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Before attempting any psychiatric interventions, the clinician must understand the fundamentals of emergency psychiatry, one of which is knowing the relationship between psychiatry and the law. This chapter addresses medicolegal questions that typically arise for the nonspecialist ("Do I have to see this patient? How can I communicate with others about a patient without revealing confidential information? What do I do with a dangerous patient? How do I avoid getting sued?") and explains why you cannot afford to ignore legal issues in your practice.
People create, modify, and break various kinds of agreements and obligations, some informal, such as keeping an appointment, and some formal, such as a contract for goods or services. By law, the clinician-patient relationship, once established, is an agreement between the two parties that creates for the clinician an obligation or duty to provide the patient with needed care. This does not mean that a clinician in an office setting must care for every patient requesting service, and no health care professional should provide a service for which he has no training.
The situation in a psychiatric emergency service is somewhat different from that in an office setting. In the emergency service, the duty to care is created automatically, by virtue of the service's existence. And because the clinician has no sure way of immediately discriminating between an emergency and a non-emergency, all patients must be treated as if an emergency – and thus the duty to care – existed. For example, a duty to care is automatically created when:
Thus, if you work in any setting that provides emergency psychiatric services, the answer to the question "Do I have to see this patient?" is an unqualified "Yes!" And keep in mind that fulfilling the duty to care does not protect you against future allegations of professional misconduct. Clinicians must fulfill other duties, such as the duty to treat the patient according to the standards of care established in the community and the duty to protect the patient and others from the patient's behavior.
Because the clinician-patient relationship is built on trust, the confidential nature of information provided by the patient is one of the cornerstones of practice. Breaking that trust would undermine the therapeutic alliance and seriously impede therapy (Simon. 1986). Confidentiality in the practice of emergency psychiatry is based on the following:
Be aware that the duty to maintain confidentiality gives way to a higher duty-preserving the health and welfare of the patient and others-in certain situations. For instance, you may need to reveal confidential information to prevent a suicidal or homicidal patient from causing harm; to consult with other clinicians about a patient who needs emergency treatment, especially if the patient cannot or will not talk to you about his condition; to protect a defenseless person, such as an abused child, from further harm; or to present clinical information about a patient in a court hearing to determine whether the patient should be committed to a mental institution. You also can reveal confidential information if a patient consents to the revelation or if the patient is a minor and you must discuss his condition with a parent or legal guardian.
Although a psychiatric emergency may necessitate a breach of confidentiality, the patient does not lose his right to privacy. Unnecessary personal details should not be included in the medical record. The law of parsimony applies to all disclosures; that is, the clinician should disclose the least amount of confidential information needed for evaluation, treatment, or disposition. If any information must be disclosed to others, the patient should be informed whenever possible and any requests to maintain privacy should be honored, as long as the patient's health is not compromised.
The clinical record documents what was done and why it was done. Documentation in the emergency setting should be sufficiently comprehensive to form a permanent record of the patient's complaint. interventions taken by the clinician, and disposition; to be informative to other professionals who may be using the record as a basis for future clinical decisions; and to satisfy third parties, such as insurance companies, lawyers, and courts, about the nature and quality of the psychiatric evaluation. The clinical record should also indicate whether the service rendered was within the required standard of care. This includes satisfying any third party that other legal duties were fulfilled, such as the duty to call a child protection agency if you suspect child abuse or the duty to warn a person whom a patient has threatened.
For the reasons noted above-and because the clinical record can serve as evidence in court proceedings — documentation should be complete and accurate. Follow these guidelines when completing the record of any patient you see in an emergency setting:
Under the law, all adults are presumed to be competent (able to make decisions about important matters) unless judged by a court to be incompetent. In a psychiatric emergency, however, waiting for a court to act is rarely feasible; therefore, the patient's ability to make decisions is based on clinical competence. A patient's clinical competence becomes a factor when he consents to or refuses treatment or hospitalization. An assessment of clinical competence may be warranted, for instance, when a psychotic or dangerous patient refuses treatment or when consent for treatment cannot be obtained. The main criteria used by clinicians to assess a patient's clinical competence are orientation to time, place, and person; awareness of the psychological condition under consideration; understanding of the potential benefits and risks of a proposed treatment; and understanding of the consequences of refusing treatment.
A patient who is delirious, grossly psychotic, demented, or intoxicated is probably not competent to make decisions. In such cases, try to obtain consent for treatment from family members. If the patient is dangerous, consent issues are less important, because most state laws permit treatment of a dangerous patient against his will. If alternate consent is unavailable, you can, in good faith, treat a severely psychotic patient; indeed, failure to do so could be considered negligent.
Informed consent has become a standard consideration in medical and nursing practice. The three basic elements of consent arc information, competence, and voluntariness (Simon, 1986).
Information. A patient cannot be expected to consent to or refuse treatment without having enough information to weigh the risks and benefits. The clinician is responsible for providing this information, including whatever the patient might want to know about treatment side effects, legally known as material risk. To satisfy the legal requirements for informed consent, you cannot merely recite a list of side effects. Rather, discuss all treatment side effects that could reasonably make a difference to the patient about whether to accept or reject treatment. Furthermore, you cannot withhold treatment information for fear that the patient will refuse treatment based on the information,
Competence. Many mentally retarded, psychotic, and organically impaired patients are not clinically competent to understand treatment information or to make a decision. In such cases, try to obtain consent from a family member. In a true emergency, competence is of secondary concern.
Voluntariness. Consent to treatment must be given voluntarily; that is, with free will. The clinical concept of free will—the absence of being forced to choose-is practical rather than philosophical. To say "Sign this admission paper or I will call the police" is a type of coercion that negates voluntariness. Any treatment given under conditions of a threat could be seen by a court as assault and battery.
You must obtain consent before beginning any intervention for a child, including parental consent for any child younger than age 16 and additional consent from adolescents, beginning at approximately age 14. An adolescent who is legally emancipated and competent can sign for procedures. Additionally, you should honor an adolescent's request for confidentiality unless the adolescent poses a danger to himself or others or you suspect child abuse. Because the formal age of consent varies from state to state, each clinical service should have written policies and procedures governing these situations.
Informed consent procedures should become an automatic pan of every clinical interaction. When possible, the patient should sign a written consent form. Some states require written informed consent for each psychotropic drug administered. At a minimum, document that you discussed proposed benefits and potential risks of treatment with the patient. Consent should not be set aside except under conditions of manifest danger to the patient or others. Even then, when the emergency subsides, the patient usually retains the right to refuse treatment and to be supplied with information about potential risks.
To ensure that all patients are assessed for competence and that they are provided with sufficient information to give an informed consent, cover the following points during the initial examination:
Traditionally, governments have had a legal right to take charge of a citizen in the best interests of society. Thus, all states have civil commitment statutes that permit detention of mentally ill persons under certain circumstances. Non-psychiatrists must be familiar with state commitment laws because some patients must be detained while awaiting a psychiatric evaluation or legal adjudication.
Inform the patient if you're considering commitment, and never use commitment as a weapon or threat. Instead, say, "We have determined that we must hospitalize you for your mental problem so that everyone is safe. We are going to ask the court for permission to keep you in the hospital, but at this point, you may choose to sign yourself in."
Because civil commitment entails a loss of freedom, the courts view the competing interests of citizen and state differently from those in other civil contests. In most civil lawsuits, each party is equal, and showing a preponderance of evidence usually is sufficient to win a case. In civil commitment, however, the state bears a higher burden of proof. According to the U.S. Supreme Court in Addington v. Texas (1979), the state must present "clear and convincing evidence" (a 75% probability of danger if the patient is not committed).
Each state defines its own commitment criteria, which usually include mental illness; danger to oneself, others, or property; inability to care for oneself; or grave disability and need of care. Medical and legal uses of such terms as mentally ill and dangerous may overlap. Consult the state statute for definitions and guidelines so that commitment forms will not be rejected on a technicality. Also. because commitment is a legal procedure, try to describe the patient in words that conform to the wording of the statute. "I think the patient might hurt someone" lacks the power of "This patient, suffering from schizophrenia characterized by homicidal command hallucinations, is a clear and present danger to others and is likely to be violent in the immediate future."
A commitment application can be rejected, sometimes by a person with little clinical experience who has not examined the patient (such as a county mental health administrator). What implications does this have for your duties to the patient? Without a legal basis for detaining him, you must allow the patient to sign out of the emergency service; before he leaves, however, repeat the potential risks of forgoing treatment, and refer him to one or more psychiatric care settings that he may find acceptable. Finally, document all of your efforts in detail.
The basis for clinical services in emergency psychiatry is to protect the patient's health and welfare. In practice, a clinician commonly assists a patient in making decisions for the patient's own good, knowing that the psychiatric illness might cause the patient to harm himself or others. The patient's rights and the clinician's responsibilities might appear to be competing interests. Most of the time, however, they are compatible, with the patient volunteering for help and the clinician making recommendations that are acceptable to the patient. Problems arise when the clinician believes that the patient's mental illness may lead to suicide, homicide, injury, or destruction of property. In such cases, the clinician may need to exert the power of civil commitment to prevent a greater harm, at the expense of the patient's immediate liberty.
The duty to care for patients extends to the public in the sense that you have a duty to protect the public from dangerous acts carried out by your patients. This duty is based on case law from the 1970s and combines a public health principle (such as the duty to inform health authorities about a case of syphilis) with an aspect of law involving "special relationships." In the special relationship between clinician and patient, the clinician's duty to protect public safety supercedes that of confidentiality; thus, you may have a legal responsibility to warn the potential victim of a patient's violence. Be meticulous in documenting any actions you take, including consultations with colleagues, supervisors, administrators, or other authorities.
Tarasoff v. Regents of the University of California (1976) established the clinician's duty to warn a person who has been targeted as a victim by a homicidal patient. In this case, a university counseling service was judged to have failed in its duty to the victim, because the clinicians had sufficient knowledge of the patient's dangerousness to have detained him. Since Tarasoff, other cases have extended the duty to warn or protect to include unnamed or unknown victims and property (Simon, 1986), underscoring the importance of knowing the standards followed in your state. Understandably, from the clinician's point of view, the duty to warn or protect is complicated by the relative uncertainty of predicting dangerous behavior in mentally ill persons.
Because case law varies from state to state, you must become familiar with the standards of behavior expected of clinicians in your area. In California, for example, a clinician's liability for a patient's behavior is limited by statute, provided that all necessary-steps were taken to protect the public. These steps can include hospitalizing the patient, reporting the situation to law enforcement authorities, or warning potential victims. Some states, however, approach a standard of "strict liability;" that is, the clinician is responsible for the patient's behavior even if he has taken all the necessary steps to protect the public.
You can be held liable for harm caused by a patient to himself or others if you fail to recognize the need for intervention, leading to premature release; fail to take the necessary steps to protect a third party from a dangerous patient; provide inappropriate treatment (malpractice); or provide treatment without an informed consent (assault and battery). Any patient making a claim of malpractice must show evidence of negligence, harm, and causality, usually with the assistance of expert testimony. To prove negligence, the patient must show that you had a duty to care and that you breached the duty by providing services that fell below the standard of care required by the profession. To request damages (a monetary award), the patient must prove that harm was done, including the basic injury and subsequent related suffering. Finally, the patient must show causality, proving that the negligence directly caused the harm.
By practicing the fundamentals of sound clinical care, rather than intentionally defensive care, you usually will benefit the patient and minimize the potential for legal problems. The best strategy for avoiding a lawsuit after a bad outcome is to take responsibility (not blame) for your contribution, if any, explain what went wrong and why, and give the patient an opportunity to express his feelings. Being hostile, evasive, arrogant, or indifferent may cause the patient or family to file a lawsuit that they otherwise would not have filed. Involving a clinical supervisor, institutional administrator, or risk manager also can help resolve a clinical problem before it becomes a lawsuit.
A psychiatric emergency service can be held accountable for the behavior of a patient it has discharged. This accountability lasts until another party or agency formally accepts responsibility for the patient, although the service can still be charged with negligent release if the patient subsequently harms himself or others and the service knew the patient was dangerous. Such liability can extend several months after discharge.
Consequently, discharge planning from a psychiatric emergency service must be conducted carefully. When a chain of custody is necessary between institutions, the referring agency is responsible for the patient until he arrives at the other institution. If questions of civil commitment arise, consult with legal authorities. If you suspect future dangerous behavior from a patient, emergency detention, followed by a formal hearing, is the safest action. If the patient is released, a clinician who says, "I didn't think he was committable," may not be protected from a claim of negligence.
Although standards of conduct vary from state to state, consider the following recommendations to avoid any legal complications;
The concept of patients' rights is ingrained in the practice of institutional psychiatry. For patients in public institutions, these rights include treatment in the least restrictive environment, refusal of treatment, informed consent, freedom from abuse, and legal counsel. In the psychiatric emergency setting, you can apply these principles through your own policies and procedures, unless distinct local protocols, such as a Patient's Bill of Rights, are already in place. The patient's rights in the psychiatric emergency setting include: