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.

  1. Leeman CP, Cohen MA, Parkas V. Should a psychiatrist report a bus driver's alcohol and drug abuse? An ethical dilemma. General Hospital Psychiatry (in press).
  2. Wulsin LR, Bursztajn HJ, Gutheil TG. Unexpected clinical features of the Tarasoff decision: the therapeutic alliance and the "duty to warn." Am J Psychiatry. 1983; 140:601-603.
  3. Gutheil TG, Bursztajn HJ, Brodsky A. The multidimensional assessment of dangerousness: competence assessment in patient care and liability prevention. Bull Am Acad Psychiatry Law. 1986; 14:123-129.
  4. Bursztajn HJ, Brodsky A. Captive patients, captive doctors: clinical dilemmas and interventions in caring for patients in managed health care. General Hospital Psychiatry. 1999; 21:239-248.
  5. Schrecker T, Somerville MA, Acosta L, Bursztajn HJ. Social risk reduction. Social Science & Medicine. 2001; 52:1677-1687.
  6. Bursztajn HJ, Sobel R. Accountability without health care data banks. Health Affairs. 1998; 17(6):252-253.
  7. Bursztajn HJ, Feinbloom RI, Hamm RM, Brodsky A. Medical Choices, Medical Chances: How Patients, Families, and Physicians can Cope With Uncertainty. New York: Delacorte, 1981; New York: Routledge, Chapman & Hall, 1990.
  8. Bursztajn HJ, Brodsky A. A new resource for managing malpractice risks in managed care. Archives of Internal Medicine. 1996; 156:2057-2063.