This article presents a brief outline of potential major legal pitfalls in the psychiatrist-patient relationship.
- Terminating the psychiatrist-patient relationship.
This legal pitfall in psychiatric practice focuses upon communication and avoiding a charge of “patient abandonment”. Termination requires communication with the patient, documentation to the patient’s chart or file, and perhaps legal counsel. This summary focuses on “non-emergency” situations. Emergency or crisis situations present much more difficulty in an attempted patient termination. The first and most important step is notifying the patient of an intention to terminate the relationship. A good “rule of thumb” is 30 days advance notice but the length of time may vary with circumstances. A form of notice can be obtained from a variety of sources but it should generally reflect the following: a definite date for the termination to take place; continuation of treatment during the period from the date of the notice until the date of termination, if possible; if applicable, a statement that continued treatment may be required with any warnings about failure to seek it; a reiteration of any medication instructions; reference to sources of referrals for a new provider of care; and the procedure for copying and furnishing the patient’s record. Document all steps taken regarding the termination process in the patient’s record. Consideration should also be given to the following: sending the termination notice by both ordinary and certified mail and allowing legal counsel to review the form of termination notice. Remember that the notice need not provide specific reasons for the termination.
- Handling “crisis” patients.
Oftentimes legal action against psychiatrists involves their failure to prevent patients from harming themselves. Legal theories under which such actions proceed involve failure to diagnose the patient’s suicide potential, the lack of reasonable treatment to prevent suicide, and failure to properly implement a plan of treatment to prevent suicide. Generally, as with the prescription of psychotropic medication discussed below, the exercise by the provider of “reasonable care in accordance with generally accepted medical standards” will help to shield him or her from liability, particularly if a suicide was not “reasonably foreseeable” (which is not the same as “reasonably preventable”) under the facts and circumstances of the patient’s case. Obviously, any suicide-risk assessment must be fully documented in the patient’s chart so as to provide additional defensive material to a breach of care claim by the patient and others. In both the “crisis” or “emergency” situations, a good evaluation of the status of the patient is crucial as to both continued treatment and termination. If that evaluation identifies such a situation, extreme caution is called for on the part of the provider with regard to the continuation of treatment or, in some cases, termination of the provider-patient relationship. An abrupt termination of treatment is an invitation to a lawsuit. If a provider believes the patient is unable to appreciate a termination of treatment, whether by the provider or by the patient, consider involving the patient’s support network, within the bounds of patient confidentiality. And patient confidentiality is important. Although courts have held that there is a “duty to warn” when a threat is presented to a third party by a patient undergoing treatment, that is not necessarily the case when a patient is being treated on an outpatient basis and ideates suicidal tendencies. The key issues for a therapeutic mental health provider are the adequacy of the assessment of risk to both the patient and others and the reasonableness of the treatment to prevent harm. Some clinicians employ “no self-harm” or “no suicide” contracts with patients when they commence treatment. The legal validity of such contracts may vary from jurisdiction to jurisdiction but certainly are not a panacea for avoidance of legal difficulties. Ultimately, a psychiatrist should ask themselves whether, based on experience and training, they feel comfortable handling patients in crisis or in emergency situations of if some other course of action is open to providing the patient the care that he or she may need.
- Psychotropic Medication.
Any number of legal theories of negligence may apply in the area of prescriptions for psychiatric disorders or symptoms. These include: excessive dosing, failure to prescribe the correct drug (including handwriting failures), prescribing a non-sanctioned or unapproved by government agency drug or prescribing a drug for purposes other than those approved by a government agency, failure to disclose the risks of a particular medication regime (“informed consent”), and inappropriate withdrawal of a medication treatment regime. As with the handling of the patient in a crisis or emergency situation, good evaluation of the patient and his or her medication needs is essential to avoiding liability for failure to properly prescribe psychiatric medication. The primary reason for this is that there is no absolute prescriptive regimen for a psychiatric patient. Coupled with the first reason is that psychiatric disorders or the symptoms of psychiatric disorders manifest themselves on multiple levels so that a drug that might treat one symptom or disorder will not treat another or the two may not function in a satisfactory concurrent fashion. Although courts frequently look to generally accepted “guidelines” and “principles” in determining whether a provider has breached the “standard of care” owed to the patient in prescribing medication, no guideline, principle or drug literature is a substitute for the provider’s medical judgment based on sound evaluation and monitoring of the patient. Providers will often be able to successfully defend a lawsuit for the consequences of improperly prescribing psychiatric medication if it can be shown that their judgment was “reasonable” based on the facts and circumstances of a particular patient’s condition. In addition to the foregoing, it is imperative that the patient be fully informed of the potential benefits and burdens of the medication regime and that “informed consent” be obtained and documented in the patient’s record for the plan of treatment to be undertaken. Psychiatrists should be acutely aware of and resist attempts by third-party payors to limit prescriptive medications to inappropriate or inadequate formularies or substitute for prescribed medication.
In both the psychiatric inpatient and outpatient settings, the need for documentation in order to attempt to avoid a provider’s liability for misadventure is huge. Among the areas to be touched upon in such documentation are preliminary or “screening” evaluations; the plan of treatment for the patient; how that plan will be implemented and periodic and timely review of the efficacy of the plan of treatment. In addition to the foregoing need for clinical documentation of treatment, providers must be aware of legal documents which exist that provide for a patient’s care or refusal of same. These documents include “living wills”, “health care proxies”, and “durable medical powers of attorney”. Providers must inquire as to the existence of such documents, or those similar thereto in the jurisdictions in which they practice, and their existence, vel non, should be documented in the patient’s chart. The provider should carefully review such documents for any provisions regarding treatment, or the refusal thereof. In some instances it may be incumbent on the provider to seek legal advice as to the meaning of any particular direction or set of directions or, perhaps, the overall validity of the document. Remember that in our ever increasingly mobile society, a patient’s directive which is legally valid in one jurisdiction may not be in another. Moreover, a law may exist which renders an older document outdated.
- Informed Consent.
In all areas of medical practice, it is the patient’s ability to make choices about his or her treatment either directly or through a surrogate which is paramount. Informed consent is no less paramount in all areas of psychiatric treatment since such consent may become particularly problematic if a patient lacks competency. Competency, the provision of clear and adequate information on the course of treatment, and the voluntary nature of the consent given are crucial factors in order to help bolster a defense to a psychiatric misadventure claim. Even something as “simple” as a change in medication dosage may require such consent. Informed consent should always be obtained in writing either by the patient or the patient’s legally recognized surrogate. Such a surrogate may include the holder of a legal document as outlined above, a court appointed guardian of the person, or even a court itself. In one area of psychiatric misadventure informed consent simply will not obtain. That area lies within the allegation of sexual misconduct for which the issue is the “breach of trust” on the part of the treating psychiatrist and not whether the patient’s sexual act was “consensual” on his or her part. Also, in nearly every jurisdiction of the United States, a minor may not provide “consent” whether or not it is an “informed consent”.
As always, a psychiatrist confronted with a patient complaint must seek legal counsel immediately. This article is for informational purposes only and should not be construed in any manner as providing legal advice on any particular case or situation.
Joan Cerniglia-Lowensen has over twenty years of civil litigation experience throughout the State of Maryland in both state and federal courts. Prior to becoming an attorney, Ms. Cerniglia-Lowensen was a practicing nurse. As an attorney, she primarily practices in the health care defense field including. She also defends health care providers in disciplinary actions before the Maryland Board of Nursing, Maryland Board of Physicians and other Boards. Ms. Cerniglia- Lowensen can be reached at email@example.com.