Legal Issues in Psychiatry

Legal Issues in Psychiatry

• The general objective is for students to apply legal and psychiatric concepts in daily decisions as physicians.

Specific Objectives

• The student will describe major concepts in civil commitment laws.
• The student will explain the right to treatment, the right to refuse treatment, and their impact on patient care.
• The student will justify the need for, and potential breaches of, confidentiality laws.
• The student will justify duty to warn using Tarasoff I.
• The student will justify duty to protect using Tarasoff II.
• The student will describe the components of informed consent and when to obtain it.
• The student will analyze medical malpractice and the reasons for lawsuits against psychiatrists.
• The student will explain competency to stand trial, referencing Dusky v. United States and the M'Naughten standard.
• The student will explain the concept of "guilty but mentally ill."

The Intersection of Medicine and Law

• Psychiatrists face sensitive legal issues more frequently than other medical specialists.
• Frequent reasons for consultation include determining if a patient should be committed to a hospital or forcibly medicated, and questioning if patient information can be released.
• Psychiatrists often navigate dilemmas where legal rights may conflict with medical needs.
• Variation exists between states and jurisdictions, despite general principles underlying much of U.S. law.
• Familiarity with relevant laws in the regions where they practice is thus essential for psychiatrists.

Civil vs. Criminal Issues

• Civil issues include involuntary hospitalization, confidentiality, informed consent, and malpractice; these relate to relationships between citizens.
• Criminal issues include competency to stand trial and criminal responsibility.
• Criminal issues focus on the individual's relationship to the state in maintaining social order.

Forensic Psychiatry

• It is a subspecialty focusing on the intersection of psychiatry and the law.
• Psychiatrists in this field often conduct evaluations of mental capacity, injury, and disability for agencies and courts.

Civil Issues: Involuntary Treatment

• Psychiatrists have a responsibility to ensure the safety of their patients.
• Legal precedent extends this duty to include protecting others who could be physically or emotionally harmed by a mentally ill person.
• Psychiatrists will seek a court order for involuntary hospitalization when a patient who is a threat to themselves or others refuses treatment.
• Civil commitment involves depriving a person of their constitutional rights on the basis of a mental illness.
• Most states regulate the civil commitment process, as courts are more objective in balancing rights than mental health providers.
• Court systems used to defer to physicians for patient detention decisions.
• Commitment laws involve concepts of mental illness, dangerousness, and disability.
• States require the presence of mental illness for commitment.
• Mental illness should be treatable.
• Dangerousness usually requires imminent danger to self or others, (i.e., within 24 hours if not hospitalized).
• Disability is a measure of a patient's inability to care for themselves.
• Some states use the term "gravely disabled" to describe someone unable to care for personal grooming, hydration, or feeding.
• Gravely disabled individuals may not be an immediate danger, but can still need psychiatric care.
• Most states allow emergency hospitalization and short-term psychiatric intervention.
• Emergency hospitalization starts with a petition by someone familiar with the person and medical certification of need.
• Emergency hospitalizations range from 1-20 days based on jurisdiction.
• Civil commitments occur with a court order after a judicial finding of mental illness and potential harm, providing continued involuntary hospitalization.
• Legal protections for those facing involuntary commitment include timely court hearings, the ability to attend proceedings, representation by an attorney, presentation of evidence, and privilege against self-incrimination.
• The petitioner bears the burden of proof to establish the reason for commitment.
• Patients have the right to appeal involuntary commitment.
• An attorney representing the state makes the case for commitment to a magistrate or judge.
• Admission to inpatient care occurs only when evidence presented is "clear and convincing," with a standard that 3 of 4 reasonable people would agree.
• Judicial decisions favor the best interests of the patient with court-ordered treatment.

Involuntary Treatment: Medication

• Antipsychotic medication may be used in emergency situations without consent.
• Litigation has focused on antipsychotics due to tardive dyskinesia risk.
• Some courts consider treatment with antipsychotics an "extraordinary" medical intervention requiring special scrutiny.
• Patients may retain the right to refuse medication until a court declares them incompetent to consent or refuse.
• Law enforcement may bring a person believed to be mentally ill to the emergency department; if found appropriate, the psychiatrist assess and the magistrate is contacted for an order of involuntary hospitalization.
• If a patient who was voluntarily admitted requests discharge but is considered a danger, a court order should be sought for continued hospitalization.
• Involuntary outpatient treatment may be used when a patient is not ill enough for inpatient care but presents a risk to self or others and will not comply with treatment; outpatient commitments can help improve treatment compliance and reduce hospitalization.

Civil Issues: Confidentiality

• Psychiatrists have an ethical and legal obligation to maintain patient confidentiality due to the sensitive information that is gathered which could be socially embarrassing or harmful.
• Before giving information to a third party, written consent is required, except in cases required by law or regulation.
• The U.S. Congress passed the Health Insurance Portability and Accountability Act (HIPAA) in 1996.
• HIPAA ensures the confidentiality of patient records and penalties for unauthorized release of information.
• Exceptions to HIPAA include emergencies, legal actions, and limited information release for billing.
• Physicians are required by law to breach confidentiality; reportable infectious diseases (e.g, tuberculosis, syphilis, gonorrhea, HIV).
• There is a legal duty to protect third parties from patients.
• The Tarasoff rule dictates that psychiatrists must protect potential victims from harm.
• In California 1976, Tarasoff I decision mandated mental health providers warn potential victims, and Tarasoff II to take precautions to protect third parties with significant danger posed by patients.
• If the psychiatrist believes that a patient might harm others, hospitalization is considered to evaluate the patient and protect the intended victim.
• When a foreseeable victim can be identified, phoning and reporting the threat is permissible even after hospitalization.
• Psychiatrists may encourage patients to contact the third party or make the call themselves in the patient's presence.
• In some states, providers can share information with close family members or those responsible for the patient's ongoing treatment if it's in their best interest.
• Charts can be accessed by utilization review groups, physician peer reviewers, or third-party payers.
• Attorneys guide physicians on releasing information requested by police, attorneys or courts.
• Records are not released by request of the lawyer, and in case of court order discuss with a patient.
• Only pertinent information is released.

Civil Issues: Informed Consent

• Informed consent must be obtained before psychiatric treatment.
• Patients should be informed on the indications, contraindications, adverse effects, risks of no treatment, and alternative therapies.
• The physician should carefully document the results of the discussion.
• A court-appointed guardian can make health care decisions if the patient cannot give consent.
• Hospitals require written informed consent for risky treatments like psychotropic medications or electroconvulsive therapy (ECT).

Civil Issues: Malpractice

• Malpractice is negligence in one's professional duties.
• About two-thirds of physicians will experience a malpractice lawsuit.
• Psychiatrists are sued less frequently than other physicians because the disorders treated and the treatments provided are less likely to physically harm a patient, as well psychiatric patients are reluctant to publicize mental disorders and treatments.
• Psychiatrists tend to have long-term relationships with patients.
• Psychiatrists are sued over patient suicide; failure to obtain informed consent; injuries from psychotropic medications, failure to disclose relevant information to the patient about adverse effects, prescribing a drug or drug combination when it is not indicated or when potentially harmful drug interactions might occur.
• Patient abandonment is defined as improperly terminating a doctor-patient relationship despite the continuing need for treatment, which could lead to legal action.
• Always, notify patient of termination in writing and provide sufficient time for the patient to find another psychiatrist.
• ECT often involves allegations of failure to obtain informed consent, use of inappropriate/improper treatment, or injury resulting from treatment like memory loss.
• Sexual activity with current or former patients can lead to expulsion from professional associations, license suspension/revocation and criminal charges as boundary violations.
• Best defense against malpractice is to maintain proper documentation.

Criminal Issues: Competency to Stand Trial

• Competence to stand trial is a legal, not medical, determination.
• A judge ultimately makes the determination based on national standards established by the U.S. Supreme Court in Dusky v. United States (1960).
• The court generally hears expert testimony from mental health professionals before deciding the issue.
• To be competent, criminal defendants must understand the nature of the charges against them, the possible penalties, and the legal issues and procedures and the defendant must be able to work with the attorney in preparing the defense.
• Competency to stand trial is assumed unless it is questioned in court.
• Defendants determined to be incompetent are typically transferred to a psychiatric hospital for treatment to restore them to a competent state; once restored, they are returned to court to stand trial.

Criminal Issues: Criminal Responsibility

• Criminal responsibility considers the subject's state of mind during the crime.
• Under the current crime system, a crime requires bad behavior (actus rea) and a blameworthy state of mind (mens rea).
• A person with a mental illness so symptomatic they cannot understand the nature/quality of their actions or that the act was wrong may be found not guilty by reason of insanity.
• The M'Naghten standard rule is named after a case involving Daniel M'Naghten, who in 1843 shot and killed Edward Drummond; M'Naghten had delusions of persecution by the Tory party.

"Guilty but mentally ill"

• With diminished capacity, defendants may be found guilty of a lesser charge.
• In the case of guilty but mentally ill, the person lacks the capacity to conform to the requirements of the law at the time of the act, despite knowing that the act was wrong.
• Defendants found "guilty but mentally ill" are sentenced to correctional facilities and receive a psychiatric evaluation and appropriate treatment.