimately over a prolonged period to develop feelings of fondness and sexual desires for each other. The special conditions of a psychotherapeutic setting and its contract, however, call for an exploration of those feelings with an eye toward helping the patient understand their genesis and their relationship to other events in his or (usually) her life. The therapist is likewise called on to examine the origin of his feelings about the patient and to prevent them from interfering with the treatment process. Acting on those feelings represents, for the therapist, a failure of self-exploration and self-restraint to such a degree as to constitute negligence. The claim that in no other setting would the physical expression of sexual longings be categorized as negligence on the part of one of the parties, although true, merely emphasizes the uniqueness of the psychotherapeutic dyad. Three factors contribute to this uniqueness: the special vulnerability of patients who seek mental health treatment; the power differential or “power asymmetry” between therapists and patients, heightened by the phenomenon of transference, which makes it difficult for patients to resist therapists’ sexual advances; and the strong likelihood that patients are harmed by whatever sexual contact ensues. Note that all three factors are present in psychiatric treatment even when psychotherapy is not involved. Hence, the proscription of sexual contact with patients includes psychopharmacologic treatment.

Courts are unsympathetic to claims that sexual involvement was the result of overpowering passion and should therefore be excused, to allegations that the patient’s freely given consent should absolve the therapist of any responsibility and to arguments that because the sexual activity took place outside of the therapy, it is not properly considered under malpractice law. Instead, the courts are likely to stress the fiduciary relationship that exists between patient and therapist (i.e., the idea that in the development of a therapeutic relationship the patient is induced to place full trust in the therapist, believing his position to be that of the patient’s ally, who is committed to act unfailingly in the patient’s best interests). Sexual activity is, in this view, always a betrayal of the patient’s trust and an unfair capitalization on the patient’s transference feelings.

As the area of sexual involvement has been explored, additional issues have been considered. It was once considered acceptable for therapists who fell in love with their patients to discontinue treatment, refer the patient to another therapist, and then pursue romantic involvement. This is no longer the case. The American Psychiatric Association’s ethical code reflects the belief that sexual contact even with former patients is always exploitative of them, because it is likely to be based on unresolved transference, and therefore unethical. It may also be the basis for a malpractice suit.

Because sexual activity with a patient is an intentional act, it may seem problematic to characterize it as malpractice, which is a negligent tort. From plaintiffs’ point of view, however, this characterization is desirable, because it gives them access to clinicians’ malpractice insurance policies for purposes of compensation. Although many insurers try to avoid indemnifying clinicians who are found to have engaged in sexual contact with patients, on the grounds that their actions fall outside of the negligent behavior the policies are designed to cover, plaintiffs are generally successful in overcoming these arguments. One usually successful technique is to characterize therapists’ behavior as a negligent form of treatment (because therapists should know that harm is likely to result), particularly a mishandling of the transference. This allegation of negligence may even be made against practitioners who do not use insight-oriented psychotherapy and therefore do not see themselves as dealing with transference (e.g., behavioral therapists and psychopharmacologists). In supporting these charges, the courts seem to be saying that this is one area that no clinician can ignore. Some insurers agree to defend accused therapists in such cases but try to avoid paying the judgment if therapists are found liable. Clinicians should be aware of their insurer’s policies in this regard.

An active policy debate is whether malpractice policies should cover sexual misconduct. On one side are those who argue that malpractice insurance was never meant to deal with intentionally harmful behavior. To include sexual contact within the scope of malpractice policies is to place a tax on the majority of therapists who do not have sexual contact with their patients, to the benefit of those who do. On the other side are people who believe that some compensation ought to be forth-coming for patients who have suffered harm at the hands of sexually abusive therapists. Without malpractice coverage, payment in many cases is not possible, as therapists lose or dispose of their assets. Because someone must bear the cost of the harms suffered by patients, it is argued that rather than leaving the burden on the abused patients, it is fairer to spread it among all practitioners.

In response to the perception that the professions have been ineffective in sanctioning sexual activity with patients, the states have become much more aggressive. Complaints to licensure boards routinely result in mental health professionals losing their licenses. A number of states have passed laws requiring the reporting of sexual activity known to other health and mental health professionals, making it easier for patients to sue (e.g., defining the cause of action, extending the statute of limitations) and even criminalizing the behavior. Therapists found to have had sex with patients, and in some cases former patients, face long prison terms in some states. This activity by licensure boards, combined with education by professional organizations and the risk of civil and criminal liability, may have resulted (although accurate numbers are difficult to establish) in a considerable reduction in therapist-patient sexual activity.

Sexual contact with patients, and in most circumstances ex-patients, has moved from a deplored, but tolerated, status to being clearly rejected by practitioners and the public alike. Sex with patients is never justified; following that simple rule prevents much distress for patients and therapists alike.

As issues related to therapist-patient contact have been clarified, the focus of concern about boundary violations (see Sec. III-A-1-a for a discussion of the concept) has grown to encompass other forms of patient exploitation, including improper physical contact that stops short of sexual intercourse, the development of social and business relationships with patients, and requesting or accepting personal favors and expensive or intimate gifts from patients. Much of the reason these behaviors initially attracted attention was because they were seen as stepping stones to sexual relationships; they have come to be seen as harmful to and exploitative of patients in and of themselves. Boundary violations unrelated to intercourse can precipitate malpractice actions, licensure proceedings, and ethics complaints to professional societies.

g. Negligence in supervision. Negligent supervision has become a more significant issue for psychiatrists given the changes in recent decades in the way in which most mental health treatment is delivered. With psychiatrists often limited to providing medications, psychotherapeutic treatment has frequently been turned over to other mental health disciplines. This shift has encouraged the development of group practices and clinics in which a handful of psychiatrists may participate in the care of hundreds of patients who are being seen primarily by therapists of other disciplines. (This phenomenon was first seen in community mental health centers, which adopted a similar approach in response to their own resource limitations.) The nature of psychiatrists’ liability risks in this type of venue depends on their precise relationship with their clinical collaborators.

For psychiatrists who employ other professionals, liability problems derive from the law’s assumption that those who are subject to their supervision are actually their agents—in other words, that the patient’s relationship is established primarily with the physician (even if the patient never meets the physician) and is only mediated by the nonmedical mental health professional. As such, the physician is held responsible for the acts of his or her agents and for their negligence as well. The relevant legal doctrine is often known by its Latin name, respondeat superior—“let the master reply [for the deeds of the ‘servant’].” That the psychiatrist did not know about the act in question is no defense; the standard of care to be met is the standard of the psychiatric profession, and the failure of the psychiatrist to make reasonable efforts to ascertain that her agents were living up to that standard is proof of negligence in itself.

The liability question may be less clear in clinics in which psychiatrists are themselves hired to supervise other mental health workers, rather than employing those workers directly; in some jurisdictions, a direct employer-employee relationship may be required before respondeat superior may be applied. In other states, a psychiatrist’s responsibility for the acts of others may vary depending on whether the psychiatrist operates in a consultative capacity, proffering advice that may be accepted or rejected, or in a supervisory capacity. In the latter case, the psychiatrist may be viewed as having ultimate responsibility for the patients’ care, a responsibility that the psychiatrist actually exercises through those professionals under his supervision but cannot shed completely should a negligent act occur. Psychiatrists in such settings should have the nature of their responsibilities clearly defined, preferably in writing. Many clinic and practice situations are inherently unsatisfactory from the perspective of potential liability; although endowing the part-time psychiatrist with responsibility for supervising the care of large numbers of patients, such settings provide too little time for careful monitoring of care to take place. Psychiatrists would be well advised to avoid such positions, as well as clinics or practices in which they believe that, regardless of the amount of time spent in supervision or the extra training provided, the personnel employed cannot possibly provide an adequate level of care (see Sec. III-B-3 for a discussion of risk management strategies in supervision).

With the spread of statutes allowing independent practice for psychologists, social workers, and other therapists, issues regarding respondeat superior and negligent supervision are no longer the exclusive concern of psychiatrists. A psychologist supervising other nonmedical mental health professionals, for example, must also take reasonable steps to ascertain that they are conforming to the standard of care.

h. Abandonment. When the question of abandonment is raised, the law’s concern is that the trust that the patient has presumptively lodged in a mental health professional should not be abused by the sudden termination of the patient’s care. Because of the trusting, or fiduciary, nature of the relationship, the clinician must in practice frequently do more than an average person would in comparable circumstances. At the least, before a clinician unilaterally stops seeing the patient, a proper locus of referral should be identified. Whether more than that is required may depend on the functional capacity of the patient to follow up and initiate a new treatment relationship. For more impaired patients, the clinician may need first to contact the practitioner or agency to which the referral is being made, obtain agreement for the transfer of care and perhaps even arrange the initial appointment.

i. Patients who threaten their therapists. The law, of course, recognizes that instances exist in which this orderly approach to termination is untenable (e.g., when the patient has seriously threatened the physical safety of the therapist). Even then, a clinician cannot simply refuse to see the patient and leave it at that. An effort at referral to an appropriate source of care must be attempted. Although one can argue that this effort requires an extraordinary amount of devotion on the part of a therapist whose life may have been threatened, the law tends to see it merely as a quid pro quo for the benefits that the clinician obtains from the relationship: money, status, and a certain measure of power over patients who repose their trust in him.

ii. Patients who fail to pay. Courts look less favorably on therapists who have stopped seeing patients because of failure to pay their bills than those who have terminated patients for any other cause. Although the realities of the situation are quite different, the popular, and this includes the legal, view of psychiatrists and other mental health professionals is that they not only
charge exorbitant fees but are also unmerciful in dropping patients who cannot afford to pay them. Clinicians, therefore, who find that they have exhausted the usual recourse of extensively discussing the situation with the patient and who desire to terminate treatment with a patient who has not paid a bill over a substantial period would do well to document the repeated discussions carefully, to make clear to the patient that if the bill is paid he can return and to offer referral to a public clinic or other available source of care (see also Secs. III-A-1-c-ii and III-A-2-h).

iii. Patients who do not cooperate. As with a patient who fails to pay bills, one who fails to comply with a clinician’s instructions may remain resistant to exploration and interpretation and may thus lead the therapist to desire to terminate therapy. This is a tricky matter. To the clinician it may make perfect sense that, if the patient does not follow advice (e.g., to abstain from alcohol or to avoid hallucinogens), there is little point in continuing treatment. The layperson—and it is laypersons who sit on juries—sometimes sees things differently. Mere contact is often viewed as being therapeutic, as captured in the phrase, “I am being seen by a doctor.” Even in the face of no progress whatsoever in treatment, a jury might, perhaps correctly, perceive a valuable supportive function of continuing contact. A similar problem arises when a patient is denied admission to the hospital, another thing that laypersons may see as therapeutic in itself.

A decision to terminate treatment for compliance failure is not always inappropriate, but in light of popular biases against such a move, the grounds for the decision should be recorded carefully. Frequently, this involves the clinician’s judgment that his approval of the patient’s conduct implicit in continuing treatment is actually more destructive to the patient than terminating treatment altogether, with an option for reentry should the patient’s behavior change. Put another way, the patient may do anything except place the treater in the position of delivering substandard care: if the treater’s care falls below the treater’s own standard, it will be difficult to argue that the standard of care has been met. The reasoning should be explained to the patient, and the patient should be given a chance to respond. If the decision is made to terminate treatment, the patient should be given sufficient time to make alternate arrangements for care.

iv. Disliked patients. Psychiatrists and other psychotherapists, unlike orthopedists, for example, may find it impossible to continue to work effectively with a patient whom they dislike. This goes, of course, to the core of the psychotherapeutic process, which is built on a mutually accepting and trusting relationship. Nonetheless, to discharge a patient from care because the patient is disliked may seem like the paradigm case of abandonment. If it is clear that, because of personality differences, the psychotherapeutic work is stalled, then the situation should be explained to the patient, and noted in the record, in those terms. A good-faith referral to another caretaker should complete both the clinical and legal aspects of the termination. The basis for such action when treatment is entirely psychopharmacologic is less evident.

v. Coverage during absences. Abandonment, to result in liability, need not be manifested by a permanent withdrawal of services to a patient. The negligent nonavailability of a therapist, even for a brief period, is equally culpable. Clinicians who work with patients for whom emergencies are likely to arise when they assume the patient’s clinical care, commit themselves in the eyes of the law to more than just 1 hour per week. They must be reachable in an emergency and able to provide care or referral as needed. Whether this obligation applies equally to nonmedical caregivers is not as clear, although it is likely that as nonmedical caregivers assume roles more comparable with those of psychiatrists, they will be held to have assumed similar obligations.

As no therapist is ever continuously available, the law permits the delegation of this responsibility to another professional. Clinicians who are unavailable for a prolonged period (e.g., if a therapist leaves the country for vacation) should arrange in advance for coverage for their practice and ought to notify their patients of how the covering clinician can be contacted. Although the primary clinician is not held responsible for the negligent acts of the covering clinician, the primary clinician is held liable for negligence in the selection of coverage (e.g., if coverage is arranged with someone who the primary clinician knows or ought to know is not capable of performing properly, the primary clinician shares liability for her acts). Whether coverage is needed for short periods of unavailability, or when the clinician is out of town but reachable by phone, is strictly a function of the clinician’s practice and of how likely it is that an urgent situation will develop in the interval in question. A psychiatrist with an active inpatient practice may want to have continuous coverage
or may choose to make her phone number available to the patients to ensure her accessability at all times. Psychiatrists working in clinics or hospital-based facilities may be able to use 24-hour emergency or walk-in services to provide coverage.

Most independent practitioners purchase malpractice insurance to cover the costs of litigating claims against them and paying settlements or judgments. Most states require physicians and sometimes other clinicians to carry insurance, often with a certain minimum amount of coverage. However, other states allow practitioners to “go bare,” that is, to practice without any coverage and to bear the costs that would be paid by an insurer themselves. This practice, although it has its advocates (who believe that it deters patients from filing suits), leaves the clinician open to potentially devastating financial consequences. All mental health professionals should carry malpractice insurance.

Two general classes of malpractice insurance policies exist: claims-made policies and occurrence policies. Claims-made policies, as the name suggests, cover the clinician for any malprac-tice claims filed from the date the policy is purchased, for as long as the policy is still in force. However, should a practitioner allow the policy to lapse (e.g., when he retires), claims made subsequent to that time (even if based on events that occurred while the policy was in force) will not be covered unless additional “tail” coverage is purchased. Early in their lives, claims-made policies are usually a cheaper alternative, but after a period of time their costs tend to rise to the same level as the alternative option—occurrence policies. A clinician who purchases an occurrence policy will be covered for any claim arising from an event that took place while the policy is in force, regardless of when the claim is filed. Occurrence policies do not require “tail” coverage when clinicians change states, retire, or let their policies lapse for other reasons.

As litigation has increased, policies have begun to vary in the kind of activities they cover. All policies cover routine clinical work. But psychiatrists who do ECT, for example, may not be covered for that work unless a special, more expensive policy is purchased. Administrative activities and forensic work are two other categories that are not always included in standard malpractice policies. Not all policies will defend mental health professionals from complaints brought before regulatory bodies, such as boards of licensure. Some companies allow the covered clinician to determine whether or not a case is settled before trial, a decision that can have adverse consequences for physicians in particular (since it must be reported to the national practitioner database), even if it may be in the interest of the company. A clinician looking to purchase a malpractice policy is well advised to investigate all of these issues before committing to a particular program.

Although coverage for the mental health professions tends to come at a lower cost than the policies that cover high-risk medical specialties such as obstetrics and neurosurgery, it too has become more expensive over the years. Thus, state laws aimed at reducing malpractice costs by such strategies as capping compensation for noneconomic losses (e.g., pain and suffering) may impact psychiatrists and psychologists (see Sec. II-E-2). Conflicting empirical accounts are offered as to whether such laws actually reduce claims and thus lower the costs of insurance or whether the natural cycle of the insurance industry, in which the prices of policies tend to rise and fall cyclically, is responsible for the positive changes sometimes seen after such laws are enacted. The vicissitudes of the insurance industry also contribute to occasional bankruptcies of insurers. Although all states have guaranty funds that are supposed to cover the costs of claims filed against persons insured by bankrupt companies, the caps on the claims paid by such funds are often much lower than typical malpractice awards, leaving clinicians in this situation at considerable personal risk. Checking on the financial solvency of an insurer before purchasing a policy is a wise precaution, although rapid changes in industry conditions mean that it is not absolute protection against having to face this situation.

Under common law, any unconsented touching constitutes a battery, even if that touching takes place for the purpose of rendering medical care. Therefore, physicians, particularly surgeons,
have long operated under the obligation to obtain the patient’s consent before proceeding with treatment. Obtaining a valid consent, however, was once a simple matter, requiring only that the physician disclose the nature and purpose of what the physician proposed to do. The patient’s assent to this proposition was sufficient to protect the physician from liability.

The rationale for the law’s approach to liability for unconsented touchings was to protect patients’ rights to bodily autonomy, an interest highly valued in our society. By the late 1950s and early 1960s, however, many courts had concluded that the existing requirements for consent were insufficient to accomplish that end. With the growth of multiple approaches to most medical problems, each with its own balance of risks and benefits, protection of the right to determine what is done with one’s body required that patients be told more than just the nature and purpose of the one procedure selected by the physician. In place of this limited duty, the courts began to require an “informed consent” and to create a body of decisions that defined what that meant. Although it was unclear at first whether treatment, especially surgery, that took place in the absence of an informed consent, constituted a battery or an act of malpractice, that issue has been substantially resolved: Treatment without any consent or over a patient’s objections may constitute a battery, but treatment after an inadequate consent is properly considered as a form of malpractice.

The application of informed consent to treatment in psychiatry is less clear than in general medicine. In general medicine, it is widely agreed that invasive surgical and diagnostic procedures, as well as treatment with medication, require the patients’ informed consent. This requirement applies to psychiatric treatment in which medication is used and to other psychiatric treatments directly affecting the body, such as ECT. Whether informed consent is required for nonsomatic psychiatric therapies, such as psychotherapy, is unclear at present (see further discussion in Sec. II-B-5-b).

Because the doctrine of informed consent evolved from a series of court decisions, it may differ from jurisdiction to jurisdiction. Despite this, the general outlines of the doctrine are fairly well agreed on. Three components exist: information, voluntariness, and competence. (See also Sec. II-B-3-b, where the relationship of these components to malpractice is explored, and Sec. II-B-6, where difficulties in the doctrine of informed consent are explored.)

a. Information. The information component of informed consent marks the greatest departure from the previous legal standards. Consent given in the absence of sufficient information is no longer considered to be an adequate consent. Of course, the question immediately arises as to how much information is enough. Physicians argued that the standard of care of the profession should be the measure applied here: the sufficiency of information should be judged by how much most doctors reveal to their patients.

Many courts agreed, adopting a “professional standard” of disclosure, which is still the law in roughly half of the states. However, a large number of courts rejected the right of the profession to set its own standard of care. Some judges argued that to permit this essentially would be to maintain the status quo, which was insufficiently respectful of the rights of the individual to control what happened to her person. The alternative standard that has evolved requires the physician to disclose all information that a reasonable person might want before deciding to accept or reject treatment, including precisely what the treatment consists of, the potential benefits of the treatment, its potential risks, any alternatives that exist and their benefits and risks, and the benefits and risks of no treatment at all. An opportunity should also be offered for the patient to ask questions.

The “reasonable person” standard is a halfway step between allowing physicians to disclose whatever they consider material and the radical position of requiring disclosure of all information pertinent to the patient’s decision. If a patient is fearful of being in tall buildings, for example, the information that after the operation he will be cared for on the fifteenth floor of the hospital might be quite material to his decision on whether to have the operation; under the “reasonable person” standard, however, such disclosure would not be required because most people would not find it pertinent to their decisions. Therefore, although the informed consent standard of disclosure goes a long way toward ensuring individual autonomy and allowing for idiosyncratic preferences, in almost all states it stops short of the ultimate step. However, the
existing standard does not prevent the clinician (in the interest of having an optimally informed patient) from inquiring about the particular concerns of her patient and individualizing disclosure accordingly.

b. Voluntariness. In conformance with previous common law notions, a consent, to be adequate, must be freely given. Voluntariness (or its converse, coercion) can be a gross or a subtle matter. Obviously, a patient threatened by the hospital staff with not being fed or with not getting his clothes back until he agrees to take medication is being coerced in a way that undermines the autonomy of his decision. However, more subtle forms of coercion exist as well. It might, for example, be suggested to a patient that a letter necessary for obtaining welfare benefits might not be attended to very promptly unless she goes along with the recommended course of treatment. Clearly, this is illegitimate.

Even more subtle, and controversial, forms of coercion might be called “situational coercion.” Some believe that residents of total institutions, whether psychiatric, penal, rehabilitative, or other, cannot be presumed to be giving a voluntary consent to any procedure desired by the institution. The reasoning is that these individuals are so dependent on the institution for their every need, and in some cases for the opportunity to return to the outside world, that they face subtle coercion to agree with the institution’s recommendations. Although such cases may exist, the result of applying the theory broadly, namely, depriving all inhabitants of total institutions of the right to make any decisions on matters of importance, hardly seems in accord with the desire to maximize autonomy, a desire that underlies the whole concept of informed consent. Coercion, in its subtlest forms, exists in all interpersonal relationships and, at this level, should probably be excluded from consideration by the legal system. This last idea is in keeping with the usual legal and philosophical approaches to the analysis of coercion, which emphasize that, in order for pressure to constitute proscribed coercion, it must be illegitimate, meaning that the justified exhortation of a caregiver to a patient to accept a recommended treatment or the equally acceptable pressure from family members to consent to, or refuse, care does not render the patient’s decision void. Only illegitimate forms of pressure, such as those described earlier, have this effect.

c. Competence. The law of informed consent requires that the patient be competent to offer a consent. The intricacies of competence are discussed in detail in Chap. 5. For our purposes here, we consider that the goal is to ensure that the individual has sufficient mental abilities to be able to engage in the informed consent process. Types of patients who may have an impairment of their competence include persons with psychosis, intellectual disabilities, and dementia and, for somewhat different reasons, minors (see Chap. 5, Sec. II-A).

Minors are, by law, deemed incompetent until they attain the age of majority, regardless of their actual capacity at any given age. State laws vary widely with regard to the age at which an individual is no longer a minor for the purpose of consent to mental health treatment, and the age of consent is often lower than for other medical treatment. Exceptions often exist as well for “emancipated minors”—those who have lived on their own for a period—or for certain kinds of diagnosis and treatment (e.g., treatment of venereal disease or consent to abortion). Every practitioner should be aware of the laws in his particular state.

Informed consent may now be required before the treatment of psychiatric patients can proceed, but the simple failure to obtain an adequate informed consent does not, in itself, constitute malpractice.

a. Elements required. The elements required to establish malpractice on the basis of improper informed consent resemble those required in malpractice cases generally (see Sec. II-A-1). The existence of a clinician-patient relationship, and therefore a duty of care, is usually self-evident from the fact that the clinician did something to, or with, the patient. In this case, the clinician’s negligence would consist of not obtaining a proper informed consent for what was done; most cases revolve around the specific issue of whether the patient was adequately informed before the procedure or treatment. Even if a proper consent was not obtained, the patient must additionally establish that some harm occurred as a result of the procedure. And finally, a link must be drawn between the failure to obtain an adequate informed consent and the resulting harm. This
last goal is usually attained by requiring the patient to prove by a preponderance of the evidence that, had a reasonable person been given the information that was omitted, that person would have chosen not to proceed with the procedure or treatment. Some courts allow the patient merely to prove that the patient herself would not have consented had the information been available. Even in the absence of demonstrable negligence in the actual procedure or treatment, should a bad result occur, the physician may be liable if a proper informed consent was not obtained, because that in itself is evidence of negligence.

b. Problems of proof. The difficulties of establishing that a duty of care existed and that a harm occurred are no different in the informed consent case than in malpractice cases generally (see Sec. II-A-2). What is special about these cases is determining the adequacy of the consent and establishing causation (see also Secs. II-B-2 and II-B-6).

i. Information. The patient-plaintiff is usually in the position of alleging that certain key information was not presented to him before he decided to proceed with the treatment. If no records exist, it is a matter of the jury choosing between believing the patient and believing the clinician, assuming the clinician alleges otherwise. Most clinicians, who are, naturally enough, uncomfortable with this situation, would prefer to have documentary evidence with which to counter the patient’s allegations.

Two documentation options are generally used. Some practitioners and facilities prefer to have a patient sign a written consent form that outlines the relevant material. Although useful in some cases, written consent forms may be avoided because of the possible implication that the material in the form was the only material communicated to the patient. Additional discussions between the doctor and the patient, or between the patient and other personnel, are not recorded on the form and may be ignored in court. In addition, routine use of consent forms often has the effect of turning what should be a free and spontaneous interaction between clinician and patient into a rigid procedure in which the clinician uses the form, often loaded with jargon, as a substitute for a clear presentation of the facts to the patient, rather than simply as documentation of such presentation.

The second documentation option is for the clinician to record in the patient’s chart that a consent discussion has taken place, enumerating the topics covered in general terms and noting specifically whether the patient had particular concerns. The patient need not sign the note. Courts are usually quite willing to accept such notes as evidence of the consent discussion and, because they are not exhaustive, there is scope for the clinician to elaborate on the contents of the discussion in court. The good faith demonstrated by placing the note in the chart is generally supportive of the clinician’s supplementary testimony.

Of course, more imaginative options for documenting consent exist. Some practitioners audiotape or videotape consent interviews, an unnecessarily conservative step that can backfire on a competent clinician who, for example, comes across poorly on tape or on a video screen. In any event, some record of the consent transaction is important. Several studies have demonstrated that patients often forget much of what was discussed in such sessions or forget that the session took place at all. Patients can sometimes, in good faith, argue that they were not informed about potential risks, when in fact the information was conveyed. Naturally, memory limitations apply to clinicians as well: it can be acutely embarrassing to be asked, several years after the date in question, to reconstruct in court the exact contents of a consent interview without any record on which to rely.

ii. Voluntariness. Depending on the type of undue influence alleged, it may be quite difficult in retrospect to determine the level of voluntariness of a given consent. Determination of voluntariness is, in fact, usually a policy issue (i.e., whether a given class of patients has been subject to coercion) rather than one that affects an individual patient. Nonetheless, if some special circumstance might be construed as impairing voluntariness (e.g., the threats of staff members to beat up a patient unless the patient consents to ECT), the reasoning as to why that is, or is not, the case should be recorded carefully along with the record of the consent interview.

iii. Competence. The prime difficulty in establishing a patient’s status in regard to competence is continuing uncertainty about the standards to be used (see Chap. 5, Sec. II-A). Again, the rule is that if any reason to doubt the patient’s competence in retrospect might exist, a careful examination for competence should be conducted (see Chap. 5, Sec. III-A) and its results recorded.
Structured instruments for the assessment of decision-making capacities have been developed (see Suggested Readings, Sec. C, Appelbaum 2007) that provide objective scoring of patients’ performance. Such instruments may be of particular use in difficult cases or where court involvement is likely.

iv. Causation. Drawing a causal link between deficiencies in the informed consent process and ultimate harm is very difficult. It requires the patient’s demonstration that, had the additional information been supplied, her choice, or the choice of a reasonable person, would have been different. The subjective nature of this assessment is demonstrated by the numerous court decisions that have varied greatly in the kind of risks that they deem to be significant enough to have been disclosed. Cases range from risks of 3% chance of death and 1% chance of loss of hearing in which disclosure was required to those decisions in which disclosure of a 1.5% chance of loss of eye and 1/8,000,000 chance of aplastic anemia was not required. (See also Sec. II-E-4, in which it is suggested that the courts may be influenced in setting these standards by a desire to award compensation.) Some legal commentators look closely at the statistical probabilities of various outcomes, whereas others say that any risk that might deter the patient, no matter how unlikely it is to occur, should be disclosed. The latter seems too extreme a view to be implemented, but two guidelines are (1) the more severe the potential harm, the lower the threshold should be for disclosure and (2) the most common risks of most treatments or procedures should probably be disclosed, even if they are relatively minor. Unfortunately, more definitive guidelines are not available for the practitioner.

The objections of many psychiatrists to the doctrine of informed consent are rooted in the supposed rigidity of the doctrine and its inapplicability to clinical psychiatric practice. Some of the difficulties with informed consent are considered later (see Sec. II-B-6), but we begin the discussion of exceptions to the requirements of informed consent by noting that the law itself recognizes some of the difficulties and provides for four situations in which they do not apply: during emergencies, when patients would be harmed by disclosure of information, with patient waiver, and when the patient is incompetent.

a. Emergencies. Informed consent need not be obtained in emergency situations. The key to this exception, of course, is how an emergency is defined. The definition is more clear-cut in general medicine than in psychiatry. In the case of a near comatose patient in diabetic ketoacidosis, a severely traumatized patient with internal bleeding, or a patient in a hypertensive crisis, it is apparent that the time required to obtain an informed consent (or a substituted consent if the patient is not competent to offer a consent—see Chap. 5, Sec. II-C) would so delay the needed treatment as to pose a direct danger to the patient’s life. In such circumstances, the physician may treat without a formal consent. The law, to make its balance sheets come out even, creates the fiction of an “implied consent” in these cases; because almost any rational person facing an acute, life-threatening crisis would elect to proceed with treatment, the law allows the physician to read the consent as being implicit in the situation.

Genuine emergencies do, of course, exist in psychiatry. A violent, excited, or self-mutilating psychotic patient in the emergency room or on the inpatient ward may require immediate restraint or medication, or both, to prevent physical harm to self or others. This is perhaps the most clear-cut case and the only exception to the informed consent requirement that has been granted consistently in court decisions concerning the right to refuse treatment. Other situations are more ambiguous from the legal standpoint. Acutely psychotic, nonviolent patients, although suffering great distress, may not, in some jurisdictions, present a sufficiently emergent situation (from the legal viewpoint) to justify complete disregard for obtaining informed or substituted consent. The same appears true for severely depressed patients, even if food and fluid intake are minimal to nonexistent, as long as their physical status (i.e., electrolytes, blood pressure, cardiac function) is stable. In both these cases, in some jurisdictions, an attempt must be made to obtain an informed consent before treatment or, if the patient is incompetent, to obtain a substituted consent.

Many psychiatrists argue that psychiatric emergencies should be defined more broadly (see Chap. 3, Sec. II-C-4 on the right to refuse treatment) to encompass a variety of acute situations
in which the potential for great suffering or for rapid decompensation exists. Some courts have agreed, and psychiatrists in other states continue to hew to a more clinically oriented standard, awaiting a definitive court ruling in their jurisdiction.

b. Therapeutic privilege. Even before the time that the requirement for consent became the mandate for informed consent, situations existed in which the normal procedure for informing the patient about the nature of his condition and the proposed treatment could be suspended if it were in the patient’s best interest to do so. This exception, called therapeutic privilege, applied whenever the physician felt that the information to be conveyed would in itself be so damaging to the patient that disclosure would be antitherapeutic. Whether a patient was told that he had cancer often revolved around this issue.

Some doctors are delighted with the idea of therapeutic privilege, because it reinforces their status as someone who is allowed to decide what is or is not in the patient’s best interest and because it seems to provide an exception to the requirement for informed consent. “If I tell any of my patients with paranoid schizophrenia about the side effects of their medication,” a psychiatrist who falls into this group might say, “of course they’ll refuse to take it. Then they’ll decompensate and require rehospitalization. So it’s clearly not in their best interests for me to get an informed consent from them.” Naturally, if the courts accepted this construction of the therapeutic privilege, it would all but vitiate whatever impact the informed consent requirement has had. More alert courts, realizing this, have drawn the privilege much more narrowly: if the information itself might be directly damaging to the patient, it can be withheld (e.g., a fragile patient with schizophrenia need not be told her diagnosis) but not if the damage would be mediated by the decision of a well-informed patient to refuse treatment. Judicial decisions have emphasized strongly that the option to refuse is precisely what the informed consent doctrine was designed to allow. In theory, if the disclosure would interfere with the patient’s powers of rational decision-making, it could be withheld, but that, too, is likely to be construed narrowly where the nondisclosure of risks is involved. So construed, the situations in psychiatry in which therapeutic privilege can be invoked are relatively circumscribed.

c. Waiver. The right to an informed consent, insofar as it belongs to the patient, can be waived by a patient who chooses to do so. No clinician is required to reveal information to an unwilling patient. In sensitive situations, waiver can be a subtle phenomenon. A physician who begins to explain the risks of a procedure to a patient, only to have the latter say, “That’s okay, Doc, I trust you. Just go ahead and do whatever you have to,” has just received a waiver that, if properly recorded, would probably stand up in any court. Waivers of basic rights are usually required to be “knowing waivers” (e.g., in a criminal setting, a suspect must be told of the right to speak with a lawyer before she can be said to have waived that right). Although it is not clear whether such a strict interpretation applies to the informed consent process, in situations in which it is uncertain whether the patient is actually aware that he has a right to the information, a comment such as, “I’d be glad to tell you whatever you’d like to know about the treatment, but of course we don’t have to go through it if you’d rather not,” might ensure that the waiver is truly a knowing waiver. Patients may waive either their right to information or the right to consent, or both.

d. Incompetence. An incompetent patient is, by definition, not capable of giving an informed consent regardless of the category of incompetence, whether legal (e.g., patient is a minor) or de facto (e.g., patient is severely psychotic). This issue is discussed at length in Chap. 5. The exception to the informed consent requirement in the situation of incompetence differs from the other three exceptions in that the requirement is not negated altogether: rather, its form is changed. Although consent cannot be obtained from the incompetent patient, it must usually be obtained from a substitute decision-maker, whose identity varies across jurisdictions (see Chap. 5, Sec. II-C).

a. Long-term side effects. For many years, the most complicated and controversial issue of informed consent in psychiatry concerned how much psychotic patients who require neuroleptic medication should be told about the long-term risk of tardive dyskinesia (TD) (see also Chap. 3, Sec. III-C-2-e-iv). The salience of this question is undoubtedly diminished by the dominance of
the newer generation of atypical antipsychotic medications. But recent data suggesting that the newer medications may have few advantages compared with first-generation antipsychotics, and present a difficult array of side effects for clinicians to manage, may increase the use of the older medications. Moreover, many second-generation antipsychotics are associated with an increased risk of metabolic syndrome, with a heightened risk of diabetes, hypertension, and long-term effects on the cardiovascular system.

There is no satisfactory answer that applies in all situations about how much disclosure is required regarding long-term side effects, nor is there much guidance from the courts on the subject. One opinion among clinicians is that acutely psychotic patients should not be told about them when treatment is initiated because, given their psychotic state, they can neither comprehend the information nor balance the risk with possible benefits, and might thus be led to refuse treatment. This opinion, however, appears to be based on a combination of the common misconception about therapeutic privilege (see Sec. II-B-4-b)—that if information will lead a patient to reject needed treatment, it can be withheld—and the assertion that acutely psychotic patients are incompetent to consent to treatment anyway, which is certainly true in many cases, is not true in others, and may call for a substitute decision-maker or special consent procedure in any event.

Another common rationale for withholding information from psychotic patients about long-term side effects is that their risk does not accrue until several months after treatment begins, thus allowing disclosure to be deferred until then. This rationale, however, does not apply to a previously treated patient, whose putative “grace period” for risk may have expired long ago. Nor, given the evidence suggesting that TD is in part a function of total lifetime dose of neuroleptic medication, is it true that any period of administration is without risk. Finally, it seems unfair to patients to neglect to mention an important long-term side effect of a treatment they may come to rely on, only to reveal it to them later.

Thus, there is good reason to reject approaches that fail to provide some information to patients about long-term side effects, even at the beginning of treatment. An acceptable practice may be to titrate the amount of information disclosed to the patient’s ability to assimilate it (assuming that the patient is consenting to treatment on her own behalf). This would mean some mention of the risk of metabolic syndrome at the initiation of treatment, with more details provided as the patient improves. This sensitive process should be documented in the patient’s chart but would be difficult to incorporate into a procedure that required the use of written consent forms.

b. Psychotherapy. It has never been clear whether the requirements of informed consent apply to procedures that do not involve direct intrusion into the patient’s body (e.g., psychotherapy). In favor of requiring informed consent to psychotherapy it has been argued that (1) many patients are unaware of what is involved in psychotherapy and need to know something about the process before becoming involved in it; (2) risks are attached to the process, including the risks that the patient will get worse or regress in therapy and that confidential information may fall into the hands of others (see Chap. 1, Sec. II-B-4); and (3) alternative treatments exist for most conditions, including other forms of psychotherapy or medications, of which patients have the right to know before committing themselves to a particular therapeutic approach.

Opposition to obtaining informed consent to psychotherapy comes in part from therapists trained in psychoanalytic approaches, who believe that discussions of the sorts of issues mentioned earlier would contaminate the transference and foster nonconstructive intellectualization, and therefore undermine the therapy. Therapists of other schools of thought may minimize the risks associated with psychotherapy, maintain that patients know what they are getting into, and (in the case of nonmedical therapists) be reluctant to assume a consent burden that traditionally has been associated largely with the medical profession. Yet others note the paradox of the patient’s giving consent to what are essentially his own productions, psychotherapy being almost entirely the patient’s own procedure.

No clear guidance in these situations exists, from either case law or statutes. It does seem reasonable, however, for patients to be told something of what they might expect in psychotherapy at the initiation of treatment. An exception might be made for psychoanalysis here, on the grounds that most analytic patients come to the analyst with a fairly good idea of what the process entails. It is difficult to believe that discussion of the treatment would undermine most nonanalytic therapies; many psychotherapists, supported by the literature on the therapeutic alliance, already orient their
patients to the process in precisely this way. When medication would be a reasonable alternative to psychotherapy, some discussion of this option may well be indicated. (Nonmedical therapists should probably offer to refer patients to a consulting psychiatrist for this purpose.) Also, when a particular threat to a patient’s confidentiality is likely to arise (e.g., for patients involved in custody disputes with current or former spouses), a comment should be offered on the likelihood of this being a problem. On the other hand, formal consent forms and detailed notes would seem to be excessive precautions.

The construction of the doctrine of informed consent is an ambitious effort by the legal profession to alter the nature of medical and psychiatric care; by attempting to change the elements of the clinician-patient interaction, it appears to hold the potential for what many would deem a radical redistribution of power in the therapeutic relationship. Such a conclusion, however, may be excessively optimistic. In addition to the practical problems of the doctrine, significant theoretical difficulties exist with informed consent law.

a. Practical problems. When courts began to require that doctors provide patients with all the information material to their decision whether to undergo treatment, they were operating with a model that rested on several implicit assumptions: that patients would pay attention to the information, that they would understand it, and that they would use the information in reaching their decisions. Empirical studies (although most suffer from methodologic problems) have cast serious doubt on these propositions. Patient attention and understanding, as measured by tests of recall, have almost always been found to be poor. It has been suggested that this might be a result of the way in which the information was presented (i.e., use of technical language, complicated sentence structure), but it is also possible that simplification of much medical information to a layperson’s level is either impossible or is so difficult that it is practically impossible in everyday clinical work. Even given the requisite simplification, it is unclear if, in many cases, an individual without a medical education has the context in which to analyze the information. Furthermore, to the extent that illness induces a state of regression in which patients seek a reliable authority figure on whom to depend, they may ignore the information altogether, preferring to ask the doctor at the end of the recitation, “What do you think I should do?”

Also implicit in the model of informed consent is the idea that the revealed information, assuming it is assimilated and understood, has some bearing on the patient’s decision. This has been challenged from several directions. If we examine the situation temporally, it is clear that many patients make up their mind to accept or to refuse a given treatment well before the formal consent interview, perhaps even as early as the time they decide to seek medical attention. Nor is the kind of information that is transmitted by the physician necessarily the kind that most influences a patient’s decision. Other factors, such as family pressures, the financial burden of entering a hospital or of refusing to, the attitude toward a particular form of treatment in the patient’s social milieu, the vast store of information and misinformation on the Internet, and the nature of the setting in which treatment takes place, may be more influential than a description of potential side effects with unpronounceable names and remote statistical probabilities. Yet, the informed consent doctrine implicitly assumes that these other factors are relatively unimportant determinants.

b. Theoretical problems. Insofar as the doctrine of informed consent was intended as a mechanism to force clinicians to share information with patients, many legal commentators charge that the ways in which the doctrine has evolved have short circuited that objective. These critics point to factors such as the use of a professional standard of disclosure, the classification of failure to reveal adequate information as a matter of malpractice rather than battery, and the difficult problems of proof confronting plaintiffs who allege failure to obtain informed consent as substantially limiting the impact of the doctrine. Together, these factors make it unlikely that clinicians will be sued for failure to obtain consent (an allegation validated by the data on the frequency of such cases) and even more unlikely that such suits will be successful. This, it is argued, limits compliance with the mandates of informed consent law, which is consistent with empirical studies of informed consent in psychiatry and general medicine.

c. Synthetic approach to informed consent. If the realities of dealing with patients make it unlikely that disclosure of information will alter their decision, and if the law itself is a relatively weak means of enforcing this requirement in the first place, what is the point of the doctrine of informed consent? Would clinicians’ lives not be simpler without it? Perhaps; but the practical and theoretical objections to the current shape of consent law are, in many ways, beside the point. Even granting their legitimacy, there are strong reasons to value informed consent in psychiatric practice.

Some patients may reject attempts to inform them about their treatment, but many patients desire such information, even if they do not intend to use it to make their treatment decisions (see Suggested Readings, Sec. C, Rosenbaum). Ironically, most physicians and other caregivers probably fall into this latter category when they themselves assume the patient role. Given the high value our society places on the right of persons to make knowledgeable choices about important issues, it does not seem unreasonable to respect the right of patients to receive this information. Even more importantly, the process of informed consent can be used to strengthen the therapeutic relationship by enhancing trust and understanding between clinician and patient (see Sec. III-A-2-c). Thus, the process may have positive therapeutic benefits, when used properly, that go well beyond those envisioned by even its most ardent legal advocates.

Before the advent of managed care, it was assumed that physicians could see to it that their patients received the care they needed. If hospitalization was required, the physician arranged for admission; if outpatient care was indicated, the physician scheduled the appointments. In either case, the patient’s insurance company could be counted on to pay for care. Of course, the situation with regard to psychiatric care was never so simple. Many insurance companies had caps on the amounts they would pay for inpatient or outpatient care or on the number of sessions or days of hospitalization that would be covered. Many psychiatric patients simply lacked insurance coverage of any sort and were relegated to care in public systems.

But students of the loosely controlled insurance systems of the 1960s and 1970s watched the cost of coverage increase as new technologies were introduced and usage grew, and pressure developed to hold down the ever-growing costs. Initial efforts in this direction involved retrospective review of care, with the threat of disallowing claims if they were found to be unwarranted. The failure of this effort to contain yearly double-digit increases in medical costs led, in the middle to late 1980s, to the development of prospective review systems, which evolved into managed care as we know it.

In psychiatry, management of benefits may be “carved out” to specialized behavioral health management companies, which are paid a per-member-per-month capitated rate to provide all needed care or performed directly by the insurer itself. In either case, the managing entity contracts with physicians and facilities to accept what are often substantially discounted fees in exchange for inclusion in the company’s provider network. Initiation of treatment often requires prospective authorization of medical necessity, with further prospective approvals needed as treatment continues. Coverage for hospitalization may need to be approved in advance, and hospital stays will be monitored (“utilization review”), with a cut-off of benefits at the point at which the company believes the patient can return to the community. Other cost management approaches, including limited formularies for medication coverage and retrospective denials, may be used as well. In essence, managed care so constructed takes the authority to requisition the resources necessary for patients’ care away from physicians. Psychiatrists and other mental health professionals can decide what their patients need, but, unless patients can pay out of pocket, they cannot guarantee that the treatment will be provided.