Subjective Data and Suicide Assessment in the Light of Recent Legal Developments
Part II: Clinical Uses of Legal Standards in the Interpretation of Subjective
Data
Harold Bursztajn,* Thomas G. Gutheil,** Robert M. Hamm,*** and Archie
Brodsky****
*Clinical Instructor in Psychiatry, **Associate
Professor, ****Research Associate, Harvard Medical School, Program in
Psychiatry and the Law, Massachusetts Mental Health Center, 74 Fenwood
Road, Boston, MA 02115.
***Senior Research Associate, Center for Research on Judgment and Policy,
Box 344, University of Colorado, Boulder, CO 80309.
The authors acknowledge their indebtedness to Ms. Audrey Bleakley for
her assistance in the preparation of this manuscript.
Reprint requests to Thomas Gutheil, Program in Psychiatry and the Law,
Massachusetts Health Center, 74 Fenwood Rd., Boston, MA 02115, USA.
Suicide assessment is a problematic area for the psychiatrist, given the
tension between the uncertainty inherent in subjective assessment and
the risk of a fatal outcome. In addition to the dread of a tragic outcome,
there is also an ever-present fear of malpractice liability, along with
discomfort at the prospect of having to defend clinical judgments based
on data that may not lend themselves to the usual notion of scientific
objectivity. These medicolegal concerns reflect deeper intellectual misgivings
about the reliability of data that are neither quantified nor based on
absolutely verifiable observations. On the one hand, together with more
objective data, clinicians routinely take into consideration their perceptions
of patients' feelings — and their own — in the assessment
of suicide risk. On the other, they can never be quite sure that such
data meet the standards of precision set by "hard science," let
alone the law.
In Part I of this paper we demonstrated that psychiatrists' fears of indiscriminately
rendered malpractice judgments for suicidal outcomes are largely groundless.
For the careful, documented use of subjective data in arriving at a reasoned
clinical assessment (particularly in the context of the attempt to obtain
informed consent) satisfies all three major standards of due care typically
invoked by the courts in determining negligence. Thus the clinician can
follow the guidelines of clinical experience and theory without being
dogged by the fantasy of judicial retribution for a lack of omniscience
or omnipotence. Here we will take the argument a step further and show
that the three standards of due care as well as the informed consent
requirement can be turned to clinical advantage. That is, they can provide
additional guidelines for disciplining clinical judgment so as to make
wise use of subjective data. In this way awareness of the reasoning behind
the law can make good clinical practice even better.
Let us begin by acknowledging the affective and cognitive biases of clinical
judgment that make it impossible for the psychiatrist to be totally objective.
Through an examination of a classic case in the suicide literature, we
shall note some of the common shortcuts of human judgment — some
of them useful, some amounting to distortions — that influence
the clinician's interpretations and decisions. As we shall show, however,
these shortcuts are inescapable, whether the data under consideration
are objective or subjective. Therefore, rather than engage in futile
attempts to eliminate subjectivity and diagnostic or prognostic uncertainty,
the clinician should seek to be conscious of the judgment strategies
employed. It is here that attention to the three standards for the judicial
determination of negligence can provide a check against undisciplined
subjectivity. Similarly, the interchange with the patient with regard
to informed consent serves as a convenient framework for articulating
and critically examining one's decision making strategies.
Clinical Uses of the Three Standards of Negligence
In Part I we reviewed the standards, derived from three traditions of
negligence law, by which the courts decide whether a psychiatrist has
provided due care in the treatment of a suicidal patient. These are the
community standard (professional custom), the Learned Hand rule of maximizing
benefits relative to costs, and the standard of a "reasonable and
prudent" practitioner. We here propose that adherence to these standards
is consistent with a sound clinical assessment; to realize this potential,
each principle can be translated into questions one can ask oneself to
monitor the adequacy of one's assessment.
Community Standards
The oldest tradition of negligence law, that of "community" or
professional standards, holds that one has exercised due care if one
has done what others in the relevant professional community (whether
defined as local or national) would do in similar circumstances [1].
This legal standard suggests guidelines for the practitioner, which can
be phrased as questions such as these: "Would anyone else take into
account these same subjective factors?" "Would other clinicians
feel as I do toward the patient (e.g., become depressed) — that
is, do my reactions tell me something about the way the patient affects
others (especially those closest to him or her) rather than simply about
myself?" "Would one of my colleagues or, particularly, supervisors,
remind me of other considerations that I am overlooking?" This sort
of question, when asked either hypothetically or in direct consultation
with colleagues, affords a degree of protection from either neglect of,
or uncritical reliance on, subjective data.
Maximization of Benefits Relative to Costs
As a corrective to the consensual emphasis of the community standards
criterion, the Learned Hand rule establishes a mathematical standard
for judging what is best for the patient [2]. Briefly
stated, the rule holds that "negligent behavior is the failure to
invest resources up to a level that [is commensurate with] the anticipated
saving in damages" [3]. Although the Learned Hand
rule allows for subjective as well as objective data, it frames subjective
judgment in a structure of cost-benefit calculation. The questions it
invites one to ask oneself are questions about probabilities, values,
short-term and long-term gains and losses. Such questions might include: "Is
this a situation where it is relatively safe to rely on subjective data?" "Am
I overlooking objective data such as the statistical probability that
someone with this patient's diagnosis will attempt suicide?" "What
if I'm right about the consequences?" "What if I'm wrong?" "What
will be the impact on the patient's immediate safety? On the patient's
ultimate well-being? On the therapeutic alliance?" "Am I sure
enough of a high probability of small gains to risk a very low probability
of a large loss?"[*]
Last but far from least, one should ask oneself, "Have I involved
the patient as much as possible in the consideration of costs and benefits
through the process of attempting to obtain informed consent?" As
will be shown in a later section of this paper, the informed consent
procedure is explicitly concerned with the costs and benefits of alternative
courses of action. By engaging in a dialogue with the patient over informed
consent, one avails oneself of an invaluable device for focusing attention
on possibilities that might otherwise be overlooked.
The "Reasonable and Prudent Practitioner"
The third tradition in negligence law, as applied to medical malpractice,
holds that one has exercised due care if one has done what a reasonable
and prudent practitioner of the same discipline would do in similar circumstances
[5]. This legal tradition interprets the other two in
a manner consistent with both modern probabilistic science [6]
and good clinical sense. It spurs the clinician to a more discriminating
use of the "rules of thumb" that are legitimized by professional
consensus. At the same time, it tempers the clinical use of formal decision
making procedures with an appreciation of the uncertainty that enters
into all judgmental processes, scientific and otherwise.
In daily practice this standard of due care prompts the clinician to ask
questions such as: "What is my implicit philosophy of science, the
set of standards by which I judge my clinical reasoning to be 'scientific'?" "Am
I focusing on a single cause of the patient's illness to the exclusion
of other possible causes (and of chance)?" "In assessing observed
improvements or deteriorations in the patient's condition, am I keeping
in mind that causal factors (and the ways they interact) can change?" "Am
I falling into the old trap of looking at the patient in isolation from
the effects of the therapeutic alliance and the therapeutic milieu?" "Am
I being as sensitive as I can to the effects that my own feelings (e.g.,
countertransference hate) may have on the patient?" What a reasonable
and prudent psychiatrist would do, then, includes making wise use of
subjective as well as objective data in the assessment of suicide risk.
Documentation of Due Care as a Clinical Tool
Table 1 shows how each of the three standards of due care for the suicidal
patient is best met and how it in turn becomes an ingredient of good
clinical practice. In all three cases, careful documentation of how one's
clinical reasoning satisfies the legal standard is an essential element
of malpractice prevention [7]. Beyond that, such documentation
has clinical value in that it protects against the vicissitudes of the
clinician's own hindsight. By reviewing the documentation of one's previous emotional
reactions to the patient, one can put in perspective one's present countertransference
feelings. For instance, when a borderline patient experiencing a regression
evokes countertransference hate [8], the therapist can
balance this feeling by recalling a more empathic response which the
patient evoked during calmer periods of treatment. Such a review can
help prevent counter-therapeutic acting out on the part of the therapist
and thereby allow the clinical work to proceed. At the same time, it
provides a measure of the extent to which the present crisis has shaken
the therapeutic alliance and put the patient at greater risk for suicide.
Finally, it reminds the therapist of what buttressed the alliance in
previous crises. The therapist can then engage the patient in this reflective
process as well. In this way, the therapist can support the patient's
use of ego functions to put in perspective feelings that would otherwise
be overwhelming.
TABLE 1
Clinical Implications of the Three Standards of Negligence In Suicide
Assessment
|
Legal Standard |
Method of Meeting Standard |
Clinical Usefulness |
|
Community standards |
Seek consultation with colleagues |
Safeguards patient from idiosyncratic countertransference
reaction by therapist. |
|
Document deviations from customary practices |
Enables therapist to generalize from own reactions
to patient to reactions of those in patient's support system.
Helps therapist avoid overlooking diagnostic or therapeutic options
which have worked in the past. |
|
Maximization of benefits relative to costs |
Obtain informed consent by outlining possible gains
and losses as well as odds. |
Builds therapeutic alliance through informed consent
procedure. |
|
Document weighing of risks against benefits. |
Tests patient's competence.
Sensitizes therapist and patient to therapeutic benefits or reduced
restriction and monitoring.
Helps patient exercise ego functions of anticipation and planning.
Provides corrective to hindsight reconstructions of subjective
reasoning. |
|
Reasonable and prudent practitioner |
Consider multiple and changing causes, impact of
therapeutic alliance on patient, and subjective data such as
patient's and therapist's feelings. |
Counteracts heuristic focus on single cause. |
|
Document how clinical reasoning is consistent with
contemporary scientific practice. |
Counteracts heuristic focus on patient in isolation
from therapeutic alliance.
Sensitizes therapist to possible impact of changing circumstances
(e.g., milieu, vacation).
Sensitizes therapist to possible impact of therapist's own feelings
(e.g., countertransference hate).
Provides a check against repression of clinical uncertainty. |
|
The therapist, meanwhile, can exercise similar ego functions so as to
make good clinical use of necessary legal precautions that would otherwise
seem extraneous and irritating. The right-hand column of Table 1 lists
some important ways in which attention to the requirements of the law
can make for increased awareness and more discriminating use of the affective
and cognitive biases of clinical judgment. These biases, their useful
functions, and remedies for their misuse are illustrated in greater detail
in the following case discussion.
A Case Study of Clinical Judgment: The Use of Simplifying Strategies
Havens [9] uses a well-documented case of a suicidal
outcome to study the process of decision making in the care of a suicidal
patient. Although the case is not one of negligence by any of the three
standards discussed here, these standards might have proved useful (both
in and out of the context of the informed consent discussion) as clinical
guidelines for the therapists involved. Havens' analysis is, of course,
an exercise in hindsight. Hindsight, like other information-processing
heuristics discussed below, can be either instructive or misleading.
It is dangerous, as Havens is well aware, when it is employed without
an appreciation of the prospective unpredictability of events whose causation
may in retrospect seem clear. Whether or not this particular suicide
was preventable - and here Havens' conclusions are controversial - its
analysis is a useful exercise. It points to problem areas in decision
making and to preventive strategies that the treating clinician should
be aware of. Our concern here is especially with the relationship between
the use made (or not made) of subjective data and the clinical decisions
that were reached.
The patient was a 55-year-old mother of two who had undergone a hysterectomy
two years prior to her psychiatric admission. Subsequently she became
convinced that she had breast cancer because her breasts were of unequal
size. She also showed somatic signs and symptoms which included poor
appetite, weight loss, and insomnia. Her internist, finding no significant
abnormalities on physical examination and laboratory workup, referred
her for psychiatric evaluation.
The psychiatrist initially noted that the patient looked depressed, felt
depressed, and made him, the psychiatrist, feel depressed. This "depressive
triad" (a time-tested subjective indicator), together with her vegetative
symptoms, convinced the psychiatrist that the patient had a major affective
disorder — depressive type. Further history revealed that the patient
had an obsessive premorbid character clinically associated with later-life
depression. She was the sort of woman who always kept things in order
and had few friends outside of her involvement in several charitable
organizations.
In the three years prior to admission the patient had undergone a series
of losses. These included the symbolic loss of function signified by
the removal of her uterus and the more concrete loss of close family
relationships. Her two children had gone away to college. An aunt who
had been living with the family had moved out. The patient and her husband,
ostensibly to save money, had stopped celebrating the anniversary of
their marriage (which was described as "amiable"). Still another
major loss loomed on her horizon: her daughter's impending marriage,
twice postponed at her insistence. Her reasons for opposing the marriage
had always been unclear, her only explanation being that her prospective
son-in-law was "too handsome" for her daughter. It seemed relevant
as well that her daughter, a nurse, had cared for her during her surgical
and medical difficulties.
Hospitalized for her depression, the patient initially improved as she
developed a trusting relationship with a resident in psychiatry. Now
more energetic and less delusional, she was able to leave the hospital
to attend her daughter's wedding, which she reported that she "enjoyed." However,
in addition to her daughter's departure on her honeymoon, the patient
suffered three other significant losses over a two-week period leading
to her death. First, the physician who had been treating her was promoted
to chief resident and terminated with her. In addition, a nurse whom
the patient had found especially supportive was kept at home by illness,
and the medical student who had been working with her ended her psychiatric
rotation.
Thus enumerated, her losses appear substantial. Why, then, did her therapists
overlook them? For one thing, because it was part of her nature to minimize
their impact. As Havens puts it, she "had an extraordinary gift
of making the special ordinary, of turning the remarkable into the commonplace
and unobtrusive. ..." Her composure, her imperturbability, her stoicism
constituted a misleading self-presentation which the clinicians may have
overidentified with, i.e., empathized uncritically [10].
Thinking, as it were, only with their hearts, they appear to have joined
with her in keeping her conflicts buried.
A week after the wedding, the patient requested and received permission
to go home for the weekend. Once there, telling her husband and son that
she was going to visit her mother, she drove the family car to a high
cliff by the sea and leapt to her death. At her funeral her husband remarked, "Maybe
this was all for the better."
The therapists underestimated this patient's suicide potential when they
granted her a weekend pass. Did they make what in retrospect seems a
misjudgment by relying too heavily on subjective data? On the contrary,
they seem not to have given much consideration to their countertransference
reactions, either as clues to how the patient might be feeling or as
warnings of ill-considered therapeutic responses of their own. "The
anger that we suspect was carried secretly in her may have been conveyed to
us and been just as secretly present in our clinical decisions," Havens
concludes. In retrospect, he attributes the clinicians' apparent incomprehension
of their patient's life-and-death needs to unconscious rejection motivated
by dislike: "... we may have hurried our patient toward a false
death out of disgust for something we felt in her, all the time largely
unaware of what we were doing. I wonder if what disgusted us was not
that possessive love of the daughter, with all its power to cling, deaden
and destroy" [9].
Patterns of clinical response such as this can be understood in terms
of both affective and cognitive processes. In the first place, the therapist's
affective experience of the patient can affect clinical judgment for
better or for worse [11-13]. Moreover, the clinician,
having a limited amount of time and energy to process information, is
compelled to find a satisfactory (rather than ideal) way of doing so
[14]. The clinician thereby risks errors arising from
the inevitable - and often helpful - use of cognitive short-cuts [15, 16].
The risk of error is usually assumed to be especially serious in the
case of subjective data because of the leeway for interpretation that
these data allow.
Affective Factors: Countertransference
The affective processes involved in clinical judgment are by their very
essence subjective, as is the material they operate on. The therapist
is seeking to interpret the patient's feelings. In so doing, the therapist's
own feelings are engaged, thereby providing another layer of subjective
data for interpretation. Psychodynamic theory directs the therapist to
sift through his or her feelings for clues to what the patient is feeling.
But as Strupp and Wallach make clear, countertransference (here understood
to include all of the feelings aroused in the therapist by the
encounter with the patient [17]) is a double-edged
sword, with the power both to reveal and to obscure:
In its positive aspects, the therapist's own feelings and emotional
responses equip him to function as a superbly sensitive clinical instrument
which far surpasses any "objective" techniques for assessing
the personality "state" of another person, his mood, feelings,
attitudes, etc. On the negative side, this sensitivity renders him subject
to distortions, faulty assessments, and personal idiosyncratic judgments
which he might project onto the patient. [18]
In attempting to infer the patient's state of mind from one's own empathic
response, one cannot simply assume a congruence between the two [10].
One must try to sort out the transference from the countertransference,
the patient's feelings from the therapist's. In the case of the hostile
feelings that surround a suicidal patient, the therapist must make a
judgment about whether the hate felt by the therapist can properly be
attributed to the patient's hate, either for himself or for the therapist
(an indicator of suicide risk), or to the therapist's countertransference
hate (which presents the risk of rejecting or exerting too much control
over the patient) [8]. Thus, the critical use of subjective
data is a fundamental requirement of psychodynamic therapy. Our interpretation
of the case under consideration is that the clinicians perceived the
patient's condition as they did in part because, in letting their subjective
experience go unexamined, they did not look critically at potentially
useful data.
Cognitive Factors: Heuristics
Resolving the affect-laden questions that arise in the interpretation
of subjective data — e.g., "Is this hate coming from me or
the patient?" — entails a process of simplification. One knows
that the hate one feels can never come only from the patient
or only from oneself. Yet one must answer such questions. One
must adopt a simplified understanding of the situation in order to act.
Cognitive psychologists use the term heuristics to describe the
simplifying strategies by which people make sense of a world that would
otherwise be too complex and chaotic to grasp. In the words of Tversky
and Kahneman:
. . . people rely on a limited number of heuristic principles
which reduce the complex tasks of assessing probabilities and predicting
values to simpler judgmental operations. In general, these heuristics
are quite useful, but sometimes they lead to severe and systematic errors.
[19]
The cognitive strategies are not in themselves errors. Rather, they are
means of coping with ambiguous situations, emotional or otherwise. Uncertainty
and the need for interpretation arise with objective as well as subjective
data. One can abstract different implications, draw different conclusions,
from what one sees and hears as well as from what one feels.
The tendency to rely on simplifying strategies is greater in more ambiguous
situations. A person's ability to use them critically, on the other hand,
is a function not only of knowledge and training, but also of personality
factors such as tolerance for ambiguity [20]. Several
such heuristics, as summarized in Table 2, are discussed here as they
apply to the case reported by Havens. The purpose of this discussion
lies in the fact that clinicians can only improve their use of simplifying
strategies by becoming aware of how they use them.
TABLE 2
Heuristics Influencing the Interpretation of Subjective Data In Suicide
Assessment (partial list)
|
Heuristic |
Description |
Example |
|
Availability |
Ease with which factors that might bear upon a decision
are called to mind affects judgment. |
Imminence of patient's suicidal feelings is repressed
by therapists and is therefore not available to their judgment. |
Recency |
The last items in a sequential presentation assume
undue importance. |
Therapists relax vigilance because patient appears
to have improved. |
Ignoring base-rate |
Concrete information (i.e., vivid or based on experience/incidents)
dominates abstract information (e.g., summaries, statistics). |
Therapists disregard statistical risks of suicide
on the strength of observations of particular patient. |
Anchoring and adjustment |
Prediction is made by anchoring on a cue or value
and then adjusting to allow for the circumstances of the present
case. |
Therapists adjust statistically derived estimate
of suicide risk (e.g., one based on diagnostic categories) to
take into account special characteristics of particular patient. |
Selective perception: confirmation bias |
People seek information consistent with their own
views/hypotheses and downplay/ disregard conflicting evidence. |
Patient's health, as evidenced by capacity to form
relationships, obscures the increased risk of suicide in the
face of loss. |
Single cause |
Investigator discounts the possibility of other
causal explanations once one has been found. |
Therapists believe they have prevented suicide simply
by helping patient negotiate one major precipitating event or
issue. |
Attribution of causality: Internal |
Explanations of behavior are biased toward personal
qualities or dispositions as opposed to situational forces. |
Therapists place too much faith in intact personality
projected by patient at a time of situational crisis such as
object loss. |
Locus of control: external |
People attribute the outcomes they experience primarily
to chance and to the actions of others rather than to their own. |
Therapists underestimate their own power to precipitate
a suicide inadvertently by withdrawing themselves from the patient. |
Hindsight |
Plausible explanations are constructed to show that
what in fact happened could easily have been predicted to happen. |
Patient's suicide is characterized as inevitable
in post-mortem review. |
|
Note: Portions of this table are adapted from R.M. Hogart, Judgment
and Choice: The Psychology of Decision. Chichester: John Wiley,
1980, pp. 166-170
The close link between cognitive heuristics and the affective responses
they serve to interpret is especially apparent in the case of availability [21],
a heuristic that equates the importance of a factor in a decision with
the ease with which it is called to mind. Availability can be a function
of immediate environmental cues or of recall from memory, which operates
selectively in line with one's present emotions. One tends to remember
events experienced in a mood similar to one's mood during recall [22].
Thus, the memories that become available to a therapist during a session
with a patient are essential to empathic understanding, in that they
give clues to the moods transmitted to the therapist from the patient,
and in turn to the patient's memories [23]. Availability
is a cognitive strategy which, if used uncritically, supports the defense
of repression. What is repressed is not available and therefore, by this
heuristic, is overlooked. In the case at hand one of the most important
predictors of suicide, the rising pressure of the patient's suicidal
feelings [24], was not available to the therapists,
either through the patient's words and behavior or through the clinicians'
empathy.
The patterns of judgment observed in the laboratories of experimental
psychologists are also those that clinical wisdom teaches the therapist
to guard against. For example, the therapists who relaxed their vigilance
on the basis that, in Havens' words, "the patient appeared better" (without
considering whether the vulnerability she had previously shown might
reappear under stress) exhibited the recency bias [25],
i.e., gave undue weight to the most recent information.
Havens notes as well that the clinicians were not alerted to the increased
risk of suicide posed by the patient's diagnosis of involutional melancholia
(or agitated depression). The clinicians apparently disregarded the high
rate of suicide in patients with this diagnosis; instead, they responded
more to the normal, healthy appearance this particular patient projected
in the face of loss. To the extent that they were persuaded by their
observations and intuitions about her that the statistical evidence was
irrelevant to her case, they were ignoring the base-rate [26],
i.e., ignoring the prevalence of suicide intrinsic to this diagnostic
category. A more sophisticated and more accurate variant of this heuristic
is anchoring and adjustment [19], whereby
both kinds of information are taken into account. Here one would anchor
on a prior or general (perhaps statistical) estimate and adjust for the
particular case, e.g., "This woman is special. She is different
from the average manic-depressive patient and therefore is less suicidal."
At the center of the therapists' assessment of their patient's condition
lay a set of hopeful assumptions. The clinicians assumed that the period
just before, rather than after, her daughter's marriage was of greatest
risk for the patient. Once this crisis was past, they became less vigilant.
They were also too easily reassured by the patient's having "shown
the ability most gratifying to psychiatrists, the capacity to form a
relationship" [9]. In attaching such importance to these two positive
signs, they disregarded the fact that the patient had lost (along with
— in her view — her daughter) three of the therapeutic relationships
she had formed in the hospital.
That the therapists gave less weight to this loss of object ties than
to other, more encouraging developments can be understood in terms of
several heuristics. One is a form of selective perception known
as the confirmation bias, whereby people seek information that
confirms — and reject information that refutes — their own
hypotheses [27]. There is also the single cause heuristic,
by which the investigator, having found one cause (in this case the daughter's
wedding), tends to discount the importance of any others [28].
By placing too much faith in the patient's seemingly intact personality,
as registered by her bearing, poise, and self-control, the therapists
showed an explanatory bias toward internal causation (i.e.,
personal qualities or dispositions) while discounting external causation (i.e.,
situational forces like losses) [29, 30].
Finally, in underestimating the effect on the patient of the loss of
her relationships with clinical personnel, the therapists in effect underestimated
the causal role of their own presence in her life [31].
that is, they assumed that the locus of control [32]
of her state of mind and behavior lay almost entirely outside themselves.
In Havens' words, ". . . we are the great placebos of our
pharmacopeia, and the power of the placebo can be measured by the results
of its withdrawal" [9].
Most importantly, the retrospective character of the case illustrates
the seductive appeal of hindsight [33], or
after-the-fact explanation. Havens' review is a critical exercise in
hindsight, undertaken with the knowledge that an uncertain situation
could have been understood before the fact only in terms of probabilities.
When used uncritically, on the other hand, hindsight expresses the belief
that what did happen could easily have been predicted to happen. Clinical
hindsight is exemplified by Light's description of the typical presentation
by the therapist at a suicide review, in which "much evidence points
to the inevitability of suicide, much more so than presentations made
by the same therapist about the same patient at conferences while he
was living" [34]. Legal hindsight is the belief — rejected
by the courts [35] but still at the root of some malpractice
claims — that a tragic outcome is prima facie evidence of negligence.
There is also a subtler misuse of hindsight that both clinicians and
the law should avoid, one that holds an error in judgment resulting from
the use of simplifying strategies such as those discussed here to be
an unacceptable deviation from scientific objectivity.
Is an Escape to Objectivity Possible?
We have seen that the information-processing strategies that people habitually
use to come to terms with subjective data are prone to error, and that
judgment may also be biased or made unreliable by the decision maker's
emotional responses. Can we, then, bypass subjective data in the assessment
of suicide risk? Clearly not, for as Kohut [36] emphasizes,
introspection and empathy are essential tools needed to observe and understand
any psychological fact. Even if we could undertake a suicide assessment
by using only objective data, we could not escape the uncertainties inherent
in the use of simplifying strategies. For the strange fact is that simplifying
strategies of inconsistent reliability are used in the assessment of
objective as well as subjective data - for example, in drug monitoring
[37]. In fact, some of the classic experimental studies
of cognitive heuristics and the biases they introduce have involved seemingly
cut-and-dried statistical relationships such as gambles with numerical
payoffs [38].
Consider a type of objective data that figures in the clinician's estimate
of suicide risk — statistical generalizations. For example, before
any individual factors are taken into consideration, a manic-depressive
patient may be assumed, on the basis of statistical frequency, to have
a 15 percent risk of death by suicide. Even to make the diagnosis, however,
the clinician must make a subjective "similarity" judgment,
which itself involves the use of cognitive heuristics [39].
In other words, the use of statistical categories for risk assessment
only transfers the exercise of subjectivity from the assessment of risk
to the assessment of what categories the patient fits into. To take one
illustration, in making the necessary similarity judgments it makes a
difference whether one asks, "How similar is this patient to those
whose characteristics make up the patient profile for this category?" (thus
emphasizing the common features) or "How different is this patient
from those whose characteristics make up the profile?" (thus emphasizing
the discrepant features) [40]. Not only does the use
of objective as well as subjective data bring in cognitive simplifying
strategies; it is also accompanied by affective responses that demand
critical interpretation. Judgments of similarity may be influenced, for
example, by the wish to master an unfamiliar feeling that is thought
to be at the heart of the deja vu phenomenon [41].
Given that subjective data cannot be excluded from consideration, one
might still seek to exclude subjective judgment by feeding the
data into an objective decision-making procedure such as formal decision
analysis [37]. This wish for objectivity "once
removed" can be heard in Kaplan et al.'s recommendation of computer-generated
assessments of suicide risk as a model for rational assessment by the
clinician:
Since the computer's management decisions were based on a rigid
and obviously nonintuitive decision rule, the extent of agreement between
individual raters and the computers is an estimate of how systematic
the human decisions were . . . [i.e.,] of the actual level of rationality.
[24]
Critical studies of decision analysis have shown, however, that subjective
judgment (involving the same simplifying strategies used in informal
decision making, such as judgments of similarity) makes itself felt at
every stage of the process - namely, the structuring of the decision
tree, estimation of probabilities, and assessment of values [6, 42, 43].
Moreover, the manner in which decision analysis is presented to the patient
may either increase or reduce the empathy available, heuristically and
therapeutically, as part of the therapeutic alliance [44].
As with any clinical tool, the empathic use of decision analysis requires
subjective judgment.
To exercise subjectivity - and the simplifying strategies associated with
it - from clinical reasoning would be to destroy much of what makes human
judgment possible and clinical judgment therapeutic [36].
Whether the data under examination are subjective or objective, whether
the judgments to be made are clinical or actuarial, the characteristic
patterns of thought and feeling by which people make sense of the world
inevitably come into play. The clinician must learn to use them wisely,
both to minimize the errors and to maximize the discoveries to which
they can lead.
How the Informed Consent Requirement Promotes Critical Use of Subjective
Data
Given the right tools, the clinician can make use of heuristics in such
a way that they reveal rather than deceive. But what are the right tools?
What is the best framework for focusing the simplifying strategies of
clinical judgment so that they yield a sound assessment? As table 3 shows,
clinical reasoning consistent with the three judicial standards of due
care itself provides a framework that might lead to more critical use
of heuristics in cases such as that reported by Havens [9]
and further analyzed above. Informed consent [7] also
assumes strategic importance in improving clinical decision making. The
process of attempting to obtain informed consent can serve not only to
meet a legal requirement, but also to bring to consciousness, organize,
and deploy the therapist's perceptions and judgments.
TABLE 3
Use of Legal Standards as Correctives to Clinical Heuristics
|
Heuristic |
Example |
Applicable Legal Standard(s)* and Example of Clinical Use |
|
Availability |
Imminence of patient's suicidal feelings is repressed
by therapists and is therefore not available to their judgment. |
#1: Ask if other clinicians would make the same
judgment. |
Recency |
Therapists relax vigilance because patient appears
to have improved. |
#1: Ask if others who have seen the patient at a
different time and would make the same judgment. |
Ignoring base-rate |
Therapists disregard statistical risk of suicide
on the strength of observations of particular patient. |
#2: Construct probability estimates as precisely
as possible according to data in literature. Think of the consequences
of Type I and Type II errors. |
Anchoring and adjustment |
Therapists adjust statistically derived estimate
of suicide risk (e.g., one based on diagnostic categories) to
take into account special characteristics of particular patient. |
#2: Use this heuristic to full advantage by bringing
to bear relevant objective and subjective data. |
Single cause |
Therapists believe they have prevented suicide simply
by helping patient negotiate one major precipitating event or
issue. |
#3: Consider multiple causes and changing causal
factors in patient's life situation and therapeutic milieu. |
Selective perception: confirmation bias |
Patient's health, as evidenced by capacity to form
relationships, obscures increased risk of suicide in the face
of loss. |
#1: Seek other opinions.
#3: Consider multiple causes. |
Attribution of causality: internal |
Therapists place too much faith in intact personality
projected by patient at a time of situational crisis such as
object loss. |
#3: Consider multiple causes and changing causal
factors in patient's life situation and therapeutic milieu. |
Locus of control: external |
Therapists underestimate their own power to precipitate
a suicide inadvertently by withdrawing themselves from the patient. |
#3: Take into account the effects of therapists
observing presence on the patient when attempting to foresee
the patient's state in the therapist's absence. |
Hindsight |
Patient's suicide is characterized as inevitable
in post-mortem review. |
#1,2: Recall original basis of erroneous judgments
in terms of standards of profession and cost-benefit analysis.
#3: Recall that all things involve some uncertainty before the
fact. |
|
* #1 - community standards
#2 - benefit/cost maximization
#3 - reasonable and prudent practitioner
The attempt to obtain informed consent is usually treated as if it were
separate from the clinical determination itself. One decides what is
best for the patient, and then one seeks the patient's consent. Actually,
the full therapeutic value of informed consent can be realized only when
this procedure is seen as contributing to the thorough clinical
assessment achieved through continuous monitoring [45].
Continuous monitoring makes possible the involvement and interchange
necessary for feedback and correction (both of the therapist's impressions
of the patient and of the patient's impressions of the therapist). One
monitors not only the patient, but oneself — one's counter-transference,
one's empathy, one's effects on the interaction of character and life
situation that constitutes the patient's present state of being. One's
interchange with the patient over informed consent then becomes both
a tool for monitoring and an ingredient of the therapeutic alliance being
monitored.
As indicated in table 4, informed consent not only protects the patient's
right to choose and offers the therapist legal protection as a defense
against negligence (as discussed in Part I of this paper), but also has
three major therapeutic benefits. First, the informed consent process
in itself can have therapeutic value. Whatever transpires between patient
and therapist, including the gathering of both objective and subjective
data, has an impact, for good or for ill, on the therapeutic alliance
and with it the patient's well being. It has been observed, for example,
that engaging in a dialogue with the patient over a procedure such as
petitioning for commitment can change the therapeutic alliance even as
it illuminates it [46]. The effect can be a positive
one if sensitive attention is given to the manner in which the subjective
data needed for informed consent are obtained. Questions must be asked
empathically [9, 36, 45],
rather than in a way that only elicits repeated false reassurances. Options
likewise must be presented with care, in language such as the following: "Some
people, when they are depressed and suffering, feel that life isn't worth
living. Right now it may feel even to you that there is no hope of ending
your suffering other than by ending your life. Of course, this depression
will lift, so in the meantime, how can we best work together to decrease
the risk of suicide?" This approach can have the therapeutic effect
of distancing the notion of suicide, making the suicide ego-alien, even
as it begins to establish a "situational" alliance of shared
observation [47]. The informed consent procedure, when
carried out with this kind of involvement and mutuality, gives the patient
responsibility without conveying a message of rejection, lack of caring,
or therapeutic passivity [48].
TABLE 4
Clinical Uses of the Informed Consent Procedure In Suicide Assessment
|
Benefits for Patient |
Benefits for Therapist |
Benefits for Therapeutic Alliance |
|
Safeguards right to informed choice of treatment
options
Gives responsibility while demonstrating therapeutic involvement
Facilitates conscious reinterpretation of data and reconsideration
of costs and benefits of options |
Provides legal protection as a defense against
negligence (when documented)
Yields access to relevant diagnostic information:
-
Patient's affects, cognitions, and competence to make
informed choice
-
Therapist's affects and cognitions (countertransference)
-
State of therapeutic alliance
Facilitates conscious reinterpretation of data and reconsideration
of costs and benefits of options |
Builds alliance by providing a context for mutual
exchange and shared effort |
|
Second, the alliance thus created (or strengthened) can be one of the
best sources of information about the risk of suicide. Whether or not
the patient can follow the language of risks and benefits is a test of
the patient's competence to give informed consent, which in turn is data
for the assessment of risk. (One would petition for commitment when a
patient is both suicidal and incompetent.) The process yields other diagnostic
information as well. By observing how the patient deals with concepts
such as costs, benefits, gambles, and consequences, one can identify
not only the affective indicators of suicidal risk — helplessness,
hopelessness, worthlessness, and aloneness [49, 50] — but
other indicators as well, such as diminished future orientation [51],
a sense of time passing slowly [52], excessive risktaking
[53], and cognitive rigidity [54].
One should keep in mind that the patient has cognitions as well as affects.
The exchange over informed consent opens a window to the patient's ways
of viewing the world (e.g., the cognitive biases that Beck [54]
has shown to be associated with depression), which in turn both reflect
and structure the patient's experience of living. Likewise, the clinician
has affects as well as cognitions. The subjective data to which the clinician
attends in monitoring the therapeutic alliance and the informed consent
process include the clinician's responses as well as the patient's. Havens
lists several signs (in addition to the depressive triad cited earlier
[9]) of such affective responses on the part of the
clinical observer, beginning with the feeling of absence of communication
that is known as Bleuler's sign of schizophrenia:
Awareness of praecox gefühl, the eerie feeling schizophrenic
people convey, is old. There has been backstairs talk for years of what
we call in Boston Hendrick's sign: what young female hysterics convey
to the doctor's penis. But the number of distinct observer effects are
few. Obsessional patients make us yawn. I named another Sullivan's sign
from the following anecdote: Sullivan is rumored to have said, "I
can detect when I am in the presence of a strongly homosexual person
by a tightening of the anal sphincter." ... Finally, I like to call
Havens' sign what the praecox gefühl does to many: Like a horror movie
the young schizophrenic's account of derealization or of deja vu or of
strange bodily feelings produces pilo-erection; one can feel the small
hairs on one's neck go up. [55]
These data must, however, be interpreted critically. No one emotion
has reliable clinical significance except in the context of other feelings
and other kinds of data. In the case of the patient's responses one must
not necessarily believe what one hears, but must ask oneself if it makes
sense, or if there is some contradiction between statement and affect,
between statement and life situation. One must consider whether there
are personality or situational factors that make withholding of the truth
a likely possibility. In the case of the clinician's attitude toward
the patient, which can be one of the most sensitive indicators of the
seriousness of suicidal risk [56], one must likewise
be critical.
To take one example, people tend to be attracted to others who are like
themselves [57]. One must therefore consider whether
one's feeling of dislike for a patient signifies that the patient is
distant, rejecting, and painful or that the patient simply is unlike
oneself. If the former, is this affect representative of the aversion
the patient creates in relationships with others? [58]
If so, then this should appropriately be interpreted as decreasing the
likelihood that there is anyone who cares for the patient -
a subjective datum that indicates the patient to be at high suicide risk
[59]. If, on the other hand, one finds the patient
likable, is it really a matter of likability (to others as well as oneself)
- suggesting that the patient may have "anchors to life" -
or is it more a matter of likeness (so that outside of a "narcissistic
alliance" [47] with the therapist, the patient
is actually all alone)? Or is it yet another situation: the patient simply
trying to please? [31]
Questions such as these cannot be resolved definitively, but they are
valuable heuristics for thinking critically about the subjective data
on whose interpretation the assessment of suicide risk turns. It is here,
in making conscious and rational use of the simplifying strategies of
judgment, that the third clinical advantage of the informed consent process
comes into play. Informed consent not only gives access to data (i.e.,
the patient's and the clinician's reasoning and emotions) which, properly
interpreted, make the assessment less prone to distortion; it also gives
the clinician and the patient an opportunity to think out loud about
how data translate into costs and benefits of therapeutic options. In
the informed consent discussion, where one attempts to justify a particular
course of action to the patient, one can give conscious attention to
one's reasoning strategies and test whether the patient can similarly
attend to his or her own heuristics (which, when suicide is at issue,
are at least as important as the clinician's). When the patient is capable
of joining in such an examination, the therapeutic alliance becomes a
mutual effort to achieve rationality. The latter would appear to offer
the closest possible approximation to freedom from cognitive and affective
bias while incorporating both subjective and objective data in therapeutic
decisions.
Applying these principles specifically to Havens' case of the woman who
committed suicide while home on a weekend pass from the hospital, we
can consider (admittedly from hindsight) how the use of informed consent
might have helped prevent this tragic outcome. As it was, the woman's
therapists found it all too easy to approve the pass, both because they
were giving the patient what she wanted and because (by Havens' account)
they may have had unexamined reasons for wanting her out of their way.
The informed consent procedure might have served here as a valuable safeguard
in several ways. In the first place, the patient's ability to consider
whether there might be some risk in her going home would itself have
been a significant clinical datum. By being asked this question, the
patient also would have been afforded the opportunity to realize and
communicate the despair she actually felt.
In addition, examination of this issue might have focused the clinicians'
attention on their own subjective reactions, both as impediments to good
judgment on their part and as possible evidence of the patient's unlikability
and consequent isolation. By putting a critical check on their unconscious
rejection of the patient, the clinicians might have been able to act
toward her in a more therapeutic manner. Finally, by demonstrating that
they were concerned enough about her well being to question the wisdom
of her leaving the hospital, they might have strengthened the therapeutic
alliance and thereby dissuaded her from ending her life.
Conclusion
The dilemmas of suicide assessment demonstrate forcefully and poignantly
that no information is completely objective or completely subjective.
The two kinds of data are inextricably linked, and both must be approached
with respect for their inherent uncertainties. For these reasons, the
characterization of the clinician's use of subjective data as unscientific
and therefore negligent is, by today's standards, both scientific and
legal, unfounded.
Neither the ultimate unpredictability of suicide nor the range of affective
and cognitive influences on psychiatric decision making can be done away
with. Nonetheless, the psychiatrist is responsible for making wise use
of both objective and subjective data in order to give all relevant clinical
factors their proper weight in a risk-benefit analysis. The creation
of a therapeutic alliance by involving the patient in informed choices,
far from being a clinically irrelevant legal requirement, is a precondition
for a sound and thorough assessment of this sort. Similarly, the awareness
that one's clinical reasoning must be supportable by the three standards
of due care in negligence law can guide the clinician in finding the
right questions to ask.
These recommendations for making clinical use of legal requirements are
in keeping with the spirit of the legal tradition, i.e., its effort to
temper the distortions of intuitive judgment, where heuristics fueled
by passion can become biases. Legal principle, like those gleaned from
long clinical experience, introduce an element of deliberateness enabling
heuristics to be used to simplify complex, highly charged diagnostic
and prognostic judgments in the service of better clinical care.
* In posing these questions the clinician
should be aware of the distinction between Type I statistical error (rejecting
a hypothesis which is true) and Type II error (accepting a hypothesis
which is false). To fail to diagnose and act on a serious suicidal risk
is a Type I error. To treat a patient who does not in fact present such
as risk as if he or she did is a Type II error. Medical and legal concerns,
together with ordinary superstition ("Better safe than sorry!"),
predispose us to seek to avoid any Type I errors even at the cost of
numerous Type II errors. Nonetheless, although the gravity of the risk
of Type I error should be kept in mind, the choice between risking a
Type I or Type II error is, as the questions above suggest, too complex
to be resolved by any one maxim [4].
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