Protecting patient care and public safety in the managed-care era
General Psychiatric Hospital, Cambridge, 11/1/01)
Harold J. Bursztajn M.D.
In the wake of 9/11 the issue of protecting the public's safety has become
a greater concern than ever. The government is now weighing the need
to protect individual privacy rights on, for example, the Internet versus
the need to protect foreseeable, if nameless, victims from a threat of
harm by a terrorist. So, too, in the context of psychiatry, are clinicians,
judges, and lawmakers wrestling with the concepts of constitutionally
and statutorily protected patient confidentiality (a foundation of the
doctor-patient relationship) versus the need to protect foreseeable,
if unnamed, victims from harm. While prima facie these may be seen as
being in conflict, such apparent conflict usually is more a matter of
first impressions influenced by managed care or limited resources than
of final analysis.
Identifiable individuals or identifiable groups and social contexts?
In the current issue, Leeman et al. [1] analyze the
duty to third parties of a psychiatrist treating a bus driver who abuses
drugs and alcohol. As they helpfully remind us, a denial of such a duty
can be driven by a reliance on a narrow legal advisory interpretation
of "identifiable individuals" which excludes his passengers
and the public at large. Clinicians are ill advised to unduly rely on
such a narrow interpretation, as it is at odds with existing clinical
practices, codes of medical ethics, and judicial rulings.
Clinically, few treating clinicians will vary their treatment of this
bus-driving patient or be any less responsible for the public's safety
depending upon whether the patient has volunteered the names of any of
his regular passengers or a specific school crossing guard he drives
by on Monday morning when he may be in the midst of withdrawal after
a weekend binge. Ethically, a relatively narrow interpretation of "identifiable
individuals" runs the risk of discriminating against those potentially
vulnerable victims who are also least likely to have their names known
to us: unsuspecting strangers going about their daily routines. Why should
nameless strangers have less right to be protected in our midst than
those with whom we are familiar by name? Surely our ethical principles,
beginning with the golden rule's "do not do unto others that which
you would not have others do unto you," need to be applied uniformly.
Legally, "identifiable individuals" are most often identified
not as being one or another named individual, but rather as being a member
of a group foreseeable in the zone of danger.
Duty to warn or duty to protect?
For clinical, ethical, and legal purposes, the question facing the clinician
is how to facilitate individual treatment by protecting the privacy of
the patient at risk for accident or violence and simultaneously protecting
the at-risk patient as well as individuals and groups naturally and foreseeably
in the patient's zone of danger for accident or violence. This is quite
different from the so-called duty to warn which, in some states by statute
but more often by case law, has been modified to be a duty to protect.
In other words, by hospitalizing the potentially dangerous patient for
appropriate evaluation, avoiding premature hospital discharge or termination
of care, or otherwise securing the patient's safety, the treating outpatient
clinician may also be protecting both patient privacy and public safety.
It is worth keeping in mind that among the victims of violence or accident
driven by mental illness is the dangerously impaired patient who, subsequent
to such a tragedy, is condemned to live with regret, guilt, and shame
which can impede progress to a full and stable recovery [2].
Thus, the prevalent duty to protect leaves the clinician with options
other than the duty to warn for safeguarding both patient privacy and
patient and public safety. On the other hand, the duty to protect is
particularly relevant for the physician discharging a potentially dangerous
patient from the hospital. With managed health care pressures increasing
barriers for hospital admission and for psychiatric units and clinicians
to shorten hospital length of stay and dilute outpatient services, patient
advocacy with third-party reviewers is increasingly becoming an essential
part of patient care. Such pressures also put a premium on clinicians
educating patients and families as to foreseeable risks of relapse and
the creation of a comprehensive treatment plan to address the risk of
relapse.
What are the patient's risks and capacities?
As a matter of both clinical practice and public policy, protecting "identifiable
individuals" includes a variety of means irrespective of whether
there are names attached to the potential victims. Protection of identifiable
classes of persons may also be mandated by a variety of state or federal
statutes. For example, there are names attached to potential victims
in the case of children entitled to care and protection by state statute
insofar as they are at substantial risk of harm while being in the care
of a psychotically depressed mother in need of rehospitalization. On
the other hand, potential victims may be entitled to protection by statute
even though they are nameless, such as those in the general public who
are protected by the federal Brady bill's provisions denying gun ownership
to previously involuntarily committed patients.
The current case does not fall under the above statutory mandates. Whether
there is a clinical mandate depends on the exercise of reasonable and
prudent professional judgment as to level of individual and social risk.
As far as individual risk, there is a spectrum of patient risk factors
for dangerousness including psychosis, affective disorder, and substance
abuse, which need always to be considered in evaluating dangerousness.
As important as considering these risk factors is the evaluation of the
patient's capacity to communicate. A patient's diminished capacity to
communicate and seek help when on the edge of feeling overwhelmed compounds
the level of dangerousness, which can be assessed, based on the presence
of any of a spectrum of constellations of risk factors [3].
What is the social risk and context?
There also exists a spectrum of constellations of social risk and context
factors. As far as assessing the level of acceptable social risk, the
degree to which potential victims have the ability to make a personal
choice as to whether to interact with the potential perpetrator is an
important factor in any ongoing assessment. The foreseeability that likely
victims will be those whose choices are severely limited because they
are actually or virtually captive compounds the level of social risk.
Therefore, it is important to take special precautions to protect such
vulnerable groups as children dependent on potentially dangerous or impaired
parents, impaired patients dependent on impaired care providers and restricted
by hospitalization or managed care restrictions from choosing to transfer
their care, or unsuspecting passengers dependent on impaired pilots or
(as in the current case) bus drivers [4].
On the other hand, it is important to distinguish such situations of
high social risk and low threshold for taking protective action from
other contexts in which the social risk is lower and the threshold for
taking protective action higher. Such low social risk/high threshold
for action social contexts include those in which individuals have a
choice as to whether to place themselves repeatedly in relationships
with potentially dangerous individuals or in potentially harmful situations.
The benefit/risk ratio of any potential intervention to protect needs
to be carefully and prudently considered on a case-by-case basis in relation
to the relevant risk profile of the potentially dangerous patient and
the potentially vulnerable social context and the benefits and risks
of the potential intervention itself [5, 6].
How to protect patient care and public safety?
In the above case, additional evaluation will be helpful. Among the pitfalls
to be avoided is categorical one-dimensional reasoning (e.g., "Do
I have the name of the potential victim?" as being the exclusive
criterion for intervention) [7]. The exercise of the
requisite professional judgment entails the comprehensive multidimensional
assessment of the risks of patient dangerousness and social context vulnerability.
Yet, given the well recognized conservatism of human probabilistic reasoning,
the treating clinician needs to be aware that it may be more difficult
to change one's mind and envision something contrary to one's first impression.
To ensure that one's first impression is not one's last impression, the
treating clinician may wish to seek consultation to allow for a fresh
look and evaluation of the level of individual and social risks/benefits
and alternatives.
Unfortunately, there are also powerful managed care and institutional
influences that discourage clinicians from seeking second opinions. Among
the consultative resources treating clinicians can consider accessing,
even in relatively isolated rural areas, are an Internet- or telecommunication-facilitated
consultation with a forensic psychiatrist with an expertise in analyzing
individual and social risk and a capacity to effectively communicate
with third parties such as managed care systems to help mobilize additional
treatment resources [8]. Analysis and effective communication
to access and enhance system resources by the consulting forensic psychiatrist
can support the treating clinician's efforts by protecting public safety
as well as by securing such system resources as will facilitate patient
care and patient privacy.
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Leeman CP, Cohen MA, Parkas V. Should a psychiatrist
report a bus driver's alcohol and drug abuse? An ethical dilemma.
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