Psychiatrists and physicians providing psychiatric care in medical settings regularly encounter difficult legal issues. This column reviews confidentiality and the Health Insurance Portability and Accountability Act (HIPAA), informed consent, competency, guardianship, substituted judgment, end-of-life decisions, advance directives, maternal “competency,” voluntary and involuntary treatment, American Medical Association discharges, and the use of physical restraints. For fuller coverage of these issues, see Simon and colleagues.1
Once the doctor-patient relationship is initiated, the physician assumes an automatic duty to safeguard confidentiality. However, this duty is not absolute, and in some circumstances breaching confidentiality is appropriate and may even be legally required. Psychiatrists must balance patient confidentiality with the need to provide adequate information to other medical providers. Documentation in the medical record as well as verbal communication to others providing patient care requires careful consideration of what to communicate and what to keep confidential. Hospital medical records are widely available to all who provide care to the patient as well as a great number of nonclinical personnel inside and outside the hospital.2 In most circumstances, the physician should obtain the competent patient’s verbal permission before speaking to the patient’s family or other third parties. Yet, there is less need for consent in seeking information from others than for providing information about the patient to them. Even with the patient’s authorization to share information, psychiatrists should limit disclosure to the information that would enable the staff to function effectively in caring for the patient. For particularly sensitive information, discretion is advised before it is noted in the medical record.
The HIPAA established standards for the protection of patient privacy. The act explicitly permits treating healthcare providers to share information with each other without requiring patient consent. HIPAA also provides extra protection for psychotherapy notes when kept separate from the rest of the medical record. The psychiatric consultant’s note in the medical chart is not considered a psychotherapy note even if it documents psychotherapy.3
Specific exceptions to confidentiality vary by state, but the most common include child abuse reporting, civil commitment proceedings, court-ordered evaluations, criminal proceedings, and cases in which a patient’s mental state is at issue in the litigation (eg, contested wills, worker’s compensation, child custody disputes, personal injury, and malpractice suits). If a competent patient waives the right to confidentiality about their treatment, a psychiatrist cannot claim doctor-patient privilege and must testify. Some states have laws modeled on the “Tarasoff Principle.” This principle was established by a 1976 court ruling in the Tarasoff versus Regents of University of California case, obligating (and immunizing) mental health professionals to breach confidentiality to protect parties specifically threatened with harm by psychiatric patients.
While the process of informed consent is now widely recognized and practiced, there remain many related legal issues in seriously medically compromised patients, especially those with neuropsychiatric impairment. Physicians routinely overestimate patients’ capacity to fully understand the informed consent forms they are signing, basing their views on a gestalt impression rather than explicit assessment. It is most often when patients refuse treatment that their understanding of the consent process is called into question, resulting in a psychiatric consultation to evaluate competency. Consultations are rarely called to evaluate patients who willingly sign the consent form.
Informed consent provides patients with a legal cause of action if they are not adequately informed about the nature and consequences of a particular medical treatment or procedure. Legally, every patient has the right to determine what is or is not done to his or her body (the right of self determination). The fiduciary nature of the doctor-patient relationship includes the responsibility to disclose honestly and in good faith all requisite facts about a patient’s condition. Informed consent has three essential ingredients: decisional capacity (competency), adequate information, and voluntariness (freedom from coercion).
There are two key exceptions to the requirement for obtaining informed consent. The first is when emergency treatment is necessary to save a life or prevent imminent serious harm, and it is impossible to obtain consent from the patient or an authorized surrogate. This may arise with clear lack of decisional capacity, with indeterminate capacity, with inability to communicate (eg, intubation), and/or when taking time to evaluate capacity will increase risk of harm. The emergency must be truly serious. This exception does not apply if the patient is competent and refusing treatment, even if the intervention is life saving (eg, transfusion in a Jehovah’s Witness). The second exception to informed consent exists when a patient lacks sufficient mental capacity to give consent or is legally incompetent. Under these circumstances, consent is obtained from a substitute decision maker.
Aside from these exceptions, a physician who treats a patient without obtaining informed consent is subject to legal liability. Treatment without any consent or against a patient’s wishes may constitute assault and battery, while treatment with inadequate consent is treated as an act of medical negligence. Infrequently, courts have authorized treatment against the wishes of a competent patient, eg, situations in which the life of a fetus is at risk, a patient is responsible for the care of dependent children and can be restored to full health through the intervention in question (eg, blood transfusions), or a patient who has attempted suicide.
Competency and Capacity for Healthcare Decision Making
Consulting psychiatrists are frequently asked to assess a patient’s competency, but the definition of competency can vary widely depending on the circumstances (eg, making healthcare decisions, executing a will or power of attorney). From a legal perspective, adults are presumed competent until proven otherwise, and the determination of incompetency requires a court’s decision. Although the term competency is widely used in the clinical setting, technically, physicians can not “declare” an individual “incompetent.” What a clinician can determine is lack of decisional capacity. Legally, only competent persons may give informed consent. If the patient has been determined clinically to lack sufficient capacity or has been adjudicated incompetent, the clinician must obtain substitute consent, usually from a designated family member.
Competency is situation specific, but its elements include the awareness and understanding of the illness and proposed intervention, appreciation of available alternatives, the ability to communicate a choice regarding intervention, and a rational process for deciding.4 Cognitive disorders can reduce all four of these elements, while other psychiatric disorders primarily affect rational decision making. For example, a schizophrenic patient with end-stage renal disease may understand that his kidneys are not working, understand the dialysis process, and may clearly and consistently choose to decline dialysis, but still lack sufficient capacity if his decision is driven by delusional thinking (eg, “the machine will let the Central Intelligence Agency control me”).
Assessing the risk/benefit ratio of each medical intervention should dictate the level of understanding required of each patient in the decision-making process. While a lumbar puncture is a low risk, highly beneficial procedure in a patient with a high fever and stiff neck, liver transplantation is a high risk, potentially highly beneficial procedure in the patient with advanced cirrhosis. While both may be life-saving procedures, a different level of understanding of the risks and benefits is usually expected from each patient. The grid below provides a useful tool in conceptualizing the level of scrutiny needed in different risk/benefit ratios.
Scrutiny of capacity should always be high for high-benefit, high-risk interventions (eg, transplantation). Scrutiny should be high for patients who refuse high benefit, low risk interventions (eg, intravenous [IV] antibiotics for endocarditis). Contrarily, less scrutiny is warranted for patients refusing low-benefit, high-risk treatment (eg, chemotherapy for metastatic melanoma), and careful attention should be directed at patients who too readily agree to such treatment. Finally, it is less important to scrutinize capacity when both the benefits and risks of treatment are low (eg, vitamin E for dementia), for there is little at stake for the patient.
Mental disability, whether in mentally impaired psychiatric patients or psychiatrically impaired medically ill patients, does not automatically render a person incompetent for all decisions. Instead, the patient must be examined to determine whether he or she is capable of making a particular decision. A surrogate (usually next of kin) or appointed guardian makes healthcare decisions on behalf of a medically ill patient who lacks sufficient capacity to do so. In most states, proxy consent by a family member is allowed without the need to involve the courts. However, in many states, proxy consent in the patient lacking decision-making capacity is prohibited when the patient is actively refusing treatment and/or for specific types of treatment, eg, psychiatric treatment, electroconvulsive therapy, abortion, sterilization, and psychosurgery.
Guardianship is a method of substitute decision making for individuals who are determined by the court to be unable to act for themselves. In some states, there are separate guardian provisions for healthcare decision making and for financial transactions. Some states distinguish between general and specific guardianship with the latter guardian restricted to making decisions about a particular aspect of life.
General incompetency can be defined as impairment due to dementia, mental illness, mental deficiency, brain injury, physical illness or disability, chronic use of drugs, or chronic intoxication to the extent of lacking sufficient understanding or capacity to make or communicate reasonable decisions.
Generally, the appointment of a guardian is indicated when a patient’s decision-making capacity is so impaired that he or she is unable to care for personal safety or provide basic life necessities. The court’s determination of incompetence is based on information provided by the patient’s physician and family, and the standard of proof required is clear and convincing evidence.
The process of adjudicating incompetence often takes too long, and thus frequently interferes with the provision of treatment. The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research5 recommended that the relatives of incompetent patients be selected as proxy decision makers because family is generally most concerned about the welfare of the patient; is usually most knowledgeable about the patient’s goals, preferences, and values; and is valued by our society as the most appropriate (under most circumstances) to decide in matters that intimately affect its members. Ideally, a family member acting as a proxy decision maker is guided primarily by the patient’s previously expressed preferences, but in reality few patients have made sufficiently clear statements, let alone documented them. Optimal substitute decision making may be undermined by ambivalence, family conflicts, economic burdens, and lack of availability or impairment in other family members.
Some states designate family proxy decision making by statute, and many states do not permit proxy consent for psychiatric treatment. Some patients recover competency within a few days (eg, those with delirium). As soon as the patient recovers sufficient mental capacity, consent for further treatment should be obtained directly from the patient.
Psychiatric consultations are often sought regarding the termination of medical treatment requested by terminally ill patients with chronic, progressively debilitating illnesses.6 While many of these consultations are called to overtly assess the patient’s “competency,” a covert reason for the consultation may be emotional reactions among the patient’s physicians and staff, and/or the family. In addition to any issues regarding competency, the possibilities of untreated depression and inadequate pain management should be considered. Like all other rights, the right to decline life-sustaining medical intervention, even by a competent person, is not absolute.7 However, the direction of the courts has usually been to support a competent patient’s right to have artificial life-support discontinued, including IV fluids or tube feeding. When the patient is no longer competent, and there is a dispute between parties (eg, family versus physician, family versus family), the courts primarily focus on the reliability of the evidence presented to establish the patient’s previously expressed wishes.8 If a terminally ill patient chooses to forego any further medical intervention and the patient is competent at the time of the decision, courts are unlikely to overrule the patient’s right to decline treatment.
Ideally, advance directives such as a living will or a durable medical power of attorney enable the healthcare team and family to be guided by a patient’s preferences, particularly in withholding or withdrawing life-sustaining treatment. If available, copies of a patient’s advance directive should be included as part of the medical record. All 50 states and the District of Columbia permit individuals to create a durable power of attorney (DPOA), and several have DPOA statutes that expressly authorize the appointment of proxies for making healthcare decisions. A DPOA document is much broader and more flexible than a living will; the DPOA empowers the surrogate to make any healthcare decisions, while a living will usually covers just terminal illness (and sometimes persistent vegetative states) and usually specifies only that no “extraordinary treatments” be used to prolong dying.
In a DPOA, general or specific directions can be given about how future decisions are to be made in the event that the patient becomes unable to make these decisions. Such inability is determined clinically, and, like all significant medical information, should be clearly documented in the patient’s chart. If disputed, an independent examination by another physician should be obtained.
The application of advance directives to patients with severe psychiatric illness may be complicated. For example, a patient with bipolar disorder may draw up an advance directive when euthymic and then disavow it when manic. Because DPOAs are easily revoked, the patient’s refusal may be honored even if there is reasonable evidence that the patient lacks decisional capacity. In such situations, legal consultation should be considered.
Increasingly, psychiatric consultations are requested to evaluate parental (usually maternal) competency. Parental competency includes the capacity to care for a child, and is considered when vulnerable infants or children in the hospital are thought to be at risk if their mother is allowed to take them home (eg, in the context of maternal substance abuse, maternal psychiatric illness, child abuse/neglect, or suspicion of Munchausen by proxy).9 Child protective services frequently become involved, and the court can be asked to temporarily or permanently terminate parental rights. The determination to sever parental rights even temporarily is extremely stressful and upsetting for all involved. This is not a competency evaluation in the legal sense described above, but rather an assessment of maternal capacity to care for the child and of any threats to the child’s safety. Such evaluations require input from family members, pediatricians, social workers, and nursing staff. Intense emotional reactions among all involved are frequent, and strong disagreements common, especially in the case of maternal substance abuse.
Voluntary and Involuntary Treatment
Psychiatrists are frequently consulted when medical inpatients with psychiatric disorders refuse treatment, the psychiatric disorder interferes significantly in medical decision making or compliance with treatment, and when there is confusion over the legal procedures for involuntary psychiatric versus involuntary medical treatment. Involuntary psychiatric detention or commitments specifically allow for acute psychiatric evaluation, not other involuntary medical evaluation or treatment. Involuntary psychiatric treatment requires further judicial authorization or a second psychiatric opinion (depending on the state). Each state’s criteria for involuntary psychiatric treatment are based on degree of danger to self or others in the presence of a psychiatric illness. The laws that specifically allow involuntary nonpsychiatric medical treatment are based on competency criteria. Judicial authorization for involuntary medical treatment depends on demonstrating that the patient does not have sufficient capacity to refuse treatment; it does not require that the patient’s medical condition is an imminent threat to self or others.
When a medical patient is so psychiatrically ill as to require court-ordered treatment, there is often pressure from nonpsychiatric physicians, nurses, and hospital administrators to transfer the patient to a psychiatric unit. Whether to do so should be based primarily on what is in the patient’s best interest and the need to protect other patients’ welfare. It is the consulting psychiatrist’s responsibility to independently assess whether the patient is sufficiently medically stable for transfer.
Involuntary psychiatric hospitalization may be required for patients on medical units following suicide attempts or for some patients with complex co-morbid medical and acute psychiatric symptoms. The criteria are identical to those governing all psychiatric commitments, ie, the patient must be mentally ill, dangerous to self or others, and/or unable to provide for basic needs. Clinicians cannot themselves legally commit patients. This process is under the court’s jurisdiction. While commitment statutes do not mandate involuntary hospitalization, the duty to seek involuntary psychiatric hospitalization is a standard-of-care issue. Patients who are mentally ill and pose an imminent, serious threat to themselves or others may require involuntary hospitalization as a primary psychiatric intervention.
Against Medical Advice Discharges
Voluntary patients may demand to leave the hospital against medical advice. Common causes include addictions (craving or withdrawal), psychosis, personality disorders, failures in physician-patient communication, and external family or other pressures to leave the hospital. Evaluation of the patient who wants to leave against medical advice should include determining if the patient is a danger to self or others and if the patient has decisional capacity. The first priority is determining the reason the patient wants to leave the hospital, which must be understood before choosing appropriate interventions. From both clinical and legal perspectives, a full and calm discussion with the patient regarding the benefits of further treatment and the risks of leaving prematurely documented in the medical record, is essential; it is neither necessary nor sufficient to have the patient sign an against medical advice form. Family or other responsible parties should be involved if possible to prevent premature discharge. Anger directed at the patient by any member of the healthcare team is not clinically constructive and may contribute to legal liability. Patients should be told they are welcome to return to the hospital if they change their mind or their symptoms get worse.
Incompetent patients for whom a guardian has been appointed or who has designated a DPOA can be retained in the hospital with the consent of the surrogate, but for others, an emergency judicial order should be sought to retain the incompetent patient who wishes to leave against medical advice.1
Physical restraints may be required for confused, medically unstable patients, especially when chemical restraint is ineffective or contraindicated. If restraints are not used in some delirious or demented patients, they may pull out their IVs, catheters, endotracheal tubes, or other vital lines. Confused medically ill patients often climb over bed rails risking falls, which may result in fractures and head trauma. Stringent legal regulation of physical restraints has increased during the past decade, yet the courts have generally held that restraints are appropriate when a patient presents a risk of harm to self or others and a less restrictive alternative is not available. While it must be acknowledged that physical restraints have been overused in the past, there are times when physical restraint is the safest and most humane alternative. A full range of options for prevention of harm in confused medically ill patients should be considered, keeping in mind there are clinical and legal risks both in inappropriately using and foregoing restraints. PP
1. Simon RI, Schindler BA, Levenson JL. Legal issues. In: Levenson JL, ed. The American Psychiatric Publishing Textbook of Psychosomatic Medicine. Washington, DC: American Psychiatric Publishing; 2005:37-54.
2. Siegler M. Sounding Boards. Confidentiality in medicine—a decrepit concept. N Engl J Med. 1982;307(24):1518-1521.
3. Brendel RW, Bryan E. HIPAA for psychiatrists. Harv Rev Psychiatry. 2004;12(3):177-183.
4. Appelbaum PS, Grisso T. Capacities of hospitalized, medically ill patients to consent to treatment. Psychosomatics. 1997;38(2):119-125.
5. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Making Health Care Decisions: A Report on the Ethical and Legal Implications of Informed Consent in the Patient Practitioner Relationship. Washington, DC: US Government Printing Office; 1982.
6. Cohen LM, Steinberg MD, Hails KC, Dobscha SK, Fischel SV. Psychiatric evaluation of death-hastening requests. Lessons from dialysis discontinuation. Psychosomatics. 2000;41(3):195-203.
7. In re Conroy, 98 NJ 321, 486 A2d 1209, 1222–1223 (1985).
8. Cruzan v Director, Missouri Department of Health, 110 S Ct 284 (1990).
9. Nair S, Morrison M. The evaluation of maternal competency. Psychosomatics. 2000;41(6):523-530.
Dr. Levenson is professor in the Departments of Psychiatry, Medicine, and Surgery, chair of the Division of Consultation-Liaison Psychiatry, and vice chair for clinical affairs in the Department of Psychiatry at Virginia Commonwealth University School of Medicine in Richmond.
Disclosure: Dr. Levenson is on the depression advisory board for Eli Lilly.