Liability and dual agency
Psychiatrists are familiar with clinical situations in which a duty to the patient is mitigated or superseded by a duty to a third party. As the Tarasoff court famously stated, “the protective privilege ends where the public peril begins.”7
To be liable to either a patient or a third party means to be “bound or obliged in law or equity; responsible; chargeable; answerable; compellable to make satisfaction, compensation, or restitution.”8 Liabilities related to clinical treatment are well-established; medical students learn the fundamentals before ever treating a patient, and physicians carry malpractice insurance throughout their careers.
Less well-established is the liability a treating psychiatrist owes a third party when forming an opinion that impacts both their patient and the third party (eg, an employer when writing a return-to-work letter, or a disability insurer when qualifying a patient for disability benefits). The American Academy of Psychiatry and the Law discourages treating psychiatrists from performing these types of evaluations of their patients based on the inherent conflict of serving as a dual agent, or acting both as an advocate for the patient and as an independent evaluator striving for objectivity.9 However, such requests commonly arise, and some may be unavoidable.
Dual-agency situations subject the treating psychiatrist to avenues of legal action arising from the patient-doctor relationship as well as the forensic evaluator relationship. If a letter is written during a clinical treatment, all duties owed to the patient continue to apply, and the relevant benchmarks of local statutes and principle of a standard of care are relevant. It is conceivable that a patient could bring a negligence lawsuit based on a standard of care allegation (eg, that writing certain types of letters is so ordinary that failure to write them would fall below the standard of care). Confidentiality is also of the utmost importance,10 and you should obtain a written release of information from the patient before releasing any letter with privileged information about the patient.11 Additional relevant legal causes of action the patient could include are torts such as defamation of character, invasion of privacy, breach of contract, and intentional infliction of emotional distress. There is limited case law supporting patients’ rights to sue psychiatrists for defamation.10
A psychiatrist writing a letter to a third party may also subject themselves to avenues of legal action occurring outside the physician-patient relationship. Importantly, damages resulting from these breaches would not be covered by your malpractice insurance. Extreme cases involve allegations of fraud or perjury, which could be pursued in criminal court. If a psychiatrist intentionally deceives a third party for the purpose of obtaining some benefit for the patient, this is clear grounds for civil or criminal action. Fraud is defined as “a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury.”8 Negligence can also be grounds for liability if a third party suffers injury or loss. Although the liability is clearer if the third party retains an independent psychiatrist rather than soliciting an opinion from a patient’s treating psychiatrist, both parties are subject to the claim of negligence.10
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