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Psychiatric ‘holds’ for nonpsychiatric patients
Dear Dr. Mossman,
At the general hospital where I work, doctors and nurses sometimes ask me to fill out psychiatric “hold” documents to keep seriously ill medical or surgical patients from leaving the hospital. Last week, they asked me to stop Mr. J, a man with diabetes and a gangrenous lower leg, from leaving against medical advice (AMA). If he left, he would die. But if I filled out the psychiatric “hold,” I’d be saying the man needed civil commitment for a mental illness, which wasn’t true. If this happens again, what should I do?
Submitted by “Dr. Q”
“It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail,” wrote Abraham Maslow.1 The situation Dr. Q describes is one that psychiatrists frequently encounter because in some situations, a psychiatric “hold” can seem like the only way to stop a physically ill patient from leaving the hospital AMA. But pounding on this problem with a civil commitment hammer is the wrong response.
What’s wrong with using psychiatric holds in these situations? Do doctors have any other equipment in their medical toolbox for stopping an improvident AMA departure? To find out, we’ll look at:
- what a psychiatric hold does
- why holds don’t apply to medical-surgical treatment
- alternative responses to patients who lack capacity to refuse care.
Psychiatric holds
All states have laws that permit involuntary psychiatric hospitalization. The wording and procedural details in these laws vary across jurisdictions, but all states allow civil (ie, noncriminal) commitment of mentally ill persons who have gross impairments of judgment, behavior, reality-testing, or everyday functioning if their recent behavior show that they pose a danger because of their mental illness.2 Table 13 lists examples of the types of dangers that are potential reasons for civil commitment.
Table 1
Types of risks covered in civil commitment statutes
| All states |
|
| In some jurisdictions |
|
| Source: Adapted from reference 3 |
State laws also allow certain individuals (eg, police) to apprehend and transport mentally ill persons to facilities for psychiatric evaluation. Doctors may hold these persons temporarily until a court decides whether a longer involuntary hospitalization is justified. The documents used to initiate psychiatric holds have various informal names—”5150” (California), “pink slip” (Ohio), “pink paper” (Massachusetts), “Baker Act Form” (Florida)—but their function is the same: permitting lawful restraint of patients whose dangerousness results from their mental illness.
Urgent medical and surgical care
What about medical or surgical patients who refuse care despite being told they’ll die without it? Might involuntary psychiatric hospitalization procedures be a convenient way to keep them from coming to harm?
The answer: probably not, for 4 reasons:
- Once a psychiatric hold has been executed, the person who is subject to detention must be transferred to an appropriate facility within a specified period (usually 24 hours) for further evaluation and care.4,5 In this context, “appropriate facility” means a state-approved psychiatric treatment setting. A hospital’s medical or surgical unit usually would not qualify.
- The lawful use of a psychiatric hold is to declare that someone needs involuntary psychiatric examination for dangerousness arising “as a result of mental illness”—not for danger from a nonpsychiatric medical problem.6 Some civil commitment statutes specify that persons who have serious nonpsychiatric illness but no mental health problems that satisfy civil commitment criteria are to be offered voluntary treatment only.7
- A psychiatric hold only authorizes short-term detention. It does not allow forcing what patients such as Mr. J need: medical or surgical treatment. A psychiatric hold would not solve the problem that Mr. J’s doctors are facing.
- Doctors who execute psychiatric holds in good faith—sincerely believing a patient meets the legal criteria—enjoy statutory immunity from later accusations of malpractice or false imprisonment.8 Using civil commitment mechanisms when one does not actually believe those mechanisms apply might void this immunity.
Nonconsent: 2 varieties
For present purposes, let’s think of nonconsenting medical-surgical patients as coming in 2 varieties:
Variety 1: patients with compromised mental status. Often, medical-surgical patients cannot express objections to treatment because they are unconscious, delirious, or incoherent. Nurses and doctors assume such patients would want proper care and proceed with what they believe is in the patients’ best interest, often with input from family members.
Variety 2: lucid patients who refuse treatment. Patients who do not have obvious psychiatric problems may refuse necessary medical or surgical treatment for various reasons: obstinacy, distrust of doctors, fear, ignorance, incorrect but firmly held ideas about body functioning, cultural differences, or religious beliefs. None of these reasons is necessarily psychopathological, and none provides justification for a psychiatric hold.
Key determinant: Competence
Refusing treatment may be a bad choice and sometimes is evidence of a mental disorder, but it is not, by itself, a mental disorder. When a Variety 2 adult patient refuses care, the key question is, “Is this a competent refusal?” Assessment of a patient’s capacity to make medical decisions is not a skill unique to psychiatrists. Other specialists make judgments about capacity routinely—if only implicitly—when they elicit their patients’ informed consent for care. But when, as in Mr. J’s case, a seriously ill medical-surgical patient refuses lifesaving treatment, our medical colleagues often get psychiatrists involved. Consulting a psychiatrist in such circumstances makes sense, for at least 4 reasons:
- Although assessment of decision-making isn’t the special province of psychiatry, psychiatrists often have more experience assessing the capacity of persons whose thinking seems impaired.
- Psychiatrists also have more experience in detecting subtle indications of mental disorders (eg, mild dementia, depression, psychosis) that can compromise decision-making capacity.
- A nonpsychiatrist may believe that a patient is making a competent refusal but still wants a psychiatrist’s perspective to better understand the patient’s reasoning or to confirm the initial belief.
- Getting an independent opinion is a prudent way to make sure one’s emotions are not adversely influencing a critical judgment about a patient’s treatment.
Determining whether a patient has the requisite capacity to refuse care involves a situation-specific assessment of 4 aspects of mental functioning: expressing a choice coherently, understanding relevant information, appreciating this information, and using the information rationally. Table 29 describes these functional areas in more detail.
Table 2
Evaluating the quality of a patient’s decision: 4 dimensions
| 1. Can the patient communicate a choice and express a consistent preference? |
2. Can the patient grasp relevant information about:
|
| 3. Does the patient appreciate the illness and its consequences? Does he recognize he is ill and acknowledge how the information applies to his situation? |
| 4. Does the patient use the information rationally? Can he explain his decision-making and reasoning? Does he apply information to his situation in light of rational beliefs and desires? |
| Source: Adapted from reference 9 |
If capacity is lacking, what next?
As Judge Benjamin Cardozo ruled nearly a century ago, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”10 In a case such as Mr. J’s, where a patient wants to leave the hospital or refuses medical treatment despite grave risk to himself, staff members should not let him leave until his treating doctors have tried to clarify his reasons for leaving and determined whether he has the capacity to give informed consent and refuse treatment. Psychiatrists may be consulted in this process, although the final judgment about capacity rests with the responsible physician. If an assessment shows that the patient has the capacity to make medical decisions, his treatment refusal is binding, even when it creates a clear risk of death.
What should happen if an assessment shows that a gravely ill patient lacks capacity to refuse treatment? Clinicians should consult with the hospital attorney about their facility’s policies and how to implement them properly.
Thinking about the possible legal implications of their actions, treating clinicians might worry that if they detain an unwilling patient without authorization from a court or guardian, they would risk being sued later for false imprisonment. But attorneys are likely to advise clinicians that they have more to fear liability-wise from letting incompetent patients leave the hospital than from detaining them for their own safety. As an Ohio court commented about a police officer who stopped a patient from leaving the hospital:
- What in the name of all that is reasonable should the officer have done? The court finds that the officer acted properly under the circumstances known to him at the time—and the reasonableness of an officer’s actions must be judged at the exigent split second on the street…11
Rather than allowing an incompetent patient to come to harm, attorneys may advise physicians to write an order to keep the patient in the hospital. Then, physicians can obtain consent for treatment from family members, making them aware of any physical or chemical restraint that might be needed to continue the patient’s treatment. Depending on the situation and the reasons for the lack of capacity, hospital staff members may later need to help a family member obtain a court’s authorization for emergency guardianship to allow non-urgent care to continue.
Treating physicians also should document the thinking and findings that support their actions. Table 3 provides an outline for this documentation.
Table 3
Detaining a patient for medical-surgical care: 7 components of documentation
| 1. Description of the patient’s refusal or efforts to leave the hospital |
| 2. Patient’s stated reasons for refusing or wanting to leave |
| 3. Reasonable alternatives to discharge that were offered |
| 4. Description of how refusing medical treatment would create a clear risk of physical harm or death |
| 5. Evidence that the patient lacks capacity to give informed consent or to refuse treatment |
| 6. Actions taken by the treating physician (eg, obtaining psychiatric consultation, enlisting other patient services, instituting physical restraint) |
| 7. Person who provided consent to continue treatment and that person’s relationship to patient |
Related Resources
- Appelbaum PS. Clinical practice. Assessment of patients’ competence to consent to treatment. N Engl J Med. 2007; 357(18):1834-1840.
- Disability Rights California. Involuntary psychiatric treatment: California’s 72-hour hold and 14-day certification. www.disabilityrightsca.org/pubs/502401.pdf.
- Treatment Advocacy Center. Know the laws in your state. www.treatmentadvocacycenter.org/get-help/know-the-laws-in-your-state.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Acknowledgment
Dr. Mossman thanks David Schwallie, Esq, for his helpful insights about the topics discussed in this article.
1. Maslow AH. The psychology of science: a reconnaissance. New York NY: Harper & Row; 1966.
2. Mossman D, Schwartz AH, Elam ER. Risky business versus overt acts: what relevance do “actuarial” probabilistic risk assessments have for judicial decisions on involuntary psychiatric hospitalization? Houston Journal of Health Law & Policy. 2011;11:365-453.
3. Pinals DA, Mossman D. Evaluation for civil commitment. New York NY: Oxford University Press; 2012.
4. Ohio Revised Code § 5122.10.
5. Oregon Revised Statutes § 426.060.
6. California Welfare and Institutions Code § 5150.
7. Florida statutes § 394.463.
8. Cruze v National Psychiatric Services, Inc., 105 Cal. App. 4th 48 (2003).
9. Appelbaum PS, Grisso T. Assessing patients’ capacities to consent to treatment. N Engl J Med. 1988;319(25):1635-1638.
10. Schloendorff v Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914).
11. State v Clay, 43 Ohio Misc. 2d 5, 539 N.E.2d 1168 (1988).
Douglas Mossman, MD
Series Editor
Professor and Program Director, University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Douglas Mossman, MD
Series Editor
Professor and Program Director, University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Douglas Mossman, MD
Series Editor
Professor and Program Director, University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Dear Dr. Mossman,
At the general hospital where I work, doctors and nurses sometimes ask me to fill out psychiatric “hold” documents to keep seriously ill medical or surgical patients from leaving the hospital. Last week, they asked me to stop Mr. J, a man with diabetes and a gangrenous lower leg, from leaving against medical advice (AMA). If he left, he would die. But if I filled out the psychiatric “hold,” I’d be saying the man needed civil commitment for a mental illness, which wasn’t true. If this happens again, what should I do?
Submitted by “Dr. Q”
“It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail,” wrote Abraham Maslow.1 The situation Dr. Q describes is one that psychiatrists frequently encounter because in some situations, a psychiatric “hold” can seem like the only way to stop a physically ill patient from leaving the hospital AMA. But pounding on this problem with a civil commitment hammer is the wrong response.
What’s wrong with using psychiatric holds in these situations? Do doctors have any other equipment in their medical toolbox for stopping an improvident AMA departure? To find out, we’ll look at:
- what a psychiatric hold does
- why holds don’t apply to medical-surgical treatment
- alternative responses to patients who lack capacity to refuse care.
Psychiatric holds
All states have laws that permit involuntary psychiatric hospitalization. The wording and procedural details in these laws vary across jurisdictions, but all states allow civil (ie, noncriminal) commitment of mentally ill persons who have gross impairments of judgment, behavior, reality-testing, or everyday functioning if their recent behavior show that they pose a danger because of their mental illness.2 Table 13 lists examples of the types of dangers that are potential reasons for civil commitment.
Table 1
Types of risks covered in civil commitment statutes
| All states |
|
| In some jurisdictions |
|
| Source: Adapted from reference 3 |
State laws also allow certain individuals (eg, police) to apprehend and transport mentally ill persons to facilities for psychiatric evaluation. Doctors may hold these persons temporarily until a court decides whether a longer involuntary hospitalization is justified. The documents used to initiate psychiatric holds have various informal names—”5150” (California), “pink slip” (Ohio), “pink paper” (Massachusetts), “Baker Act Form” (Florida)—but their function is the same: permitting lawful restraint of patients whose dangerousness results from their mental illness.
Urgent medical and surgical care
What about medical or surgical patients who refuse care despite being told they’ll die without it? Might involuntary psychiatric hospitalization procedures be a convenient way to keep them from coming to harm?
The answer: probably not, for 4 reasons:
- Once a psychiatric hold has been executed, the person who is subject to detention must be transferred to an appropriate facility within a specified period (usually 24 hours) for further evaluation and care.4,5 In this context, “appropriate facility” means a state-approved psychiatric treatment setting. A hospital’s medical or surgical unit usually would not qualify.
- The lawful use of a psychiatric hold is to declare that someone needs involuntary psychiatric examination for dangerousness arising “as a result of mental illness”—not for danger from a nonpsychiatric medical problem.6 Some civil commitment statutes specify that persons who have serious nonpsychiatric illness but no mental health problems that satisfy civil commitment criteria are to be offered voluntary treatment only.7
- A psychiatric hold only authorizes short-term detention. It does not allow forcing what patients such as Mr. J need: medical or surgical treatment. A psychiatric hold would not solve the problem that Mr. J’s doctors are facing.
- Doctors who execute psychiatric holds in good faith—sincerely believing a patient meets the legal criteria—enjoy statutory immunity from later accusations of malpractice or false imprisonment.8 Using civil commitment mechanisms when one does not actually believe those mechanisms apply might void this immunity.
Nonconsent: 2 varieties
For present purposes, let’s think of nonconsenting medical-surgical patients as coming in 2 varieties:
Variety 1: patients with compromised mental status. Often, medical-surgical patients cannot express objections to treatment because they are unconscious, delirious, or incoherent. Nurses and doctors assume such patients would want proper care and proceed with what they believe is in the patients’ best interest, often with input from family members.
Variety 2: lucid patients who refuse treatment. Patients who do not have obvious psychiatric problems may refuse necessary medical or surgical treatment for various reasons: obstinacy, distrust of doctors, fear, ignorance, incorrect but firmly held ideas about body functioning, cultural differences, or religious beliefs. None of these reasons is necessarily psychopathological, and none provides justification for a psychiatric hold.
Key determinant: Competence
Refusing treatment may be a bad choice and sometimes is evidence of a mental disorder, but it is not, by itself, a mental disorder. When a Variety 2 adult patient refuses care, the key question is, “Is this a competent refusal?” Assessment of a patient’s capacity to make medical decisions is not a skill unique to psychiatrists. Other specialists make judgments about capacity routinely—if only implicitly—when they elicit their patients’ informed consent for care. But when, as in Mr. J’s case, a seriously ill medical-surgical patient refuses lifesaving treatment, our medical colleagues often get psychiatrists involved. Consulting a psychiatrist in such circumstances makes sense, for at least 4 reasons:
- Although assessment of decision-making isn’t the special province of psychiatry, psychiatrists often have more experience assessing the capacity of persons whose thinking seems impaired.
- Psychiatrists also have more experience in detecting subtle indications of mental disorders (eg, mild dementia, depression, psychosis) that can compromise decision-making capacity.
- A nonpsychiatrist may believe that a patient is making a competent refusal but still wants a psychiatrist’s perspective to better understand the patient’s reasoning or to confirm the initial belief.
- Getting an independent opinion is a prudent way to make sure one’s emotions are not adversely influencing a critical judgment about a patient’s treatment.
Determining whether a patient has the requisite capacity to refuse care involves a situation-specific assessment of 4 aspects of mental functioning: expressing a choice coherently, understanding relevant information, appreciating this information, and using the information rationally. Table 29 describes these functional areas in more detail.
Table 2
Evaluating the quality of a patient’s decision: 4 dimensions
| 1. Can the patient communicate a choice and express a consistent preference? |
2. Can the patient grasp relevant information about:
|
| 3. Does the patient appreciate the illness and its consequences? Does he recognize he is ill and acknowledge how the information applies to his situation? |
| 4. Does the patient use the information rationally? Can he explain his decision-making and reasoning? Does he apply information to his situation in light of rational beliefs and desires? |
| Source: Adapted from reference 9 |
If capacity is lacking, what next?
As Judge Benjamin Cardozo ruled nearly a century ago, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”10 In a case such as Mr. J’s, where a patient wants to leave the hospital or refuses medical treatment despite grave risk to himself, staff members should not let him leave until his treating doctors have tried to clarify his reasons for leaving and determined whether he has the capacity to give informed consent and refuse treatment. Psychiatrists may be consulted in this process, although the final judgment about capacity rests with the responsible physician. If an assessment shows that the patient has the capacity to make medical decisions, his treatment refusal is binding, even when it creates a clear risk of death.
What should happen if an assessment shows that a gravely ill patient lacks capacity to refuse treatment? Clinicians should consult with the hospital attorney about their facility’s policies and how to implement them properly.
Thinking about the possible legal implications of their actions, treating clinicians might worry that if they detain an unwilling patient without authorization from a court or guardian, they would risk being sued later for false imprisonment. But attorneys are likely to advise clinicians that they have more to fear liability-wise from letting incompetent patients leave the hospital than from detaining them for their own safety. As an Ohio court commented about a police officer who stopped a patient from leaving the hospital:
- What in the name of all that is reasonable should the officer have done? The court finds that the officer acted properly under the circumstances known to him at the time—and the reasonableness of an officer’s actions must be judged at the exigent split second on the street…11
Rather than allowing an incompetent patient to come to harm, attorneys may advise physicians to write an order to keep the patient in the hospital. Then, physicians can obtain consent for treatment from family members, making them aware of any physical or chemical restraint that might be needed to continue the patient’s treatment. Depending on the situation and the reasons for the lack of capacity, hospital staff members may later need to help a family member obtain a court’s authorization for emergency guardianship to allow non-urgent care to continue.
Treating physicians also should document the thinking and findings that support their actions. Table 3 provides an outline for this documentation.
Table 3
Detaining a patient for medical-surgical care: 7 components of documentation
| 1. Description of the patient’s refusal or efforts to leave the hospital |
| 2. Patient’s stated reasons for refusing or wanting to leave |
| 3. Reasonable alternatives to discharge that were offered |
| 4. Description of how refusing medical treatment would create a clear risk of physical harm or death |
| 5. Evidence that the patient lacks capacity to give informed consent or to refuse treatment |
| 6. Actions taken by the treating physician (eg, obtaining psychiatric consultation, enlisting other patient services, instituting physical restraint) |
| 7. Person who provided consent to continue treatment and that person’s relationship to patient |
Related Resources
- Appelbaum PS. Clinical practice. Assessment of patients’ competence to consent to treatment. N Engl J Med. 2007; 357(18):1834-1840.
- Disability Rights California. Involuntary psychiatric treatment: California’s 72-hour hold and 14-day certification. www.disabilityrightsca.org/pubs/502401.pdf.
- Treatment Advocacy Center. Know the laws in your state. www.treatmentadvocacycenter.org/get-help/know-the-laws-in-your-state.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Acknowledgment
Dr. Mossman thanks David Schwallie, Esq, for his helpful insights about the topics discussed in this article.
Dear Dr. Mossman,
At the general hospital where I work, doctors and nurses sometimes ask me to fill out psychiatric “hold” documents to keep seriously ill medical or surgical patients from leaving the hospital. Last week, they asked me to stop Mr. J, a man with diabetes and a gangrenous lower leg, from leaving against medical advice (AMA). If he left, he would die. But if I filled out the psychiatric “hold,” I’d be saying the man needed civil commitment for a mental illness, which wasn’t true. If this happens again, what should I do?
Submitted by “Dr. Q”
“It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail,” wrote Abraham Maslow.1 The situation Dr. Q describes is one that psychiatrists frequently encounter because in some situations, a psychiatric “hold” can seem like the only way to stop a physically ill patient from leaving the hospital AMA. But pounding on this problem with a civil commitment hammer is the wrong response.
What’s wrong with using psychiatric holds in these situations? Do doctors have any other equipment in their medical toolbox for stopping an improvident AMA departure? To find out, we’ll look at:
- what a psychiatric hold does
- why holds don’t apply to medical-surgical treatment
- alternative responses to patients who lack capacity to refuse care.
Psychiatric holds
All states have laws that permit involuntary psychiatric hospitalization. The wording and procedural details in these laws vary across jurisdictions, but all states allow civil (ie, noncriminal) commitment of mentally ill persons who have gross impairments of judgment, behavior, reality-testing, or everyday functioning if their recent behavior show that they pose a danger because of their mental illness.2 Table 13 lists examples of the types of dangers that are potential reasons for civil commitment.
Table 1
Types of risks covered in civil commitment statutes
| All states |
|
| In some jurisdictions |
|
| Source: Adapted from reference 3 |
State laws also allow certain individuals (eg, police) to apprehend and transport mentally ill persons to facilities for psychiatric evaluation. Doctors may hold these persons temporarily until a court decides whether a longer involuntary hospitalization is justified. The documents used to initiate psychiatric holds have various informal names—”5150” (California), “pink slip” (Ohio), “pink paper” (Massachusetts), “Baker Act Form” (Florida)—but their function is the same: permitting lawful restraint of patients whose dangerousness results from their mental illness.
Urgent medical and surgical care
What about medical or surgical patients who refuse care despite being told they’ll die without it? Might involuntary psychiatric hospitalization procedures be a convenient way to keep them from coming to harm?
The answer: probably not, for 4 reasons:
- Once a psychiatric hold has been executed, the person who is subject to detention must be transferred to an appropriate facility within a specified period (usually 24 hours) for further evaluation and care.4,5 In this context, “appropriate facility” means a state-approved psychiatric treatment setting. A hospital’s medical or surgical unit usually would not qualify.
- The lawful use of a psychiatric hold is to declare that someone needs involuntary psychiatric examination for dangerousness arising “as a result of mental illness”—not for danger from a nonpsychiatric medical problem.6 Some civil commitment statutes specify that persons who have serious nonpsychiatric illness but no mental health problems that satisfy civil commitment criteria are to be offered voluntary treatment only.7
- A psychiatric hold only authorizes short-term detention. It does not allow forcing what patients such as Mr. J need: medical or surgical treatment. A psychiatric hold would not solve the problem that Mr. J’s doctors are facing.
- Doctors who execute psychiatric holds in good faith—sincerely believing a patient meets the legal criteria—enjoy statutory immunity from later accusations of malpractice or false imprisonment.8 Using civil commitment mechanisms when one does not actually believe those mechanisms apply might void this immunity.
Nonconsent: 2 varieties
For present purposes, let’s think of nonconsenting medical-surgical patients as coming in 2 varieties:
Variety 1: patients with compromised mental status. Often, medical-surgical patients cannot express objections to treatment because they are unconscious, delirious, or incoherent. Nurses and doctors assume such patients would want proper care and proceed with what they believe is in the patients’ best interest, often with input from family members.
Variety 2: lucid patients who refuse treatment. Patients who do not have obvious psychiatric problems may refuse necessary medical or surgical treatment for various reasons: obstinacy, distrust of doctors, fear, ignorance, incorrect but firmly held ideas about body functioning, cultural differences, or religious beliefs. None of these reasons is necessarily psychopathological, and none provides justification for a psychiatric hold.
Key determinant: Competence
Refusing treatment may be a bad choice and sometimes is evidence of a mental disorder, but it is not, by itself, a mental disorder. When a Variety 2 adult patient refuses care, the key question is, “Is this a competent refusal?” Assessment of a patient’s capacity to make medical decisions is not a skill unique to psychiatrists. Other specialists make judgments about capacity routinely—if only implicitly—when they elicit their patients’ informed consent for care. But when, as in Mr. J’s case, a seriously ill medical-surgical patient refuses lifesaving treatment, our medical colleagues often get psychiatrists involved. Consulting a psychiatrist in such circumstances makes sense, for at least 4 reasons:
- Although assessment of decision-making isn’t the special province of psychiatry, psychiatrists often have more experience assessing the capacity of persons whose thinking seems impaired.
- Psychiatrists also have more experience in detecting subtle indications of mental disorders (eg, mild dementia, depression, psychosis) that can compromise decision-making capacity.
- A nonpsychiatrist may believe that a patient is making a competent refusal but still wants a psychiatrist’s perspective to better understand the patient’s reasoning or to confirm the initial belief.
- Getting an independent opinion is a prudent way to make sure one’s emotions are not adversely influencing a critical judgment about a patient’s treatment.
Determining whether a patient has the requisite capacity to refuse care involves a situation-specific assessment of 4 aspects of mental functioning: expressing a choice coherently, understanding relevant information, appreciating this information, and using the information rationally. Table 29 describes these functional areas in more detail.
Table 2
Evaluating the quality of a patient’s decision: 4 dimensions
| 1. Can the patient communicate a choice and express a consistent preference? |
2. Can the patient grasp relevant information about:
|
| 3. Does the patient appreciate the illness and its consequences? Does he recognize he is ill and acknowledge how the information applies to his situation? |
| 4. Does the patient use the information rationally? Can he explain his decision-making and reasoning? Does he apply information to his situation in light of rational beliefs and desires? |
| Source: Adapted from reference 9 |
If capacity is lacking, what next?
As Judge Benjamin Cardozo ruled nearly a century ago, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”10 In a case such as Mr. J’s, where a patient wants to leave the hospital or refuses medical treatment despite grave risk to himself, staff members should not let him leave until his treating doctors have tried to clarify his reasons for leaving and determined whether he has the capacity to give informed consent and refuse treatment. Psychiatrists may be consulted in this process, although the final judgment about capacity rests with the responsible physician. If an assessment shows that the patient has the capacity to make medical decisions, his treatment refusal is binding, even when it creates a clear risk of death.
What should happen if an assessment shows that a gravely ill patient lacks capacity to refuse treatment? Clinicians should consult with the hospital attorney about their facility’s policies and how to implement them properly.
Thinking about the possible legal implications of their actions, treating clinicians might worry that if they detain an unwilling patient without authorization from a court or guardian, they would risk being sued later for false imprisonment. But attorneys are likely to advise clinicians that they have more to fear liability-wise from letting incompetent patients leave the hospital than from detaining them for their own safety. As an Ohio court commented about a police officer who stopped a patient from leaving the hospital:
- What in the name of all that is reasonable should the officer have done? The court finds that the officer acted properly under the circumstances known to him at the time—and the reasonableness of an officer’s actions must be judged at the exigent split second on the street…11
Rather than allowing an incompetent patient to come to harm, attorneys may advise physicians to write an order to keep the patient in the hospital. Then, physicians can obtain consent for treatment from family members, making them aware of any physical or chemical restraint that might be needed to continue the patient’s treatment. Depending on the situation and the reasons for the lack of capacity, hospital staff members may later need to help a family member obtain a court’s authorization for emergency guardianship to allow non-urgent care to continue.
Treating physicians also should document the thinking and findings that support their actions. Table 3 provides an outline for this documentation.
Table 3
Detaining a patient for medical-surgical care: 7 components of documentation
| 1. Description of the patient’s refusal or efforts to leave the hospital |
| 2. Patient’s stated reasons for refusing or wanting to leave |
| 3. Reasonable alternatives to discharge that were offered |
| 4. Description of how refusing medical treatment would create a clear risk of physical harm or death |
| 5. Evidence that the patient lacks capacity to give informed consent or to refuse treatment |
| 6. Actions taken by the treating physician (eg, obtaining psychiatric consultation, enlisting other patient services, instituting physical restraint) |
| 7. Person who provided consent to continue treatment and that person’s relationship to patient |
Related Resources
- Appelbaum PS. Clinical practice. Assessment of patients’ competence to consent to treatment. N Engl J Med. 2007; 357(18):1834-1840.
- Disability Rights California. Involuntary psychiatric treatment: California’s 72-hour hold and 14-day certification. www.disabilityrightsca.org/pubs/502401.pdf.
- Treatment Advocacy Center. Know the laws in your state. www.treatmentadvocacycenter.org/get-help/know-the-laws-in-your-state.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Acknowledgment
Dr. Mossman thanks David Schwallie, Esq, for his helpful insights about the topics discussed in this article.
1. Maslow AH. The psychology of science: a reconnaissance. New York NY: Harper & Row; 1966.
2. Mossman D, Schwartz AH, Elam ER. Risky business versus overt acts: what relevance do “actuarial” probabilistic risk assessments have for judicial decisions on involuntary psychiatric hospitalization? Houston Journal of Health Law & Policy. 2011;11:365-453.
3. Pinals DA, Mossman D. Evaluation for civil commitment. New York NY: Oxford University Press; 2012.
4. Ohio Revised Code § 5122.10.
5. Oregon Revised Statutes § 426.060.
6. California Welfare and Institutions Code § 5150.
7. Florida statutes § 394.463.
8. Cruze v National Psychiatric Services, Inc., 105 Cal. App. 4th 48 (2003).
9. Appelbaum PS, Grisso T. Assessing patients’ capacities to consent to treatment. N Engl J Med. 1988;319(25):1635-1638.
10. Schloendorff v Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914).
11. State v Clay, 43 Ohio Misc. 2d 5, 539 N.E.2d 1168 (1988).
1. Maslow AH. The psychology of science: a reconnaissance. New York NY: Harper & Row; 1966.
2. Mossman D, Schwartz AH, Elam ER. Risky business versus overt acts: what relevance do “actuarial” probabilistic risk assessments have for judicial decisions on involuntary psychiatric hospitalization? Houston Journal of Health Law & Policy. 2011;11:365-453.
3. Pinals DA, Mossman D. Evaluation for civil commitment. New York NY: Oxford University Press; 2012.
4. Ohio Revised Code § 5122.10.
5. Oregon Revised Statutes § 426.060.
6. California Welfare and Institutions Code § 5150.
7. Florida statutes § 394.463.
8. Cruze v National Psychiatric Services, Inc., 105 Cal. App. 4th 48 (2003).
9. Appelbaum PS, Grisso T. Assessing patients’ capacities to consent to treatment. N Engl J Med. 1988;319(25):1635-1638.
10. Schloendorff v Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914).
11. State v Clay, 43 Ohio Misc. 2d 5, 539 N.E.2d 1168 (1988).
When your patients disclose ‘insider information’
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
My patient is an officer in a large corporation. During therapy, he sometimes talks about how the company is doing. Would I risk malpractice liability if I used this information in managing my retirement investments?
Submitted by “Dr. B”
As most physicians find out within a short time of finishing medical school, doctors learn all kinds of useful things from their patients, including information that can help them manage personal matters outside their practices. But are you allowed to use nonpublic business information to make investment decisions?
As this article explains, legal rules and case law suggest that if psychiatrists or therapists act on potentially profitable business information incidentally mentioned by a patient during treatment, they may be subject to serious legal problems. To explain why, we’ll begin with a brief overview of business terms, including “securities” and “insider trading.” Then, to answer Dr. B’s question, we’ll look at what kind of legal consequences may result if mental health professionals are found guilty of “misappropriating” confidential business information.
Securities and security rules
Approximately one-half to two-thirds of Americans have money invested in the stock market—either through their retirement plans, by owning mutual funds, or by holding stocks of individual companies.1 Stocks are a type of financial instrument, or security, that companies issue to raise capital. Companies also raise money by issuing debt, typically in the form of bonds that pay interest to the holder, who in buying the bond has in effect loaned money to the company. Derivatives refer to securities that have prices that move up or down depending on the value of some underlying asset, such as stock prices.2
Stock prices fluctuate in reaction to general economic developments—changes in the unemployment rate, in the cost of basic materials (eg, oil or metals used in manufacturing), or in government policies that influence consumers’ purchasing decisions. But the key factor in determining the price of a company’s stock is investors’ beliefs about the company’s future earnings.3 Because investors usually have to make educated guesses about a company’s future, actually knowing something about a company before the general public finds out would give an investor a huge—but possibly unfair—advantage over other investors.
Making markets fair for all investors is the key purpose of U.S. laws on trading securities. In the 1930s, Congress created the Securities and Exchange Commission (SEC), a federal agency charged with ensuring that companies report the truth about their financial situation and that potential investors receive full, fair disclosure of available public information.4 Among the many ways that the SEC does this is by enforcing regulations concerning “insider trading.”
‘Insider trading’
Corporate “insiders” (eg, directors or employees) often know a lot about how their businesses are doing, and they buy or sell stock in their own companies. Such trading is legal if the insiders follow federal regulations about the timing of their investments and report them publicly.
Insider trading is illegal, however, if an individual acquires material, nonpublic information about a corporation through a relationship that involves trust and confidence and then uses that information when buying or selling a security. The SEC has prosecuted corporate employees who traded securities after learning of confidential developments in their companies, friends and family members of corporate officers who bought or sold securities after getting such information, and employees of law firms who misused information they received while providing services to corporations whose securities they traded.5
To be guilty of insider trading, a person must:
- buy or sell a security based on information that the person realizes is material and nonpublic,6 and
- have received the confidential information under circumstances that create a duty of trust or confidence.7
If both of these conditions are met, the person has wrongfully used confidential information with which he was entrusted, or “misappropriated” that information for personal gain.8
Physicians sometimes gain information that, if used for investment decisions, might lead to accusations of insider trading. Stock prices of pharmaceutical companies rise before public announcements of clinical drug trials, which suggests that information about those results leaks out in advance.9 Recently, physicians have gotten into well-publicized legal trouble by making investment decisions based on information they obtained while participating on an institution’s board10 and from learning early results of clinical drug trials.11
But would it be wrong for a psychiatrist to make a potentially profitable investment based on information obtained incidentally during a treatment encounter? After all, it’s not as though the psychiatrist would be a corporate insider or would have acquired the information improperly. Yet courts have ruled that a psychiatrist’s trading on such information might constitute malpractice and could be grounds for even more serious legal consequences.
Potential malpractice issues
The federal court ruling in United States v Willis12 describes how a psychiatrist learned during treatment that a patient’s husband was seeking to become CEO of a large bank. Realizing that this development might make the bank more valuable, the psychiatrist told his broker what he had learned and purchased 13,000 shares of the bank’s stock for himself and his children. When the husband’s efforts were announced publicly a few weeks later, the psychiatrist sold the shares at a big profit.
Quoting the vow of confidentiality contained in the Hippocratic Oath (Box),13 the court held that the psychiatrist had an obligation to the patient not to disclose information learned during her treatment without her permission. The court said the patient “had an economic interest in preserving the confidentiality of the information disclosed,” and the psychiatrist’s actions “might have jeopardized her husband’s advancement” and financial benefits the wife would have gained. Also, the psychiatrist’s “disclosures jeopardized the psychiatrist-patient relationship,” which might negate the wife’s financial investment in her care, require her to find a new psychiatrist, or require additional treatment to deal with how the psychiatrist’s behavior had affected her.12
And about whatever I may see or hear in treatment, or even without treatment, in the life of human beings—things that should not ever be blurted out outside—I will remain silent, holding such things to be unutterable.
Source: Reference 13
More legal consequences
Dr. Willis had legal problems more serious than just a malpractice lawsuit. He faced criminal prosecution for insider trading and mail fraud, and the court refused to dismiss these charges. The court reasoned that the psychiatrist received the information while in a position of trust and confidence, and breached that trust when he used that confidential information for his personal benefit—behavior that meets the legal definition of “misappropriation.” Because the psychiatrist received stock trade confirmations through the U.S. mail, he also could face federal charges of mail fraud. Ultimately, Dr. Willis pled guilty and paid $137,000 in fines and penalties. Although Dr. Willis retained his New Jersey medical license and avoided a prison sentence, the district court sentenced him to 5 years of probation and required that he perform 3,000 hours of community service.14,15
In a second case,16 a licensed clinical social worker made investments through a broker based on information learned during a therapy session about upcoming business developments (the 1994 Lockheed-Martin Marietta merger). The social worker pled guilty to insider trading, forfeited the illegal gains, and paid a large fine.
Related Resources
- Insider trading versus medical professionalism. Lancet. 2005;366(9488):781.
- Nijm LM. The online message board controversy. Physicians hit with claims of libel and insider trading by their employers. J Leg Med. 2000;21(2):223-239.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Jacobe D. In U.S., 54% have stock market investments, lowest since 1999. Gallup Economy. http://www.gallup.com/poll/147206/stock-market-investments-lowest-1999.aspx. Published April 20, 2011. Accessed October 9, 2012.
2. Roman S. Introduction to the mathematics of finance: from risk management to options pricing. New York NY: Springer-Verlag; 2004.
3. Elton EJ, Gruber MJ, Brown SJ, et al. Modern portfolio theory and investment analysis. Hoboken, NJ: John Wiley & Sons; 2010.
4. Keller E, Gehlmann GA. Introductory comment: a historical introduction to the Securities Act of 1933 and the Securities Exchange Act of 1934. Ohio State Law Journal. 1988;49:329-352.
5. U.S. Securities and Exchange Commission. Insider trading. http://www.sec.gov/answers/insider.htm. Published April 19, 2001. Accessed October 9, 2012.
6. 17 CFR 240. 10b5-1.
7. 17 CFR 240. 10b5-2.
8. United States v O’Hagan, 521 U.S. 642 (1997).
9. Rothenstein JM, Tomlinson G, Tannock IF, et al. Company stock prices before and after public announcements related to oncology drugs. J Natl Cancer Inst. 2011;103(20):1507-1512.
10. U.S. Securities and Exchange Commission. SEC charges five physicians with insider trading in stock of medical professional liability insurer. http://www.sec.gov/news/press/2012/2012-132.htm. Published July 10, 2012. Accessed October 9, 2012.
11. Two more are sentenced in insider trading cases. New York Times. December 21 2011:B9. http://www.nytimes.com/2011/12/22/business/in-crackdown-on-insider-trading-two-more-are-sentenced.html?_r=0. Accessed October 9, 2012.
12. United States v Willis, 737 F Supp 269 (SD NY 1990).
13. von Staden H. “In a pure and holy way”: personal and professional conduct in the Hippocratic Oath? J Hist Med Allied Sci. 1996;51(4):404-437.
14. 24 Sec Reg & L Rep (BNA) 7 (1992).
15. Psychiatrist is sentenced. New York Times. January 8 1992. http://www.nytimes.com/1992/01/08/business/credit-markets-psychiatrist-is-sentenced.html. Accessed November 5, 2012.
16. SEC v Cooper, Litigation Rel. No. 14754, 60 S.E.C. Docket 2430 (1995).
Douglas Mossman, MD
Dr. Mossman is Professor and Program Director, University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Douglas Mossman, MD
Dr. Mossman is Professor and Program Director, University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Douglas Mossman, MD
Dr. Mossman is Professor and Program Director, University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
My patient is an officer in a large corporation. During therapy, he sometimes talks about how the company is doing. Would I risk malpractice liability if I used this information in managing my retirement investments?
Submitted by “Dr. B”
As most physicians find out within a short time of finishing medical school, doctors learn all kinds of useful things from their patients, including information that can help them manage personal matters outside their practices. But are you allowed to use nonpublic business information to make investment decisions?
As this article explains, legal rules and case law suggest that if psychiatrists or therapists act on potentially profitable business information incidentally mentioned by a patient during treatment, they may be subject to serious legal problems. To explain why, we’ll begin with a brief overview of business terms, including “securities” and “insider trading.” Then, to answer Dr. B’s question, we’ll look at what kind of legal consequences may result if mental health professionals are found guilty of “misappropriating” confidential business information.
Securities and security rules
Approximately one-half to two-thirds of Americans have money invested in the stock market—either through their retirement plans, by owning mutual funds, or by holding stocks of individual companies.1 Stocks are a type of financial instrument, or security, that companies issue to raise capital. Companies also raise money by issuing debt, typically in the form of bonds that pay interest to the holder, who in buying the bond has in effect loaned money to the company. Derivatives refer to securities that have prices that move up or down depending on the value of some underlying asset, such as stock prices.2
Stock prices fluctuate in reaction to general economic developments—changes in the unemployment rate, in the cost of basic materials (eg, oil or metals used in manufacturing), or in government policies that influence consumers’ purchasing decisions. But the key factor in determining the price of a company’s stock is investors’ beliefs about the company’s future earnings.3 Because investors usually have to make educated guesses about a company’s future, actually knowing something about a company before the general public finds out would give an investor a huge—but possibly unfair—advantage over other investors.
Making markets fair for all investors is the key purpose of U.S. laws on trading securities. In the 1930s, Congress created the Securities and Exchange Commission (SEC), a federal agency charged with ensuring that companies report the truth about their financial situation and that potential investors receive full, fair disclosure of available public information.4 Among the many ways that the SEC does this is by enforcing regulations concerning “insider trading.”
‘Insider trading’
Corporate “insiders” (eg, directors or employees) often know a lot about how their businesses are doing, and they buy or sell stock in their own companies. Such trading is legal if the insiders follow federal regulations about the timing of their investments and report them publicly.
Insider trading is illegal, however, if an individual acquires material, nonpublic information about a corporation through a relationship that involves trust and confidence and then uses that information when buying or selling a security. The SEC has prosecuted corporate employees who traded securities after learning of confidential developments in their companies, friends and family members of corporate officers who bought or sold securities after getting such information, and employees of law firms who misused information they received while providing services to corporations whose securities they traded.5
To be guilty of insider trading, a person must:
- buy or sell a security based on information that the person realizes is material and nonpublic,6 and
- have received the confidential information under circumstances that create a duty of trust or confidence.7
If both of these conditions are met, the person has wrongfully used confidential information with which he was entrusted, or “misappropriated” that information for personal gain.8
Physicians sometimes gain information that, if used for investment decisions, might lead to accusations of insider trading. Stock prices of pharmaceutical companies rise before public announcements of clinical drug trials, which suggests that information about those results leaks out in advance.9 Recently, physicians have gotten into well-publicized legal trouble by making investment decisions based on information they obtained while participating on an institution’s board10 and from learning early results of clinical drug trials.11
But would it be wrong for a psychiatrist to make a potentially profitable investment based on information obtained incidentally during a treatment encounter? After all, it’s not as though the psychiatrist would be a corporate insider or would have acquired the information improperly. Yet courts have ruled that a psychiatrist’s trading on such information might constitute malpractice and could be grounds for even more serious legal consequences.
Potential malpractice issues
The federal court ruling in United States v Willis12 describes how a psychiatrist learned during treatment that a patient’s husband was seeking to become CEO of a large bank. Realizing that this development might make the bank more valuable, the psychiatrist told his broker what he had learned and purchased 13,000 shares of the bank’s stock for himself and his children. When the husband’s efforts were announced publicly a few weeks later, the psychiatrist sold the shares at a big profit.
Quoting the vow of confidentiality contained in the Hippocratic Oath (Box),13 the court held that the psychiatrist had an obligation to the patient not to disclose information learned during her treatment without her permission. The court said the patient “had an economic interest in preserving the confidentiality of the information disclosed,” and the psychiatrist’s actions “might have jeopardized her husband’s advancement” and financial benefits the wife would have gained. Also, the psychiatrist’s “disclosures jeopardized the psychiatrist-patient relationship,” which might negate the wife’s financial investment in her care, require her to find a new psychiatrist, or require additional treatment to deal with how the psychiatrist’s behavior had affected her.12
And about whatever I may see or hear in treatment, or even without treatment, in the life of human beings—things that should not ever be blurted out outside—I will remain silent, holding such things to be unutterable.
Source: Reference 13
More legal consequences
Dr. Willis had legal problems more serious than just a malpractice lawsuit. He faced criminal prosecution for insider trading and mail fraud, and the court refused to dismiss these charges. The court reasoned that the psychiatrist received the information while in a position of trust and confidence, and breached that trust when he used that confidential information for his personal benefit—behavior that meets the legal definition of “misappropriation.” Because the psychiatrist received stock trade confirmations through the U.S. mail, he also could face federal charges of mail fraud. Ultimately, Dr. Willis pled guilty and paid $137,000 in fines and penalties. Although Dr. Willis retained his New Jersey medical license and avoided a prison sentence, the district court sentenced him to 5 years of probation and required that he perform 3,000 hours of community service.14,15
In a second case,16 a licensed clinical social worker made investments through a broker based on information learned during a therapy session about upcoming business developments (the 1994 Lockheed-Martin Marietta merger). The social worker pled guilty to insider trading, forfeited the illegal gains, and paid a large fine.
Related Resources
- Insider trading versus medical professionalism. Lancet. 2005;366(9488):781.
- Nijm LM. The online message board controversy. Physicians hit with claims of libel and insider trading by their employers. J Leg Med. 2000;21(2):223-239.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
My patient is an officer in a large corporation. During therapy, he sometimes talks about how the company is doing. Would I risk malpractice liability if I used this information in managing my retirement investments?
Submitted by “Dr. B”
As most physicians find out within a short time of finishing medical school, doctors learn all kinds of useful things from their patients, including information that can help them manage personal matters outside their practices. But are you allowed to use nonpublic business information to make investment decisions?
As this article explains, legal rules and case law suggest that if psychiatrists or therapists act on potentially profitable business information incidentally mentioned by a patient during treatment, they may be subject to serious legal problems. To explain why, we’ll begin with a brief overview of business terms, including “securities” and “insider trading.” Then, to answer Dr. B’s question, we’ll look at what kind of legal consequences may result if mental health professionals are found guilty of “misappropriating” confidential business information.
Securities and security rules
Approximately one-half to two-thirds of Americans have money invested in the stock market—either through their retirement plans, by owning mutual funds, or by holding stocks of individual companies.1 Stocks are a type of financial instrument, or security, that companies issue to raise capital. Companies also raise money by issuing debt, typically in the form of bonds that pay interest to the holder, who in buying the bond has in effect loaned money to the company. Derivatives refer to securities that have prices that move up or down depending on the value of some underlying asset, such as stock prices.2
Stock prices fluctuate in reaction to general economic developments—changes in the unemployment rate, in the cost of basic materials (eg, oil or metals used in manufacturing), or in government policies that influence consumers’ purchasing decisions. But the key factor in determining the price of a company’s stock is investors’ beliefs about the company’s future earnings.3 Because investors usually have to make educated guesses about a company’s future, actually knowing something about a company before the general public finds out would give an investor a huge—but possibly unfair—advantage over other investors.
Making markets fair for all investors is the key purpose of U.S. laws on trading securities. In the 1930s, Congress created the Securities and Exchange Commission (SEC), a federal agency charged with ensuring that companies report the truth about their financial situation and that potential investors receive full, fair disclosure of available public information.4 Among the many ways that the SEC does this is by enforcing regulations concerning “insider trading.”
‘Insider trading’
Corporate “insiders” (eg, directors or employees) often know a lot about how their businesses are doing, and they buy or sell stock in their own companies. Such trading is legal if the insiders follow federal regulations about the timing of their investments and report them publicly.
Insider trading is illegal, however, if an individual acquires material, nonpublic information about a corporation through a relationship that involves trust and confidence and then uses that information when buying or selling a security. The SEC has prosecuted corporate employees who traded securities after learning of confidential developments in their companies, friends and family members of corporate officers who bought or sold securities after getting such information, and employees of law firms who misused information they received while providing services to corporations whose securities they traded.5
To be guilty of insider trading, a person must:
- buy or sell a security based on information that the person realizes is material and nonpublic,6 and
- have received the confidential information under circumstances that create a duty of trust or confidence.7
If both of these conditions are met, the person has wrongfully used confidential information with which he was entrusted, or “misappropriated” that information for personal gain.8
Physicians sometimes gain information that, if used for investment decisions, might lead to accusations of insider trading. Stock prices of pharmaceutical companies rise before public announcements of clinical drug trials, which suggests that information about those results leaks out in advance.9 Recently, physicians have gotten into well-publicized legal trouble by making investment decisions based on information they obtained while participating on an institution’s board10 and from learning early results of clinical drug trials.11
But would it be wrong for a psychiatrist to make a potentially profitable investment based on information obtained incidentally during a treatment encounter? After all, it’s not as though the psychiatrist would be a corporate insider or would have acquired the information improperly. Yet courts have ruled that a psychiatrist’s trading on such information might constitute malpractice and could be grounds for even more serious legal consequences.
Potential malpractice issues
The federal court ruling in United States v Willis12 describes how a psychiatrist learned during treatment that a patient’s husband was seeking to become CEO of a large bank. Realizing that this development might make the bank more valuable, the psychiatrist told his broker what he had learned and purchased 13,000 shares of the bank’s stock for himself and his children. When the husband’s efforts were announced publicly a few weeks later, the psychiatrist sold the shares at a big profit.
Quoting the vow of confidentiality contained in the Hippocratic Oath (Box),13 the court held that the psychiatrist had an obligation to the patient not to disclose information learned during her treatment without her permission. The court said the patient “had an economic interest in preserving the confidentiality of the information disclosed,” and the psychiatrist’s actions “might have jeopardized her husband’s advancement” and financial benefits the wife would have gained. Also, the psychiatrist’s “disclosures jeopardized the psychiatrist-patient relationship,” which might negate the wife’s financial investment in her care, require her to find a new psychiatrist, or require additional treatment to deal with how the psychiatrist’s behavior had affected her.12
And about whatever I may see or hear in treatment, or even without treatment, in the life of human beings—things that should not ever be blurted out outside—I will remain silent, holding such things to be unutterable.
Source: Reference 13
More legal consequences
Dr. Willis had legal problems more serious than just a malpractice lawsuit. He faced criminal prosecution for insider trading and mail fraud, and the court refused to dismiss these charges. The court reasoned that the psychiatrist received the information while in a position of trust and confidence, and breached that trust when he used that confidential information for his personal benefit—behavior that meets the legal definition of “misappropriation.” Because the psychiatrist received stock trade confirmations through the U.S. mail, he also could face federal charges of mail fraud. Ultimately, Dr. Willis pled guilty and paid $137,000 in fines and penalties. Although Dr. Willis retained his New Jersey medical license and avoided a prison sentence, the district court sentenced him to 5 years of probation and required that he perform 3,000 hours of community service.14,15
In a second case,16 a licensed clinical social worker made investments through a broker based on information learned during a therapy session about upcoming business developments (the 1994 Lockheed-Martin Marietta merger). The social worker pled guilty to insider trading, forfeited the illegal gains, and paid a large fine.
Related Resources
- Insider trading versus medical professionalism. Lancet. 2005;366(9488):781.
- Nijm LM. The online message board controversy. Physicians hit with claims of libel and insider trading by their employers. J Leg Med. 2000;21(2):223-239.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Jacobe D. In U.S., 54% have stock market investments, lowest since 1999. Gallup Economy. http://www.gallup.com/poll/147206/stock-market-investments-lowest-1999.aspx. Published April 20, 2011. Accessed October 9, 2012.
2. Roman S. Introduction to the mathematics of finance: from risk management to options pricing. New York NY: Springer-Verlag; 2004.
3. Elton EJ, Gruber MJ, Brown SJ, et al. Modern portfolio theory and investment analysis. Hoboken, NJ: John Wiley & Sons; 2010.
4. Keller E, Gehlmann GA. Introductory comment: a historical introduction to the Securities Act of 1933 and the Securities Exchange Act of 1934. Ohio State Law Journal. 1988;49:329-352.
5. U.S. Securities and Exchange Commission. Insider trading. http://www.sec.gov/answers/insider.htm. Published April 19, 2001. Accessed October 9, 2012.
6. 17 CFR 240. 10b5-1.
7. 17 CFR 240. 10b5-2.
8. United States v O’Hagan, 521 U.S. 642 (1997).
9. Rothenstein JM, Tomlinson G, Tannock IF, et al. Company stock prices before and after public announcements related to oncology drugs. J Natl Cancer Inst. 2011;103(20):1507-1512.
10. U.S. Securities and Exchange Commission. SEC charges five physicians with insider trading in stock of medical professional liability insurer. http://www.sec.gov/news/press/2012/2012-132.htm. Published July 10, 2012. Accessed October 9, 2012.
11. Two more are sentenced in insider trading cases. New York Times. December 21 2011:B9. http://www.nytimes.com/2011/12/22/business/in-crackdown-on-insider-trading-two-more-are-sentenced.html?_r=0. Accessed October 9, 2012.
12. United States v Willis, 737 F Supp 269 (SD NY 1990).
13. von Staden H. “In a pure and holy way”: personal and professional conduct in the Hippocratic Oath? J Hist Med Allied Sci. 1996;51(4):404-437.
14. 24 Sec Reg & L Rep (BNA) 7 (1992).
15. Psychiatrist is sentenced. New York Times. January 8 1992. http://www.nytimes.com/1992/01/08/business/credit-markets-psychiatrist-is-sentenced.html. Accessed November 5, 2012.
16. SEC v Cooper, Litigation Rel. No. 14754, 60 S.E.C. Docket 2430 (1995).
1. Jacobe D. In U.S., 54% have stock market investments, lowest since 1999. Gallup Economy. http://www.gallup.com/poll/147206/stock-market-investments-lowest-1999.aspx. Published April 20, 2011. Accessed October 9, 2012.
2. Roman S. Introduction to the mathematics of finance: from risk management to options pricing. New York NY: Springer-Verlag; 2004.
3. Elton EJ, Gruber MJ, Brown SJ, et al. Modern portfolio theory and investment analysis. Hoboken, NJ: John Wiley & Sons; 2010.
4. Keller E, Gehlmann GA. Introductory comment: a historical introduction to the Securities Act of 1933 and the Securities Exchange Act of 1934. Ohio State Law Journal. 1988;49:329-352.
5. U.S. Securities and Exchange Commission. Insider trading. http://www.sec.gov/answers/insider.htm. Published April 19, 2001. Accessed October 9, 2012.
6. 17 CFR 240. 10b5-1.
7. 17 CFR 240. 10b5-2.
8. United States v O’Hagan, 521 U.S. 642 (1997).
9. Rothenstein JM, Tomlinson G, Tannock IF, et al. Company stock prices before and after public announcements related to oncology drugs. J Natl Cancer Inst. 2011;103(20):1507-1512.
10. U.S. Securities and Exchange Commission. SEC charges five physicians with insider trading in stock of medical professional liability insurer. http://www.sec.gov/news/press/2012/2012-132.htm. Published July 10, 2012. Accessed October 9, 2012.
11. Two more are sentenced in insider trading cases. New York Times. December 21 2011:B9. http://www.nytimes.com/2011/12/22/business/in-crackdown-on-insider-trading-two-more-are-sentenced.html?_r=0. Accessed October 9, 2012.
12. United States v Willis, 737 F Supp 269 (SD NY 1990).
13. von Staden H. “In a pure and holy way”: personal and professional conduct in the Hippocratic Oath? J Hist Med Allied Sci. 1996;51(4):404-437.
14. 24 Sec Reg & L Rep (BNA) 7 (1992).
15. Psychiatrist is sentenced. New York Times. January 8 1992. http://www.nytimes.com/1992/01/08/business/credit-markets-psychiatrist-is-sentenced.html. Accessed November 5, 2012.
16. SEC v Cooper, Litigation Rel. No. 14754, 60 S.E.C. Docket 2430 (1995).
‘Curbside’ consults: Know your liability
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Dear Dr. Mossman:
Could providing a “curbside” consultation to a colleague leave me medico legally vulnerable if an adverse event leads to a malpractice lawsuit? If so, what can I do to address this risk?—Submitted by “Dr. W”
Medicine is a collaborative profession. Surgeons often combine skills to perform complex operations together, and specialists pool their expertise when they collectively manage patients with several medical problems. Doctors share their knowledge when they give lectures to medical audiences, write reports to referring physicians, or respond verbally to colleagues’ requests for information or advice.1
Doctors use the phrase “curbside consult” to refer (with humor and self-deprecation) to informal conversations with colleagues about patients’ medical management—advice-seeking that falls short of asking a colleague to make recommendations based on a formal, personal examination. Many physicians seek or provide curbside advice several times a month.2 Curbside consults transmit knowledge and cement professional bonds among physicians, making them “an integral part of our medical culture.”3
More than a dozen legal decisions mention curbside consultations. Judges think informal information-sharing improves medical practice and don’t want doctors to stop soliciting ideas or offering suggestions because they fear lawsuits.4,5 However, courts have found that, under certain conditions, giving advice can create liability for a bad outcome, even though the doctor never met the patient who was harmed.
In this article, we’ll look at:
- when such liability might occur, and
- what you can do to minimize it.
A doctor-patient relationship?
Legally, doctors are obligated to provide competent care for just 1 group of people: their patients. Therefore, to decide if plaintiffs could pursue malpractice claims in cases where doctors offered comments about patients they did not personally examine, courts have asked whether the circumstances, actions undertaken, or nature of information that was exchanged created a professional relationship.
Reynolds v Decatur Memorial Hospital4 describes an informal consultation that did not create a physician-patient relationship. In this case, a boy was admitted to a hospital after he had fallen. The treating pediatrician telephoned a neurosurgeon, who asked whether the boy’s neck was stiff, discussed diagnostic possibilities with the pediatrician, and suggested doing a lumbar puncture. The neurosurgeon offered to see the boy if requested, but he never did, and he did not bill for the telephone consultation. Guillain-Barré syndrome was first suspected, but a spinal cord injury was discovered after the boy—who developed quadriplegia—was transferred to another hospital.
In a subsequent lawsuit, the boy’s mother claimed her son’s paralysis resulted from negligence by the first hospital and its doctors, but the trial court dismissed the case against the neurosurgeon. Affirming the trial court’s ruling, an Illinois appeals court explained that the neurosurgeon had not been asked to provide medical services, conduct tests, or interpret test results. “A doctor who gives an informal opinion at the request of a treating physician does not owe a duty of care to the patient whose case was discussed,” the Reynolds court said.
Campbell v Haber6 describes circumstances that differed slightly from those described in the Reynolds decision but appeared to create a doctor-patient relationship. Campbell concerned a patient who came to an emergency room (ER) complaining of chest pain. The ER physician’s findings indicated possible heart muscle damage, so he telephoned a cardiologist (whom the ER doctor believed was “on call”) and described the patient’s symptoms and test results. The cardiologist thought the test results were not consistent with a cardiac event. The ER physician told the patient and his wife about the cardiologist’s opinion and, relying on what the cardiologist said, discharged the patient. Shortly after, the patient had a heart attack.
The patient sued not just the ER physician, but the cardiologist, who sought dismissal from the suit because he never saw the patient, had no treatment relationship with him, and never billed for services. However, the trial judge ruled that the patient could sue the cardiologist and the appellate court agreed, saying that a jury had to decide whether the cardiologist had incurred a doctor-patient relationship and might be liable. “An implied physician-patient relationship may arise when a physician gives advice to a patient,” the appeals court said, “even if that advice is communicated through another health care professional.”
Telling the difference
So what differentiates a no-liability curbside consult from a medical discussion that creates a doctor-patient duty and potential for liability for adverse results?
You create a physician-patient relationship when you assume responsibility to diagnose or treat someone.7 Although typically this requires an in-person encounter with a patient, it can happen indirectly—electronically (through e-mail), by telephone, or through a family member or another professional. But if you do nothing that implies consent to act for the patient’s benefit, you should have no actual malpractice liability if something goes wrong.3,8 As a Kansas Supreme Court decision explains, you “cannot be liable for medical malpractice” if you “merely consult with a treating physician and [do] nothing more.”5
Several legal cases discuss doctors’ efforts to extricate themselves from lawsuits arising from clinical encounters that the doctors mistakenly thought were just curbside consults. Table 18-12 lists situations in which talking about patients goes beyond just being “curbsided.”
Table 1
When it’s not a ‘curbside consultation’
| Situation | Why it’s not a curbside consultation |
|---|---|
| On call | If you are “on call” for an emergency room, get called about a patient with an emergency condition, and discuss the patient’s symptoms, possible diagnosis, or treatment, you have a relationship with the patient that entails a duty of care8,9 |
| Covering | If you have agreed to “cover” patients for a colleague, you have assumed a duty to properly care for the colleague’s patients: they’re your patients during the colleague’s absence. Getting asked questions about managing those patients is not a curbside consultation, even if you’ve never met or spoken to the patient10,11 |
| Supervising | Physician assistants, residents in training, and nurse practitioners do not practice independently of their supervising physicians. If you’re a supervisor and get a call about managing a patient, you may bear vicarious liability for adverse results12 |
| Specifics and reliance | If responding to the informal consult requires you to give specific advice that the consulting colleague will rely on to make a diagnosis or select treatment, you are participating in the patient’s care11 |
How to respond
Should you decline to provide curbside consultations to keep yourself out of lawsuits? Some authors think so, pointing out that informally transmitted clinical data may be faulty, which means you may give bad advice based on incomplete information or a verbal misunderstanding.13-16 These authors suggest that if you’re curbsided you should ask to see the patient for a formal consultation, decline to give informal advice, or provide a response that lacks specifics.
Other authors feel that these approaches are needlessly cautious and would harm patients by impeding doctors’ ability to help and learn from each other.3,17 These authors think the risk of incurring liability from a curbside consult is low. Also, getting advice from a colleague is a valuable risk management strategy; it helps you make sure you’re on the right track, and it shows you are a thoughtful clinician whose patients benefit from your own and your colleagues’ medical expertise.
Even if you’re comfortable soliciting and providing curbside advice, sometimes circumstances make it wise to follow-up an informal initial inquiry with a formal consultation. Table 23,17 lists examples of when you should follow-up with a formal consultation.
Table 2
Considerations that favor formal consultation
| Complicated diagnostic situations |
| The consulted or requesting physician feels that giving good advice requires a personal examination |
| Advice is based on a detailed discussion and is specific to a patient’s situation |
| The patient requested the consultation |
| The consultant will make a report for the patient’s record |
| The consult bills for the consultation |
Documentation
Experts disagree about whether the requesting or receiving physician should document a curbside consultation, and if so, how. On one hand, making a notation in a patient’s record documents the treating doctor’s diligence and may provide a measure of liability protection in a malpractice action. Doing this, however, exposes the identity of the consultant, who might be named among the defendants in a lawsuit.
One commonly recommended strategy is to request the consultant’s permission before identifying him or her in the record,13,16,17 a position that is defensible on grounds of courtesy alone. But omitting a consultant’s name from record does not guarantee that the consultant’s involvement won’t be discovered in the course of litigation.3 For example, treating doctors who get sued often are asked during their depositions about whether they talked with anyone about the case, and they have to answer honestly.
If a consulted doctor makes written notes, it might suggest that the consultation was more than the sort of informal information-sharing implied by the term “curbside.” However, in the unlikely event that a lawsuit arose and included the consultant as a defendant, documentation of advice given would help the consultant recall and defend what was said.
Related Resources
- Grant-Kels JM, Kels BD. The curbside consultation: legal, moral, and ethical considerations. J Am Acad Dermatol. 2012;66(5):827-829.
- Kreichelt R, Hilbert ML, Shinn D. Minimizing the legal risk with ‘curbside’ consultation. J Healthc Risk Manag. 2008;28(1):27-29.
- Atkinson L. Curbside consults: what is your liability risk? Iowa Med. 2003;93(4):15.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Perley CM. Physician use of the curbside consultation to address information needs: report on a collective case study. J Med Libr Assoc. 2006;94(2):137-144.
2. Kuo D, Gifford DR, Stein MD. Curbside consultation practices and attitudes among primary care physicians and medical subspecialists. JAMA. 1998;280(10):905-909.
3. Cotton VR. Legal risks of “curbside” consults. Am J Cardiol. 2010;106(1):135-138.
4. Reynolds v Decatur Memorial Hospital, 277 Ill App 3d 80 (Ill App Ct 4th Dist 1996).
5. Irvin v Smith, 272 Kan 112 (Kan 2001).
6. Campbell v Haber, 274 A.D.2d 946 (NY App Div 4th Dep’t 2000).
7. Sterling v Johns Hopkins Hospital, 802 A.2d 440 (Md Ct Spec App 2002), cert den, 808 A.2d 808 (Md 2002).
8. Emergency Medical Treatment and Active Labor Act, 42 USC § 1395DD.
9. Lownsbury v VanBuren, 94 Ohio St 3d 231, 762 NE 2d 354 (2002).
10. Blazo v McLaren Regional Medical Center, 2002 Mich App LEXIS 752 (Mich Ct App 2002).
11. Kelley v Middle Tennessee Emergency Physicians, PC, 133 SW3d 587 (Tenn 2004).
12. Hammonds v Jewish Hospital, 899 SW2d 527 (Mo Ct App 1995).
13. MAG Mutual Insurance Company, Inc. Curbing the curbside consult—a risk management perspective. J Med Assoc Ga. 2008;97(1):50.-
14. Burns CD. Death of the curbside consult? J Ky Med Assoc. 2006;104(1):27.-
15. Hendel T. Informal consultations: do new risks exist with this age-old tradition? J Med Pract Manage. 2002;17(6):308-311.
16. Manian FA, Janssen DA. Curbside consultations. A closer look at a common practice. JAMA. 1996;275(2):145-147.
17. Curbside consultations. Psychiatry (Edgmont). 2010;7(5):51-53.
Douglas Mossman, MD
Dr. Mossman is Administrative Director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry, and Training Director, University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Douglas Mossman, MD
Dr. Mossman is Administrative Director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry, and Training Director, University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Douglas Mossman, MD
Dr. Mossman is Administrative Director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry, and Training Director, University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
Could providing a “curbside” consultation to a colleague leave me medico legally vulnerable if an adverse event leads to a malpractice lawsuit? If so, what can I do to address this risk?—Submitted by “Dr. W”
Medicine is a collaborative profession. Surgeons often combine skills to perform complex operations together, and specialists pool their expertise when they collectively manage patients with several medical problems. Doctors share their knowledge when they give lectures to medical audiences, write reports to referring physicians, or respond verbally to colleagues’ requests for information or advice.1
Doctors use the phrase “curbside consult” to refer (with humor and self-deprecation) to informal conversations with colleagues about patients’ medical management—advice-seeking that falls short of asking a colleague to make recommendations based on a formal, personal examination. Many physicians seek or provide curbside advice several times a month.2 Curbside consults transmit knowledge and cement professional bonds among physicians, making them “an integral part of our medical culture.”3
More than a dozen legal decisions mention curbside consultations. Judges think informal information-sharing improves medical practice and don’t want doctors to stop soliciting ideas or offering suggestions because they fear lawsuits.4,5 However, courts have found that, under certain conditions, giving advice can create liability for a bad outcome, even though the doctor never met the patient who was harmed.
In this article, we’ll look at:
- when such liability might occur, and
- what you can do to minimize it.
A doctor-patient relationship?
Legally, doctors are obligated to provide competent care for just 1 group of people: their patients. Therefore, to decide if plaintiffs could pursue malpractice claims in cases where doctors offered comments about patients they did not personally examine, courts have asked whether the circumstances, actions undertaken, or nature of information that was exchanged created a professional relationship.
Reynolds v Decatur Memorial Hospital4 describes an informal consultation that did not create a physician-patient relationship. In this case, a boy was admitted to a hospital after he had fallen. The treating pediatrician telephoned a neurosurgeon, who asked whether the boy’s neck was stiff, discussed diagnostic possibilities with the pediatrician, and suggested doing a lumbar puncture. The neurosurgeon offered to see the boy if requested, but he never did, and he did not bill for the telephone consultation. Guillain-Barré syndrome was first suspected, but a spinal cord injury was discovered after the boy—who developed quadriplegia—was transferred to another hospital.
In a subsequent lawsuit, the boy’s mother claimed her son’s paralysis resulted from negligence by the first hospital and its doctors, but the trial court dismissed the case against the neurosurgeon. Affirming the trial court’s ruling, an Illinois appeals court explained that the neurosurgeon had not been asked to provide medical services, conduct tests, or interpret test results. “A doctor who gives an informal opinion at the request of a treating physician does not owe a duty of care to the patient whose case was discussed,” the Reynolds court said.
Campbell v Haber6 describes circumstances that differed slightly from those described in the Reynolds decision but appeared to create a doctor-patient relationship. Campbell concerned a patient who came to an emergency room (ER) complaining of chest pain. The ER physician’s findings indicated possible heart muscle damage, so he telephoned a cardiologist (whom the ER doctor believed was “on call”) and described the patient’s symptoms and test results. The cardiologist thought the test results were not consistent with a cardiac event. The ER physician told the patient and his wife about the cardiologist’s opinion and, relying on what the cardiologist said, discharged the patient. Shortly after, the patient had a heart attack.
The patient sued not just the ER physician, but the cardiologist, who sought dismissal from the suit because he never saw the patient, had no treatment relationship with him, and never billed for services. However, the trial judge ruled that the patient could sue the cardiologist and the appellate court agreed, saying that a jury had to decide whether the cardiologist had incurred a doctor-patient relationship and might be liable. “An implied physician-patient relationship may arise when a physician gives advice to a patient,” the appeals court said, “even if that advice is communicated through another health care professional.”
Telling the difference
So what differentiates a no-liability curbside consult from a medical discussion that creates a doctor-patient duty and potential for liability for adverse results?
You create a physician-patient relationship when you assume responsibility to diagnose or treat someone.7 Although typically this requires an in-person encounter with a patient, it can happen indirectly—electronically (through e-mail), by telephone, or through a family member or another professional. But if you do nothing that implies consent to act for the patient’s benefit, you should have no actual malpractice liability if something goes wrong.3,8 As a Kansas Supreme Court decision explains, you “cannot be liable for medical malpractice” if you “merely consult with a treating physician and [do] nothing more.”5
Several legal cases discuss doctors’ efforts to extricate themselves from lawsuits arising from clinical encounters that the doctors mistakenly thought were just curbside consults. Table 18-12 lists situations in which talking about patients goes beyond just being “curbsided.”
Table 1
When it’s not a ‘curbside consultation’
| Situation | Why it’s not a curbside consultation |
|---|---|
| On call | If you are “on call” for an emergency room, get called about a patient with an emergency condition, and discuss the patient’s symptoms, possible diagnosis, or treatment, you have a relationship with the patient that entails a duty of care8,9 |
| Covering | If you have agreed to “cover” patients for a colleague, you have assumed a duty to properly care for the colleague’s patients: they’re your patients during the colleague’s absence. Getting asked questions about managing those patients is not a curbside consultation, even if you’ve never met or spoken to the patient10,11 |
| Supervising | Physician assistants, residents in training, and nurse practitioners do not practice independently of their supervising physicians. If you’re a supervisor and get a call about managing a patient, you may bear vicarious liability for adverse results12 |
| Specifics and reliance | If responding to the informal consult requires you to give specific advice that the consulting colleague will rely on to make a diagnosis or select treatment, you are participating in the patient’s care11 |
How to respond
Should you decline to provide curbside consultations to keep yourself out of lawsuits? Some authors think so, pointing out that informally transmitted clinical data may be faulty, which means you may give bad advice based on incomplete information or a verbal misunderstanding.13-16 These authors suggest that if you’re curbsided you should ask to see the patient for a formal consultation, decline to give informal advice, or provide a response that lacks specifics.
Other authors feel that these approaches are needlessly cautious and would harm patients by impeding doctors’ ability to help and learn from each other.3,17 These authors think the risk of incurring liability from a curbside consult is low. Also, getting advice from a colleague is a valuable risk management strategy; it helps you make sure you’re on the right track, and it shows you are a thoughtful clinician whose patients benefit from your own and your colleagues’ medical expertise.
Even if you’re comfortable soliciting and providing curbside advice, sometimes circumstances make it wise to follow-up an informal initial inquiry with a formal consultation. Table 23,17 lists examples of when you should follow-up with a formal consultation.
Table 2
Considerations that favor formal consultation
| Complicated diagnostic situations |
| The consulted or requesting physician feels that giving good advice requires a personal examination |
| Advice is based on a detailed discussion and is specific to a patient’s situation |
| The patient requested the consultation |
| The consultant will make a report for the patient’s record |
| The consult bills for the consultation |
Documentation
Experts disagree about whether the requesting or receiving physician should document a curbside consultation, and if so, how. On one hand, making a notation in a patient’s record documents the treating doctor’s diligence and may provide a measure of liability protection in a malpractice action. Doing this, however, exposes the identity of the consultant, who might be named among the defendants in a lawsuit.
One commonly recommended strategy is to request the consultant’s permission before identifying him or her in the record,13,16,17 a position that is defensible on grounds of courtesy alone. But omitting a consultant’s name from record does not guarantee that the consultant’s involvement won’t be discovered in the course of litigation.3 For example, treating doctors who get sued often are asked during their depositions about whether they talked with anyone about the case, and they have to answer honestly.
If a consulted doctor makes written notes, it might suggest that the consultation was more than the sort of informal information-sharing implied by the term “curbside.” However, in the unlikely event that a lawsuit arose and included the consultant as a defendant, documentation of advice given would help the consultant recall and defend what was said.
Related Resources
- Grant-Kels JM, Kels BD. The curbside consultation: legal, moral, and ethical considerations. J Am Acad Dermatol. 2012;66(5):827-829.
- Kreichelt R, Hilbert ML, Shinn D. Minimizing the legal risk with ‘curbside’ consultation. J Healthc Risk Manag. 2008;28(1):27-29.
- Atkinson L. Curbside consults: what is your liability risk? Iowa Med. 2003;93(4):15.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
Could providing a “curbside” consultation to a colleague leave me medico legally vulnerable if an adverse event leads to a malpractice lawsuit? If so, what can I do to address this risk?—Submitted by “Dr. W”
Medicine is a collaborative profession. Surgeons often combine skills to perform complex operations together, and specialists pool their expertise when they collectively manage patients with several medical problems. Doctors share their knowledge when they give lectures to medical audiences, write reports to referring physicians, or respond verbally to colleagues’ requests for information or advice.1
Doctors use the phrase “curbside consult” to refer (with humor and self-deprecation) to informal conversations with colleagues about patients’ medical management—advice-seeking that falls short of asking a colleague to make recommendations based on a formal, personal examination. Many physicians seek or provide curbside advice several times a month.2 Curbside consults transmit knowledge and cement professional bonds among physicians, making them “an integral part of our medical culture.”3
More than a dozen legal decisions mention curbside consultations. Judges think informal information-sharing improves medical practice and don’t want doctors to stop soliciting ideas or offering suggestions because they fear lawsuits.4,5 However, courts have found that, under certain conditions, giving advice can create liability for a bad outcome, even though the doctor never met the patient who was harmed.
In this article, we’ll look at:
- when such liability might occur, and
- what you can do to minimize it.
A doctor-patient relationship?
Legally, doctors are obligated to provide competent care for just 1 group of people: their patients. Therefore, to decide if plaintiffs could pursue malpractice claims in cases where doctors offered comments about patients they did not personally examine, courts have asked whether the circumstances, actions undertaken, or nature of information that was exchanged created a professional relationship.
Reynolds v Decatur Memorial Hospital4 describes an informal consultation that did not create a physician-patient relationship. In this case, a boy was admitted to a hospital after he had fallen. The treating pediatrician telephoned a neurosurgeon, who asked whether the boy’s neck was stiff, discussed diagnostic possibilities with the pediatrician, and suggested doing a lumbar puncture. The neurosurgeon offered to see the boy if requested, but he never did, and he did not bill for the telephone consultation. Guillain-Barré syndrome was first suspected, but a spinal cord injury was discovered after the boy—who developed quadriplegia—was transferred to another hospital.
In a subsequent lawsuit, the boy’s mother claimed her son’s paralysis resulted from negligence by the first hospital and its doctors, but the trial court dismissed the case against the neurosurgeon. Affirming the trial court’s ruling, an Illinois appeals court explained that the neurosurgeon had not been asked to provide medical services, conduct tests, or interpret test results. “A doctor who gives an informal opinion at the request of a treating physician does not owe a duty of care to the patient whose case was discussed,” the Reynolds court said.
Campbell v Haber6 describes circumstances that differed slightly from those described in the Reynolds decision but appeared to create a doctor-patient relationship. Campbell concerned a patient who came to an emergency room (ER) complaining of chest pain. The ER physician’s findings indicated possible heart muscle damage, so he telephoned a cardiologist (whom the ER doctor believed was “on call”) and described the patient’s symptoms and test results. The cardiologist thought the test results were not consistent with a cardiac event. The ER physician told the patient and his wife about the cardiologist’s opinion and, relying on what the cardiologist said, discharged the patient. Shortly after, the patient had a heart attack.
The patient sued not just the ER physician, but the cardiologist, who sought dismissal from the suit because he never saw the patient, had no treatment relationship with him, and never billed for services. However, the trial judge ruled that the patient could sue the cardiologist and the appellate court agreed, saying that a jury had to decide whether the cardiologist had incurred a doctor-patient relationship and might be liable. “An implied physician-patient relationship may arise when a physician gives advice to a patient,” the appeals court said, “even if that advice is communicated through another health care professional.”
Telling the difference
So what differentiates a no-liability curbside consult from a medical discussion that creates a doctor-patient duty and potential for liability for adverse results?
You create a physician-patient relationship when you assume responsibility to diagnose or treat someone.7 Although typically this requires an in-person encounter with a patient, it can happen indirectly—electronically (through e-mail), by telephone, or through a family member or another professional. But if you do nothing that implies consent to act for the patient’s benefit, you should have no actual malpractice liability if something goes wrong.3,8 As a Kansas Supreme Court decision explains, you “cannot be liable for medical malpractice” if you “merely consult with a treating physician and [do] nothing more.”5
Several legal cases discuss doctors’ efforts to extricate themselves from lawsuits arising from clinical encounters that the doctors mistakenly thought were just curbside consults. Table 18-12 lists situations in which talking about patients goes beyond just being “curbsided.”
Table 1
When it’s not a ‘curbside consultation’
| Situation | Why it’s not a curbside consultation |
|---|---|
| On call | If you are “on call” for an emergency room, get called about a patient with an emergency condition, and discuss the patient’s symptoms, possible diagnosis, or treatment, you have a relationship with the patient that entails a duty of care8,9 |
| Covering | If you have agreed to “cover” patients for a colleague, you have assumed a duty to properly care for the colleague’s patients: they’re your patients during the colleague’s absence. Getting asked questions about managing those patients is not a curbside consultation, even if you’ve never met or spoken to the patient10,11 |
| Supervising | Physician assistants, residents in training, and nurse practitioners do not practice independently of their supervising physicians. If you’re a supervisor and get a call about managing a patient, you may bear vicarious liability for adverse results12 |
| Specifics and reliance | If responding to the informal consult requires you to give specific advice that the consulting colleague will rely on to make a diagnosis or select treatment, you are participating in the patient’s care11 |
How to respond
Should you decline to provide curbside consultations to keep yourself out of lawsuits? Some authors think so, pointing out that informally transmitted clinical data may be faulty, which means you may give bad advice based on incomplete information or a verbal misunderstanding.13-16 These authors suggest that if you’re curbsided you should ask to see the patient for a formal consultation, decline to give informal advice, or provide a response that lacks specifics.
Other authors feel that these approaches are needlessly cautious and would harm patients by impeding doctors’ ability to help and learn from each other.3,17 These authors think the risk of incurring liability from a curbside consult is low. Also, getting advice from a colleague is a valuable risk management strategy; it helps you make sure you’re on the right track, and it shows you are a thoughtful clinician whose patients benefit from your own and your colleagues’ medical expertise.
Even if you’re comfortable soliciting and providing curbside advice, sometimes circumstances make it wise to follow-up an informal initial inquiry with a formal consultation. Table 23,17 lists examples of when you should follow-up with a formal consultation.
Table 2
Considerations that favor formal consultation
| Complicated diagnostic situations |
| The consulted or requesting physician feels that giving good advice requires a personal examination |
| Advice is based on a detailed discussion and is specific to a patient’s situation |
| The patient requested the consultation |
| The consultant will make a report for the patient’s record |
| The consult bills for the consultation |
Documentation
Experts disagree about whether the requesting or receiving physician should document a curbside consultation, and if so, how. On one hand, making a notation in a patient’s record documents the treating doctor’s diligence and may provide a measure of liability protection in a malpractice action. Doing this, however, exposes the identity of the consultant, who might be named among the defendants in a lawsuit.
One commonly recommended strategy is to request the consultant’s permission before identifying him or her in the record,13,16,17 a position that is defensible on grounds of courtesy alone. But omitting a consultant’s name from record does not guarantee that the consultant’s involvement won’t be discovered in the course of litigation.3 For example, treating doctors who get sued often are asked during their depositions about whether they talked with anyone about the case, and they have to answer honestly.
If a consulted doctor makes written notes, it might suggest that the consultation was more than the sort of informal information-sharing implied by the term “curbside.” However, in the unlikely event that a lawsuit arose and included the consultant as a defendant, documentation of advice given would help the consultant recall and defend what was said.
Related Resources
- Grant-Kels JM, Kels BD. The curbside consultation: legal, moral, and ethical considerations. J Am Acad Dermatol. 2012;66(5):827-829.
- Kreichelt R, Hilbert ML, Shinn D. Minimizing the legal risk with ‘curbside’ consultation. J Healthc Risk Manag. 2008;28(1):27-29.
- Atkinson L. Curbside consults: what is your liability risk? Iowa Med. 2003;93(4):15.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Perley CM. Physician use of the curbside consultation to address information needs: report on a collective case study. J Med Libr Assoc. 2006;94(2):137-144.
2. Kuo D, Gifford DR, Stein MD. Curbside consultation practices and attitudes among primary care physicians and medical subspecialists. JAMA. 1998;280(10):905-909.
3. Cotton VR. Legal risks of “curbside” consults. Am J Cardiol. 2010;106(1):135-138.
4. Reynolds v Decatur Memorial Hospital, 277 Ill App 3d 80 (Ill App Ct 4th Dist 1996).
5. Irvin v Smith, 272 Kan 112 (Kan 2001).
6. Campbell v Haber, 274 A.D.2d 946 (NY App Div 4th Dep’t 2000).
7. Sterling v Johns Hopkins Hospital, 802 A.2d 440 (Md Ct Spec App 2002), cert den, 808 A.2d 808 (Md 2002).
8. Emergency Medical Treatment and Active Labor Act, 42 USC § 1395DD.
9. Lownsbury v VanBuren, 94 Ohio St 3d 231, 762 NE 2d 354 (2002).
10. Blazo v McLaren Regional Medical Center, 2002 Mich App LEXIS 752 (Mich Ct App 2002).
11. Kelley v Middle Tennessee Emergency Physicians, PC, 133 SW3d 587 (Tenn 2004).
12. Hammonds v Jewish Hospital, 899 SW2d 527 (Mo Ct App 1995).
13. MAG Mutual Insurance Company, Inc. Curbing the curbside consult—a risk management perspective. J Med Assoc Ga. 2008;97(1):50.-
14. Burns CD. Death of the curbside consult? J Ky Med Assoc. 2006;104(1):27.-
15. Hendel T. Informal consultations: do new risks exist with this age-old tradition? J Med Pract Manage. 2002;17(6):308-311.
16. Manian FA, Janssen DA. Curbside consultations. A closer look at a common practice. JAMA. 1996;275(2):145-147.
17. Curbside consultations. Psychiatry (Edgmont). 2010;7(5):51-53.
1. Perley CM. Physician use of the curbside consultation to address information needs: report on a collective case study. J Med Libr Assoc. 2006;94(2):137-144.
2. Kuo D, Gifford DR, Stein MD. Curbside consultation practices and attitudes among primary care physicians and medical subspecialists. JAMA. 1998;280(10):905-909.
3. Cotton VR. Legal risks of “curbside” consults. Am J Cardiol. 2010;106(1):135-138.
4. Reynolds v Decatur Memorial Hospital, 277 Ill App 3d 80 (Ill App Ct 4th Dist 1996).
5. Irvin v Smith, 272 Kan 112 (Kan 2001).
6. Campbell v Haber, 274 A.D.2d 946 (NY App Div 4th Dep’t 2000).
7. Sterling v Johns Hopkins Hospital, 802 A.2d 440 (Md Ct Spec App 2002), cert den, 808 A.2d 808 (Md 2002).
8. Emergency Medical Treatment and Active Labor Act, 42 USC § 1395DD.
9. Lownsbury v VanBuren, 94 Ohio St 3d 231, 762 NE 2d 354 (2002).
10. Blazo v McLaren Regional Medical Center, 2002 Mich App LEXIS 752 (Mich Ct App 2002).
11. Kelley v Middle Tennessee Emergency Physicians, PC, 133 SW3d 587 (Tenn 2004).
12. Hammonds v Jewish Hospital, 899 SW2d 527 (Mo Ct App 1995).
13. MAG Mutual Insurance Company, Inc. Curbing the curbside consult—a risk management perspective. J Med Assoc Ga. 2008;97(1):50.-
14. Burns CD. Death of the curbside consult? J Ky Med Assoc. 2006;104(1):27.-
15. Hendel T. Informal consultations: do new risks exist with this age-old tradition? J Med Pract Manage. 2002;17(6):308-311.
16. Manian FA, Janssen DA. Curbside consultations. A closer look at a common practice. JAMA. 1996;275(2):145-147.
17. Curbside consultations. Psychiatry (Edgmont). 2010;7(5):51-53.
Facebook: Social networking meets professional duty
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
A patient has invited me to “friend” her on Facebook. I’m uncomfortable with this request, but I don’t want her to feel rejected. How should I respond?—Submitted by “Dr. V”
Among the many cultural developments that characterize the Internet era, few have had the impact of the social networking Web site Facebook. Because of Facebook, “friend” has become a transitive verb, and “like,” “wall,” “poke,” and “post” have acquired meanings that reflect new modes of communication and interpersonal connection. As of early 2012, Facebook had >800 million users.1 If you’re like most medical students, residents, and junior faculty members,2 you have a Facebook page.
The ubiquity of Facebook has added new dimensions to defining, teaching, and modeling professionalism in medicine.3,4 Facebook can be used to rapidly disseminate medical information through status updates and medical support groups.5 Professionals can create profiles, post their curricula vitae, and “like” professional journals—including Current Psychiatry.
But social media such as Facebook also present clinicians with new ethical and professional challenges.6 If you use Facebook personally or professionally, you need to decide how you will separate your personal and professional identities in a forum that rapidly distributes information across the Web for all to see. Sound, responsible decisions about your online profile can let you and your employing institutions prosper from the many benefits that accrue to savvy Facebook users—while avoiding potential embarrassments and liability.
Before you create a profile or “post” your next “status update” on your “wall,” you should:
- understand potential boundary violations
- know how to activate your security and privacy settings
- remember that you represent not only yourself but your profession.
Boundary crossings, violations
Feelings of online closeness and informality make receiving “friend” requests from patients far from uncommon.7 The Internet lets individuals quickly check out people and learn personal information (eg, where they live and what their homes cost) that was hard to discover 15 years ago. But the information on a person’s Facebook page usually is much more personal than what Internet searches reveal—and often much less dignified.
A quick Internet search of the phrase “professional boundaries” will show that concern about maintaining proper relationships between professionals and service recipients is not restricted to psychiatry. Yet the special, intensely personal nature of mental health care—especially psychotherapy—traditionally has made psychiatrists place special constraints on their relationships with patients.
Because psychiatrists recognize that even brief comments about ourselves can affect how patients feel, we refrain from forms of self-disclosure that non-psychiatric colleagues view as innocent.8 Psychiatrists also do not freely socialize with patients or provide care to persons we know well. We avoid blurring therapeutic and other types of relationships because such “boundary crossings” can cause problems and because “crossings” can be precursors to serious “boundary violations”—eg, sexual contact with patients.
Most doctors decline “friend” requests from patients because friending them could adversely affect the treatment relationship and could lead to new relationships that might interfere with patient care.9 The American Medical Association’s social media guidelines do not forbid friending patients, but physicians are advised to “consider separating personal and professional content online” and “maintain appropriate boundaries” with patients.10 The British Medical Association simply tells physicians to “politely refuse” patients’ friend requests.11
Privacy problems
Psychiatrists who friend patients need to be aware of potential privacy breeches among Facebook users. Individuals whose presence among a psychiatrist’s friends becomes known (eg, via a wall post) are revealing their connection to the psychiatrist, and other friends may surmise that an individual is a patient.
Also, Facebook’s “find friends” feature ostensibly lets Facebook locate individuals who are common to pairs of people and who can then be suggested as potential friends to others, but “find friends” imports members’ entire e-mail address books. If doctors who are on Facebook have patients in their webmail address books and have allowed “find friends,” then Facebook will import e-mail addresses, potentially disclosing associations between patients and their doctors.12
Facebook has tools that let users block their profiles from public view, but these privacy settings can be difficult to access and understand. Although social networking among medical trainees and new graduates is common in the culture of emerging professionals, most Facebook users allow anyone to view their profile—the default privacy setting.2,13 Even if you don’t friend patients, failing to privatize your account leaves your Facebook information readily available to the public, including your patients.
Professionalism in cyberspace
Under some circumstances, medical advice given in casual, outside-the-office contexts can establish a doctor-patient relationship, with all its accompanying obligations and liability risks. This is true of Facebook communications. If you communicate medical information or advice to someone in a form specific enough to be relied upon, you may be establishing a doctor-patient relationship. If harm comes to a person who relied upon your information, a negligence lawsuit could result—even though you never saw or spoke to the “patient.”14
Medical training programs have found that medical students and residents have posted work-related comments on Facebook that directly referenced specific patient situations or other patient care matters. Such actions can breach the Health Insurance Portability and Accountability Act of 1996 and can jeopardize careers.15 Medical professionals also have posted uncouth, inappropriate, and embarrassing content—profanity, frankly discriminatory language, tales of intoxication, and sexually explicit information. In a recent survey of 78 medical schools, 60% responded that their students had posted unprofessional online content.16 In 45 cases, schools reported such incidents and responded to follow-up questions about disciplinary actions; 30 schools gave informal warnings, and 2 schools reported student dismissals.
Using Facebook
Should psychiatrists stay off Facebook? Of course not. Many prominent American psychiatrists are on Facebook because, like everyone else, they enjoy keeping in contact with friends and family.17 Thousands of professional groups (eg, the American Psychiatric Association) and physician practices have Facebook pages. Institutions, schools, and agencies use social media to promote their curricula, notify students and staff of course changes, or organize meetings. Professionals join groups or “like” groups associated with their specialty to affiliate with each other, and they use Facebook to promote their practices, disseminate information, and network with colleagues.
Psychiatrists need not shy away from establishing an account on Facebook,18 but they should do so with greater circumspection than most persons, including physicians in other specialties. Table 1 lists several examples of Facebook behavior that all physicians should avoid.2,13,16,19,20
What about using Facebook to learn about your patients? Medical reports about checking Facebook to resolve emergencies have appeared,20 and forensic psychiatrists can use Facebook and other Internet resources to learn about evaluees.21 But if doctors search for information about a patient’s out-of-office behavior or statements, it may be like “driving down a patient’s street to see what he or she is up to,” which, although legal, seems inappropriate in a professional relationship.22
Recent experience suggests that medical schools and residencies should include “e-professionalism” in their curricula, emphasizing instruction and guidance on where personal and professional identities may intersect and where they should be kept separate. Table 2 lists several responses to the new challenges to medical professionalism posed by Facebook and other social media.5,6
Table 1
Facebook errors: What to avoid
| Category | Pitfalls |
|---|---|
| Information | Relationships, religious views, home address, and telephone number all may be readily viewable to the general public and patients if privacy settings are not properly configured |
| Photos | Intoxication, sexually explicit material, risk-taking behavior |
| “Wall posts” | Blatant comments about patients, disgruntlement with institution or supervisors |
| Security settings | Lack of privacy restrictions |
| “Friends” | Friending patients and supervisors |
| “Like” | “Liking” groups that contain pornographic material or other controversial topics |
| Source: References 2,13,16,19,20 | |
Table 2
Promoting e-professionalism
| Understand and activate all relevant privacy and security settings on social networking sites |
| Recognize the need to teach e-professionalism in the curricula of medical schools and residency training programs |
| Combine instruction on professional use of Facebook with teaching about relevant legal regulations in medicine (eg, HIPAA) |
| Guidance in online professionalism should come from faculty supervisors or program directors |
| Faculty should model appropriate Facebook behaviors for employees, medical students, and residents |
| Users of social media are well-advised to conduct Web searches on themselves and modify their pages to conform with professional standards |
| Politely decline patients’ “friend” requests |
| Discussions of medical professionalism, involving students, faculty, and employers, can help identify issues and define responses |
| Institutions should establish and enforce guidelines for Facebook professionalism |
| HIPAA: Health Insurance Portability and Accountability Act of 1996 Source: References 5,6 |
Responding to Dr. V
Psychiatrists should not “friend” patients. If you receive a “friend” request, you should proceed in 1 of the following ways:17
- Simply ignore the request. If your patient asks why you didn’t respond, explain that you use Facebook only for personal matters
- Ignore the request, and at the patient’s next appointment, mention the request and politely explain that you do not “friend” patients
- Ignore the request, but ask the patient about it at your next meeting. This is especially important for a patient whose treatment examines the doctor-patient relationship (eg, psychodynamic therapy), but may be valuable even in medication-focused care.
- Facebook. www.facebook.com.
- Foreman J. Think before you click. Boston Globe. April 12, 2010.
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Facebook. Statistics. http://www.facebook.com/press/info.php?statistics. Accessed January 30, 2012.
2. MacDonald J, Sohn S, Ellis P. Privacy professionalism and Facebook: a dilemma for young doctors. Med Educ. 2010;44(8):805-813.
3. Gorrindo T, Gorrindo PC, Groves JE. Intersection of online social networking with medical professionalism: can medicine police the Facebook boom? J Gen Intern Med. 2008;23(12):2155.-
4. Baer W, Schwartz AC. Teaching professionalism in the digital age on the psychiatric consultation-liaison service. Psychosomatics. 2011;52(4):303-309.
5. Landman MP, Shelton J, Kauffmann RM, et al. Guidelines for maintaining a professional compass in the era of social networking. J Surg Educ. 2010;67(6):381-386.
6. Guseh JS 2nd, Brendel RW, Brendel DH. Medical professionalism in the age of online social networking. J Med Ethics. 2009;35(9):584-586.
7. Devi S. Facebook friend request from a patient? Lancet. 2011;377(9772):1141-1142.
8. Gruenberg PB. Boundary violations. In: Wahl DS Polster DS, eds. Ethics primer. Arlington, VA: American Psychiatric Association; 2001. http://www.psych.org/Departments/EDU/residentmit/dl01.aspx. Accessed January 4, 2012.
9. Moubarak G, Guiot A, Benhamou Y, et al. Facebook activity of residents and fellows and its impact on the doctor-patient relationship. J Med Ethics. 2011;37(2):101-104.
10. American Medical Association. AMA policy: professionalism in the use of social media. http://www.ama-assn.org/ama/pub/meeting/professionalism-social-media.shtml. Accessed January 4 2012.
11. British Medical Association. Using social media: practical and ethical guidance for doctors and medical students. http://www.bma.org.uk/press_centre/video_social_media/socialmediaguidance2011.jsp. Accessed January 4 2012.
12. Wilson S. A bigger threat to patient privacy when doctors use Facebook. J Med Ethics. http://jme.bmj.com/content/37/2/101.abstract/reply#medethics_el_3625. Published December 20 2010. Accessed January 4, 2012.
13. Thompson LA, Dawson K, Ferdig R, et al. The intersection of online social networking with medical professionalism. J Gen Intern Med. 2008;23(7):954-957.
14. Reisman N. Avoid being too social when using social media. Plastic Surgery News. September 13 2011. http://www.psnextra.org/Columns/OLG-September-11.html. Accessed January 4, 2012.
15. Greysen SR, Kind T, Chretien KC. Online professionalism and the mirror of social media. J Gen Intern Med. 2010;25(11):1227-1229.
16. Chretien KC, Greysen SR, Chretien JP, et al. Online posting of unprofessional content by medical students. JAMA. 2009;302(12):1309-1315.
17. Arehart-Treichel J. Facebook can be useful–if you use common sense. Psychiatric News. 2011;46(22):5A.-
18. O’Hanlon S, Shannon B. Comments further to: privacy professionalism and Facebook: a dilemma for young doctors. Med Educ. 2011;45(2):209.-
19. Metzger AH, Finley KN, Ulbrich TR, et al. Pharmacy faculty members’ perspectives on the student/faculty relationship in online social networks. Am J Pharm Educ. 2010;74(10):188.-
20. Ben-Yakov M, Snider C. How Facebook saved our day! Acad Emerg Med. 2011;18(11):1217-1219.
21. Metzner JL, Ash P. Commentary: the mental status examination in the age of the internet—challenges and opportunities. J Am Acad Psychiatry Law. 2010;38(1):27-31.
22. Bosslet GT. Commentary: the good the bad, and the ugly of social media. Acad Emerg Med. 2011;18(11):1221-1222.
Douglas Mossman, MD
Dr. Mossman is administrative director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Helen M. Farrell, MD
Dr. Farrell is an instructor at Harvard Medical School and a staff psychiatrist at Beth Israel Deaconess Medical Center, Boston, MA
Douglas Mossman, MD
Dr. Mossman is administrative director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Helen M. Farrell, MD
Dr. Farrell is an instructor at Harvard Medical School and a staff psychiatrist at Beth Israel Deaconess Medical Center, Boston, MA
Douglas Mossman, MD
Dr. Mossman is administrative director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Helen M. Farrell, MD
Dr. Farrell is an instructor at Harvard Medical School and a staff psychiatrist at Beth Israel Deaconess Medical Center, Boston, MA
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
A patient has invited me to “friend” her on Facebook. I’m uncomfortable with this request, but I don’t want her to feel rejected. How should I respond?—Submitted by “Dr. V”
Among the many cultural developments that characterize the Internet era, few have had the impact of the social networking Web site Facebook. Because of Facebook, “friend” has become a transitive verb, and “like,” “wall,” “poke,” and “post” have acquired meanings that reflect new modes of communication and interpersonal connection. As of early 2012, Facebook had >800 million users.1 If you’re like most medical students, residents, and junior faculty members,2 you have a Facebook page.
The ubiquity of Facebook has added new dimensions to defining, teaching, and modeling professionalism in medicine.3,4 Facebook can be used to rapidly disseminate medical information through status updates and medical support groups.5 Professionals can create profiles, post their curricula vitae, and “like” professional journals—including Current Psychiatry.
But social media such as Facebook also present clinicians with new ethical and professional challenges.6 If you use Facebook personally or professionally, you need to decide how you will separate your personal and professional identities in a forum that rapidly distributes information across the Web for all to see. Sound, responsible decisions about your online profile can let you and your employing institutions prosper from the many benefits that accrue to savvy Facebook users—while avoiding potential embarrassments and liability.
Before you create a profile or “post” your next “status update” on your “wall,” you should:
- understand potential boundary violations
- know how to activate your security and privacy settings
- remember that you represent not only yourself but your profession.
Boundary crossings, violations
Feelings of online closeness and informality make receiving “friend” requests from patients far from uncommon.7 The Internet lets individuals quickly check out people and learn personal information (eg, where they live and what their homes cost) that was hard to discover 15 years ago. But the information on a person’s Facebook page usually is much more personal than what Internet searches reveal—and often much less dignified.
A quick Internet search of the phrase “professional boundaries” will show that concern about maintaining proper relationships between professionals and service recipients is not restricted to psychiatry. Yet the special, intensely personal nature of mental health care—especially psychotherapy—traditionally has made psychiatrists place special constraints on their relationships with patients.
Because psychiatrists recognize that even brief comments about ourselves can affect how patients feel, we refrain from forms of self-disclosure that non-psychiatric colleagues view as innocent.8 Psychiatrists also do not freely socialize with patients or provide care to persons we know well. We avoid blurring therapeutic and other types of relationships because such “boundary crossings” can cause problems and because “crossings” can be precursors to serious “boundary violations”—eg, sexual contact with patients.
Most doctors decline “friend” requests from patients because friending them could adversely affect the treatment relationship and could lead to new relationships that might interfere with patient care.9 The American Medical Association’s social media guidelines do not forbid friending patients, but physicians are advised to “consider separating personal and professional content online” and “maintain appropriate boundaries” with patients.10 The British Medical Association simply tells physicians to “politely refuse” patients’ friend requests.11
Privacy problems
Psychiatrists who friend patients need to be aware of potential privacy breeches among Facebook users. Individuals whose presence among a psychiatrist’s friends becomes known (eg, via a wall post) are revealing their connection to the psychiatrist, and other friends may surmise that an individual is a patient.
Also, Facebook’s “find friends” feature ostensibly lets Facebook locate individuals who are common to pairs of people and who can then be suggested as potential friends to others, but “find friends” imports members’ entire e-mail address books. If doctors who are on Facebook have patients in their webmail address books and have allowed “find friends,” then Facebook will import e-mail addresses, potentially disclosing associations between patients and their doctors.12
Facebook has tools that let users block their profiles from public view, but these privacy settings can be difficult to access and understand. Although social networking among medical trainees and new graduates is common in the culture of emerging professionals, most Facebook users allow anyone to view their profile—the default privacy setting.2,13 Even if you don’t friend patients, failing to privatize your account leaves your Facebook information readily available to the public, including your patients.
Professionalism in cyberspace
Under some circumstances, medical advice given in casual, outside-the-office contexts can establish a doctor-patient relationship, with all its accompanying obligations and liability risks. This is true of Facebook communications. If you communicate medical information or advice to someone in a form specific enough to be relied upon, you may be establishing a doctor-patient relationship. If harm comes to a person who relied upon your information, a negligence lawsuit could result—even though you never saw or spoke to the “patient.”14
Medical training programs have found that medical students and residents have posted work-related comments on Facebook that directly referenced specific patient situations or other patient care matters. Such actions can breach the Health Insurance Portability and Accountability Act of 1996 and can jeopardize careers.15 Medical professionals also have posted uncouth, inappropriate, and embarrassing content—profanity, frankly discriminatory language, tales of intoxication, and sexually explicit information. In a recent survey of 78 medical schools, 60% responded that their students had posted unprofessional online content.16 In 45 cases, schools reported such incidents and responded to follow-up questions about disciplinary actions; 30 schools gave informal warnings, and 2 schools reported student dismissals.
Using Facebook
Should psychiatrists stay off Facebook? Of course not. Many prominent American psychiatrists are on Facebook because, like everyone else, they enjoy keeping in contact with friends and family.17 Thousands of professional groups (eg, the American Psychiatric Association) and physician practices have Facebook pages. Institutions, schools, and agencies use social media to promote their curricula, notify students and staff of course changes, or organize meetings. Professionals join groups or “like” groups associated with their specialty to affiliate with each other, and they use Facebook to promote their practices, disseminate information, and network with colleagues.
Psychiatrists need not shy away from establishing an account on Facebook,18 but they should do so with greater circumspection than most persons, including physicians in other specialties. Table 1 lists several examples of Facebook behavior that all physicians should avoid.2,13,16,19,20
What about using Facebook to learn about your patients? Medical reports about checking Facebook to resolve emergencies have appeared,20 and forensic psychiatrists can use Facebook and other Internet resources to learn about evaluees.21 But if doctors search for information about a patient’s out-of-office behavior or statements, it may be like “driving down a patient’s street to see what he or she is up to,” which, although legal, seems inappropriate in a professional relationship.22
Recent experience suggests that medical schools and residencies should include “e-professionalism” in their curricula, emphasizing instruction and guidance on where personal and professional identities may intersect and where they should be kept separate. Table 2 lists several responses to the new challenges to medical professionalism posed by Facebook and other social media.5,6
Table 1
Facebook errors: What to avoid
| Category | Pitfalls |
|---|---|
| Information | Relationships, religious views, home address, and telephone number all may be readily viewable to the general public and patients if privacy settings are not properly configured |
| Photos | Intoxication, sexually explicit material, risk-taking behavior |
| “Wall posts” | Blatant comments about patients, disgruntlement with institution or supervisors |
| Security settings | Lack of privacy restrictions |
| “Friends” | Friending patients and supervisors |
| “Like” | “Liking” groups that contain pornographic material or other controversial topics |
| Source: References 2,13,16,19,20 | |
Table 2
Promoting e-professionalism
| Understand and activate all relevant privacy and security settings on social networking sites |
| Recognize the need to teach e-professionalism in the curricula of medical schools and residency training programs |
| Combine instruction on professional use of Facebook with teaching about relevant legal regulations in medicine (eg, HIPAA) |
| Guidance in online professionalism should come from faculty supervisors or program directors |
| Faculty should model appropriate Facebook behaviors for employees, medical students, and residents |
| Users of social media are well-advised to conduct Web searches on themselves and modify their pages to conform with professional standards |
| Politely decline patients’ “friend” requests |
| Discussions of medical professionalism, involving students, faculty, and employers, can help identify issues and define responses |
| Institutions should establish and enforce guidelines for Facebook professionalism |
| HIPAA: Health Insurance Portability and Accountability Act of 1996 Source: References 5,6 |
Responding to Dr. V
Psychiatrists should not “friend” patients. If you receive a “friend” request, you should proceed in 1 of the following ways:17
- Simply ignore the request. If your patient asks why you didn’t respond, explain that you use Facebook only for personal matters
- Ignore the request, and at the patient’s next appointment, mention the request and politely explain that you do not “friend” patients
- Ignore the request, but ask the patient about it at your next meeting. This is especially important for a patient whose treatment examines the doctor-patient relationship (eg, psychodynamic therapy), but may be valuable even in medication-focused care.
- Facebook. www.facebook.com.
- Foreman J. Think before you click. Boston Globe. April 12, 2010.
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
A patient has invited me to “friend” her on Facebook. I’m uncomfortable with this request, but I don’t want her to feel rejected. How should I respond?—Submitted by “Dr. V”
Among the many cultural developments that characterize the Internet era, few have had the impact of the social networking Web site Facebook. Because of Facebook, “friend” has become a transitive verb, and “like,” “wall,” “poke,” and “post” have acquired meanings that reflect new modes of communication and interpersonal connection. As of early 2012, Facebook had >800 million users.1 If you’re like most medical students, residents, and junior faculty members,2 you have a Facebook page.
The ubiquity of Facebook has added new dimensions to defining, teaching, and modeling professionalism in medicine.3,4 Facebook can be used to rapidly disseminate medical information through status updates and medical support groups.5 Professionals can create profiles, post their curricula vitae, and “like” professional journals—including Current Psychiatry.
But social media such as Facebook also present clinicians with new ethical and professional challenges.6 If you use Facebook personally or professionally, you need to decide how you will separate your personal and professional identities in a forum that rapidly distributes information across the Web for all to see. Sound, responsible decisions about your online profile can let you and your employing institutions prosper from the many benefits that accrue to savvy Facebook users—while avoiding potential embarrassments and liability.
Before you create a profile or “post” your next “status update” on your “wall,” you should:
- understand potential boundary violations
- know how to activate your security and privacy settings
- remember that you represent not only yourself but your profession.
Boundary crossings, violations
Feelings of online closeness and informality make receiving “friend” requests from patients far from uncommon.7 The Internet lets individuals quickly check out people and learn personal information (eg, where they live and what their homes cost) that was hard to discover 15 years ago. But the information on a person’s Facebook page usually is much more personal than what Internet searches reveal—and often much less dignified.
A quick Internet search of the phrase “professional boundaries” will show that concern about maintaining proper relationships between professionals and service recipients is not restricted to psychiatry. Yet the special, intensely personal nature of mental health care—especially psychotherapy—traditionally has made psychiatrists place special constraints on their relationships with patients.
Because psychiatrists recognize that even brief comments about ourselves can affect how patients feel, we refrain from forms of self-disclosure that non-psychiatric colleagues view as innocent.8 Psychiatrists also do not freely socialize with patients or provide care to persons we know well. We avoid blurring therapeutic and other types of relationships because such “boundary crossings” can cause problems and because “crossings” can be precursors to serious “boundary violations”—eg, sexual contact with patients.
Most doctors decline “friend” requests from patients because friending them could adversely affect the treatment relationship and could lead to new relationships that might interfere with patient care.9 The American Medical Association’s social media guidelines do not forbid friending patients, but physicians are advised to “consider separating personal and professional content online” and “maintain appropriate boundaries” with patients.10 The British Medical Association simply tells physicians to “politely refuse” patients’ friend requests.11
Privacy problems
Psychiatrists who friend patients need to be aware of potential privacy breeches among Facebook users. Individuals whose presence among a psychiatrist’s friends becomes known (eg, via a wall post) are revealing their connection to the psychiatrist, and other friends may surmise that an individual is a patient.
Also, Facebook’s “find friends” feature ostensibly lets Facebook locate individuals who are common to pairs of people and who can then be suggested as potential friends to others, but “find friends” imports members’ entire e-mail address books. If doctors who are on Facebook have patients in their webmail address books and have allowed “find friends,” then Facebook will import e-mail addresses, potentially disclosing associations between patients and their doctors.12
Facebook has tools that let users block their profiles from public view, but these privacy settings can be difficult to access and understand. Although social networking among medical trainees and new graduates is common in the culture of emerging professionals, most Facebook users allow anyone to view their profile—the default privacy setting.2,13 Even if you don’t friend patients, failing to privatize your account leaves your Facebook information readily available to the public, including your patients.
Professionalism in cyberspace
Under some circumstances, medical advice given in casual, outside-the-office contexts can establish a doctor-patient relationship, with all its accompanying obligations and liability risks. This is true of Facebook communications. If you communicate medical information or advice to someone in a form specific enough to be relied upon, you may be establishing a doctor-patient relationship. If harm comes to a person who relied upon your information, a negligence lawsuit could result—even though you never saw or spoke to the “patient.”14
Medical training programs have found that medical students and residents have posted work-related comments on Facebook that directly referenced specific patient situations or other patient care matters. Such actions can breach the Health Insurance Portability and Accountability Act of 1996 and can jeopardize careers.15 Medical professionals also have posted uncouth, inappropriate, and embarrassing content—profanity, frankly discriminatory language, tales of intoxication, and sexually explicit information. In a recent survey of 78 medical schools, 60% responded that their students had posted unprofessional online content.16 In 45 cases, schools reported such incidents and responded to follow-up questions about disciplinary actions; 30 schools gave informal warnings, and 2 schools reported student dismissals.
Using Facebook
Should psychiatrists stay off Facebook? Of course not. Many prominent American psychiatrists are on Facebook because, like everyone else, they enjoy keeping in contact with friends and family.17 Thousands of professional groups (eg, the American Psychiatric Association) and physician practices have Facebook pages. Institutions, schools, and agencies use social media to promote their curricula, notify students and staff of course changes, or organize meetings. Professionals join groups or “like” groups associated with their specialty to affiliate with each other, and they use Facebook to promote their practices, disseminate information, and network with colleagues.
Psychiatrists need not shy away from establishing an account on Facebook,18 but they should do so with greater circumspection than most persons, including physicians in other specialties. Table 1 lists several examples of Facebook behavior that all physicians should avoid.2,13,16,19,20
What about using Facebook to learn about your patients? Medical reports about checking Facebook to resolve emergencies have appeared,20 and forensic psychiatrists can use Facebook and other Internet resources to learn about evaluees.21 But if doctors search for information about a patient’s out-of-office behavior or statements, it may be like “driving down a patient’s street to see what he or she is up to,” which, although legal, seems inappropriate in a professional relationship.22
Recent experience suggests that medical schools and residencies should include “e-professionalism” in their curricula, emphasizing instruction and guidance on where personal and professional identities may intersect and where they should be kept separate. Table 2 lists several responses to the new challenges to medical professionalism posed by Facebook and other social media.5,6
Table 1
Facebook errors: What to avoid
| Category | Pitfalls |
|---|---|
| Information | Relationships, religious views, home address, and telephone number all may be readily viewable to the general public and patients if privacy settings are not properly configured |
| Photos | Intoxication, sexually explicit material, risk-taking behavior |
| “Wall posts” | Blatant comments about patients, disgruntlement with institution or supervisors |
| Security settings | Lack of privacy restrictions |
| “Friends” | Friending patients and supervisors |
| “Like” | “Liking” groups that contain pornographic material or other controversial topics |
| Source: References 2,13,16,19,20 | |
Table 2
Promoting e-professionalism
| Understand and activate all relevant privacy and security settings on social networking sites |
| Recognize the need to teach e-professionalism in the curricula of medical schools and residency training programs |
| Combine instruction on professional use of Facebook with teaching about relevant legal regulations in medicine (eg, HIPAA) |
| Guidance in online professionalism should come from faculty supervisors or program directors |
| Faculty should model appropriate Facebook behaviors for employees, medical students, and residents |
| Users of social media are well-advised to conduct Web searches on themselves and modify their pages to conform with professional standards |
| Politely decline patients’ “friend” requests |
| Discussions of medical professionalism, involving students, faculty, and employers, can help identify issues and define responses |
| Institutions should establish and enforce guidelines for Facebook professionalism |
| HIPAA: Health Insurance Portability and Accountability Act of 1996 Source: References 5,6 |
Responding to Dr. V
Psychiatrists should not “friend” patients. If you receive a “friend” request, you should proceed in 1 of the following ways:17
- Simply ignore the request. If your patient asks why you didn’t respond, explain that you use Facebook only for personal matters
- Ignore the request, and at the patient’s next appointment, mention the request and politely explain that you do not “friend” patients
- Ignore the request, but ask the patient about it at your next meeting. This is especially important for a patient whose treatment examines the doctor-patient relationship (eg, psychodynamic therapy), but may be valuable even in medication-focused care.
- Facebook. www.facebook.com.
- Foreman J. Think before you click. Boston Globe. April 12, 2010.
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Facebook. Statistics. http://www.facebook.com/press/info.php?statistics. Accessed January 30, 2012.
2. MacDonald J, Sohn S, Ellis P. Privacy professionalism and Facebook: a dilemma for young doctors. Med Educ. 2010;44(8):805-813.
3. Gorrindo T, Gorrindo PC, Groves JE. Intersection of online social networking with medical professionalism: can medicine police the Facebook boom? J Gen Intern Med. 2008;23(12):2155.-
4. Baer W, Schwartz AC. Teaching professionalism in the digital age on the psychiatric consultation-liaison service. Psychosomatics. 2011;52(4):303-309.
5. Landman MP, Shelton J, Kauffmann RM, et al. Guidelines for maintaining a professional compass in the era of social networking. J Surg Educ. 2010;67(6):381-386.
6. Guseh JS 2nd, Brendel RW, Brendel DH. Medical professionalism in the age of online social networking. J Med Ethics. 2009;35(9):584-586.
7. Devi S. Facebook friend request from a patient? Lancet. 2011;377(9772):1141-1142.
8. Gruenberg PB. Boundary violations. In: Wahl DS Polster DS, eds. Ethics primer. Arlington, VA: American Psychiatric Association; 2001. http://www.psych.org/Departments/EDU/residentmit/dl01.aspx. Accessed January 4, 2012.
9. Moubarak G, Guiot A, Benhamou Y, et al. Facebook activity of residents and fellows and its impact on the doctor-patient relationship. J Med Ethics. 2011;37(2):101-104.
10. American Medical Association. AMA policy: professionalism in the use of social media. http://www.ama-assn.org/ama/pub/meeting/professionalism-social-media.shtml. Accessed January 4 2012.
11. British Medical Association. Using social media: practical and ethical guidance for doctors and medical students. http://www.bma.org.uk/press_centre/video_social_media/socialmediaguidance2011.jsp. Accessed January 4 2012.
12. Wilson S. A bigger threat to patient privacy when doctors use Facebook. J Med Ethics. http://jme.bmj.com/content/37/2/101.abstract/reply#medethics_el_3625. Published December 20 2010. Accessed January 4, 2012.
13. Thompson LA, Dawson K, Ferdig R, et al. The intersection of online social networking with medical professionalism. J Gen Intern Med. 2008;23(7):954-957.
14. Reisman N. Avoid being too social when using social media. Plastic Surgery News. September 13 2011. http://www.psnextra.org/Columns/OLG-September-11.html. Accessed January 4, 2012.
15. Greysen SR, Kind T, Chretien KC. Online professionalism and the mirror of social media. J Gen Intern Med. 2010;25(11):1227-1229.
16. Chretien KC, Greysen SR, Chretien JP, et al. Online posting of unprofessional content by medical students. JAMA. 2009;302(12):1309-1315.
17. Arehart-Treichel J. Facebook can be useful–if you use common sense. Psychiatric News. 2011;46(22):5A.-
18. O’Hanlon S, Shannon B. Comments further to: privacy professionalism and Facebook: a dilemma for young doctors. Med Educ. 2011;45(2):209.-
19. Metzger AH, Finley KN, Ulbrich TR, et al. Pharmacy faculty members’ perspectives on the student/faculty relationship in online social networks. Am J Pharm Educ. 2010;74(10):188.-
20. Ben-Yakov M, Snider C. How Facebook saved our day! Acad Emerg Med. 2011;18(11):1217-1219.
21. Metzner JL, Ash P. Commentary: the mental status examination in the age of the internet—challenges and opportunities. J Am Acad Psychiatry Law. 2010;38(1):27-31.
22. Bosslet GT. Commentary: the good the bad, and the ugly of social media. Acad Emerg Med. 2011;18(11):1221-1222.
1. Facebook. Statistics. http://www.facebook.com/press/info.php?statistics. Accessed January 30, 2012.
2. MacDonald J, Sohn S, Ellis P. Privacy professionalism and Facebook: a dilemma for young doctors. Med Educ. 2010;44(8):805-813.
3. Gorrindo T, Gorrindo PC, Groves JE. Intersection of online social networking with medical professionalism: can medicine police the Facebook boom? J Gen Intern Med. 2008;23(12):2155.-
4. Baer W, Schwartz AC. Teaching professionalism in the digital age on the psychiatric consultation-liaison service. Psychosomatics. 2011;52(4):303-309.
5. Landman MP, Shelton J, Kauffmann RM, et al. Guidelines for maintaining a professional compass in the era of social networking. J Surg Educ. 2010;67(6):381-386.
6. Guseh JS 2nd, Brendel RW, Brendel DH. Medical professionalism in the age of online social networking. J Med Ethics. 2009;35(9):584-586.
7. Devi S. Facebook friend request from a patient? Lancet. 2011;377(9772):1141-1142.
8. Gruenberg PB. Boundary violations. In: Wahl DS Polster DS, eds. Ethics primer. Arlington, VA: American Psychiatric Association; 2001. http://www.psych.org/Departments/EDU/residentmit/dl01.aspx. Accessed January 4, 2012.
9. Moubarak G, Guiot A, Benhamou Y, et al. Facebook activity of residents and fellows and its impact on the doctor-patient relationship. J Med Ethics. 2011;37(2):101-104.
10. American Medical Association. AMA policy: professionalism in the use of social media. http://www.ama-assn.org/ama/pub/meeting/professionalism-social-media.shtml. Accessed January 4 2012.
11. British Medical Association. Using social media: practical and ethical guidance for doctors and medical students. http://www.bma.org.uk/press_centre/video_social_media/socialmediaguidance2011.jsp. Accessed January 4 2012.
12. Wilson S. A bigger threat to patient privacy when doctors use Facebook. J Med Ethics. http://jme.bmj.com/content/37/2/101.abstract/reply#medethics_el_3625. Published December 20 2010. Accessed January 4, 2012.
13. Thompson LA, Dawson K, Ferdig R, et al. The intersection of online social networking with medical professionalism. J Gen Intern Med. 2008;23(7):954-957.
14. Reisman N. Avoid being too social when using social media. Plastic Surgery News. September 13 2011. http://www.psnextra.org/Columns/OLG-September-11.html. Accessed January 4, 2012.
15. Greysen SR, Kind T, Chretien KC. Online professionalism and the mirror of social media. J Gen Intern Med. 2010;25(11):1227-1229.
16. Chretien KC, Greysen SR, Chretien JP, et al. Online posting of unprofessional content by medical students. JAMA. 2009;302(12):1309-1315.
17. Arehart-Treichel J. Facebook can be useful–if you use common sense. Psychiatric News. 2011;46(22):5A.-
18. O’Hanlon S, Shannon B. Comments further to: privacy professionalism and Facebook: a dilemma for young doctors. Med Educ. 2011;45(2):209.-
19. Metzger AH, Finley KN, Ulbrich TR, et al. Pharmacy faculty members’ perspectives on the student/faculty relationship in online social networks. Am J Pharm Educ. 2010;74(10):188.-
20. Ben-Yakov M, Snider C. How Facebook saved our day! Acad Emerg Med. 2011;18(11):1217-1219.
21. Metzner JL, Ash P. Commentary: the mental status examination in the age of the internet—challenges and opportunities. J Am Acad Psychiatry Law. 2010;38(1):27-31.
22. Bosslet GT. Commentary: the good the bad, and the ugly of social media. Acad Emerg Med. 2011;18(11):1221-1222.
Practicing psychiatry via Skype: Medicolegal considerations
Dear Dr. Mossman:
I practice in a region with few psychiatrists and very little public transportation. For many patients, coming to my office is inconvenient, expensive, or time-consuming. Sometimes, their emotional problems make it hard for them to travel, and sometimes, bad weather makes travel difficult. I am considering providing remote treatment via Skype. Is this a reasonable idea? What are the risks of using this technology in my practice? — Submitted by “Dr. A”
Diagnosing and treating patients without a face-to-face encounter is not new. Doctors have provided “remote treatment” since shortly after telephones were invented.1 Until recently, however, forensic psychiatrists advised colleagues not to diagnose patients or start treatment based on phone contact alone.2
The Internet has revolutionized our attitudes about many things. Communication technologies that seemed miraculous a generation ago have become commonplace and have transformed standards for ordinary and “acceptable” human contact. A quick Internet search of “telephone psychotherapy” turns up hundreds of mental health professionals who offer remote treatment services to patients via computers and Web cams.
Physicians in many specialties practice telemedicine, often with the support and encouragement of state governments and third-party payers. To decide whether to include telepsychiatry in your psychiatric practice, you should know:
- what “telemedicine” means and includes
- the possible advantages of offering remote health care
- potential risks and ambiguity about legal matters.
Defining telemedicine
Studies of remote, closed-circuit “telediagnosis” extend back more than 4 decades, closely following mid-20th century advancements in audio and video relay technologies that made space broadcasts possible.3 Then as now, “telemedicine” simply means conveying health-related information from 1 site to another for diagnostic or treatment purposes.4 It’s an adaptation of available technology to deliver care more easily, with the goal of improving patients’ access to care and health status.
Telemedicine usage accelerated as the Internet and related technologies developed. Telemedicine programs in the United States increased by 1,500% from 1993 to 1998.4 Telemedicine use has grown 10% annually in recent years and has become a $4 billion per year industry in the United States.5 Recently enacted federal legislation is likely to extend health care coverage to 36 million Americans and require coverage of pre-existing conditions. To make these changes affordable, health care delivery will need to exploit new, efficiency-enhancing technologies.6
Advantages of telemedicine
State governments and some third-party payers have recognized that telemedicine can overcome geographic and cost barriers to health services and patient education.5,7-9 Although closed-circuit video transmission has served this purpose for some time, Skype—free software that allows individuals to make video phone calls over the Internet using their computers—is an option that doctors are using to treat patients.10-12
Research suggests that telepsychiatry may provide huge benefits to medically underserved areas while reducing health care costs.4 Telepsychiatry can reduce travel time and expenses for professionals and patients, and it also may lower wait times and “no-show” rates (Table 1).4 Telepsychiatry lets patients see caregivers when winter weather makes roads unsafe. It may allow geriatric patients who can no longer drive to access psychiatric care and it lowers health care’s “carbon footprint,” making it “eco-friendly.”13
Social media strategies are playing an expanding role in medical education,14,15 and this probably will help practitioners feel more at ease about incorporating the underlying technologies into work with patients. Increased use of laptops and mobile phones lends itself well to telepsychiatry applications,13 and studies have examined the feasibility of psychotherapies delivered via remote communication devices.16 Smartphone apps are being designed to assist mental health professionals17 and consumers.18
Table 1
Potential benefits of telemedicine
| Category | Benefit(s) |
|---|---|
| Access | Patients can see specialists more readily Addresses regional doctor shortages Reduces health care disparities between urban and rural areas |
| Urgent care | Facilitates information transfer for rapid interventions |
| Productivity | Provides a conduit for clinicians to share skills and expertise Facilitates remote monitoring and home care |
| Cost | No travel costs Alternative revenue stream for health care organizations that offer more broadly delivered medical services |
| Patient-centric care | Care is taken to the patient Translator services are more readily available |
| Source: Reference 4 | |
Potential pitfalls and drawbacks
Although convenience, access, cost, and fossil fuel savings may favor video-chat doctor visits, telemedicine has downsides, some of which apply specifically to psychiatry. First, no current technology provides psychiatrists with “the rich multidimensional aspects of a person-to-person encounter,”19 and remote communication may change what patients tell us, how they feel when they tell us things, and how they feel when we respond. Often, an inherent awkwardness affects many forms of Internet communication.20
Also uncertain is whether Skype is compliant with the Health Insurance Portability and Accountability Act and protects doctor-patient privacy well enough to satisfy ethical standards—although it probably is far better than e-mail in this regard. Third-party payers often will not reimburse for telephone calls and may balk at paying for Skype-based therapy, even in states that require insurers to reimburse for telemedicine.
Psychiatrists typically have limited physical contact with patients, but we often check weight and vital signs when we prescribe certain psychotropic medications. Results from home- and drugstore-based blood pressure monitors may not be accurate enough for treatment purposes. Remote communication also reduces the quality of visual information,20 which can be crucial—for example, when good lighting and visual resolution is needed to decide whether a skin rash might be drug-induced.
Telemedicine raises concerns about licensure and meeting adequate standards of care. Medical care usually is deemed to have occurred in the state where the patient is located. For example, only physicians licensed to practice medicine in California are legally permitted to treat patients in California. As is the case with any treatment, care delivered via telemedicine must include appropriate patient examination and diagnosis.21
Help and guidance
Despite these potential drawbacks, many state agencies recognize the promise of telemedicine, and have developed networks to promote it (Table 2).7-9,22,23 These networks have various goals but share a common pattern of establishing infrastructure, policies, and organized results. In the future, states may adopt laws or regulations that address conflicts in malpractice standards and liability coverage, licensing, accreditation, reimbursement, privacy, and data protection policies that now may impede or inhibit use of telepsychiatric services across jurisdictional boundaries. Last year, Ohio produced regulations to guide psychiatrists in prescribing medication remotely without an in-person examination. The University of Hawaii suggested steps that its state legislature might take to help providers predict the potential legal ramifications of telemedicine.6
Further help for telepsychiatry practitioners may be found in practice standards and guidelines developed by the American Telemedicine Association.24,25 These documents gave guidance and support for the practice of telemedicine and for providing appropriate telepsychiatry health services.
Table 2
Telemedicine services available in different states
| State/Network | Description |
|---|---|
| Arizona www.narbha.org7 | The Northern Arizona Regional Behavioral Health Authority manages a comprehensive telemental health network (NARBHAnet) that uses 2-way videoconferencing to connect mental health experts and patients. It has provided >50,000 clinical psychiatric sessions |
| Kansas www.kumc.edu8 | The University of Kansas Medical Center provides specialty services (including telepsychiatry) through 14 clinical sites in rural Kansas. Cost-sharing helps the telepsychiatric application be successful |
| Montana www.emtn.org9 | Eastern Montana Telemedicine Network is a consortium of not-for-profit facilities that link health care providers and their patients in Montana and Wyoming. This telemental health network includes shared sites for all physicians practicing in the network and has yielded large out-of-pocket savings for patients |
| Oregon www.ortelehealth.org22 | The Telehealth Alliance of Oregon, which began in 2001 as a committee of the Oregon Telecommunications Coordinating Council, was created by the legislature and has served as advisors to the governor and the legislature regarding telecommunications in Oregon |
| Texas www.jsahealthmd.com23 | The Burke Center provides services to people in 12 counties in East Texas. It uses telepsychiatry services to conduct emergency evaluations, therefore keeping people in mental health crises out of emergency rooms |
What should Dr. A do?
In answer to Dr. A’s question, many factors favor including telepsychiatry in her practice. Yet we know little about the accuracy and reliability of psychiatric assessments made solely via Skype or other remote video technology in ordinary practice. Legislation and legal rules about acceptable practices are ambiguous, although in the absence of clear guidance, psychiatrists should assume that all usual professional standards and expectations about adequate care apply to treatment via Skype or other remote communication methods.
Related Resources
- Skype. www.skype.com.
- American Telemedicine Association. www.americantelemed.org.
1. Lipman M. The doctor will Skype you now. Consum Rep. 2011;76(8):12.-
2. Simon RI. Clinical psychiatry and the law. 2nd ed. Washington DC: American Psychiatric Press; 1992.
3. Murphy RL, Jr, Bird KT. Telediagnosis: a new community health resource. Observations on the feasibility of telediagnosis based on 1000 patient transactions. Am J Public Health. 1974;64(2):113-119.
4. Hilty DM, Yellowlees PM, Cobb HC, et al. Models of telepsychiatric consultation—liaison service to rural primary care. Psychosomatics. 2006;47(2):152-157.
5. Freudenheim M. The doctor will see you now. Please log on. New York Times. May 29 2010:BU1.
6. University of Hawai’i. Report to the 2009 legislature: preliminary report by the John A. Burns School of Medicine on the current practices of Hawai’i telemedicine system for 2009. http://www.hawaii.edu/offices/eaur/govrel/reports/2009. Published November 2008. Accessed September 27 2011.
7. Northern Arizona Regional Behavioral Health Authority. http://www.narbha.org. Accessed September 27 2011.
8. University of Kansas Medical Center. http://www.kumc.edu. Accessed September 27 2011.
9. Eastern Montana Telemedicine Network. http://www.emtn.org. Accessed September 27 2011.
10. Ciccia AH, Whitford B, Krumm M, et al. Improving the access of young urban children to speech, language and hearing screening via telehealth. J Telemed Telecare. 2011;17(5):240-244.
11. Hori M, Kubota M, Ando K, et al. The effect of videophone communication (with skype and webcam) for elderly patients with dementia and their caregivers [in Japanese]. Gan To Kagaku Ryoho. 2009;36(suppl 1):36-38.
12. Klock C, Gomes Rde P. Web conferencing systems: Skype and MSN in telepathology. Diagn Pathol. 2008;3(suppl 1):S13.-
13. Luo J. VoIP: The right call for your practice? Current Psychiatry. 2005;4(10):24-27.
14. George DR, Dellasega C. Use of social media in graduate-level medical humanities education: two pilot studies from Penn State College of Medicine. Med Teach. 2011;33(8):e429-434.
15. Lillis S, Gibbons V, Lawrenson R. The experience of final year medical students undertaking a general practice run with a distance education component. Rural Remote Health. 2010;10(1):1268.-
16. Bee PE, Bower P, Lovell K, et al. Psychotherapy mediated by remote communication technologies: a meta-analytic review. BMC Psychiatry. 2008;8:60.-
17. Maheu MM. iPhone app reviews for psychologists and mental health professionals. http://telehealth.net/blog/554. Accessed September 27 2011.
18. Maheu MM. iPhone apps reviews for mental health psychology and personal growth consumers. http://telehealth.net/blog/557. Accessed September 27, 2011.
19. Eckardt MH. The use of the telephone to extend our therapeutic availability. J Am Acad Psychoanal Dyn Psychiatry. 2011;39(1):151-153.
20. Hoffman J. When your therapist is only a click away. New York Times. September 23 2011:ST1.
21. Medical Board of California. Practicing medicine through telemedicine technology. http://www.mbc.ca.gov/licensee/telemedicine.html. Accessed September 27 2011.
22. Telehealth Alliance of Oregon. http://www.ortelehealth.org. Accessed October 31 2011.
23. JSA Health Telepsychiatry. http://jsahealthmd.com. Accessed September 27 2011.
24. American Telemedicine Association. Telemental standards and guidelines. http://www.americantelemed.org/i4a/pages/index.cfm?pageID=3311. Accessed September 27 2011.
25. American Telemedicine Association. Evidence-based practice for telemental health. http://www.americantelemed.org/i4a/forms/form.cfm?id=25&pageid=3718&showTitle=1. Accessed September 27 2011.
Helen M. Farrell, MD
Dr. Farrell is an instructor at Harvard Medical School and a staff psychiatrist at Beth Israel Deaconess Medical Center, Boston, MA
Douglas Mossman, MD
Dr. Mossman is administrative director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Helen M. Farrell, MD
Dr. Farrell is an instructor at Harvard Medical School and a staff psychiatrist at Beth Israel Deaconess Medical Center, Boston, MA
Douglas Mossman, MD
Dr. Mossman is administrative director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Helen M. Farrell, MD
Dr. Farrell is an instructor at Harvard Medical School and a staff psychiatrist at Beth Israel Deaconess Medical Center, Boston, MA
Douglas Mossman, MD
Dr. Mossman is administrative director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Dear Dr. Mossman:
I practice in a region with few psychiatrists and very little public transportation. For many patients, coming to my office is inconvenient, expensive, or time-consuming. Sometimes, their emotional problems make it hard for them to travel, and sometimes, bad weather makes travel difficult. I am considering providing remote treatment via Skype. Is this a reasonable idea? What are the risks of using this technology in my practice? — Submitted by “Dr. A”
Diagnosing and treating patients without a face-to-face encounter is not new. Doctors have provided “remote treatment” since shortly after telephones were invented.1 Until recently, however, forensic psychiatrists advised colleagues not to diagnose patients or start treatment based on phone contact alone.2
The Internet has revolutionized our attitudes about many things. Communication technologies that seemed miraculous a generation ago have become commonplace and have transformed standards for ordinary and “acceptable” human contact. A quick Internet search of “telephone psychotherapy” turns up hundreds of mental health professionals who offer remote treatment services to patients via computers and Web cams.
Physicians in many specialties practice telemedicine, often with the support and encouragement of state governments and third-party payers. To decide whether to include telepsychiatry in your psychiatric practice, you should know:
- what “telemedicine” means and includes
- the possible advantages of offering remote health care
- potential risks and ambiguity about legal matters.
Defining telemedicine
Studies of remote, closed-circuit “telediagnosis” extend back more than 4 decades, closely following mid-20th century advancements in audio and video relay technologies that made space broadcasts possible.3 Then as now, “telemedicine” simply means conveying health-related information from 1 site to another for diagnostic or treatment purposes.4 It’s an adaptation of available technology to deliver care more easily, with the goal of improving patients’ access to care and health status.
Telemedicine usage accelerated as the Internet and related technologies developed. Telemedicine programs in the United States increased by 1,500% from 1993 to 1998.4 Telemedicine use has grown 10% annually in recent years and has become a $4 billion per year industry in the United States.5 Recently enacted federal legislation is likely to extend health care coverage to 36 million Americans and require coverage of pre-existing conditions. To make these changes affordable, health care delivery will need to exploit new, efficiency-enhancing technologies.6
Advantages of telemedicine
State governments and some third-party payers have recognized that telemedicine can overcome geographic and cost barriers to health services and patient education.5,7-9 Although closed-circuit video transmission has served this purpose for some time, Skype—free software that allows individuals to make video phone calls over the Internet using their computers—is an option that doctors are using to treat patients.10-12
Research suggests that telepsychiatry may provide huge benefits to medically underserved areas while reducing health care costs.4 Telepsychiatry can reduce travel time and expenses for professionals and patients, and it also may lower wait times and “no-show” rates (Table 1).4 Telepsychiatry lets patients see caregivers when winter weather makes roads unsafe. It may allow geriatric patients who can no longer drive to access psychiatric care and it lowers health care’s “carbon footprint,” making it “eco-friendly.”13
Social media strategies are playing an expanding role in medical education,14,15 and this probably will help practitioners feel more at ease about incorporating the underlying technologies into work with patients. Increased use of laptops and mobile phones lends itself well to telepsychiatry applications,13 and studies have examined the feasibility of psychotherapies delivered via remote communication devices.16 Smartphone apps are being designed to assist mental health professionals17 and consumers.18
Table 1
Potential benefits of telemedicine
| Category | Benefit(s) |
|---|---|
| Access | Patients can see specialists more readily Addresses regional doctor shortages Reduces health care disparities between urban and rural areas |
| Urgent care | Facilitates information transfer for rapid interventions |
| Productivity | Provides a conduit for clinicians to share skills and expertise Facilitates remote monitoring and home care |
| Cost | No travel costs Alternative revenue stream for health care organizations that offer more broadly delivered medical services |
| Patient-centric care | Care is taken to the patient Translator services are more readily available |
| Source: Reference 4 | |
Potential pitfalls and drawbacks
Although convenience, access, cost, and fossil fuel savings may favor video-chat doctor visits, telemedicine has downsides, some of which apply specifically to psychiatry. First, no current technology provides psychiatrists with “the rich multidimensional aspects of a person-to-person encounter,”19 and remote communication may change what patients tell us, how they feel when they tell us things, and how they feel when we respond. Often, an inherent awkwardness affects many forms of Internet communication.20
Also uncertain is whether Skype is compliant with the Health Insurance Portability and Accountability Act and protects doctor-patient privacy well enough to satisfy ethical standards—although it probably is far better than e-mail in this regard. Third-party payers often will not reimburse for telephone calls and may balk at paying for Skype-based therapy, even in states that require insurers to reimburse for telemedicine.
Psychiatrists typically have limited physical contact with patients, but we often check weight and vital signs when we prescribe certain psychotropic medications. Results from home- and drugstore-based blood pressure monitors may not be accurate enough for treatment purposes. Remote communication also reduces the quality of visual information,20 which can be crucial—for example, when good lighting and visual resolution is needed to decide whether a skin rash might be drug-induced.
Telemedicine raises concerns about licensure and meeting adequate standards of care. Medical care usually is deemed to have occurred in the state where the patient is located. For example, only physicians licensed to practice medicine in California are legally permitted to treat patients in California. As is the case with any treatment, care delivered via telemedicine must include appropriate patient examination and diagnosis.21
Help and guidance
Despite these potential drawbacks, many state agencies recognize the promise of telemedicine, and have developed networks to promote it (Table 2).7-9,22,23 These networks have various goals but share a common pattern of establishing infrastructure, policies, and organized results. In the future, states may adopt laws or regulations that address conflicts in malpractice standards and liability coverage, licensing, accreditation, reimbursement, privacy, and data protection policies that now may impede or inhibit use of telepsychiatric services across jurisdictional boundaries. Last year, Ohio produced regulations to guide psychiatrists in prescribing medication remotely without an in-person examination. The University of Hawaii suggested steps that its state legislature might take to help providers predict the potential legal ramifications of telemedicine.6
Further help for telepsychiatry practitioners may be found in practice standards and guidelines developed by the American Telemedicine Association.24,25 These documents gave guidance and support for the practice of telemedicine and for providing appropriate telepsychiatry health services.
Table 2
Telemedicine services available in different states
| State/Network | Description |
|---|---|
| Arizona www.narbha.org7 | The Northern Arizona Regional Behavioral Health Authority manages a comprehensive telemental health network (NARBHAnet) that uses 2-way videoconferencing to connect mental health experts and patients. It has provided >50,000 clinical psychiatric sessions |
| Kansas www.kumc.edu8 | The University of Kansas Medical Center provides specialty services (including telepsychiatry) through 14 clinical sites in rural Kansas. Cost-sharing helps the telepsychiatric application be successful |
| Montana www.emtn.org9 | Eastern Montana Telemedicine Network is a consortium of not-for-profit facilities that link health care providers and their patients in Montana and Wyoming. This telemental health network includes shared sites for all physicians practicing in the network and has yielded large out-of-pocket savings for patients |
| Oregon www.ortelehealth.org22 | The Telehealth Alliance of Oregon, which began in 2001 as a committee of the Oregon Telecommunications Coordinating Council, was created by the legislature and has served as advisors to the governor and the legislature regarding telecommunications in Oregon |
| Texas www.jsahealthmd.com23 | The Burke Center provides services to people in 12 counties in East Texas. It uses telepsychiatry services to conduct emergency evaluations, therefore keeping people in mental health crises out of emergency rooms |
What should Dr. A do?
In answer to Dr. A’s question, many factors favor including telepsychiatry in her practice. Yet we know little about the accuracy and reliability of psychiatric assessments made solely via Skype or other remote video technology in ordinary practice. Legislation and legal rules about acceptable practices are ambiguous, although in the absence of clear guidance, psychiatrists should assume that all usual professional standards and expectations about adequate care apply to treatment via Skype or other remote communication methods.
Related Resources
- Skype. www.skype.com.
- American Telemedicine Association. www.americantelemed.org.
Dear Dr. Mossman:
I practice in a region with few psychiatrists and very little public transportation. For many patients, coming to my office is inconvenient, expensive, or time-consuming. Sometimes, their emotional problems make it hard for them to travel, and sometimes, bad weather makes travel difficult. I am considering providing remote treatment via Skype. Is this a reasonable idea? What are the risks of using this technology in my practice? — Submitted by “Dr. A”
Diagnosing and treating patients without a face-to-face encounter is not new. Doctors have provided “remote treatment” since shortly after telephones were invented.1 Until recently, however, forensic psychiatrists advised colleagues not to diagnose patients or start treatment based on phone contact alone.2
The Internet has revolutionized our attitudes about many things. Communication technologies that seemed miraculous a generation ago have become commonplace and have transformed standards for ordinary and “acceptable” human contact. A quick Internet search of “telephone psychotherapy” turns up hundreds of mental health professionals who offer remote treatment services to patients via computers and Web cams.
Physicians in many specialties practice telemedicine, often with the support and encouragement of state governments and third-party payers. To decide whether to include telepsychiatry in your psychiatric practice, you should know:
- what “telemedicine” means and includes
- the possible advantages of offering remote health care
- potential risks and ambiguity about legal matters.
Defining telemedicine
Studies of remote, closed-circuit “telediagnosis” extend back more than 4 decades, closely following mid-20th century advancements in audio and video relay technologies that made space broadcasts possible.3 Then as now, “telemedicine” simply means conveying health-related information from 1 site to another for diagnostic or treatment purposes.4 It’s an adaptation of available technology to deliver care more easily, with the goal of improving patients’ access to care and health status.
Telemedicine usage accelerated as the Internet and related technologies developed. Telemedicine programs in the United States increased by 1,500% from 1993 to 1998.4 Telemedicine use has grown 10% annually in recent years and has become a $4 billion per year industry in the United States.5 Recently enacted federal legislation is likely to extend health care coverage to 36 million Americans and require coverage of pre-existing conditions. To make these changes affordable, health care delivery will need to exploit new, efficiency-enhancing technologies.6
Advantages of telemedicine
State governments and some third-party payers have recognized that telemedicine can overcome geographic and cost barriers to health services and patient education.5,7-9 Although closed-circuit video transmission has served this purpose for some time, Skype—free software that allows individuals to make video phone calls over the Internet using their computers—is an option that doctors are using to treat patients.10-12
Research suggests that telepsychiatry may provide huge benefits to medically underserved areas while reducing health care costs.4 Telepsychiatry can reduce travel time and expenses for professionals and patients, and it also may lower wait times and “no-show” rates (Table 1).4 Telepsychiatry lets patients see caregivers when winter weather makes roads unsafe. It may allow geriatric patients who can no longer drive to access psychiatric care and it lowers health care’s “carbon footprint,” making it “eco-friendly.”13
Social media strategies are playing an expanding role in medical education,14,15 and this probably will help practitioners feel more at ease about incorporating the underlying technologies into work with patients. Increased use of laptops and mobile phones lends itself well to telepsychiatry applications,13 and studies have examined the feasibility of psychotherapies delivered via remote communication devices.16 Smartphone apps are being designed to assist mental health professionals17 and consumers.18
Table 1
Potential benefits of telemedicine
| Category | Benefit(s) |
|---|---|
| Access | Patients can see specialists more readily Addresses regional doctor shortages Reduces health care disparities between urban and rural areas |
| Urgent care | Facilitates information transfer for rapid interventions |
| Productivity | Provides a conduit for clinicians to share skills and expertise Facilitates remote monitoring and home care |
| Cost | No travel costs Alternative revenue stream for health care organizations that offer more broadly delivered medical services |
| Patient-centric care | Care is taken to the patient Translator services are more readily available |
| Source: Reference 4 | |
Potential pitfalls and drawbacks
Although convenience, access, cost, and fossil fuel savings may favor video-chat doctor visits, telemedicine has downsides, some of which apply specifically to psychiatry. First, no current technology provides psychiatrists with “the rich multidimensional aspects of a person-to-person encounter,”19 and remote communication may change what patients tell us, how they feel when they tell us things, and how they feel when we respond. Often, an inherent awkwardness affects many forms of Internet communication.20
Also uncertain is whether Skype is compliant with the Health Insurance Portability and Accountability Act and protects doctor-patient privacy well enough to satisfy ethical standards—although it probably is far better than e-mail in this regard. Third-party payers often will not reimburse for telephone calls and may balk at paying for Skype-based therapy, even in states that require insurers to reimburse for telemedicine.
Psychiatrists typically have limited physical contact with patients, but we often check weight and vital signs when we prescribe certain psychotropic medications. Results from home- and drugstore-based blood pressure monitors may not be accurate enough for treatment purposes. Remote communication also reduces the quality of visual information,20 which can be crucial—for example, when good lighting and visual resolution is needed to decide whether a skin rash might be drug-induced.
Telemedicine raises concerns about licensure and meeting adequate standards of care. Medical care usually is deemed to have occurred in the state where the patient is located. For example, only physicians licensed to practice medicine in California are legally permitted to treat patients in California. As is the case with any treatment, care delivered via telemedicine must include appropriate patient examination and diagnosis.21
Help and guidance
Despite these potential drawbacks, many state agencies recognize the promise of telemedicine, and have developed networks to promote it (Table 2).7-9,22,23 These networks have various goals but share a common pattern of establishing infrastructure, policies, and organized results. In the future, states may adopt laws or regulations that address conflicts in malpractice standards and liability coverage, licensing, accreditation, reimbursement, privacy, and data protection policies that now may impede or inhibit use of telepsychiatric services across jurisdictional boundaries. Last year, Ohio produced regulations to guide psychiatrists in prescribing medication remotely without an in-person examination. The University of Hawaii suggested steps that its state legislature might take to help providers predict the potential legal ramifications of telemedicine.6
Further help for telepsychiatry practitioners may be found in practice standards and guidelines developed by the American Telemedicine Association.24,25 These documents gave guidance and support for the practice of telemedicine and for providing appropriate telepsychiatry health services.
Table 2
Telemedicine services available in different states
| State/Network | Description |
|---|---|
| Arizona www.narbha.org7 | The Northern Arizona Regional Behavioral Health Authority manages a comprehensive telemental health network (NARBHAnet) that uses 2-way videoconferencing to connect mental health experts and patients. It has provided >50,000 clinical psychiatric sessions |
| Kansas www.kumc.edu8 | The University of Kansas Medical Center provides specialty services (including telepsychiatry) through 14 clinical sites in rural Kansas. Cost-sharing helps the telepsychiatric application be successful |
| Montana www.emtn.org9 | Eastern Montana Telemedicine Network is a consortium of not-for-profit facilities that link health care providers and their patients in Montana and Wyoming. This telemental health network includes shared sites for all physicians practicing in the network and has yielded large out-of-pocket savings for patients |
| Oregon www.ortelehealth.org22 | The Telehealth Alliance of Oregon, which began in 2001 as a committee of the Oregon Telecommunications Coordinating Council, was created by the legislature and has served as advisors to the governor and the legislature regarding telecommunications in Oregon |
| Texas www.jsahealthmd.com23 | The Burke Center provides services to people in 12 counties in East Texas. It uses telepsychiatry services to conduct emergency evaluations, therefore keeping people in mental health crises out of emergency rooms |
What should Dr. A do?
In answer to Dr. A’s question, many factors favor including telepsychiatry in her practice. Yet we know little about the accuracy and reliability of psychiatric assessments made solely via Skype or other remote video technology in ordinary practice. Legislation and legal rules about acceptable practices are ambiguous, although in the absence of clear guidance, psychiatrists should assume that all usual professional standards and expectations about adequate care apply to treatment via Skype or other remote communication methods.
Related Resources
- Skype. www.skype.com.
- American Telemedicine Association. www.americantelemed.org.
1. Lipman M. The doctor will Skype you now. Consum Rep. 2011;76(8):12.-
2. Simon RI. Clinical psychiatry and the law. 2nd ed. Washington DC: American Psychiatric Press; 1992.
3. Murphy RL, Jr, Bird KT. Telediagnosis: a new community health resource. Observations on the feasibility of telediagnosis based on 1000 patient transactions. Am J Public Health. 1974;64(2):113-119.
4. Hilty DM, Yellowlees PM, Cobb HC, et al. Models of telepsychiatric consultation—liaison service to rural primary care. Psychosomatics. 2006;47(2):152-157.
5. Freudenheim M. The doctor will see you now. Please log on. New York Times. May 29 2010:BU1.
6. University of Hawai’i. Report to the 2009 legislature: preliminary report by the John A. Burns School of Medicine on the current practices of Hawai’i telemedicine system for 2009. http://www.hawaii.edu/offices/eaur/govrel/reports/2009. Published November 2008. Accessed September 27 2011.
7. Northern Arizona Regional Behavioral Health Authority. http://www.narbha.org. Accessed September 27 2011.
8. University of Kansas Medical Center. http://www.kumc.edu. Accessed September 27 2011.
9. Eastern Montana Telemedicine Network. http://www.emtn.org. Accessed September 27 2011.
10. Ciccia AH, Whitford B, Krumm M, et al. Improving the access of young urban children to speech, language and hearing screening via telehealth. J Telemed Telecare. 2011;17(5):240-244.
11. Hori M, Kubota M, Ando K, et al. The effect of videophone communication (with skype and webcam) for elderly patients with dementia and their caregivers [in Japanese]. Gan To Kagaku Ryoho. 2009;36(suppl 1):36-38.
12. Klock C, Gomes Rde P. Web conferencing systems: Skype and MSN in telepathology. Diagn Pathol. 2008;3(suppl 1):S13.-
13. Luo J. VoIP: The right call for your practice? Current Psychiatry. 2005;4(10):24-27.
14. George DR, Dellasega C. Use of social media in graduate-level medical humanities education: two pilot studies from Penn State College of Medicine. Med Teach. 2011;33(8):e429-434.
15. Lillis S, Gibbons V, Lawrenson R. The experience of final year medical students undertaking a general practice run with a distance education component. Rural Remote Health. 2010;10(1):1268.-
16. Bee PE, Bower P, Lovell K, et al. Psychotherapy mediated by remote communication technologies: a meta-analytic review. BMC Psychiatry. 2008;8:60.-
17. Maheu MM. iPhone app reviews for psychologists and mental health professionals. http://telehealth.net/blog/554. Accessed September 27 2011.
18. Maheu MM. iPhone apps reviews for mental health psychology and personal growth consumers. http://telehealth.net/blog/557. Accessed September 27, 2011.
19. Eckardt MH. The use of the telephone to extend our therapeutic availability. J Am Acad Psychoanal Dyn Psychiatry. 2011;39(1):151-153.
20. Hoffman J. When your therapist is only a click away. New York Times. September 23 2011:ST1.
21. Medical Board of California. Practicing medicine through telemedicine technology. http://www.mbc.ca.gov/licensee/telemedicine.html. Accessed September 27 2011.
22. Telehealth Alliance of Oregon. http://www.ortelehealth.org. Accessed October 31 2011.
23. JSA Health Telepsychiatry. http://jsahealthmd.com. Accessed September 27 2011.
24. American Telemedicine Association. Telemental standards and guidelines. http://www.americantelemed.org/i4a/pages/index.cfm?pageID=3311. Accessed September 27 2011.
25. American Telemedicine Association. Evidence-based practice for telemental health. http://www.americantelemed.org/i4a/forms/form.cfm?id=25&pageid=3718&showTitle=1. Accessed September 27 2011.
1. Lipman M. The doctor will Skype you now. Consum Rep. 2011;76(8):12.-
2. Simon RI. Clinical psychiatry and the law. 2nd ed. Washington DC: American Psychiatric Press; 1992.
3. Murphy RL, Jr, Bird KT. Telediagnosis: a new community health resource. Observations on the feasibility of telediagnosis based on 1000 patient transactions. Am J Public Health. 1974;64(2):113-119.
4. Hilty DM, Yellowlees PM, Cobb HC, et al. Models of telepsychiatric consultation—liaison service to rural primary care. Psychosomatics. 2006;47(2):152-157.
5. Freudenheim M. The doctor will see you now. Please log on. New York Times. May 29 2010:BU1.
6. University of Hawai’i. Report to the 2009 legislature: preliminary report by the John A. Burns School of Medicine on the current practices of Hawai’i telemedicine system for 2009. http://www.hawaii.edu/offices/eaur/govrel/reports/2009. Published November 2008. Accessed September 27 2011.
7. Northern Arizona Regional Behavioral Health Authority. http://www.narbha.org. Accessed September 27 2011.
8. University of Kansas Medical Center. http://www.kumc.edu. Accessed September 27 2011.
9. Eastern Montana Telemedicine Network. http://www.emtn.org. Accessed September 27 2011.
10. Ciccia AH, Whitford B, Krumm M, et al. Improving the access of young urban children to speech, language and hearing screening via telehealth. J Telemed Telecare. 2011;17(5):240-244.
11. Hori M, Kubota M, Ando K, et al. The effect of videophone communication (with skype and webcam) for elderly patients with dementia and their caregivers [in Japanese]. Gan To Kagaku Ryoho. 2009;36(suppl 1):36-38.
12. Klock C, Gomes Rde P. Web conferencing systems: Skype and MSN in telepathology. Diagn Pathol. 2008;3(suppl 1):S13.-
13. Luo J. VoIP: The right call for your practice? Current Psychiatry. 2005;4(10):24-27.
14. George DR, Dellasega C. Use of social media in graduate-level medical humanities education: two pilot studies from Penn State College of Medicine. Med Teach. 2011;33(8):e429-434.
15. Lillis S, Gibbons V, Lawrenson R. The experience of final year medical students undertaking a general practice run with a distance education component. Rural Remote Health. 2010;10(1):1268.-
16. Bee PE, Bower P, Lovell K, et al. Psychotherapy mediated by remote communication technologies: a meta-analytic review. BMC Psychiatry. 2008;8:60.-
17. Maheu MM. iPhone app reviews for psychologists and mental health professionals. http://telehealth.net/blog/554. Accessed September 27 2011.
18. Maheu MM. iPhone apps reviews for mental health psychology and personal growth consumers. http://telehealth.net/blog/557. Accessed September 27, 2011.
19. Eckardt MH. The use of the telephone to extend our therapeutic availability. J Am Acad Psychoanal Dyn Psychiatry. 2011;39(1):151-153.
20. Hoffman J. When your therapist is only a click away. New York Times. September 23 2011:ST1.
21. Medical Board of California. Practicing medicine through telemedicine technology. http://www.mbc.ca.gov/licensee/telemedicine.html. Accessed September 27 2011.
22. Telehealth Alliance of Oregon. http://www.ortelehealth.org. Accessed October 31 2011.
23. JSA Health Telepsychiatry. http://jsahealthmd.com. Accessed September 27 2011.
24. American Telemedicine Association. Telemental standards and guidelines. http://www.americantelemed.org/i4a/pages/index.cfm?pageID=3311. Accessed September 27 2011.
25. American Telemedicine Association. Evidence-based practice for telemental health. http://www.americantelemed.org/i4a/forms/form.cfm?id=25&pageid=3718&showTitle=1. Accessed September 27 2011.
Physician impairment: When should you report?
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
Lately, a physician colleague has been arriving late for work. He seemed drunk a couple of times, and he’s been making some careless but minor mistakes. When would I have a duty to report him for suspected impairment? He is a longtime friend, which makes me uncomfortable with the prospect of having to report him.—Submitted by “Dr. Z”
Holding ourselves to ethical guidelines and standards of conduct sometimes is hard, but when we become responsible for our colleagues’ behavior, things can get awkward. Yet the responsibilities of practicing medicine include professional self-regulation.1 Failure to monitor ourselves and each other would put the reputation and integrity of the medical profession at risk—not to mention the safety of our patients. Despite this, many physicians are understandably reluctant to report colleagues who appear impaired.
To decide whether you should report a colleague, you must:
- know what behaviors constitute impairment
- understand the duty to report impaired colleagues
- realize reporting colleagues often creates emotional conflict
- understand recovery options and resources available for impaired practitioners.
After we examine these matters, we’ll see what Dr. Z should do.
Impairment defined
Physician impairment is a public health issue that affects not just physicians but their families, colleagues, and patients. In this context, “impairment” means a physical, mental, or substance-related disorder that interferes with a physician’s ability to undertake professional activities competently and safely.2
Although many mental conditions can cause impairment, we focus here on substance abuse, a condition that often leads to functional impairment. Physicians develop addictions at rates at least as high as those in the general population.3 Physicians-in- training—including psychiatric residents—are at particularly high risk for developing stress-related problems, depression, and substance misuse.4,5
Occupational demands, self-criticism, and denial of one’s own distress are common failings among physicians,5 as is self-treatment, which may help explain the high rates of substance misuse among physicians.6 Behaviors that suggest a colleague may be abusing substances and experiencing occupational impairment appear in Table 1.7
Table 1
Signs of physician impairment
| Deteriorating personal hygiene |
| Increased absence from professional functions or duties |
| Emotional lability |
| Appearing sleep-deprived |
| Increased professional errors (eg, prescriptions, dictations, clinical judgment) |
| Not responding to pages or telephone calls |
| Decreased concern for patient well-being |
| Citing unexplained ‘personal problems’ to mask deficits in concentration or patient care |
| Increased patient complaints about quality of care and bedside manner |
| Many ‘accidental’ injuries (possibly contrived to obtain narcotic prescriptions) |
| Source: Reference 7 |
Reporting duties
Doctors and physician health programs have a duty to report impaired colleagues who continue to practice despite reasonable offers of assistance. This obligation appears in professional guidelines (Table 2)2,8 and in laws and regulations governing the practice of medicine. Laws and regulations are similar in spirit across jurisdictions, although the exact wording varies from state to state (Table 3).9-11 Physicians are responsible for being familiar with reporting requirements in states they practice and complying accordingly.
Physicians must follow state guidelines and protocols for reporting a colleague’s impairment. In many situations, an intermediate step—such as notifying a chief of service or a physician health program—might occur before a report of impairment goes to a licensing board. Options for reporting impaired physicians appear in Table 4.2,12
Table 2
Medical associations’ official positions on reporting impairment
| American Medical Association (Policy H-275.952)2 | ‘Physicians have an ethical obligation to report impaired, incompetent, and unethical colleagues.’ |
| Federation of State Medical Boards8 | Physician health programs have ‘a primary commitment to [help] state medical boards … protect the public … [These] programs [should] demonstrate an ongoing track record of ensuring safety to the public and reveal deficiencies if they occur.’ |
Table 3
State medical board rules on reporting physician impairment: 3 examples
| State | Rules |
|---|---|
| California9 | California’s Medical Practice Act contains no mandatory reporting requirement. ‘However, … the Board clearly is concerned about physicians who potentially present a danger to their patients. Reporting an impaired colleague to the Medical Board will allow the Board to ensure adequate protections are in place so a colleague who requires assistance will not harm the public. The Board keeps the sources of complaint information confidential.’ |
| Montana10 | ‘[E]ach licensed physician … shall … report to the board any information … that appears to show that a physician is’ impaired. However, ‘[i]nformation that relates to possible physical or mental impairment connected to [substance misuse or illness] may be reported to’ Montana’s physician rehabilitation program ‘in lieu of reporting directly to the board.’ |
| Ohio11 | ‘Any Board licensee having knowledge’ that a physician is impaired because of substance misuse ‘is required … to report that information to the Board. … [H]owever, … the [impaired] physician’s colleagues may be excused from reporting the physician’s impairment … if the [impaired] physician has completed treatment with a Board approved treatment provider and maintained uninterrupted sobriety, and violated no other provisions of the Ohio Medical Practice Act.’ |
Table 4
Options for reporting impaired colleagues
| Impairment in hospital-based physicians may be reported to the hospital’s in-house impairment program, the hospital’s chief of staff, or another appropriate supervisor (eg, a chief resident) |
| Impairment in physicians with office-based practices may be reported to hospitals where they have privileges or to the state’s physician health program |
| Colleagues who continue to practice despite offers of assistance and referrals for treatment or for whom the above options are not available should be reported to the state licensing board |
| Source: References 2,12 |
Overcoming emotional factors
Doctors facing the need to report an impaired colleague often experience emotional conflicts because the impaired is a mentor, supervisor, trainee, friend, or practice partner. Denial, stigmatization, concerns about practice coverage, and fear of retaliation also can contribute to non-reporting. Although we know a colleague’s substance misuse represents a threat to his patients’ welfare and safety,13 reporting a colleague forces us to overcome our allegiance to a fellow practitioner.
Medical professionals should remember, however, that it is always better to identify and treat illnesses early in their course. When early referrals are not made, doctors afflicted by illness often remain without treatment until more severe impairment causes workplace errors. Withholding information about an impaired colleague from supervisors or state medical boards does a disservice to patients and to the colleague. The colleague’s drug or alcohol problems may worsen, and recovery or acquisition of future licenses might become more difficult or impossible. Initial application for medical licensure in 47 states and the District of Columbia inquire about physicians’ recent history of mental health and substance abuse problems, as well as their functional impairment.14 Even renewal of state medical licensure examines applicants’ mental health, physical health, and substance abuse histories.15
Recovery resources
Many institutions and medical board committees have instituted written policies for dealing with workplace addiction.13 An awareness of and sensitivity to physician vulnerability and early detection and prevention of impairment are important.2
At least 39 states have “sick doctor statutes” that permit licensure suspension for physicians who cannot practice medicine safely because of illness or substance use disorders.16 Several states have forms of “immunity”—license protection and preservation—for physicians who seek treatment voluntarily, and some states have legislative provisions that require impaired physicians to get treatment and be monitored so they can keep their licenses.17 In almost every state, medical societies have established physicians’ health committees and treatment programs (Table 5).18
Table 5
Examples of state physician health programs
| State | Organization | Contact |
|---|---|---|
| Colorado | Colorado Physician Health Program | (303) 860-0122 www.cphp.org |
| Florida | Professional Resources Network | (800) 888-8776 www.flprn.org |
| Illinois | Illinois Professional Health Program | (800) 323-8622 www.advocatehealth.com/IPHP |
| Massachusetts | Physician Health Services, Inc. | (781) 434-7404 www.massmed.org |
| Minnesota | Health Professionals Services Program | (651) 643-2120 www.hpsp.state.mn.us |
| Nevada | Nevada Professionals Assistance Program | (702) 521-1398 www.medboard.nv.gov |
| New York | Committee for Physician Health, Medical Society of the State of New York | (518) 436-4723 www.cphny.org |
| Ohio | Ohio Physicians Health Program | (614) 841-9690 www.ophp.org |
| Oregon | Oregon Health Professionals Program | (503) 620-9117 www.oregon.gov/OHA/addiction/health-professionals.shtml |
| Tennessee | Physicians Health Program, Tennessee Medical Foundation | (615) 467-6411 www.e-tmf.org |
| Texas | Committee on Physician Health and Rehabilitation, Texas Medical Association | (512) 370-1342 www.texmed.org |
| Source: Reference 18 | ||
Physicians often recover
Physician treatment is unique for several reasons. First, it is rarely voluntary, and because treatment is coerced in some way, physicians are sicker when they enter treatment. They have more social dysfunction, more medical consequences, and simply are more complicated to treat. Still, most treatment programs for impaired professionals report better rates of long-term recovery than those of the general public, perhaps because physicians are monitored intensively and have the strong motivation of not wanting to lose their medical licenses. For example, in a study of 100 alcoholic U.S. doctors followed for 21 years, 73% had recovered. This study and others show a strong relationship between recovery and attending meetings of self-help groups.19
What should Dr. Z do?
Dr. Z is a member of a professional community that has an ethical obligation to police itself and to report observations that suggest impairment. His colleague’s suspected substance use disorder could interfere with his ability to function and pose a risk to patient welfare and safety.
Although reporting a colleague is unpleasant, impaired physicians often recover, and the data support optimism about returning to clinical practice for physicians who get appropriate treatment. In this case, Dr. Z’s reporting of his concerns about impairment would help uphold the integrity of the medical profession and would offer his colleague the potential benefits of treatment and recovery programs.
Related Resources
- Bright RP, Krahn L. Impaired physicians: How to recognize, when to report, and where to refer. Current Psychiatry. 2010;9(6):11-20.
- DuPont RL, McLellan AT, White WL, et al. Setting the standard for recovery: Physicians’ Health Programs. J Subst Abuse Treat. 2009;36(2):159-171.
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Ernhart CB, Scarr S, Geneson DF. On being a whistleblower: the Needleman case Ethics Behav. 1993;3(1):73-93.
2. American Medical Association. Policies related to physician health. Available at: http://www.ama-assn.org/resources/doc/physician-health/policies-physicain-health.pdf. Accessed June 19, 2011.
3. Berge KH, Seppala MD, Schipper AM. Chemical dependency and the physician. Mayo Clin Proc. 2009;84(7):625-631.
4. Broquet KE, Rockey PH. Teaching residents and program directors about physician impairment. Acad Psychiatry. 2004;28(3):221-225.
5. Meier DE, Back AL, Morrison RS. The inner life of physicians and care of the seriously ill. JAMA. 2001;286(23):3007-3014.
6. Firth-Cozens J. Improving the health of psychiatrists. Adv Psychiatr Treat. 2007;13(3):161-168.
7. McGovern MP, Angres DH, Leon S. Characteristics of physicians presenting for assessment at a behavioral health center. J Addict Dis. 2000;19(2):59-73.
8. Federation of State Medical Boards of the United States. Policy on physician impairment. Available at: http://www.csam-asam.org/pdf/misc/FSMB2011.pdf. Accessed June 8, 2011.
9. Medical Board of California. Complaint process - frequently asked questions. Available at: http://www.medbd.ca.gov/consumer/complaint_info_questions_process.html. Accessed June 8, 2011.
10. Montana Code Ann § 37-3-401 (2005)
11. State Medical Board of Ohio. Policies and positions: licensure of chemically impaired resident physicians. Available at: http://www.med.ohio.gov/positionpapers/resident.htm. Accessed June 19, 2011.
12. American Medical Association. Code of medical ethics, opinion 9.031. Reporting impaired, incompetent, or unethical colleagues. Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion9031.page. Accessed June 19, 2011.
13. Hulse G, Sim MG, Khong E. Management of the impaired doctor. Aust Fam Physician. 2004;33(9):703-707.
14. Sansone RA, Wiederman MW, Sansone LA. Physician mental health and substance abuse. What are state medical licensure applications asking? Arch Fam Med. 1999;8(5):448-451.
15. Hansen TE, Goetz RR, Bloom JD, et al. Changes in questions about psychiatric illness asked on medical licensure applications between 1993 and 1996. Psychiatr Serv. 1998;49(2):202-206.
16. Boisaubin EV, Levine RE. Identifying and assisting the impaired physician. Am J Med Sci. 2001;322(1):31-36.
17. Verghese A. Physicians and addiction. N Engl J Med. 2002;346(20):1510-1511.
18. Federation of State Physicians Health Programs. Available at: http://www.fsphp.org. Accessed June 8, 2011.
19. Lloyd G. One hundred alcoholic doctors: a 21-year follow-up. Alcohol Alcohol. 2002;37(4):370-374
Douglas Mossman, MD
Dr. Mossman is administrative director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH.
Helen M. Farrell, MD
Dr. Farrell is an instructor at Harvard Medical School and a staff psychiatrist at Beth Israel Deaconess Medical Center, Boston, MA.
Douglas Mossman, MD
Dr. Mossman is administrative director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH.
Helen M. Farrell, MD
Dr. Farrell is an instructor at Harvard Medical School and a staff psychiatrist at Beth Israel Deaconess Medical Center, Boston, MA.
Douglas Mossman, MD
Dr. Mossman is administrative director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship, Cincinnati, OH.
Helen M. Farrell, MD
Dr. Farrell is an instructor at Harvard Medical School and a staff psychiatrist at Beth Israel Deaconess Medical Center, Boston, MA.
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
Lately, a physician colleague has been arriving late for work. He seemed drunk a couple of times, and he’s been making some careless but minor mistakes. When would I have a duty to report him for suspected impairment? He is a longtime friend, which makes me uncomfortable with the prospect of having to report him.—Submitted by “Dr. Z”
Holding ourselves to ethical guidelines and standards of conduct sometimes is hard, but when we become responsible for our colleagues’ behavior, things can get awkward. Yet the responsibilities of practicing medicine include professional self-regulation.1 Failure to monitor ourselves and each other would put the reputation and integrity of the medical profession at risk—not to mention the safety of our patients. Despite this, many physicians are understandably reluctant to report colleagues who appear impaired.
To decide whether you should report a colleague, you must:
- know what behaviors constitute impairment
- understand the duty to report impaired colleagues
- realize reporting colleagues often creates emotional conflict
- understand recovery options and resources available for impaired practitioners.
After we examine these matters, we’ll see what Dr. Z should do.
Impairment defined
Physician impairment is a public health issue that affects not just physicians but their families, colleagues, and patients. In this context, “impairment” means a physical, mental, or substance-related disorder that interferes with a physician’s ability to undertake professional activities competently and safely.2
Although many mental conditions can cause impairment, we focus here on substance abuse, a condition that often leads to functional impairment. Physicians develop addictions at rates at least as high as those in the general population.3 Physicians-in- training—including psychiatric residents—are at particularly high risk for developing stress-related problems, depression, and substance misuse.4,5
Occupational demands, self-criticism, and denial of one’s own distress are common failings among physicians,5 as is self-treatment, which may help explain the high rates of substance misuse among physicians.6 Behaviors that suggest a colleague may be abusing substances and experiencing occupational impairment appear in Table 1.7
Table 1
Signs of physician impairment
| Deteriorating personal hygiene |
| Increased absence from professional functions or duties |
| Emotional lability |
| Appearing sleep-deprived |
| Increased professional errors (eg, prescriptions, dictations, clinical judgment) |
| Not responding to pages or telephone calls |
| Decreased concern for patient well-being |
| Citing unexplained ‘personal problems’ to mask deficits in concentration or patient care |
| Increased patient complaints about quality of care and bedside manner |
| Many ‘accidental’ injuries (possibly contrived to obtain narcotic prescriptions) |
| Source: Reference 7 |
Reporting duties
Doctors and physician health programs have a duty to report impaired colleagues who continue to practice despite reasonable offers of assistance. This obligation appears in professional guidelines (Table 2)2,8 and in laws and regulations governing the practice of medicine. Laws and regulations are similar in spirit across jurisdictions, although the exact wording varies from state to state (Table 3).9-11 Physicians are responsible for being familiar with reporting requirements in states they practice and complying accordingly.
Physicians must follow state guidelines and protocols for reporting a colleague’s impairment. In many situations, an intermediate step—such as notifying a chief of service or a physician health program—might occur before a report of impairment goes to a licensing board. Options for reporting impaired physicians appear in Table 4.2,12
Table 2
Medical associations’ official positions on reporting impairment
| American Medical Association (Policy H-275.952)2 | ‘Physicians have an ethical obligation to report impaired, incompetent, and unethical colleagues.’ |
| Federation of State Medical Boards8 | Physician health programs have ‘a primary commitment to [help] state medical boards … protect the public … [These] programs [should] demonstrate an ongoing track record of ensuring safety to the public and reveal deficiencies if they occur.’ |
Table 3
State medical board rules on reporting physician impairment: 3 examples
| State | Rules |
|---|---|
| California9 | California’s Medical Practice Act contains no mandatory reporting requirement. ‘However, … the Board clearly is concerned about physicians who potentially present a danger to their patients. Reporting an impaired colleague to the Medical Board will allow the Board to ensure adequate protections are in place so a colleague who requires assistance will not harm the public. The Board keeps the sources of complaint information confidential.’ |
| Montana10 | ‘[E]ach licensed physician … shall … report to the board any information … that appears to show that a physician is’ impaired. However, ‘[i]nformation that relates to possible physical or mental impairment connected to [substance misuse or illness] may be reported to’ Montana’s physician rehabilitation program ‘in lieu of reporting directly to the board.’ |
| Ohio11 | ‘Any Board licensee having knowledge’ that a physician is impaired because of substance misuse ‘is required … to report that information to the Board. … [H]owever, … the [impaired] physician’s colleagues may be excused from reporting the physician’s impairment … if the [impaired] physician has completed treatment with a Board approved treatment provider and maintained uninterrupted sobriety, and violated no other provisions of the Ohio Medical Practice Act.’ |
Table 4
Options for reporting impaired colleagues
| Impairment in hospital-based physicians may be reported to the hospital’s in-house impairment program, the hospital’s chief of staff, or another appropriate supervisor (eg, a chief resident) |
| Impairment in physicians with office-based practices may be reported to hospitals where they have privileges or to the state’s physician health program |
| Colleagues who continue to practice despite offers of assistance and referrals for treatment or for whom the above options are not available should be reported to the state licensing board |
| Source: References 2,12 |
Overcoming emotional factors
Doctors facing the need to report an impaired colleague often experience emotional conflicts because the impaired is a mentor, supervisor, trainee, friend, or practice partner. Denial, stigmatization, concerns about practice coverage, and fear of retaliation also can contribute to non-reporting. Although we know a colleague’s substance misuse represents a threat to his patients’ welfare and safety,13 reporting a colleague forces us to overcome our allegiance to a fellow practitioner.
Medical professionals should remember, however, that it is always better to identify and treat illnesses early in their course. When early referrals are not made, doctors afflicted by illness often remain without treatment until more severe impairment causes workplace errors. Withholding information about an impaired colleague from supervisors or state medical boards does a disservice to patients and to the colleague. The colleague’s drug or alcohol problems may worsen, and recovery or acquisition of future licenses might become more difficult or impossible. Initial application for medical licensure in 47 states and the District of Columbia inquire about physicians’ recent history of mental health and substance abuse problems, as well as their functional impairment.14 Even renewal of state medical licensure examines applicants’ mental health, physical health, and substance abuse histories.15
Recovery resources
Many institutions and medical board committees have instituted written policies for dealing with workplace addiction.13 An awareness of and sensitivity to physician vulnerability and early detection and prevention of impairment are important.2
At least 39 states have “sick doctor statutes” that permit licensure suspension for physicians who cannot practice medicine safely because of illness or substance use disorders.16 Several states have forms of “immunity”—license protection and preservation—for physicians who seek treatment voluntarily, and some states have legislative provisions that require impaired physicians to get treatment and be monitored so they can keep their licenses.17 In almost every state, medical societies have established physicians’ health committees and treatment programs (Table 5).18
Table 5
Examples of state physician health programs
| State | Organization | Contact |
|---|---|---|
| Colorado | Colorado Physician Health Program | (303) 860-0122 www.cphp.org |
| Florida | Professional Resources Network | (800) 888-8776 www.flprn.org |
| Illinois | Illinois Professional Health Program | (800) 323-8622 www.advocatehealth.com/IPHP |
| Massachusetts | Physician Health Services, Inc. | (781) 434-7404 www.massmed.org |
| Minnesota | Health Professionals Services Program | (651) 643-2120 www.hpsp.state.mn.us |
| Nevada | Nevada Professionals Assistance Program | (702) 521-1398 www.medboard.nv.gov |
| New York | Committee for Physician Health, Medical Society of the State of New York | (518) 436-4723 www.cphny.org |
| Ohio | Ohio Physicians Health Program | (614) 841-9690 www.ophp.org |
| Oregon | Oregon Health Professionals Program | (503) 620-9117 www.oregon.gov/OHA/addiction/health-professionals.shtml |
| Tennessee | Physicians Health Program, Tennessee Medical Foundation | (615) 467-6411 www.e-tmf.org |
| Texas | Committee on Physician Health and Rehabilitation, Texas Medical Association | (512) 370-1342 www.texmed.org |
| Source: Reference 18 | ||
Physicians often recover
Physician treatment is unique for several reasons. First, it is rarely voluntary, and because treatment is coerced in some way, physicians are sicker when they enter treatment. They have more social dysfunction, more medical consequences, and simply are more complicated to treat. Still, most treatment programs for impaired professionals report better rates of long-term recovery than those of the general public, perhaps because physicians are monitored intensively and have the strong motivation of not wanting to lose their medical licenses. For example, in a study of 100 alcoholic U.S. doctors followed for 21 years, 73% had recovered. This study and others show a strong relationship between recovery and attending meetings of self-help groups.19
What should Dr. Z do?
Dr. Z is a member of a professional community that has an ethical obligation to police itself and to report observations that suggest impairment. His colleague’s suspected substance use disorder could interfere with his ability to function and pose a risk to patient welfare and safety.
Although reporting a colleague is unpleasant, impaired physicians often recover, and the data support optimism about returning to clinical practice for physicians who get appropriate treatment. In this case, Dr. Z’s reporting of his concerns about impairment would help uphold the integrity of the medical profession and would offer his colleague the potential benefits of treatment and recovery programs.
Related Resources
- Bright RP, Krahn L. Impaired physicians: How to recognize, when to report, and where to refer. Current Psychiatry. 2010;9(6):11-20.
- DuPont RL, McLellan AT, White WL, et al. Setting the standard for recovery: Physicians’ Health Programs. J Subst Abuse Treat. 2009;36(2):159-171.
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
Lately, a physician colleague has been arriving late for work. He seemed drunk a couple of times, and he’s been making some careless but minor mistakes. When would I have a duty to report him for suspected impairment? He is a longtime friend, which makes me uncomfortable with the prospect of having to report him.—Submitted by “Dr. Z”
Holding ourselves to ethical guidelines and standards of conduct sometimes is hard, but when we become responsible for our colleagues’ behavior, things can get awkward. Yet the responsibilities of practicing medicine include professional self-regulation.1 Failure to monitor ourselves and each other would put the reputation and integrity of the medical profession at risk—not to mention the safety of our patients. Despite this, many physicians are understandably reluctant to report colleagues who appear impaired.
To decide whether you should report a colleague, you must:
- know what behaviors constitute impairment
- understand the duty to report impaired colleagues
- realize reporting colleagues often creates emotional conflict
- understand recovery options and resources available for impaired practitioners.
After we examine these matters, we’ll see what Dr. Z should do.
Impairment defined
Physician impairment is a public health issue that affects not just physicians but their families, colleagues, and patients. In this context, “impairment” means a physical, mental, or substance-related disorder that interferes with a physician’s ability to undertake professional activities competently and safely.2
Although many mental conditions can cause impairment, we focus here on substance abuse, a condition that often leads to functional impairment. Physicians develop addictions at rates at least as high as those in the general population.3 Physicians-in- training—including psychiatric residents—are at particularly high risk for developing stress-related problems, depression, and substance misuse.4,5
Occupational demands, self-criticism, and denial of one’s own distress are common failings among physicians,5 as is self-treatment, which may help explain the high rates of substance misuse among physicians.6 Behaviors that suggest a colleague may be abusing substances and experiencing occupational impairment appear in Table 1.7
Table 1
Signs of physician impairment
| Deteriorating personal hygiene |
| Increased absence from professional functions or duties |
| Emotional lability |
| Appearing sleep-deprived |
| Increased professional errors (eg, prescriptions, dictations, clinical judgment) |
| Not responding to pages or telephone calls |
| Decreased concern for patient well-being |
| Citing unexplained ‘personal problems’ to mask deficits in concentration or patient care |
| Increased patient complaints about quality of care and bedside manner |
| Many ‘accidental’ injuries (possibly contrived to obtain narcotic prescriptions) |
| Source: Reference 7 |
Reporting duties
Doctors and physician health programs have a duty to report impaired colleagues who continue to practice despite reasonable offers of assistance. This obligation appears in professional guidelines (Table 2)2,8 and in laws and regulations governing the practice of medicine. Laws and regulations are similar in spirit across jurisdictions, although the exact wording varies from state to state (Table 3).9-11 Physicians are responsible for being familiar with reporting requirements in states they practice and complying accordingly.
Physicians must follow state guidelines and protocols for reporting a colleague’s impairment. In many situations, an intermediate step—such as notifying a chief of service or a physician health program—might occur before a report of impairment goes to a licensing board. Options for reporting impaired physicians appear in Table 4.2,12
Table 2
Medical associations’ official positions on reporting impairment
| American Medical Association (Policy H-275.952)2 | ‘Physicians have an ethical obligation to report impaired, incompetent, and unethical colleagues.’ |
| Federation of State Medical Boards8 | Physician health programs have ‘a primary commitment to [help] state medical boards … protect the public … [These] programs [should] demonstrate an ongoing track record of ensuring safety to the public and reveal deficiencies if they occur.’ |
Table 3
State medical board rules on reporting physician impairment: 3 examples
| State | Rules |
|---|---|
| California9 | California’s Medical Practice Act contains no mandatory reporting requirement. ‘However, … the Board clearly is concerned about physicians who potentially present a danger to their patients. Reporting an impaired colleague to the Medical Board will allow the Board to ensure adequate protections are in place so a colleague who requires assistance will not harm the public. The Board keeps the sources of complaint information confidential.’ |
| Montana10 | ‘[E]ach licensed physician … shall … report to the board any information … that appears to show that a physician is’ impaired. However, ‘[i]nformation that relates to possible physical or mental impairment connected to [substance misuse or illness] may be reported to’ Montana’s physician rehabilitation program ‘in lieu of reporting directly to the board.’ |
| Ohio11 | ‘Any Board licensee having knowledge’ that a physician is impaired because of substance misuse ‘is required … to report that information to the Board. … [H]owever, … the [impaired] physician’s colleagues may be excused from reporting the physician’s impairment … if the [impaired] physician has completed treatment with a Board approved treatment provider and maintained uninterrupted sobriety, and violated no other provisions of the Ohio Medical Practice Act.’ |
Table 4
Options for reporting impaired colleagues
| Impairment in hospital-based physicians may be reported to the hospital’s in-house impairment program, the hospital’s chief of staff, or another appropriate supervisor (eg, a chief resident) |
| Impairment in physicians with office-based practices may be reported to hospitals where they have privileges or to the state’s physician health program |
| Colleagues who continue to practice despite offers of assistance and referrals for treatment or for whom the above options are not available should be reported to the state licensing board |
| Source: References 2,12 |
Overcoming emotional factors
Doctors facing the need to report an impaired colleague often experience emotional conflicts because the impaired is a mentor, supervisor, trainee, friend, or practice partner. Denial, stigmatization, concerns about practice coverage, and fear of retaliation also can contribute to non-reporting. Although we know a colleague’s substance misuse represents a threat to his patients’ welfare and safety,13 reporting a colleague forces us to overcome our allegiance to a fellow practitioner.
Medical professionals should remember, however, that it is always better to identify and treat illnesses early in their course. When early referrals are not made, doctors afflicted by illness often remain without treatment until more severe impairment causes workplace errors. Withholding information about an impaired colleague from supervisors or state medical boards does a disservice to patients and to the colleague. The colleague’s drug or alcohol problems may worsen, and recovery or acquisition of future licenses might become more difficult or impossible. Initial application for medical licensure in 47 states and the District of Columbia inquire about physicians’ recent history of mental health and substance abuse problems, as well as their functional impairment.14 Even renewal of state medical licensure examines applicants’ mental health, physical health, and substance abuse histories.15
Recovery resources
Many institutions and medical board committees have instituted written policies for dealing with workplace addiction.13 An awareness of and sensitivity to physician vulnerability and early detection and prevention of impairment are important.2
At least 39 states have “sick doctor statutes” that permit licensure suspension for physicians who cannot practice medicine safely because of illness or substance use disorders.16 Several states have forms of “immunity”—license protection and preservation—for physicians who seek treatment voluntarily, and some states have legislative provisions that require impaired physicians to get treatment and be monitored so they can keep their licenses.17 In almost every state, medical societies have established physicians’ health committees and treatment programs (Table 5).18
Table 5
Examples of state physician health programs
| State | Organization | Contact |
|---|---|---|
| Colorado | Colorado Physician Health Program | (303) 860-0122 www.cphp.org |
| Florida | Professional Resources Network | (800) 888-8776 www.flprn.org |
| Illinois | Illinois Professional Health Program | (800) 323-8622 www.advocatehealth.com/IPHP |
| Massachusetts | Physician Health Services, Inc. | (781) 434-7404 www.massmed.org |
| Minnesota | Health Professionals Services Program | (651) 643-2120 www.hpsp.state.mn.us |
| Nevada | Nevada Professionals Assistance Program | (702) 521-1398 www.medboard.nv.gov |
| New York | Committee for Physician Health, Medical Society of the State of New York | (518) 436-4723 www.cphny.org |
| Ohio | Ohio Physicians Health Program | (614) 841-9690 www.ophp.org |
| Oregon | Oregon Health Professionals Program | (503) 620-9117 www.oregon.gov/OHA/addiction/health-professionals.shtml |
| Tennessee | Physicians Health Program, Tennessee Medical Foundation | (615) 467-6411 www.e-tmf.org |
| Texas | Committee on Physician Health and Rehabilitation, Texas Medical Association | (512) 370-1342 www.texmed.org |
| Source: Reference 18 | ||
Physicians often recover
Physician treatment is unique for several reasons. First, it is rarely voluntary, and because treatment is coerced in some way, physicians are sicker when they enter treatment. They have more social dysfunction, more medical consequences, and simply are more complicated to treat. Still, most treatment programs for impaired professionals report better rates of long-term recovery than those of the general public, perhaps because physicians are monitored intensively and have the strong motivation of not wanting to lose their medical licenses. For example, in a study of 100 alcoholic U.S. doctors followed for 21 years, 73% had recovered. This study and others show a strong relationship between recovery and attending meetings of self-help groups.19
What should Dr. Z do?
Dr. Z is a member of a professional community that has an ethical obligation to police itself and to report observations that suggest impairment. His colleague’s suspected substance use disorder could interfere with his ability to function and pose a risk to patient welfare and safety.
Although reporting a colleague is unpleasant, impaired physicians often recover, and the data support optimism about returning to clinical practice for physicians who get appropriate treatment. In this case, Dr. Z’s reporting of his concerns about impairment would help uphold the integrity of the medical profession and would offer his colleague the potential benefits of treatment and recovery programs.
Related Resources
- Bright RP, Krahn L. Impaired physicians: How to recognize, when to report, and where to refer. Current Psychiatry. 2010;9(6):11-20.
- DuPont RL, McLellan AT, White WL, et al. Setting the standard for recovery: Physicians’ Health Programs. J Subst Abuse Treat. 2009;36(2):159-171.
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Ernhart CB, Scarr S, Geneson DF. On being a whistleblower: the Needleman case Ethics Behav. 1993;3(1):73-93.
2. American Medical Association. Policies related to physician health. Available at: http://www.ama-assn.org/resources/doc/physician-health/policies-physicain-health.pdf. Accessed June 19, 2011.
3. Berge KH, Seppala MD, Schipper AM. Chemical dependency and the physician. Mayo Clin Proc. 2009;84(7):625-631.
4. Broquet KE, Rockey PH. Teaching residents and program directors about physician impairment. Acad Psychiatry. 2004;28(3):221-225.
5. Meier DE, Back AL, Morrison RS. The inner life of physicians and care of the seriously ill. JAMA. 2001;286(23):3007-3014.
6. Firth-Cozens J. Improving the health of psychiatrists. Adv Psychiatr Treat. 2007;13(3):161-168.
7. McGovern MP, Angres DH, Leon S. Characteristics of physicians presenting for assessment at a behavioral health center. J Addict Dis. 2000;19(2):59-73.
8. Federation of State Medical Boards of the United States. Policy on physician impairment. Available at: http://www.csam-asam.org/pdf/misc/FSMB2011.pdf. Accessed June 8, 2011.
9. Medical Board of California. Complaint process - frequently asked questions. Available at: http://www.medbd.ca.gov/consumer/complaint_info_questions_process.html. Accessed June 8, 2011.
10. Montana Code Ann § 37-3-401 (2005)
11. State Medical Board of Ohio. Policies and positions: licensure of chemically impaired resident physicians. Available at: http://www.med.ohio.gov/positionpapers/resident.htm. Accessed June 19, 2011.
12. American Medical Association. Code of medical ethics, opinion 9.031. Reporting impaired, incompetent, or unethical colleagues. Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion9031.page. Accessed June 19, 2011.
13. Hulse G, Sim MG, Khong E. Management of the impaired doctor. Aust Fam Physician. 2004;33(9):703-707.
14. Sansone RA, Wiederman MW, Sansone LA. Physician mental health and substance abuse. What are state medical licensure applications asking? Arch Fam Med. 1999;8(5):448-451.
15. Hansen TE, Goetz RR, Bloom JD, et al. Changes in questions about psychiatric illness asked on medical licensure applications between 1993 and 1996. Psychiatr Serv. 1998;49(2):202-206.
16. Boisaubin EV, Levine RE. Identifying and assisting the impaired physician. Am J Med Sci. 2001;322(1):31-36.
17. Verghese A. Physicians and addiction. N Engl J Med. 2002;346(20):1510-1511.
18. Federation of State Physicians Health Programs. Available at: http://www.fsphp.org. Accessed June 8, 2011.
19. Lloyd G. One hundred alcoholic doctors: a 21-year follow-up. Alcohol Alcohol. 2002;37(4):370-374
1. Ernhart CB, Scarr S, Geneson DF. On being a whistleblower: the Needleman case Ethics Behav. 1993;3(1):73-93.
2. American Medical Association. Policies related to physician health. Available at: http://www.ama-assn.org/resources/doc/physician-health/policies-physicain-health.pdf. Accessed June 19, 2011.
3. Berge KH, Seppala MD, Schipper AM. Chemical dependency and the physician. Mayo Clin Proc. 2009;84(7):625-631.
4. Broquet KE, Rockey PH. Teaching residents and program directors about physician impairment. Acad Psychiatry. 2004;28(3):221-225.
5. Meier DE, Back AL, Morrison RS. The inner life of physicians and care of the seriously ill. JAMA. 2001;286(23):3007-3014.
6. Firth-Cozens J. Improving the health of psychiatrists. Adv Psychiatr Treat. 2007;13(3):161-168.
7. McGovern MP, Angres DH, Leon S. Characteristics of physicians presenting for assessment at a behavioral health center. J Addict Dis. 2000;19(2):59-73.
8. Federation of State Medical Boards of the United States. Policy on physician impairment. Available at: http://www.csam-asam.org/pdf/misc/FSMB2011.pdf. Accessed June 8, 2011.
9. Medical Board of California. Complaint process - frequently asked questions. Available at: http://www.medbd.ca.gov/consumer/complaint_info_questions_process.html. Accessed June 8, 2011.
10. Montana Code Ann § 37-3-401 (2005)
11. State Medical Board of Ohio. Policies and positions: licensure of chemically impaired resident physicians. Available at: http://www.med.ohio.gov/positionpapers/resident.htm. Accessed June 19, 2011.
12. American Medical Association. Code of medical ethics, opinion 9.031. Reporting impaired, incompetent, or unethical colleagues. Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion9031.page. Accessed June 19, 2011.
13. Hulse G, Sim MG, Khong E. Management of the impaired doctor. Aust Fam Physician. 2004;33(9):703-707.
14. Sansone RA, Wiederman MW, Sansone LA. Physician mental health and substance abuse. What are state medical licensure applications asking? Arch Fam Med. 1999;8(5):448-451.
15. Hansen TE, Goetz RR, Bloom JD, et al. Changes in questions about psychiatric illness asked on medical licensure applications between 1993 and 1996. Psychiatr Serv. 1998;49(2):202-206.
16. Boisaubin EV, Levine RE. Identifying and assisting the impaired physician. Am J Med Sci. 2001;322(1):31-36.
17. Verghese A. Physicians and addiction. N Engl J Med. 2002;346(20):1510-1511.
18. Federation of State Physicians Health Programs. Available at: http://www.fsphp.org. Accessed June 8, 2011.
19. Lloyd G. One hundred alcoholic doctors: a 21-year follow-up. Alcohol Alcohol. 2002;37(4):370-374
Should you prescribe medications for family and friends?
Dear Dr. Mossman:
On a recent golf outing, my buddy Mike told me about his trouble staying “focused” while studying for his grad school exams. He asked me to write him a prescription for methylphenidate, which he had taken in high school and college. I want to help Mike, but I’m worried about my liability if something goes wrong. What should I do?—Submitted by “Dr. C”
Doctors learn early in their careers that family, friends, or coworkers often seek informal medical advice and ask for prescriptions. Also, doctors commonly diagnose and medicate themselves rather than seek care from other professionals.1,2
In this article, we use the phrase “casual prescribing” to describe activities related to prescribing drugs for individuals such as Mike, a friend who has sought medication outside Dr. C’s customary practice setting. Despite having good intentions, you’re probably increasing your malpractice liability whenever you casually prescribe medication. Even more serious, if you casually prescribe controlled substances (eg, stimulants), you risk investigation and potential sanction by your state medical licensing agency.
- Submit your malpractice-related questions to Dr. Mossman at douglas.mossman@qhc.com.
- Include your name, address, and practice location. If your question is chosen for publication, your name can be withheld by request.
To decide whether, how, and when you may prescribe drugs for yourself, family members, colleagues, or friends, you need to:
- anticipate being asked to casually prescribe
- understand the emotions and forces that drive casual prescribing
- know your state medical board’s rules and regulations
- be prepared with an appropriate response.
After we explore these points, we’ll consider what Dr. C might do.
A common request
People often seek medical advice outside doctors’ offices. Playing a sport together, sitting on an airplane, or sharing other social activities strips away the veneer of formality, lets people relax, makes doctors seem more approachable, and allows medical concerns to come forth more easily.3
Access to medical care is a problem for lay people and doctors alike. In many locales, simply getting an appointment with a primary care physician or psychiatrist is difficult.4,5 Navigating health insurance rules and referral lists is frustrating. When people find a provider, they may feel guilty about taking a slot from someone else. Job expectations or a tough economy can make employees reluctant to take time off work6,7 or concerned that they’ll miss productivity goals because of illness.1
Doctors often self-prescribe to avoid facing the stigma of being ill. Although doctors should know better, many of us don’t want to experience the vulnerability that comes with being sick and needing health care. Some doctors fear colleagues’ scrutiny if their serious mental illness (eg, depression) becomes known, or they would rather treat themselves than seek professional help.1 The most formidable obstacle physicians face is time—or lack of it. Many doctors work >60 hours per week, and their dedication and altruism causes them to neglect their own health until illness interferes with their professional lives.8
Emotional factors
Doctors pride themselves on knowing how to help people, and when loved ones or colleagues ask for our help, it’s gratifying and flattering.3 Such feelings may help explain why the largest numbers of prescriptions written for non-patients are for family members and friends, followed by prescriptions written by residents for fellow house officers.9
The circumstances surrounding casual prescribing usually make it difficult to maintain objectivity, avoid substandard care, uphold ethical principles, and handle discomfort. Your professional objectivity and clinical judgment likely are compromised when a close friend, an immediate family member, or you yourself are the patient.10 Treating loved ones and close friends can make it awkward to ask about sensitive matters (eg, “How much alcohol do you drink?”) or to perform intimate parts of a physical examination. Physicians who want to “go the extra mile” for family members or friends may try to treat problems that are beyond their expertise or training—a setup for failing to meet your legal and medical obligations to conform to the prevailing standard of care.11
State medical board rules
The American Medical Association, British Medical Association, and Canadian Medical Association all discourage physicians from prescribing for themselves or family members.2Table 110,12-16 gives examples of states’ comments and guidelines relevant to casual prescribing. Overwhelmingly, state medical boards tell you that casual prescribing is ill-advised. However, in emergencies or in isolated settings where no other qualified physician is readily available, you should provide needed treatment for yourself, family, friends, or colleagues until another physician can assume care. Physicians should not be the primary or regular care providers for their immediate family members, but giving routine care for short-term, minor problems may be acceptable.14 Although state medical boards use differing language, all agree that casual prescribing requires assessment and documentation similar to what you do for patients seen in your regular practice setting. Table 2 summarizes appropriate casual prescribing practices, but you should also know the boards’ rules in the locales where you work.
Restrictions and rules for prescribing controlled substances are stricter, despite many doctors’ sometime-lax attitudes. State medical boards tell doctors not to prescribe controlled substances for friends, family, or themselves except in emergencies. Yet studies have found that house officers often write prescriptions for psychoactive drugs (including narcotics) for family members, friends, and colleagues9 and that residents are willing to prescribe codeine for a hypothetical colleague with pain from a fractured finger.17
Table 1
Selected state medical board rules and comments on casual prescribing
| State | Rules |
|---|---|
| California12 | ‘[E]valuating, diagnosing, treating, or prescribing to family members, co-workers, or friends…is discouraged’ and requires ‘the same practice/protocol for any patient in which medications are prescribed,’ including a ‘good faith exam’ and documentation that justifies the prescription |
| Montana13 | Although prescribing for one’s family or oneself is not prohibited, doing so ‘arguably…does not meet the general accepted standards of practice, and is therefore unprofessional conduct [that] may subject the physician to license discipline’ |
| New Hampshire14 | ‘Physicians generally should not treat themselves or members of their immediate families.…Except in emergencies, it is not appropriate for physicians to write prescriptions for controlled substances for themselves or immediate family members’ |
| Ohio15 | ‘[I]t is almost always a bad idea to treat a family member’s chronic condition, serious illness, or psychiatric/emotional problems’ |
| South Carolina10 | Treating immediate family members may produce less than optimal care. ‘[P]rescribing controlled substances for family members is outside the scope of good medical practice except for a bona fide emergency situation’ |
| Virginia16 | Prescriptions ‘must be based on a bona fide practitioner-patient relationship. Practitioners should obtain a medical or drug history, provide information about risks, benefits, and side effects, perform an exam, and initiate follow-up care. Practitioners should not prescribe controlled substances for themselves or family members except in emergencies, isolated settings, or for a single episode of an acute illness’ |
Table 2
Cautions and recommendations for casual prescribing
| Avoid doing it in non-emergencies |
| Obtain a medical and drug history |
| Perform an appropriate, good-faith exam |
| Create a medical record that documents the need for a prescription |
| Prescribe controlled substances only in emergencies or isolated settings |
| Inform your patient about risks, benefits, and side effects |
| Initiate needed additional interventions and follow-up care |
| Maintain confidentiality and respect HIPAA rules |
| Ask yourself, ‘Can I avoid this—is there another option?’ If the answer is ‘yes,’ don’t do it |
| HIPAA: Health Insurance Portability and Accountability Act |
Liability risk
Most residents are unaware of federal or state regulations addressing the appropriateness of prescription writing for non-patients.18 A survey of U.S. internal medicine and family practice residents at a teaching hospital found that less than a quarter believed that ethical guidelines on prescription writing existed.17 Such deficits can make malpractice liability more likely if something “goes wrong” with your casually prescribed treatment. Friends and relatives do sue doctors whom they have consulted informally,18 and casual prescribing can be hard to defend in court because it usually looks suspicious and is not well documented.
Revisiting Mike’s case
Understandably, Dr. C wants to help Mike and may even think he has a condition (eg, adult attention-deficit/hyperactivity disorder) for which a stimulant would be appropriate. But respect for Mike’s humanity—the paramount value in medical practice19—suggests that his treatment should occur after and because of a careful medical assessment rather than a golf game. Moreover, prescribing a controlled substance in a non-emergency likely would violate standards of practice promulgated by Dr. C’s medical board. Dr. C should tell Mike that his problem deserves thoughtful evaluation and suggest that Mike see his primary physician. Dr. C also could recommend psychiatrists whom Mike might consult.
Related Resource
- Aboff B, Collier V, Farber N. Residents’ prescription writing for nonpatients. JAMA. 2002;288:381-385.
Drug Brand Names
- Codeine • Tylenol with Codeine, others
- Methylphenidate • Ritalin
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Be prepared to be asked for advice and prescriptions in casual settings. When this happens, it’s fine to provide general medical information, but it’s best not to give specific advice or engage in “casual prescribing.” You can maintain social connections, be caring, and avoid boundary violations by responding with tact, referral information, and good judgment.19,20
1. Balon R. Psychiatrist attitudes toward self-treatment of their own depression. Psychother Psychosom. 2007;76:306-310.
2. Walter JK, Lang CW, Ross LF. When physicians forego the doctor-patient relationship should they elect to self-prescribe or curbside? An empirical and ethical analysis. J Med Ethics. 2010;36:19-23.
3. Reynolds H. Medical ear in the early morning tennis group—when to advise and what to say. Pharos Alpha Omega Alpha Honor Med Soc. 2010;73:14-15 discussion 16.
4. Sataline S, Wang SS. Medical schools can’t keep up: as ranks of insured expand nation faces shortage of 150,000 doctors in 15 years. Available at: http://online.wsj.com/article/SB10001424052702304506904575180331528424238.html. Accessed March 21, 2011.
5. Steinberg S. Of medical specialties demand for psychiatrists growing fastest. USA Today. July 1, 2010:6D.
6. Leonhardt D. A labor market punishing to mothers. New York Times. August 4 2010:B1.
7. Madden K. Reluctant to go on vacation? Available at: http://www.cnn.com/2010/LIVING/08/04/cb.reluctant.to.take.vacation/index.html. Accessed March 20 2011.
8. Meier DE, Back AL, Morrison RS. The inner life of physicians and care of the seriously ill. JAMA. 2001;286:3007-3014.
9. Clark A, Kau J. Patterns of psychoactive drug prescriptions by house officers for nonpatients. J Med Educ. 1988;63:44-50.
10. State Medical Board of South Carolina. Prescribing for family members. Available at: http://www.llr.state.sc.us/pol/medical/index.asp?file=Policies/MEPRESCRIBEFAM.HTM. Accessed March 20 2011.
11. Dietz LH, Jacobs A, Leming TL, et al. Physicians, surgeons, and other healers, §§130, 216-218. In: American jurisprudence. vol 61. 2nd ed. New York, NY: Thomson Reuters; 2010.
12. Medical Board of California. General office practices/protocols-frequently asked questions. Available at: http://www.medbd.ca.gov/consumer/complaint_info_questions_practice.html#13. Accessed March 20 2011.
13. Montana Board of Medical Examiners. Statement of physician prescribing for self or members of the physician’s immediate family. Available at: http://bsd.dli.mt.gov/license/bsd_boards/med_board/pdf/prescribing_self.pdf. Accessed March 20 2011.
14. New Hampshire Medical Board. Guidelines for self-prescribing and prescribing for family members. Available at: http://www.nh.gov/medicine/aboutus/self_presc.htm. Accessed March 21 2011.
15. State Medical Board of Ohio. Frequently asked questions. Available at: http://www.med.ohio.gov/professional_guidelines.htm. Accessed March 20 2011.
16. Virginia Board of Medicine. Can I prescribe for my family and myself? Available at: http://www.dhp.virginia.gov/Medicine/medicine_faq.htm#Prescribe. Accessed March 20 2011.
17. Aboff B, Collier V, Farber N. Residents’ prescription writing for nonpatients. JAMA. 2002;288:381-385.
18. Johnson LJ. Malpractice consult. Should you give informal medical advice? Med Econ. 2007;84:36.-
19. Nisselle P. Danger zone: when boundaries are crossed in the doctor-patient relationship. Aust Family Physician. 2000;29:541-544.
20. Eastwood GL. When relatives and friends ask physicians for medical advice: ethical legal, and practical considerations. J Gen Intern Med. 2009;24:1333-1335.
Douglas Mossman, MD
Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship.
Helen M. Farrell, MD
Dr. Farrell are Fellows in Forensic Psychiatry, University of Cincinnati College of Medicine, Cincinnati, OH.
Elizabeth Gilday, MD
Dr. Gilday are Fellows in Forensic Psychiatry, University of Cincinnati College of Medicine, Cincinnati, OH.
Douglas Mossman, MD
Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship.
Helen M. Farrell, MD
Dr. Farrell are Fellows in Forensic Psychiatry, University of Cincinnati College of Medicine, Cincinnati, OH.
Elizabeth Gilday, MD
Dr. Gilday are Fellows in Forensic Psychiatry, University of Cincinnati College of Medicine, Cincinnati, OH.
Douglas Mossman, MD
Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the University of Cincinnati Forensic Psychiatry Fellowship.
Helen M. Farrell, MD
Dr. Farrell are Fellows in Forensic Psychiatry, University of Cincinnati College of Medicine, Cincinnati, OH.
Elizabeth Gilday, MD
Dr. Gilday are Fellows in Forensic Psychiatry, University of Cincinnati College of Medicine, Cincinnati, OH.
Dear Dr. Mossman:
On a recent golf outing, my buddy Mike told me about his trouble staying “focused” while studying for his grad school exams. He asked me to write him a prescription for methylphenidate, which he had taken in high school and college. I want to help Mike, but I’m worried about my liability if something goes wrong. What should I do?—Submitted by “Dr. C”
Doctors learn early in their careers that family, friends, or coworkers often seek informal medical advice and ask for prescriptions. Also, doctors commonly diagnose and medicate themselves rather than seek care from other professionals.1,2
In this article, we use the phrase “casual prescribing” to describe activities related to prescribing drugs for individuals such as Mike, a friend who has sought medication outside Dr. C’s customary practice setting. Despite having good intentions, you’re probably increasing your malpractice liability whenever you casually prescribe medication. Even more serious, if you casually prescribe controlled substances (eg, stimulants), you risk investigation and potential sanction by your state medical licensing agency.
- Submit your malpractice-related questions to Dr. Mossman at douglas.mossman@qhc.com.
- Include your name, address, and practice location. If your question is chosen for publication, your name can be withheld by request.
To decide whether, how, and when you may prescribe drugs for yourself, family members, colleagues, or friends, you need to:
- anticipate being asked to casually prescribe
- understand the emotions and forces that drive casual prescribing
- know your state medical board’s rules and regulations
- be prepared with an appropriate response.
After we explore these points, we’ll consider what Dr. C might do.
A common request
People often seek medical advice outside doctors’ offices. Playing a sport together, sitting on an airplane, or sharing other social activities strips away the veneer of formality, lets people relax, makes doctors seem more approachable, and allows medical concerns to come forth more easily.3
Access to medical care is a problem for lay people and doctors alike. In many locales, simply getting an appointment with a primary care physician or psychiatrist is difficult.4,5 Navigating health insurance rules and referral lists is frustrating. When people find a provider, they may feel guilty about taking a slot from someone else. Job expectations or a tough economy can make employees reluctant to take time off work6,7 or concerned that they’ll miss productivity goals because of illness.1
Doctors often self-prescribe to avoid facing the stigma of being ill. Although doctors should know better, many of us don’t want to experience the vulnerability that comes with being sick and needing health care. Some doctors fear colleagues’ scrutiny if their serious mental illness (eg, depression) becomes known, or they would rather treat themselves than seek professional help.1 The most formidable obstacle physicians face is time—or lack of it. Many doctors work >60 hours per week, and their dedication and altruism causes them to neglect their own health until illness interferes with their professional lives.8
Emotional factors
Doctors pride themselves on knowing how to help people, and when loved ones or colleagues ask for our help, it’s gratifying and flattering.3 Such feelings may help explain why the largest numbers of prescriptions written for non-patients are for family members and friends, followed by prescriptions written by residents for fellow house officers.9
The circumstances surrounding casual prescribing usually make it difficult to maintain objectivity, avoid substandard care, uphold ethical principles, and handle discomfort. Your professional objectivity and clinical judgment likely are compromised when a close friend, an immediate family member, or you yourself are the patient.10 Treating loved ones and close friends can make it awkward to ask about sensitive matters (eg, “How much alcohol do you drink?”) or to perform intimate parts of a physical examination. Physicians who want to “go the extra mile” for family members or friends may try to treat problems that are beyond their expertise or training—a setup for failing to meet your legal and medical obligations to conform to the prevailing standard of care.11
State medical board rules
The American Medical Association, British Medical Association, and Canadian Medical Association all discourage physicians from prescribing for themselves or family members.2Table 110,12-16 gives examples of states’ comments and guidelines relevant to casual prescribing. Overwhelmingly, state medical boards tell you that casual prescribing is ill-advised. However, in emergencies or in isolated settings where no other qualified physician is readily available, you should provide needed treatment for yourself, family, friends, or colleagues until another physician can assume care. Physicians should not be the primary or regular care providers for their immediate family members, but giving routine care for short-term, minor problems may be acceptable.14 Although state medical boards use differing language, all agree that casual prescribing requires assessment and documentation similar to what you do for patients seen in your regular practice setting. Table 2 summarizes appropriate casual prescribing practices, but you should also know the boards’ rules in the locales where you work.
Restrictions and rules for prescribing controlled substances are stricter, despite many doctors’ sometime-lax attitudes. State medical boards tell doctors not to prescribe controlled substances for friends, family, or themselves except in emergencies. Yet studies have found that house officers often write prescriptions for psychoactive drugs (including narcotics) for family members, friends, and colleagues9 and that residents are willing to prescribe codeine for a hypothetical colleague with pain from a fractured finger.17
Table 1
Selected state medical board rules and comments on casual prescribing
| State | Rules |
|---|---|
| California12 | ‘[E]valuating, diagnosing, treating, or prescribing to family members, co-workers, or friends…is discouraged’ and requires ‘the same practice/protocol for any patient in which medications are prescribed,’ including a ‘good faith exam’ and documentation that justifies the prescription |
| Montana13 | Although prescribing for one’s family or oneself is not prohibited, doing so ‘arguably…does not meet the general accepted standards of practice, and is therefore unprofessional conduct [that] may subject the physician to license discipline’ |
| New Hampshire14 | ‘Physicians generally should not treat themselves or members of their immediate families.…Except in emergencies, it is not appropriate for physicians to write prescriptions for controlled substances for themselves or immediate family members’ |
| Ohio15 | ‘[I]t is almost always a bad idea to treat a family member’s chronic condition, serious illness, or psychiatric/emotional problems’ |
| South Carolina10 | Treating immediate family members may produce less than optimal care. ‘[P]rescribing controlled substances for family members is outside the scope of good medical practice except for a bona fide emergency situation’ |
| Virginia16 | Prescriptions ‘must be based on a bona fide practitioner-patient relationship. Practitioners should obtain a medical or drug history, provide information about risks, benefits, and side effects, perform an exam, and initiate follow-up care. Practitioners should not prescribe controlled substances for themselves or family members except in emergencies, isolated settings, or for a single episode of an acute illness’ |
Table 2
Cautions and recommendations for casual prescribing
| Avoid doing it in non-emergencies |
| Obtain a medical and drug history |
| Perform an appropriate, good-faith exam |
| Create a medical record that documents the need for a prescription |
| Prescribe controlled substances only in emergencies or isolated settings |
| Inform your patient about risks, benefits, and side effects |
| Initiate needed additional interventions and follow-up care |
| Maintain confidentiality and respect HIPAA rules |
| Ask yourself, ‘Can I avoid this—is there another option?’ If the answer is ‘yes,’ don’t do it |
| HIPAA: Health Insurance Portability and Accountability Act |
Liability risk
Most residents are unaware of federal or state regulations addressing the appropriateness of prescription writing for non-patients.18 A survey of U.S. internal medicine and family practice residents at a teaching hospital found that less than a quarter believed that ethical guidelines on prescription writing existed.17 Such deficits can make malpractice liability more likely if something “goes wrong” with your casually prescribed treatment. Friends and relatives do sue doctors whom they have consulted informally,18 and casual prescribing can be hard to defend in court because it usually looks suspicious and is not well documented.
Revisiting Mike’s case
Understandably, Dr. C wants to help Mike and may even think he has a condition (eg, adult attention-deficit/hyperactivity disorder) for which a stimulant would be appropriate. But respect for Mike’s humanity—the paramount value in medical practice19—suggests that his treatment should occur after and because of a careful medical assessment rather than a golf game. Moreover, prescribing a controlled substance in a non-emergency likely would violate standards of practice promulgated by Dr. C’s medical board. Dr. C should tell Mike that his problem deserves thoughtful evaluation and suggest that Mike see his primary physician. Dr. C also could recommend psychiatrists whom Mike might consult.
Related Resource
- Aboff B, Collier V, Farber N. Residents’ prescription writing for nonpatients. JAMA. 2002;288:381-385.
Drug Brand Names
- Codeine • Tylenol with Codeine, others
- Methylphenidate • Ritalin
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Be prepared to be asked for advice and prescriptions in casual settings. When this happens, it’s fine to provide general medical information, but it’s best not to give specific advice or engage in “casual prescribing.” You can maintain social connections, be caring, and avoid boundary violations by responding with tact, referral information, and good judgment.19,20
Dear Dr. Mossman:
On a recent golf outing, my buddy Mike told me about his trouble staying “focused” while studying for his grad school exams. He asked me to write him a prescription for methylphenidate, which he had taken in high school and college. I want to help Mike, but I’m worried about my liability if something goes wrong. What should I do?—Submitted by “Dr. C”
Doctors learn early in their careers that family, friends, or coworkers often seek informal medical advice and ask for prescriptions. Also, doctors commonly diagnose and medicate themselves rather than seek care from other professionals.1,2
In this article, we use the phrase “casual prescribing” to describe activities related to prescribing drugs for individuals such as Mike, a friend who has sought medication outside Dr. C’s customary practice setting. Despite having good intentions, you’re probably increasing your malpractice liability whenever you casually prescribe medication. Even more serious, if you casually prescribe controlled substances (eg, stimulants), you risk investigation and potential sanction by your state medical licensing agency.
- Submit your malpractice-related questions to Dr. Mossman at douglas.mossman@qhc.com.
- Include your name, address, and practice location. If your question is chosen for publication, your name can be withheld by request.
To decide whether, how, and when you may prescribe drugs for yourself, family members, colleagues, or friends, you need to:
- anticipate being asked to casually prescribe
- understand the emotions and forces that drive casual prescribing
- know your state medical board’s rules and regulations
- be prepared with an appropriate response.
After we explore these points, we’ll consider what Dr. C might do.
A common request
People often seek medical advice outside doctors’ offices. Playing a sport together, sitting on an airplane, or sharing other social activities strips away the veneer of formality, lets people relax, makes doctors seem more approachable, and allows medical concerns to come forth more easily.3
Access to medical care is a problem for lay people and doctors alike. In many locales, simply getting an appointment with a primary care physician or psychiatrist is difficult.4,5 Navigating health insurance rules and referral lists is frustrating. When people find a provider, they may feel guilty about taking a slot from someone else. Job expectations or a tough economy can make employees reluctant to take time off work6,7 or concerned that they’ll miss productivity goals because of illness.1
Doctors often self-prescribe to avoid facing the stigma of being ill. Although doctors should know better, many of us don’t want to experience the vulnerability that comes with being sick and needing health care. Some doctors fear colleagues’ scrutiny if their serious mental illness (eg, depression) becomes known, or they would rather treat themselves than seek professional help.1 The most formidable obstacle physicians face is time—or lack of it. Many doctors work >60 hours per week, and their dedication and altruism causes them to neglect their own health until illness interferes with their professional lives.8
Emotional factors
Doctors pride themselves on knowing how to help people, and when loved ones or colleagues ask for our help, it’s gratifying and flattering.3 Such feelings may help explain why the largest numbers of prescriptions written for non-patients are for family members and friends, followed by prescriptions written by residents for fellow house officers.9
The circumstances surrounding casual prescribing usually make it difficult to maintain objectivity, avoid substandard care, uphold ethical principles, and handle discomfort. Your professional objectivity and clinical judgment likely are compromised when a close friend, an immediate family member, or you yourself are the patient.10 Treating loved ones and close friends can make it awkward to ask about sensitive matters (eg, “How much alcohol do you drink?”) or to perform intimate parts of a physical examination. Physicians who want to “go the extra mile” for family members or friends may try to treat problems that are beyond their expertise or training—a setup for failing to meet your legal and medical obligations to conform to the prevailing standard of care.11
State medical board rules
The American Medical Association, British Medical Association, and Canadian Medical Association all discourage physicians from prescribing for themselves or family members.2Table 110,12-16 gives examples of states’ comments and guidelines relevant to casual prescribing. Overwhelmingly, state medical boards tell you that casual prescribing is ill-advised. However, in emergencies or in isolated settings where no other qualified physician is readily available, you should provide needed treatment for yourself, family, friends, or colleagues until another physician can assume care. Physicians should not be the primary or regular care providers for their immediate family members, but giving routine care for short-term, minor problems may be acceptable.14 Although state medical boards use differing language, all agree that casual prescribing requires assessment and documentation similar to what you do for patients seen in your regular practice setting. Table 2 summarizes appropriate casual prescribing practices, but you should also know the boards’ rules in the locales where you work.
Restrictions and rules for prescribing controlled substances are stricter, despite many doctors’ sometime-lax attitudes. State medical boards tell doctors not to prescribe controlled substances for friends, family, or themselves except in emergencies. Yet studies have found that house officers often write prescriptions for psychoactive drugs (including narcotics) for family members, friends, and colleagues9 and that residents are willing to prescribe codeine for a hypothetical colleague with pain from a fractured finger.17
Table 1
Selected state medical board rules and comments on casual prescribing
| State | Rules |
|---|---|
| California12 | ‘[E]valuating, diagnosing, treating, or prescribing to family members, co-workers, or friends…is discouraged’ and requires ‘the same practice/protocol for any patient in which medications are prescribed,’ including a ‘good faith exam’ and documentation that justifies the prescription |
| Montana13 | Although prescribing for one’s family or oneself is not prohibited, doing so ‘arguably…does not meet the general accepted standards of practice, and is therefore unprofessional conduct [that] may subject the physician to license discipline’ |
| New Hampshire14 | ‘Physicians generally should not treat themselves or members of their immediate families.…Except in emergencies, it is not appropriate for physicians to write prescriptions for controlled substances for themselves or immediate family members’ |
| Ohio15 | ‘[I]t is almost always a bad idea to treat a family member’s chronic condition, serious illness, or psychiatric/emotional problems’ |
| South Carolina10 | Treating immediate family members may produce less than optimal care. ‘[P]rescribing controlled substances for family members is outside the scope of good medical practice except for a bona fide emergency situation’ |
| Virginia16 | Prescriptions ‘must be based on a bona fide practitioner-patient relationship. Practitioners should obtain a medical or drug history, provide information about risks, benefits, and side effects, perform an exam, and initiate follow-up care. Practitioners should not prescribe controlled substances for themselves or family members except in emergencies, isolated settings, or for a single episode of an acute illness’ |
Table 2
Cautions and recommendations for casual prescribing
| Avoid doing it in non-emergencies |
| Obtain a medical and drug history |
| Perform an appropriate, good-faith exam |
| Create a medical record that documents the need for a prescription |
| Prescribe controlled substances only in emergencies or isolated settings |
| Inform your patient about risks, benefits, and side effects |
| Initiate needed additional interventions and follow-up care |
| Maintain confidentiality and respect HIPAA rules |
| Ask yourself, ‘Can I avoid this—is there another option?’ If the answer is ‘yes,’ don’t do it |
| HIPAA: Health Insurance Portability and Accountability Act |
Liability risk
Most residents are unaware of federal or state regulations addressing the appropriateness of prescription writing for non-patients.18 A survey of U.S. internal medicine and family practice residents at a teaching hospital found that less than a quarter believed that ethical guidelines on prescription writing existed.17 Such deficits can make malpractice liability more likely if something “goes wrong” with your casually prescribed treatment. Friends and relatives do sue doctors whom they have consulted informally,18 and casual prescribing can be hard to defend in court because it usually looks suspicious and is not well documented.
Revisiting Mike’s case
Understandably, Dr. C wants to help Mike and may even think he has a condition (eg, adult attention-deficit/hyperactivity disorder) for which a stimulant would be appropriate. But respect for Mike’s humanity—the paramount value in medical practice19—suggests that his treatment should occur after and because of a careful medical assessment rather than a golf game. Moreover, prescribing a controlled substance in a non-emergency likely would violate standards of practice promulgated by Dr. C’s medical board. Dr. C should tell Mike that his problem deserves thoughtful evaluation and suggest that Mike see his primary physician. Dr. C also could recommend psychiatrists whom Mike might consult.
Related Resource
- Aboff B, Collier V, Farber N. Residents’ prescription writing for nonpatients. JAMA. 2002;288:381-385.
Drug Brand Names
- Codeine • Tylenol with Codeine, others
- Methylphenidate • Ritalin
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Be prepared to be asked for advice and prescriptions in casual settings. When this happens, it’s fine to provide general medical information, but it’s best not to give specific advice or engage in “casual prescribing.” You can maintain social connections, be caring, and avoid boundary violations by responding with tact, referral information, and good judgment.19,20
1. Balon R. Psychiatrist attitudes toward self-treatment of their own depression. Psychother Psychosom. 2007;76:306-310.
2. Walter JK, Lang CW, Ross LF. When physicians forego the doctor-patient relationship should they elect to self-prescribe or curbside? An empirical and ethical analysis. J Med Ethics. 2010;36:19-23.
3. Reynolds H. Medical ear in the early morning tennis group—when to advise and what to say. Pharos Alpha Omega Alpha Honor Med Soc. 2010;73:14-15 discussion 16.
4. Sataline S, Wang SS. Medical schools can’t keep up: as ranks of insured expand nation faces shortage of 150,000 doctors in 15 years. Available at: http://online.wsj.com/article/SB10001424052702304506904575180331528424238.html. Accessed March 21, 2011.
5. Steinberg S. Of medical specialties demand for psychiatrists growing fastest. USA Today. July 1, 2010:6D.
6. Leonhardt D. A labor market punishing to mothers. New York Times. August 4 2010:B1.
7. Madden K. Reluctant to go on vacation? Available at: http://www.cnn.com/2010/LIVING/08/04/cb.reluctant.to.take.vacation/index.html. Accessed March 20 2011.
8. Meier DE, Back AL, Morrison RS. The inner life of physicians and care of the seriously ill. JAMA. 2001;286:3007-3014.
9. Clark A, Kau J. Patterns of psychoactive drug prescriptions by house officers for nonpatients. J Med Educ. 1988;63:44-50.
10. State Medical Board of South Carolina. Prescribing for family members. Available at: http://www.llr.state.sc.us/pol/medical/index.asp?file=Policies/MEPRESCRIBEFAM.HTM. Accessed March 20 2011.
11. Dietz LH, Jacobs A, Leming TL, et al. Physicians, surgeons, and other healers, §§130, 216-218. In: American jurisprudence. vol 61. 2nd ed. New York, NY: Thomson Reuters; 2010.
12. Medical Board of California. General office practices/protocols-frequently asked questions. Available at: http://www.medbd.ca.gov/consumer/complaint_info_questions_practice.html#13. Accessed March 20 2011.
13. Montana Board of Medical Examiners. Statement of physician prescribing for self or members of the physician’s immediate family. Available at: http://bsd.dli.mt.gov/license/bsd_boards/med_board/pdf/prescribing_self.pdf. Accessed March 20 2011.
14. New Hampshire Medical Board. Guidelines for self-prescribing and prescribing for family members. Available at: http://www.nh.gov/medicine/aboutus/self_presc.htm. Accessed March 21 2011.
15. State Medical Board of Ohio. Frequently asked questions. Available at: http://www.med.ohio.gov/professional_guidelines.htm. Accessed March 20 2011.
16. Virginia Board of Medicine. Can I prescribe for my family and myself? Available at: http://www.dhp.virginia.gov/Medicine/medicine_faq.htm#Prescribe. Accessed March 20 2011.
17. Aboff B, Collier V, Farber N. Residents’ prescription writing for nonpatients. JAMA. 2002;288:381-385.
18. Johnson LJ. Malpractice consult. Should you give informal medical advice? Med Econ. 2007;84:36.-
19. Nisselle P. Danger zone: when boundaries are crossed in the doctor-patient relationship. Aust Family Physician. 2000;29:541-544.
20. Eastwood GL. When relatives and friends ask physicians for medical advice: ethical legal, and practical considerations. J Gen Intern Med. 2009;24:1333-1335.
1. Balon R. Psychiatrist attitudes toward self-treatment of their own depression. Psychother Psychosom. 2007;76:306-310.
2. Walter JK, Lang CW, Ross LF. When physicians forego the doctor-patient relationship should they elect to self-prescribe or curbside? An empirical and ethical analysis. J Med Ethics. 2010;36:19-23.
3. Reynolds H. Medical ear in the early morning tennis group—when to advise and what to say. Pharos Alpha Omega Alpha Honor Med Soc. 2010;73:14-15 discussion 16.
4. Sataline S, Wang SS. Medical schools can’t keep up: as ranks of insured expand nation faces shortage of 150,000 doctors in 15 years. Available at: http://online.wsj.com/article/SB10001424052702304506904575180331528424238.html. Accessed March 21, 2011.
5. Steinberg S. Of medical specialties demand for psychiatrists growing fastest. USA Today. July 1, 2010:6D.
6. Leonhardt D. A labor market punishing to mothers. New York Times. August 4 2010:B1.
7. Madden K. Reluctant to go on vacation? Available at: http://www.cnn.com/2010/LIVING/08/04/cb.reluctant.to.take.vacation/index.html. Accessed March 20 2011.
8. Meier DE, Back AL, Morrison RS. The inner life of physicians and care of the seriously ill. JAMA. 2001;286:3007-3014.
9. Clark A, Kau J. Patterns of psychoactive drug prescriptions by house officers for nonpatients. J Med Educ. 1988;63:44-50.
10. State Medical Board of South Carolina. Prescribing for family members. Available at: http://www.llr.state.sc.us/pol/medical/index.asp?file=Policies/MEPRESCRIBEFAM.HTM. Accessed March 20 2011.
11. Dietz LH, Jacobs A, Leming TL, et al. Physicians, surgeons, and other healers, §§130, 216-218. In: American jurisprudence. vol 61. 2nd ed. New York, NY: Thomson Reuters; 2010.
12. Medical Board of California. General office practices/protocols-frequently asked questions. Available at: http://www.medbd.ca.gov/consumer/complaint_info_questions_practice.html#13. Accessed March 20 2011.
13. Montana Board of Medical Examiners. Statement of physician prescribing for self or members of the physician’s immediate family. Available at: http://bsd.dli.mt.gov/license/bsd_boards/med_board/pdf/prescribing_self.pdf. Accessed March 20 2011.
14. New Hampshire Medical Board. Guidelines for self-prescribing and prescribing for family members. Available at: http://www.nh.gov/medicine/aboutus/self_presc.htm. Accessed March 21 2011.
15. State Medical Board of Ohio. Frequently asked questions. Available at: http://www.med.ohio.gov/professional_guidelines.htm. Accessed March 20 2011.
16. Virginia Board of Medicine. Can I prescribe for my family and myself? Available at: http://www.dhp.virginia.gov/Medicine/medicine_faq.htm#Prescribe. Accessed March 20 2011.
17. Aboff B, Collier V, Farber N. Residents’ prescription writing for nonpatients. JAMA. 2002;288:381-385.
18. Johnson LJ. Malpractice consult. Should you give informal medical advice? Med Econ. 2007;84:36.-
19. Nisselle P. Danger zone: when boundaries are crossed in the doctor-patient relationship. Aust Family Physician. 2000;29:541-544.
20. Eastwood GL. When relatives and friends ask physicians for medical advice: ethical legal, and practical considerations. J Gen Intern Med. 2009;24:1333-1335.
‘Firing’ a patient: May a psychiatrist unilaterally terminate care?
Dear Dr. Mossman:
One of my patients, Ms. A, keeps calling in to refill her prescription, but will not come in for an appointment; she needs the medication, but I really shouldn’t keep prescribing it without seeing her. Another patient, Mr. B, has an open chart, but he stopped seeing me last year after I treated him for an acute depressive episode. May I “fire” these patients? If so, what should I do?—Submitted by “Dr. C”
All physicians occasionally encounter patients whom we’d like to stop treating, but because we feel devoted to those we treat, the idea of “firing” a patient makes us uncomfortable. Sometimes, however, ending a treatment relationship is the right choice for the doctor and patient.1
To know why, how, and when you may terminate your professional relationship with a patient, you need to:
- understand the legal and ethical status of a doctor-patient relationship
- know the proper way to end treatment relationships
- decide whether ending your care of the patient is the right medical and ethical choice.
After exploring these points, we’ll return to the cases of Ms. A and Mr. B and consider what Dr. C might do.
- Submit your malpractice-related questions to Dr. Mossman at douglas.mossman@qhc.com.
- Include your name, address, and practice location. If your question is chosen for publication, your name can be withheld by request.
Doctor-patient relationships
Legal and medical authorities characterize the treatment relationship as an implicit contract that imposes certain obligations on the doctor and the patient.2,3 Doctors are compelled to conduct themselves in accordance with the prevailing “standard of care.” Patients’ obligations include being honest and cooperating with care once they have agreed to a treatment plan (Table 1).3
Patients may stop seeing their doctors at any time, but a physician usually must continue to provide all necessary medical attention until either the treatment episode has concluded or both parties agree to end the doctor-patient relationship.2 If a physician wishes to withdraw from a case before the need for services has ended, the physician must either make arrangements for another competent physician to assume care or give the patient ample notice and opportunity to obtain treatment elsewhere.2 If a doctor fails to do this and harm to the patient results, the doctor is guilty of “abandonment,” legally defined as termination of the physician-patient relationship “at an unreasonable time or without affording the patient the opportunity to procure an equally qualified replacement.”2 Physician abandonment can lead to malpractice liability,4 complaints to state licensing authorities,5 and ethical condemnation.6
Table 1
A patient’s responsibilities
| Being truthful |
| Providing a complete medical history |
| Cooperating with agreed-upon treatment and keeping appointments |
| Meeting financial obligations for medical care |
| Health-enhancing behavior |
| Not participating in fraudulent health care |
| Source: Reference 3 |
Terminating without abandoning
Doctors commonly terminate care of their patients when they decide to move or close their practices. Accusations of abandonment may arise if such career decisions are executed improperly, but these matters are not as emotionally troubling for physicians as a decision to “fire” a patient because of the patient’s behavior. Common, legitimate reasons a doctor may consider unilateral termination appear in Table 2.7,8
Certain circumstances are not valid grounds for terminating a doctor-patient relationship. You cannot ethically decline to treat a patient whose problem lies within your areas of clinical competence solely because the patient is seropositive for human immunodeficiency virus,9 nor because of a patient’s race, religion, or other reasons that would constitute illegal discrimination.3 Doctors who practice in rural areas must be especially cautious about terminating care because their patients may have limited access to alternate care sources.10
Meeting with or verbally informing a patient of a termination may be reasonable in some cases, but appropriate unilateral termination of a patient usually requires providing written notification to the patient or person responsible for the patient’s care. Attorneys who specialize in risk management advise doctors to seek legal consultation when preparing a termination-of-care letter and to send it by certified mail. The letter should conform to any applicable rules or regulations where you practice. Typically, required content includes:
- notification that the physician-patient relationship is terminated
- a statement of willingness to provide emergency treatment and access to services for up to 30 days from the mailing date to allow the patient to arrange care from another provider
- an offer to transfer records to the new provider upon receiving the patient’s signed authorization to do so.11
More discussion of the possible contents of termination letters appears in Table 3.7,12-14
Table 2
Common reasons to consider terminating a patient’s care
| Failing to pay bills |
| Repeatedly cancelling or missing appointments |
| Repeatedly failing to follow the agreed-upon treatment plan |
| Overly demanding, rude, disruptive, threatening, or violent behavior toward staff or other patients |
| Patient is very dissatisfied with care |
| Needing specialized services that the physician cannot provide |
| Filing a complaint or legal action against the physician |
| Dishonesty that compromises safety or legality of treatment |
| Physician feels treatment is ineffective |
| Conflict of interest (eg, physician’s religious beliefs preclude providing certain treatments that might be indicated) |
| Developing and acting upon an inappropriate personal interest in the physician |
| Inappropriate response by physician to feelings about the patient (eg, physician feels tempted to act upon an attraction) |
| Source: References 7,8 |
Table 3
Potential elements of termination letters
| Element | Comment | |
|---|---|---|
| Reason for termination | Giving a reason is not required. If an explanation seems necessary, offer a general statement (eg, ‘I have determined it would be best…’) | |
| Adequate time to seek care elsewhere | Typically, at least 30 days. Courts have described appropriate time frames in general terms, such as ‘ample,’ ‘sufficient,’ or ‘reasonable’ | |
| Interim care provisions | Offer interim care for urgent problems until the time limit stated above | |
| Continued care provisions |
| |
| Medical record copies | Offer to provide a summary of treatment or copy of the record to a new provider. Consider enclosing a ‘release of information’ authorization to be returned to the office with the patient’s signature | |
| Sending the letter | Regular and certified mail (return receipt requested). Place a copy of this letter in the patient’s medical record, along with the original certified mail receipt and, if received, the original return receipt | |
| Source: References 7,12-14 | ||
Deciding to ‘fire‘ a patient
Physicians in all specialties encounter patients whose actions generate intensely negative feelings—resentment, anger, even hate.15 But “firing” a patient should be a rare circumstance that’s not undertaken lightly. Many different circumstances can make it reasonable for a physician to consider terminating a patient’s care, so it’s difficult to provide general advice about when firing a patient really is the right thing to do. But 1 “prescription” seems clear: consult a respected colleague first. According to psychiatrist Robert Michels, “Any physician who is thinking of firing a patient should first speak to a colleague… This is an enormous decision and, while it might even be right at times, the physician is probably having a countertransference reaction to his patient and should really understand that before taking action.”1
Having an anonymous consultation with a colleague offers several potential benefits, such as:
- If you’re thinking about firing a patient, you’re probably very upset. A colleague who isn’t emotionally involved can help you assess the matter more dispassionately.
- You may be feeling guilty about disliking the patient. A colleague’s empathy (“Of course you’re angry!”) can help you avoid disowning your feelings, which may make it easier to figure out how to use those feelings to help the patient.15,16
- A colleague may think of solutions that you haven’t considered, which might help you feel less frustrated about how treatment is going.
- A colleague may help you see ways that you’re actually helping the patient, despite feeling that your work is futile.
- If a thoughtful colleague confirms your view that terminating care is appropriate, you’ll feel better about the decision. If you document the anonymous consultation in the patient’s chart, you’ll create a record of your reasonableness and prudence—which will be helpful if you have to defend your action in court.12
Revisiting the case patients
With these thoughts in mind, we return to Dr. C’s clinical dilemmas.
Ms. A. In retrospect, Dr. C might wish he had been clearer with Ms. A about how often she would need to see him for medication monitoring. At this point, however, Dr. C still has options besides firing Ms. A:
- Dr. C can call Ms. A to ask how she’s doing and to explain his medical responsibility to see and reassess her if he is to continue prescribing her medication. He can then follow up with a letter summarizing the conversation.
- Dr. C might ask whether some problem is preventing Ms. A from making an appointment. If, for example, Ms. A has lost her job and health insurance coverage for office visits, Dr. C might suggest options (such as seeing Ms. A once at no charge) or help Ms. A find other ways to obtain follow-up care.
Mr. B. Concerning Mr. B, we wonder, “Why not just leave the chart open?” As is the case with care provided by other specialists—including internists, obstetricians, or dermatologists—psychiatric treatment may occur in discrete episodes over many years. Patients regard a previous care provider as “their doctor” for decades after a treatment episode, and it’s comforting and valuable for former patients to know they can see their “shrink” again if they need to.
Related Resource
- Henderson SM. Advice on abandonment. Oklahoma Board of Medical Licensure and Supervision. www.okmedicalboard.org/download/19980401MD.htm.
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Friedman RA. Should a doctor fire a patient? Sometimes it is good medicine. New York Times. September 27, 2005;sect F:1.
2. Dietz LH, Jacobs A, Leming TL, et al. Physicians, surgeons, and other healers, §§130, 216-218. In: American jurisprudence. Vol 61. 2nd ed. New York, NY: Thomson Reuters; 2010.
3. American Medical Association. Code of ethics. Opinions 9.12, 10.02, and 10.015. Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.shtml. Accessed October 18, 2010.
4. Lowery v Miller, 157 Wis 2d 503, 460 NW2d 446 (Wis App 1990).
5. Crausman RS. Board of medical licensure and discipline. Available at: http://www.health.ri.gov/hsr/bmld. Accessed October 27, 2010.
6. Pellegrino ED. Nonabandonment: an old obligation revisited. Ann Intern Med. 1995;122:377-378.
7. Harris SM. Take care when firing a patient. American Medical News. Available at: http://www.ama-assn.org/amednews/2008/02/04/bica0204.htm. Accessed October 18, 2010.
8. Gabbard GO. Long-term psychodynamic psychotherapy: a basic text. Arlington, VA: American Psychiatric Publishing, Inc.; 2004.
9. Bragdon v Abbott, 524 U.S. 624 (1998).
10. Henderson SM. Advice on abandonment. Oklahoma Board of Medical Licensure and Supervision. Available at: http://www.okmedicalboard.org/download/19980401MD.htm. Accessed October 18, 2010.
11. Ohio Admin Code Ch, 4731-27(A)(1).
12. Appelbaum PS, Gutheil T. Clinical handbook of psychiatry and the law. 4th ed. Philadelphia, PA: Lippincott Williams and Wilkins; 2006.
13. Appelbaum PS. Law & psychiatry: can a psychiatrist be held responsible when a patient commits murder? Psychiatr Serv. 2002;53:27-29.
14. Tan MW, McDonough WJ. Risk management in psychiatry. Psychiatr Clin North Am. 1990;13:135-147.
15. Groves JE. Taking care of the hateful patient. N Engl J Med. 1978;298:883-887.
16. Strous RD, Ulman AM, Kotler M. The hateful patient revisited: relevance for 21st century medicine. Eur J Intern Med. 2006;17:387-393.
Douglas Mossman, MD
Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the Forensic Psychiatry Fellowship.
Helen M. Farrell, MD
Dr. Farrell, Fellow in Forensic Psychiatry, University of Cincinnati College of Medicine.
Elizabeth Gilday, MD
Dr.Gilday, Fellow in Forensic Psychiatry, University of Cincinnati College of Medicine.
Douglas Mossman, MD
Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the Forensic Psychiatry Fellowship.
Helen M. Farrell, MD
Dr. Farrell, Fellow in Forensic Psychiatry, University of Cincinnati College of Medicine.
Elizabeth Gilday, MD
Dr.Gilday, Fellow in Forensic Psychiatry, University of Cincinnati College of Medicine.
Douglas Mossman, MD
Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and Adjunct Professor of Clinical Psychiatry and Training Director for the Forensic Psychiatry Fellowship.
Helen M. Farrell, MD
Dr. Farrell, Fellow in Forensic Psychiatry, University of Cincinnati College of Medicine.
Elizabeth Gilday, MD
Dr.Gilday, Fellow in Forensic Psychiatry, University of Cincinnati College of Medicine.
Dear Dr. Mossman:
One of my patients, Ms. A, keeps calling in to refill her prescription, but will not come in for an appointment; she needs the medication, but I really shouldn’t keep prescribing it without seeing her. Another patient, Mr. B, has an open chart, but he stopped seeing me last year after I treated him for an acute depressive episode. May I “fire” these patients? If so, what should I do?—Submitted by “Dr. C”
All physicians occasionally encounter patients whom we’d like to stop treating, but because we feel devoted to those we treat, the idea of “firing” a patient makes us uncomfortable. Sometimes, however, ending a treatment relationship is the right choice for the doctor and patient.1
To know why, how, and when you may terminate your professional relationship with a patient, you need to:
- understand the legal and ethical status of a doctor-patient relationship
- know the proper way to end treatment relationships
- decide whether ending your care of the patient is the right medical and ethical choice.
After exploring these points, we’ll return to the cases of Ms. A and Mr. B and consider what Dr. C might do.
- Submit your malpractice-related questions to Dr. Mossman at douglas.mossman@qhc.com.
- Include your name, address, and practice location. If your question is chosen for publication, your name can be withheld by request.
Doctor-patient relationships
Legal and medical authorities characterize the treatment relationship as an implicit contract that imposes certain obligations on the doctor and the patient.2,3 Doctors are compelled to conduct themselves in accordance with the prevailing “standard of care.” Patients’ obligations include being honest and cooperating with care once they have agreed to a treatment plan (Table 1).3
Patients may stop seeing their doctors at any time, but a physician usually must continue to provide all necessary medical attention until either the treatment episode has concluded or both parties agree to end the doctor-patient relationship.2 If a physician wishes to withdraw from a case before the need for services has ended, the physician must either make arrangements for another competent physician to assume care or give the patient ample notice and opportunity to obtain treatment elsewhere.2 If a doctor fails to do this and harm to the patient results, the doctor is guilty of “abandonment,” legally defined as termination of the physician-patient relationship “at an unreasonable time or without affording the patient the opportunity to procure an equally qualified replacement.”2 Physician abandonment can lead to malpractice liability,4 complaints to state licensing authorities,5 and ethical condemnation.6
Table 1
A patient’s responsibilities
| Being truthful |
| Providing a complete medical history |
| Cooperating with agreed-upon treatment and keeping appointments |
| Meeting financial obligations for medical care |
| Health-enhancing behavior |
| Not participating in fraudulent health care |
| Source: Reference 3 |
Terminating without abandoning
Doctors commonly terminate care of their patients when they decide to move or close their practices. Accusations of abandonment may arise if such career decisions are executed improperly, but these matters are not as emotionally troubling for physicians as a decision to “fire” a patient because of the patient’s behavior. Common, legitimate reasons a doctor may consider unilateral termination appear in Table 2.7,8
Certain circumstances are not valid grounds for terminating a doctor-patient relationship. You cannot ethically decline to treat a patient whose problem lies within your areas of clinical competence solely because the patient is seropositive for human immunodeficiency virus,9 nor because of a patient’s race, religion, or other reasons that would constitute illegal discrimination.3 Doctors who practice in rural areas must be especially cautious about terminating care because their patients may have limited access to alternate care sources.10
Meeting with or verbally informing a patient of a termination may be reasonable in some cases, but appropriate unilateral termination of a patient usually requires providing written notification to the patient or person responsible for the patient’s care. Attorneys who specialize in risk management advise doctors to seek legal consultation when preparing a termination-of-care letter and to send it by certified mail. The letter should conform to any applicable rules or regulations where you practice. Typically, required content includes:
- notification that the physician-patient relationship is terminated
- a statement of willingness to provide emergency treatment and access to services for up to 30 days from the mailing date to allow the patient to arrange care from another provider
- an offer to transfer records to the new provider upon receiving the patient’s signed authorization to do so.11
More discussion of the possible contents of termination letters appears in Table 3.7,12-14
Table 2
Common reasons to consider terminating a patient’s care
| Failing to pay bills |
| Repeatedly cancelling or missing appointments |
| Repeatedly failing to follow the agreed-upon treatment plan |
| Overly demanding, rude, disruptive, threatening, or violent behavior toward staff or other patients |
| Patient is very dissatisfied with care |
| Needing specialized services that the physician cannot provide |
| Filing a complaint or legal action against the physician |
| Dishonesty that compromises safety or legality of treatment |
| Physician feels treatment is ineffective |
| Conflict of interest (eg, physician’s religious beliefs preclude providing certain treatments that might be indicated) |
| Developing and acting upon an inappropriate personal interest in the physician |
| Inappropriate response by physician to feelings about the patient (eg, physician feels tempted to act upon an attraction) |
| Source: References 7,8 |
Table 3
Potential elements of termination letters
| Element | Comment | |
|---|---|---|
| Reason for termination | Giving a reason is not required. If an explanation seems necessary, offer a general statement (eg, ‘I have determined it would be best…’) | |
| Adequate time to seek care elsewhere | Typically, at least 30 days. Courts have described appropriate time frames in general terms, such as ‘ample,’ ‘sufficient,’ or ‘reasonable’ | |
| Interim care provisions | Offer interim care for urgent problems until the time limit stated above | |
| Continued care provisions |
| |
| Medical record copies | Offer to provide a summary of treatment or copy of the record to a new provider. Consider enclosing a ‘release of information’ authorization to be returned to the office with the patient’s signature | |
| Sending the letter | Regular and certified mail (return receipt requested). Place a copy of this letter in the patient’s medical record, along with the original certified mail receipt and, if received, the original return receipt | |
| Source: References 7,12-14 | ||
Deciding to ‘fire‘ a patient
Physicians in all specialties encounter patients whose actions generate intensely negative feelings—resentment, anger, even hate.15 But “firing” a patient should be a rare circumstance that’s not undertaken lightly. Many different circumstances can make it reasonable for a physician to consider terminating a patient’s care, so it’s difficult to provide general advice about when firing a patient really is the right thing to do. But 1 “prescription” seems clear: consult a respected colleague first. According to psychiatrist Robert Michels, “Any physician who is thinking of firing a patient should first speak to a colleague… This is an enormous decision and, while it might even be right at times, the physician is probably having a countertransference reaction to his patient and should really understand that before taking action.”1
Having an anonymous consultation with a colleague offers several potential benefits, such as:
- If you’re thinking about firing a patient, you’re probably very upset. A colleague who isn’t emotionally involved can help you assess the matter more dispassionately.
- You may be feeling guilty about disliking the patient. A colleague’s empathy (“Of course you’re angry!”) can help you avoid disowning your feelings, which may make it easier to figure out how to use those feelings to help the patient.15,16
- A colleague may think of solutions that you haven’t considered, which might help you feel less frustrated about how treatment is going.
- A colleague may help you see ways that you’re actually helping the patient, despite feeling that your work is futile.
- If a thoughtful colleague confirms your view that terminating care is appropriate, you’ll feel better about the decision. If you document the anonymous consultation in the patient’s chart, you’ll create a record of your reasonableness and prudence—which will be helpful if you have to defend your action in court.12
Revisiting the case patients
With these thoughts in mind, we return to Dr. C’s clinical dilemmas.
Ms. A. In retrospect, Dr. C might wish he had been clearer with Ms. A about how often she would need to see him for medication monitoring. At this point, however, Dr. C still has options besides firing Ms. A:
- Dr. C can call Ms. A to ask how she’s doing and to explain his medical responsibility to see and reassess her if he is to continue prescribing her medication. He can then follow up with a letter summarizing the conversation.
- Dr. C might ask whether some problem is preventing Ms. A from making an appointment. If, for example, Ms. A has lost her job and health insurance coverage for office visits, Dr. C might suggest options (such as seeing Ms. A once at no charge) or help Ms. A find other ways to obtain follow-up care.
Mr. B. Concerning Mr. B, we wonder, “Why not just leave the chart open?” As is the case with care provided by other specialists—including internists, obstetricians, or dermatologists—psychiatric treatment may occur in discrete episodes over many years. Patients regard a previous care provider as “their doctor” for decades after a treatment episode, and it’s comforting and valuable for former patients to know they can see their “shrink” again if they need to.
Related Resource
- Henderson SM. Advice on abandonment. Oklahoma Board of Medical Licensure and Supervision. www.okmedicalboard.org/download/19980401MD.htm.
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Dear Dr. Mossman:
One of my patients, Ms. A, keeps calling in to refill her prescription, but will not come in for an appointment; she needs the medication, but I really shouldn’t keep prescribing it without seeing her. Another patient, Mr. B, has an open chart, but he stopped seeing me last year after I treated him for an acute depressive episode. May I “fire” these patients? If so, what should I do?—Submitted by “Dr. C”
All physicians occasionally encounter patients whom we’d like to stop treating, but because we feel devoted to those we treat, the idea of “firing” a patient makes us uncomfortable. Sometimes, however, ending a treatment relationship is the right choice for the doctor and patient.1
To know why, how, and when you may terminate your professional relationship with a patient, you need to:
- understand the legal and ethical status of a doctor-patient relationship
- know the proper way to end treatment relationships
- decide whether ending your care of the patient is the right medical and ethical choice.
After exploring these points, we’ll return to the cases of Ms. A and Mr. B and consider what Dr. C might do.
- Submit your malpractice-related questions to Dr. Mossman at douglas.mossman@qhc.com.
- Include your name, address, and practice location. If your question is chosen for publication, your name can be withheld by request.
Doctor-patient relationships
Legal and medical authorities characterize the treatment relationship as an implicit contract that imposes certain obligations on the doctor and the patient.2,3 Doctors are compelled to conduct themselves in accordance with the prevailing “standard of care.” Patients’ obligations include being honest and cooperating with care once they have agreed to a treatment plan (Table 1).3
Patients may stop seeing their doctors at any time, but a physician usually must continue to provide all necessary medical attention until either the treatment episode has concluded or both parties agree to end the doctor-patient relationship.2 If a physician wishes to withdraw from a case before the need for services has ended, the physician must either make arrangements for another competent physician to assume care or give the patient ample notice and opportunity to obtain treatment elsewhere.2 If a doctor fails to do this and harm to the patient results, the doctor is guilty of “abandonment,” legally defined as termination of the physician-patient relationship “at an unreasonable time or without affording the patient the opportunity to procure an equally qualified replacement.”2 Physician abandonment can lead to malpractice liability,4 complaints to state licensing authorities,5 and ethical condemnation.6
Table 1
A patient’s responsibilities
| Being truthful |
| Providing a complete medical history |
| Cooperating with agreed-upon treatment and keeping appointments |
| Meeting financial obligations for medical care |
| Health-enhancing behavior |
| Not participating in fraudulent health care |
| Source: Reference 3 |
Terminating without abandoning
Doctors commonly terminate care of their patients when they decide to move or close their practices. Accusations of abandonment may arise if such career decisions are executed improperly, but these matters are not as emotionally troubling for physicians as a decision to “fire” a patient because of the patient’s behavior. Common, legitimate reasons a doctor may consider unilateral termination appear in Table 2.7,8
Certain circumstances are not valid grounds for terminating a doctor-patient relationship. You cannot ethically decline to treat a patient whose problem lies within your areas of clinical competence solely because the patient is seropositive for human immunodeficiency virus,9 nor because of a patient’s race, religion, or other reasons that would constitute illegal discrimination.3 Doctors who practice in rural areas must be especially cautious about terminating care because their patients may have limited access to alternate care sources.10
Meeting with or verbally informing a patient of a termination may be reasonable in some cases, but appropriate unilateral termination of a patient usually requires providing written notification to the patient or person responsible for the patient’s care. Attorneys who specialize in risk management advise doctors to seek legal consultation when preparing a termination-of-care letter and to send it by certified mail. The letter should conform to any applicable rules or regulations where you practice. Typically, required content includes:
- notification that the physician-patient relationship is terminated
- a statement of willingness to provide emergency treatment and access to services for up to 30 days from the mailing date to allow the patient to arrange care from another provider
- an offer to transfer records to the new provider upon receiving the patient’s signed authorization to do so.11
More discussion of the possible contents of termination letters appears in Table 3.7,12-14
Table 2
Common reasons to consider terminating a patient’s care
| Failing to pay bills |
| Repeatedly cancelling or missing appointments |
| Repeatedly failing to follow the agreed-upon treatment plan |
| Overly demanding, rude, disruptive, threatening, or violent behavior toward staff or other patients |
| Patient is very dissatisfied with care |
| Needing specialized services that the physician cannot provide |
| Filing a complaint or legal action against the physician |
| Dishonesty that compromises safety or legality of treatment |
| Physician feels treatment is ineffective |
| Conflict of interest (eg, physician’s religious beliefs preclude providing certain treatments that might be indicated) |
| Developing and acting upon an inappropriate personal interest in the physician |
| Inappropriate response by physician to feelings about the patient (eg, physician feels tempted to act upon an attraction) |
| Source: References 7,8 |
Table 3
Potential elements of termination letters
| Element | Comment | |
|---|---|---|
| Reason for termination | Giving a reason is not required. If an explanation seems necessary, offer a general statement (eg, ‘I have determined it would be best…’) | |
| Adequate time to seek care elsewhere | Typically, at least 30 days. Courts have described appropriate time frames in general terms, such as ‘ample,’ ‘sufficient,’ or ‘reasonable’ | |
| Interim care provisions | Offer interim care for urgent problems until the time limit stated above | |
| Continued care provisions |
| |
| Medical record copies | Offer to provide a summary of treatment or copy of the record to a new provider. Consider enclosing a ‘release of information’ authorization to be returned to the office with the patient’s signature | |
| Sending the letter | Regular and certified mail (return receipt requested). Place a copy of this letter in the patient’s medical record, along with the original certified mail receipt and, if received, the original return receipt | |
| Source: References 7,12-14 | ||
Deciding to ‘fire‘ a patient
Physicians in all specialties encounter patients whose actions generate intensely negative feelings—resentment, anger, even hate.15 But “firing” a patient should be a rare circumstance that’s not undertaken lightly. Many different circumstances can make it reasonable for a physician to consider terminating a patient’s care, so it’s difficult to provide general advice about when firing a patient really is the right thing to do. But 1 “prescription” seems clear: consult a respected colleague first. According to psychiatrist Robert Michels, “Any physician who is thinking of firing a patient should first speak to a colleague… This is an enormous decision and, while it might even be right at times, the physician is probably having a countertransference reaction to his patient and should really understand that before taking action.”1
Having an anonymous consultation with a colleague offers several potential benefits, such as:
- If you’re thinking about firing a patient, you’re probably very upset. A colleague who isn’t emotionally involved can help you assess the matter more dispassionately.
- You may be feeling guilty about disliking the patient. A colleague’s empathy (“Of course you’re angry!”) can help you avoid disowning your feelings, which may make it easier to figure out how to use those feelings to help the patient.15,16
- A colleague may think of solutions that you haven’t considered, which might help you feel less frustrated about how treatment is going.
- A colleague may help you see ways that you’re actually helping the patient, despite feeling that your work is futile.
- If a thoughtful colleague confirms your view that terminating care is appropriate, you’ll feel better about the decision. If you document the anonymous consultation in the patient’s chart, you’ll create a record of your reasonableness and prudence—which will be helpful if you have to defend your action in court.12
Revisiting the case patients
With these thoughts in mind, we return to Dr. C’s clinical dilemmas.
Ms. A. In retrospect, Dr. C might wish he had been clearer with Ms. A about how often she would need to see him for medication monitoring. At this point, however, Dr. C still has options besides firing Ms. A:
- Dr. C can call Ms. A to ask how she’s doing and to explain his medical responsibility to see and reassess her if he is to continue prescribing her medication. He can then follow up with a letter summarizing the conversation.
- Dr. C might ask whether some problem is preventing Ms. A from making an appointment. If, for example, Ms. A has lost her job and health insurance coverage for office visits, Dr. C might suggest options (such as seeing Ms. A once at no charge) or help Ms. A find other ways to obtain follow-up care.
Mr. B. Concerning Mr. B, we wonder, “Why not just leave the chart open?” As is the case with care provided by other specialists—including internists, obstetricians, or dermatologists—psychiatric treatment may occur in discrete episodes over many years. Patients regard a previous care provider as “their doctor” for decades after a treatment episode, and it’s comforting and valuable for former patients to know they can see their “shrink” again if they need to.
Related Resource
- Henderson SM. Advice on abandonment. Oklahoma Board of Medical Licensure and Supervision. www.okmedicalboard.org/download/19980401MD.htm.
Disclosure
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
1. Friedman RA. Should a doctor fire a patient? Sometimes it is good medicine. New York Times. September 27, 2005;sect F:1.
2. Dietz LH, Jacobs A, Leming TL, et al. Physicians, surgeons, and other healers, §§130, 216-218. In: American jurisprudence. Vol 61. 2nd ed. New York, NY: Thomson Reuters; 2010.
3. American Medical Association. Code of ethics. Opinions 9.12, 10.02, and 10.015. Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.shtml. Accessed October 18, 2010.
4. Lowery v Miller, 157 Wis 2d 503, 460 NW2d 446 (Wis App 1990).
5. Crausman RS. Board of medical licensure and discipline. Available at: http://www.health.ri.gov/hsr/bmld. Accessed October 27, 2010.
6. Pellegrino ED. Nonabandonment: an old obligation revisited. Ann Intern Med. 1995;122:377-378.
7. Harris SM. Take care when firing a patient. American Medical News. Available at: http://www.ama-assn.org/amednews/2008/02/04/bica0204.htm. Accessed October 18, 2010.
8. Gabbard GO. Long-term psychodynamic psychotherapy: a basic text. Arlington, VA: American Psychiatric Publishing, Inc.; 2004.
9. Bragdon v Abbott, 524 U.S. 624 (1998).
10. Henderson SM. Advice on abandonment. Oklahoma Board of Medical Licensure and Supervision. Available at: http://www.okmedicalboard.org/download/19980401MD.htm. Accessed October 18, 2010.
11. Ohio Admin Code Ch, 4731-27(A)(1).
12. Appelbaum PS, Gutheil T. Clinical handbook of psychiatry and the law. 4th ed. Philadelphia, PA: Lippincott Williams and Wilkins; 2006.
13. Appelbaum PS. Law & psychiatry: can a psychiatrist be held responsible when a patient commits murder? Psychiatr Serv. 2002;53:27-29.
14. Tan MW, McDonough WJ. Risk management in psychiatry. Psychiatr Clin North Am. 1990;13:135-147.
15. Groves JE. Taking care of the hateful patient. N Engl J Med. 1978;298:883-887.
16. Strous RD, Ulman AM, Kotler M. The hateful patient revisited: relevance for 21st century medicine. Eur J Intern Med. 2006;17:387-393.
1. Friedman RA. Should a doctor fire a patient? Sometimes it is good medicine. New York Times. September 27, 2005;sect F:1.
2. Dietz LH, Jacobs A, Leming TL, et al. Physicians, surgeons, and other healers, §§130, 216-218. In: American jurisprudence. Vol 61. 2nd ed. New York, NY: Thomson Reuters; 2010.
3. American Medical Association. Code of ethics. Opinions 9.12, 10.02, and 10.015. Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.shtml. Accessed October 18, 2010.
4. Lowery v Miller, 157 Wis 2d 503, 460 NW2d 446 (Wis App 1990).
5. Crausman RS. Board of medical licensure and discipline. Available at: http://www.health.ri.gov/hsr/bmld. Accessed October 27, 2010.
6. Pellegrino ED. Nonabandonment: an old obligation revisited. Ann Intern Med. 1995;122:377-378.
7. Harris SM. Take care when firing a patient. American Medical News. Available at: http://www.ama-assn.org/amednews/2008/02/04/bica0204.htm. Accessed October 18, 2010.
8. Gabbard GO. Long-term psychodynamic psychotherapy: a basic text. Arlington, VA: American Psychiatric Publishing, Inc.; 2004.
9. Bragdon v Abbott, 524 U.S. 624 (1998).
10. Henderson SM. Advice on abandonment. Oklahoma Board of Medical Licensure and Supervision. Available at: http://www.okmedicalboard.org/download/19980401MD.htm. Accessed October 18, 2010.
11. Ohio Admin Code Ch, 4731-27(A)(1).
12. Appelbaum PS, Gutheil T. Clinical handbook of psychiatry and the law. 4th ed. Philadelphia, PA: Lippincott Williams and Wilkins; 2006.
13. Appelbaum PS. Law & psychiatry: can a psychiatrist be held responsible when a patient commits murder? Psychiatr Serv. 2002;53:27-29.
14. Tan MW, McDonough WJ. Risk management in psychiatry. Psychiatr Clin North Am. 1990;13:135-147.
15. Groves JE. Taking care of the hateful patient. N Engl J Med. 1978;298:883-887.
16. Strous RD, Ulman AM, Kotler M. The hateful patient revisited: relevance for 21st century medicine. Eur J Intern Med. 2006;17:387-393.
Should you restrain yourself from ordering restraints?
Dear Dr. Mossman:
We often have to administer sedating medications to aggressive patients who pose an immediate threat of harm to themselves or others. But I am unsure about whether these “chemical restraints” create more liability problems than “physical restraints”—or vice versa. Does one type of restraint carry more legal risk than the other?—Submitted by “Dr. L”
Mental health professionals view “mechanical” or “physical” restraints in a way that really differs from how they felt 2 decades ago. In the 1980s, physical restraint use was a common response when patients seemed to be immediately dangerous to themselves or others. But recent practice guidelines say physical restraints are a “last resort,” to be used only when other treatment measures to prevent aggression fail to work.
What should psychiatrists do? Is use of physical restraints malpractice? Are “chemical” restraints better?
This article looks at:
- definitions of restraint
- medical risks of restraint
- evolution and status of restraint policy
- what you can do about legal risks of restraint.
- Submit your malpractice-related questions to Dr. Mossman at douglas.mossman@qhc.com.
- Include your name, address, and practice location. If your question is chosen for publication, your name can be withheld by request.
Definitions
In medical contexts, restraint typically refers to “any device or medication used to restrict a patient’s movement.”1 The longer, official US regulatory definitions of physical and chemical restraints appear in Table 1.2 Two important notes:
- Neither regulatory definition of restraint is limited to psychiatric patients; both definitions and the accompanying regulations on restraint apply to any patient in a hospital eligible for federal reimbursement.
- The definition of physical restraint would include holding a patient still while administering an injection.
The detailed interpretive rules (“Conditions of Participation for Hospitals”)3 for these regulations require hospitals to document conditions surrounding and reasons related to restraint incidents and to make this documentation available to federal surveyors.
Table 1
Federal regulatory definitions of ‘restraint’
| Physical restraint | Any manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a patient to move his or her arms, legs, body, or head freely |
| Chemical restraint | A drug or medication when it is used as a restriction to manage the patient’s behavior or restrict the patient’s freedom of movement and is not a standard treatment or dosage for the patient’s condition |
| Source: Reference 2 | |
Medical risks of restraint
In 1998, the Hartford Courant investigative series “Deadly restraint”4 reported on 142 deaths of psychiatric patients and alerted the public to the potentially fatal consequences of physical restraint. Often, restraint deaths result from asphyxia when patients try to free themselves and get caught in positions that restrict breathing.5 Other injuries—particularly those produced by falls—can result from well-intentioned efforts to protect confused patients by restraining them.6
Evolution of restraint policy
Although restraining patients might inadvertently cause harm, isn’t it better to restrain someone, which prevents harm from aggression and accidents? Mental health professionals once thought the answer to this question was, “Of course!” But scientific data say, “Often not.”
Studies conducted when physical restraint was more common found order-of-magnitude disparities in restraint rates at sites with similar patient populations. This suggested that institutional norms and practice styles—not patients’ problems or dangerousness—explained why much restraint occurred.7-9
Reacting to these kinds of findings, psychiatric hospitals in the United States and abroad implemented various methods and policy changes to reduce restraint. Follow-up studies typically showed that episodes of restraint and total time spent in restraints could decrease markedly without any increase in events that harmed patients or staff members.10 In addition, mental health professionals now recognize that being restrained is psychologically traumatic for patients, even when restraint causes no physical injury.11
Patients in psychiatric settings represent a minority of persons who get restrained. On inpatient medical/surgical units, patient confusion and wandering, fall prevention, and perceived medical necessity can lead to physical restraint use.12 Yet physical restraints as innocent-seeming as bed rails can lead to deaths and injuries.13
Nursing homes are another environment where restraints may be common but sometimes detrimental. A recent study found that in all aspects of nursing home patients’ health and functioning—behavior, cognitive performance, falls, walking, activities of daily living, pressure sores, and contractures—physical restraints lead to worse outcomes than leaving patients unrestrained.14
For all these reasons, restraining patients is often viewed as “poor practice”14 and a response of last resort for behavioral problems.15-17
Federal regulations
Publication of the Courant article spurred Congress to develop standards18 that, a decade later, permit restraint or seclusion only when less restrictive interventions will not prevent harm, only for limited periods, and only with careful medical monitoring. Restraint is permissible when no alternative exists, but facilities that use restraint must train staff members to recognize and avert situations that might lead to physical interventions and must generate proper documentation each time restraint is used.2
Federal regulations also apply to “chemical restraints” and aim to restrict their use. This doesn’t mean you can’t use drugs to treat patients, however. Regulations explicitly allow you to prescribe “standard treatment” (Table 2)3 to help your patients function or sleep better, to alleviate pain, or to reduce agitation—and such uses of medication are not “chemical restraint.” Rather, you’re using “chemical restraint” if you prescribe a drug to control bothersome behavior—for example, to “knock out” a patient with dementia whose “sundowning” bothers staff members.19 Psychiatrists should be familiar with the risks of medications used for behavioral control, particularly in elderly patients.20
Table 2
Federal criteria for ‘standard treatment‘
| Medication is used within FDA-approved pharmaceutical parameters and manufacturer indications |
| Medication use follows standards recognized by the medical community |
| Choice of medication is based on patient’s symptoms, overall clinical situation, and prescriber’s knowledge of the patient’s treatment response |
| Source: Reference 3 |
Avoiding legal risks
No study or systematic data will ever tell us whether physical or chemical restraints create a greater liability risk. Obviously, the best way to avoid legal liability for restraints is to minimize use of physical restraints and to avoid using medications as chemical restraints. Psychiatrists who work in hospitals or other institutional settings can politely but firmly decline to prescribe medications or to order physical restraints when staff members request these measures for non-therapeutic reasons—ie, for a patient who has calmed down but whom staff members believe “needs to learn a lesson” or “get some consequences” for throwing a chair. When restraints are necessary, psychiatrists (along with other staff members) should document the reasons why, including what other interventions were tried first.
Many psychiatric facilities and care systems have reduced incidence of restraint and time spent by patients in restraint through programs that broadly address institutional practices. Such programs usually involve a multi-disciplinary, multi-strategy commitment to alternatives—to helping staff members see that restraints represent a failure in treatment rather than a form of treatment, and to developing other mechanisms for averting or responding to patients’ aggression before restraint becomes the only option.10,21 Individual psychiatrists can play an important role in advocating and supporting institutional policies, practices, and training that help staff members minimize restraint use.
1. Agens JE. Chemical and physical restraint use in the older person. BJMP. 2010;3:302.-
2. Code of Federal Regulations. Conditions of participation for hospitals: Condition of participation: Patient’s rights. Title 42, Part 482, § 482.13. Available at: http://edocket.access.gpo.gov/cfr_2004/octqtr/pdf/42cfr482.13.pdf. Accessed July 21, 2010.
3. Department of Health and Human Services, Centers for Medicare and Medicaid Services Pub. 100-07 State Operations (Provider Certification, Transmittal 37). Available at: https://146.123.140.205/transmittals/downloads/R37SOMA.pdf. Accessed July 20, 2010.
4. Weiss EM. Deadly restraint: a Hartford Courant investigative report. Hartford Courant. October 11-15, 1998.
5. Karger B, Fracasso T, Pfeiffer H. Fatalities related to medical restraint devices—asphyxia is a common finding. Forensic Sci Int. 2008;178:178-184.
6. Inouye SK, Brown CJ, Tinetti ME. Medicare nonpayment, hospital falls, and unintended consequences. N Engl J Med. 2009;360:2390-2393.
7. Betemps EJ, Somoza E, Buncher CR. Hospital characteristics, diagnoses, and staff reasons associated with use of seclusion and restraint. Hosp Community Psychiatry. 1993;44:367-371.
8. Crenshaw WB, Francis PS. A national survey on seclusion and restraint in state psychiatric hospitals. Psychiatr Serv. 1995;46:1026-1031.
9. Ray NK, Rappaport ME. Use of restraint and seclusion in psychiatric settings in New York State. Psychiatr Serv. 1995;46:1032-1037.
10. Smith GM, Davis RH, Bixler EO, et al. Pennsylvania State Hospital system’s seclusion and restraint reduction program. Psychiatr Serv. 2005;56:1115-1122.
11. Frueh BC, Knapp RG, Cusack KJ, et al. Patients’ reports of traumatic or harmful experiences within the psychiatric setting. Psychiatr Serv. 2005;56:1123-1133.
12. Forrester DA, McCabe-Bender J, Walsh N, et al. Physical restraint management of hospitalized adults and follow-up study. J Nurses Staff Dev. 2000;16:267-276.
13. The Joint Commission. Bed rail-related entrapment deaths. Available at: http://www.jointcommission.org/ sentinelevents/alert/sea_27.htm. Accessed July 20, 2010.
14. Castle NG, Engberg J. The health consequences of using physical restraints in nursing homes. Med Care. 2009;47:1164-1173.
15. Marder SR. A review of agitation in mental illness: treatment guidelines and current therapies. J Clin Psychiatry. 2006;67(suppl 10):13-21.
16. Borckardt JJ, Grubaugh AL, Pelic CG, et al. Enhancing patient safety in psychiatric settings. J Psychiatr Pract. 2007;13:355-361.
17. National Association of State Mental Health Program Directors. Position Statement on Seclusion and Restraint. Available at: http://www.nasmhpd.org/general_files/position_statement/posses1.htm. Accessed July 18, 2010.
18. Appelbaum P. Seclusion and restraint: Congress reacts to reports of abuse. Psychiatr Serv. 1999;50:881-882, 885.
19. Centers for Medicare and Medicaid Services. State operations manual: appendix A—survey protocol, regulations and interpretive guidelines for hospitals. Available at: http://www.cms.gov/manuals/downloads/som107ap_a_hospitals.pdf. Accessed July 20, 2010.
20. Salzman C, Jeste DV, Meyer RE, et al. Elderly patients with dementia-related symptoms of severe agitation and aggression: consensus statement on treatment options, clinical trials methodology, and policy. J Clin Psychiatry. 2008;69:889-898.
21. Gaskin CJ, Elsom SJ, Happell B. Interventions for reducing the use of seclusion in psychiatric facilities: review of the literature. Br J Psychiatry. 2007;191:298-303.
Douglas Mossman, MD
Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and adjunct professor of clinical psychiatry and training director, division of forensic psychiatry, University of Cincinnati College of Medicine.
Douglas Mossman, MD
Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and adjunct professor of clinical psychiatry and training director, division of forensic psychiatry, University of Cincinnati College of Medicine.
Douglas Mossman, MD
Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and adjunct professor of clinical psychiatry and training director, division of forensic psychiatry, University of Cincinnati College of Medicine.
Dear Dr. Mossman:
We often have to administer sedating medications to aggressive patients who pose an immediate threat of harm to themselves or others. But I am unsure about whether these “chemical restraints” create more liability problems than “physical restraints”—or vice versa. Does one type of restraint carry more legal risk than the other?—Submitted by “Dr. L”
Mental health professionals view “mechanical” or “physical” restraints in a way that really differs from how they felt 2 decades ago. In the 1980s, physical restraint use was a common response when patients seemed to be immediately dangerous to themselves or others. But recent practice guidelines say physical restraints are a “last resort,” to be used only when other treatment measures to prevent aggression fail to work.
What should psychiatrists do? Is use of physical restraints malpractice? Are “chemical” restraints better?
This article looks at:
- definitions of restraint
- medical risks of restraint
- evolution and status of restraint policy
- what you can do about legal risks of restraint.
- Submit your malpractice-related questions to Dr. Mossman at douglas.mossman@qhc.com.
- Include your name, address, and practice location. If your question is chosen for publication, your name can be withheld by request.
Definitions
In medical contexts, restraint typically refers to “any device or medication used to restrict a patient’s movement.”1 The longer, official US regulatory definitions of physical and chemical restraints appear in Table 1.2 Two important notes:
- Neither regulatory definition of restraint is limited to psychiatric patients; both definitions and the accompanying regulations on restraint apply to any patient in a hospital eligible for federal reimbursement.
- The definition of physical restraint would include holding a patient still while administering an injection.
The detailed interpretive rules (“Conditions of Participation for Hospitals”)3 for these regulations require hospitals to document conditions surrounding and reasons related to restraint incidents and to make this documentation available to federal surveyors.
Table 1
Federal regulatory definitions of ‘restraint’
| Physical restraint | Any manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a patient to move his or her arms, legs, body, or head freely |
| Chemical restraint | A drug or medication when it is used as a restriction to manage the patient’s behavior or restrict the patient’s freedom of movement and is not a standard treatment or dosage for the patient’s condition |
| Source: Reference 2 | |
Medical risks of restraint
In 1998, the Hartford Courant investigative series “Deadly restraint”4 reported on 142 deaths of psychiatric patients and alerted the public to the potentially fatal consequences of physical restraint. Often, restraint deaths result from asphyxia when patients try to free themselves and get caught in positions that restrict breathing.5 Other injuries—particularly those produced by falls—can result from well-intentioned efforts to protect confused patients by restraining them.6
Evolution of restraint policy
Although restraining patients might inadvertently cause harm, isn’t it better to restrain someone, which prevents harm from aggression and accidents? Mental health professionals once thought the answer to this question was, “Of course!” But scientific data say, “Often not.”
Studies conducted when physical restraint was more common found order-of-magnitude disparities in restraint rates at sites with similar patient populations. This suggested that institutional norms and practice styles—not patients’ problems or dangerousness—explained why much restraint occurred.7-9
Reacting to these kinds of findings, psychiatric hospitals in the United States and abroad implemented various methods and policy changes to reduce restraint. Follow-up studies typically showed that episodes of restraint and total time spent in restraints could decrease markedly without any increase in events that harmed patients or staff members.10 In addition, mental health professionals now recognize that being restrained is psychologically traumatic for patients, even when restraint causes no physical injury.11
Patients in psychiatric settings represent a minority of persons who get restrained. On inpatient medical/surgical units, patient confusion and wandering, fall prevention, and perceived medical necessity can lead to physical restraint use.12 Yet physical restraints as innocent-seeming as bed rails can lead to deaths and injuries.13
Nursing homes are another environment where restraints may be common but sometimes detrimental. A recent study found that in all aspects of nursing home patients’ health and functioning—behavior, cognitive performance, falls, walking, activities of daily living, pressure sores, and contractures—physical restraints lead to worse outcomes than leaving patients unrestrained.14
For all these reasons, restraining patients is often viewed as “poor practice”14 and a response of last resort for behavioral problems.15-17
Federal regulations
Publication of the Courant article spurred Congress to develop standards18 that, a decade later, permit restraint or seclusion only when less restrictive interventions will not prevent harm, only for limited periods, and only with careful medical monitoring. Restraint is permissible when no alternative exists, but facilities that use restraint must train staff members to recognize and avert situations that might lead to physical interventions and must generate proper documentation each time restraint is used.2
Federal regulations also apply to “chemical restraints” and aim to restrict their use. This doesn’t mean you can’t use drugs to treat patients, however. Regulations explicitly allow you to prescribe “standard treatment” (Table 2)3 to help your patients function or sleep better, to alleviate pain, or to reduce agitation—and such uses of medication are not “chemical restraint.” Rather, you’re using “chemical restraint” if you prescribe a drug to control bothersome behavior—for example, to “knock out” a patient with dementia whose “sundowning” bothers staff members.19 Psychiatrists should be familiar with the risks of medications used for behavioral control, particularly in elderly patients.20
Table 2
Federal criteria for ‘standard treatment‘
| Medication is used within FDA-approved pharmaceutical parameters and manufacturer indications |
| Medication use follows standards recognized by the medical community |
| Choice of medication is based on patient’s symptoms, overall clinical situation, and prescriber’s knowledge of the patient’s treatment response |
| Source: Reference 3 |
Avoiding legal risks
No study or systematic data will ever tell us whether physical or chemical restraints create a greater liability risk. Obviously, the best way to avoid legal liability for restraints is to minimize use of physical restraints and to avoid using medications as chemical restraints. Psychiatrists who work in hospitals or other institutional settings can politely but firmly decline to prescribe medications or to order physical restraints when staff members request these measures for non-therapeutic reasons—ie, for a patient who has calmed down but whom staff members believe “needs to learn a lesson” or “get some consequences” for throwing a chair. When restraints are necessary, psychiatrists (along with other staff members) should document the reasons why, including what other interventions were tried first.
Many psychiatric facilities and care systems have reduced incidence of restraint and time spent by patients in restraint through programs that broadly address institutional practices. Such programs usually involve a multi-disciplinary, multi-strategy commitment to alternatives—to helping staff members see that restraints represent a failure in treatment rather than a form of treatment, and to developing other mechanisms for averting or responding to patients’ aggression before restraint becomes the only option.10,21 Individual psychiatrists can play an important role in advocating and supporting institutional policies, practices, and training that help staff members minimize restraint use.
Dear Dr. Mossman:
We often have to administer sedating medications to aggressive patients who pose an immediate threat of harm to themselves or others. But I am unsure about whether these “chemical restraints” create more liability problems than “physical restraints”—or vice versa. Does one type of restraint carry more legal risk than the other?—Submitted by “Dr. L”
Mental health professionals view “mechanical” or “physical” restraints in a way that really differs from how they felt 2 decades ago. In the 1980s, physical restraint use was a common response when patients seemed to be immediately dangerous to themselves or others. But recent practice guidelines say physical restraints are a “last resort,” to be used only when other treatment measures to prevent aggression fail to work.
What should psychiatrists do? Is use of physical restraints malpractice? Are “chemical” restraints better?
This article looks at:
- definitions of restraint
- medical risks of restraint
- evolution and status of restraint policy
- what you can do about legal risks of restraint.
- Submit your malpractice-related questions to Dr. Mossman at douglas.mossman@qhc.com.
- Include your name, address, and practice location. If your question is chosen for publication, your name can be withheld by request.
Definitions
In medical contexts, restraint typically refers to “any device or medication used to restrict a patient’s movement.”1 The longer, official US regulatory definitions of physical and chemical restraints appear in Table 1.2 Two important notes:
- Neither regulatory definition of restraint is limited to psychiatric patients; both definitions and the accompanying regulations on restraint apply to any patient in a hospital eligible for federal reimbursement.
- The definition of physical restraint would include holding a patient still while administering an injection.
The detailed interpretive rules (“Conditions of Participation for Hospitals”)3 for these regulations require hospitals to document conditions surrounding and reasons related to restraint incidents and to make this documentation available to federal surveyors.
Table 1
Federal regulatory definitions of ‘restraint’
| Physical restraint | Any manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a patient to move his or her arms, legs, body, or head freely |
| Chemical restraint | A drug or medication when it is used as a restriction to manage the patient’s behavior or restrict the patient’s freedom of movement and is not a standard treatment or dosage for the patient’s condition |
| Source: Reference 2 | |
Medical risks of restraint
In 1998, the Hartford Courant investigative series “Deadly restraint”4 reported on 142 deaths of psychiatric patients and alerted the public to the potentially fatal consequences of physical restraint. Often, restraint deaths result from asphyxia when patients try to free themselves and get caught in positions that restrict breathing.5 Other injuries—particularly those produced by falls—can result from well-intentioned efforts to protect confused patients by restraining them.6
Evolution of restraint policy
Although restraining patients might inadvertently cause harm, isn’t it better to restrain someone, which prevents harm from aggression and accidents? Mental health professionals once thought the answer to this question was, “Of course!” But scientific data say, “Often not.”
Studies conducted when physical restraint was more common found order-of-magnitude disparities in restraint rates at sites with similar patient populations. This suggested that institutional norms and practice styles—not patients’ problems or dangerousness—explained why much restraint occurred.7-9
Reacting to these kinds of findings, psychiatric hospitals in the United States and abroad implemented various methods and policy changes to reduce restraint. Follow-up studies typically showed that episodes of restraint and total time spent in restraints could decrease markedly without any increase in events that harmed patients or staff members.10 In addition, mental health professionals now recognize that being restrained is psychologically traumatic for patients, even when restraint causes no physical injury.11
Patients in psychiatric settings represent a minority of persons who get restrained. On inpatient medical/surgical units, patient confusion and wandering, fall prevention, and perceived medical necessity can lead to physical restraint use.12 Yet physical restraints as innocent-seeming as bed rails can lead to deaths and injuries.13
Nursing homes are another environment where restraints may be common but sometimes detrimental. A recent study found that in all aspects of nursing home patients’ health and functioning—behavior, cognitive performance, falls, walking, activities of daily living, pressure sores, and contractures—physical restraints lead to worse outcomes than leaving patients unrestrained.14
For all these reasons, restraining patients is often viewed as “poor practice”14 and a response of last resort for behavioral problems.15-17
Federal regulations
Publication of the Courant article spurred Congress to develop standards18 that, a decade later, permit restraint or seclusion only when less restrictive interventions will not prevent harm, only for limited periods, and only with careful medical monitoring. Restraint is permissible when no alternative exists, but facilities that use restraint must train staff members to recognize and avert situations that might lead to physical interventions and must generate proper documentation each time restraint is used.2
Federal regulations also apply to “chemical restraints” and aim to restrict their use. This doesn’t mean you can’t use drugs to treat patients, however. Regulations explicitly allow you to prescribe “standard treatment” (Table 2)3 to help your patients function or sleep better, to alleviate pain, or to reduce agitation—and such uses of medication are not “chemical restraint.” Rather, you’re using “chemical restraint” if you prescribe a drug to control bothersome behavior—for example, to “knock out” a patient with dementia whose “sundowning” bothers staff members.19 Psychiatrists should be familiar with the risks of medications used for behavioral control, particularly in elderly patients.20
Table 2
Federal criteria for ‘standard treatment‘
| Medication is used within FDA-approved pharmaceutical parameters and manufacturer indications |
| Medication use follows standards recognized by the medical community |
| Choice of medication is based on patient’s symptoms, overall clinical situation, and prescriber’s knowledge of the patient’s treatment response |
| Source: Reference 3 |
Avoiding legal risks
No study or systematic data will ever tell us whether physical or chemical restraints create a greater liability risk. Obviously, the best way to avoid legal liability for restraints is to minimize use of physical restraints and to avoid using medications as chemical restraints. Psychiatrists who work in hospitals or other institutional settings can politely but firmly decline to prescribe medications or to order physical restraints when staff members request these measures for non-therapeutic reasons—ie, for a patient who has calmed down but whom staff members believe “needs to learn a lesson” or “get some consequences” for throwing a chair. When restraints are necessary, psychiatrists (along with other staff members) should document the reasons why, including what other interventions were tried first.
Many psychiatric facilities and care systems have reduced incidence of restraint and time spent by patients in restraint through programs that broadly address institutional practices. Such programs usually involve a multi-disciplinary, multi-strategy commitment to alternatives—to helping staff members see that restraints represent a failure in treatment rather than a form of treatment, and to developing other mechanisms for averting or responding to patients’ aggression before restraint becomes the only option.10,21 Individual psychiatrists can play an important role in advocating and supporting institutional policies, practices, and training that help staff members minimize restraint use.
1. Agens JE. Chemical and physical restraint use in the older person. BJMP. 2010;3:302.-
2. Code of Federal Regulations. Conditions of participation for hospitals: Condition of participation: Patient’s rights. Title 42, Part 482, § 482.13. Available at: http://edocket.access.gpo.gov/cfr_2004/octqtr/pdf/42cfr482.13.pdf. Accessed July 21, 2010.
3. Department of Health and Human Services, Centers for Medicare and Medicaid Services Pub. 100-07 State Operations (Provider Certification, Transmittal 37). Available at: https://146.123.140.205/transmittals/downloads/R37SOMA.pdf. Accessed July 20, 2010.
4. Weiss EM. Deadly restraint: a Hartford Courant investigative report. Hartford Courant. October 11-15, 1998.
5. Karger B, Fracasso T, Pfeiffer H. Fatalities related to medical restraint devices—asphyxia is a common finding. Forensic Sci Int. 2008;178:178-184.
6. Inouye SK, Brown CJ, Tinetti ME. Medicare nonpayment, hospital falls, and unintended consequences. N Engl J Med. 2009;360:2390-2393.
7. Betemps EJ, Somoza E, Buncher CR. Hospital characteristics, diagnoses, and staff reasons associated with use of seclusion and restraint. Hosp Community Psychiatry. 1993;44:367-371.
8. Crenshaw WB, Francis PS. A national survey on seclusion and restraint in state psychiatric hospitals. Psychiatr Serv. 1995;46:1026-1031.
9. Ray NK, Rappaport ME. Use of restraint and seclusion in psychiatric settings in New York State. Psychiatr Serv. 1995;46:1032-1037.
10. Smith GM, Davis RH, Bixler EO, et al. Pennsylvania State Hospital system’s seclusion and restraint reduction program. Psychiatr Serv. 2005;56:1115-1122.
11. Frueh BC, Knapp RG, Cusack KJ, et al. Patients’ reports of traumatic or harmful experiences within the psychiatric setting. Psychiatr Serv. 2005;56:1123-1133.
12. Forrester DA, McCabe-Bender J, Walsh N, et al. Physical restraint management of hospitalized adults and follow-up study. J Nurses Staff Dev. 2000;16:267-276.
13. The Joint Commission. Bed rail-related entrapment deaths. Available at: http://www.jointcommission.org/ sentinelevents/alert/sea_27.htm. Accessed July 20, 2010.
14. Castle NG, Engberg J. The health consequences of using physical restraints in nursing homes. Med Care. 2009;47:1164-1173.
15. Marder SR. A review of agitation in mental illness: treatment guidelines and current therapies. J Clin Psychiatry. 2006;67(suppl 10):13-21.
16. Borckardt JJ, Grubaugh AL, Pelic CG, et al. Enhancing patient safety in psychiatric settings. J Psychiatr Pract. 2007;13:355-361.
17. National Association of State Mental Health Program Directors. Position Statement on Seclusion and Restraint. Available at: http://www.nasmhpd.org/general_files/position_statement/posses1.htm. Accessed July 18, 2010.
18. Appelbaum P. Seclusion and restraint: Congress reacts to reports of abuse. Psychiatr Serv. 1999;50:881-882, 885.
19. Centers for Medicare and Medicaid Services. State operations manual: appendix A—survey protocol, regulations and interpretive guidelines for hospitals. Available at: http://www.cms.gov/manuals/downloads/som107ap_a_hospitals.pdf. Accessed July 20, 2010.
20. Salzman C, Jeste DV, Meyer RE, et al. Elderly patients with dementia-related symptoms of severe agitation and aggression: consensus statement on treatment options, clinical trials methodology, and policy. J Clin Psychiatry. 2008;69:889-898.
21. Gaskin CJ, Elsom SJ, Happell B. Interventions for reducing the use of seclusion in psychiatric facilities: review of the literature. Br J Psychiatry. 2007;191:298-303.
1. Agens JE. Chemical and physical restraint use in the older person. BJMP. 2010;3:302.-
2. Code of Federal Regulations. Conditions of participation for hospitals: Condition of participation: Patient’s rights. Title 42, Part 482, § 482.13. Available at: http://edocket.access.gpo.gov/cfr_2004/octqtr/pdf/42cfr482.13.pdf. Accessed July 21, 2010.
3. Department of Health and Human Services, Centers for Medicare and Medicaid Services Pub. 100-07 State Operations (Provider Certification, Transmittal 37). Available at: https://146.123.140.205/transmittals/downloads/R37SOMA.pdf. Accessed July 20, 2010.
4. Weiss EM. Deadly restraint: a Hartford Courant investigative report. Hartford Courant. October 11-15, 1998.
5. Karger B, Fracasso T, Pfeiffer H. Fatalities related to medical restraint devices—asphyxia is a common finding. Forensic Sci Int. 2008;178:178-184.
6. Inouye SK, Brown CJ, Tinetti ME. Medicare nonpayment, hospital falls, and unintended consequences. N Engl J Med. 2009;360:2390-2393.
7. Betemps EJ, Somoza E, Buncher CR. Hospital characteristics, diagnoses, and staff reasons associated with use of seclusion and restraint. Hosp Community Psychiatry. 1993;44:367-371.
8. Crenshaw WB, Francis PS. A national survey on seclusion and restraint in state psychiatric hospitals. Psychiatr Serv. 1995;46:1026-1031.
9. Ray NK, Rappaport ME. Use of restraint and seclusion in psychiatric settings in New York State. Psychiatr Serv. 1995;46:1032-1037.
10. Smith GM, Davis RH, Bixler EO, et al. Pennsylvania State Hospital system’s seclusion and restraint reduction program. Psychiatr Serv. 2005;56:1115-1122.
11. Frueh BC, Knapp RG, Cusack KJ, et al. Patients’ reports of traumatic or harmful experiences within the psychiatric setting. Psychiatr Serv. 2005;56:1123-1133.
12. Forrester DA, McCabe-Bender J, Walsh N, et al. Physical restraint management of hospitalized adults and follow-up study. J Nurses Staff Dev. 2000;16:267-276.
13. The Joint Commission. Bed rail-related entrapment deaths. Available at: http://www.jointcommission.org/ sentinelevents/alert/sea_27.htm. Accessed July 20, 2010.
14. Castle NG, Engberg J. The health consequences of using physical restraints in nursing homes. Med Care. 2009;47:1164-1173.
15. Marder SR. A review of agitation in mental illness: treatment guidelines and current therapies. J Clin Psychiatry. 2006;67(suppl 10):13-21.
16. Borckardt JJ, Grubaugh AL, Pelic CG, et al. Enhancing patient safety in psychiatric settings. J Psychiatr Pract. 2007;13:355-361.
17. National Association of State Mental Health Program Directors. Position Statement on Seclusion and Restraint. Available at: http://www.nasmhpd.org/general_files/position_statement/posses1.htm. Accessed July 18, 2010.
18. Appelbaum P. Seclusion and restraint: Congress reacts to reports of abuse. Psychiatr Serv. 1999;50:881-882, 885.
19. Centers for Medicare and Medicaid Services. State operations manual: appendix A—survey protocol, regulations and interpretive guidelines for hospitals. Available at: http://www.cms.gov/manuals/downloads/som107ap_a_hospitals.pdf. Accessed July 20, 2010.
20. Salzman C, Jeste DV, Meyer RE, et al. Elderly patients with dementia-related symptoms of severe agitation and aggression: consensus statement on treatment options, clinical trials methodology, and policy. J Clin Psychiatry. 2008;69:889-898.
21. Gaskin CJ, Elsom SJ, Happell B. Interventions for reducing the use of seclusion in psychiatric facilities: review of the literature. Br J Psychiatry. 2007;191:298-303.