Subjective Data and Suicide Assessment in the Light of Recent Legal Developments
Part I: Malpractice Prevention and the Use of Subjective Data

Thomas G. Gutheil,* Harold Bursztajn,** Robert M. Hamm,*** and Archie Brodsky****

*Associate Professor, **Clinical Instructor in Psychiatry, ****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 Judgement 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.

The decidedness of my attitude on the subject of the unconscious is perhaps specially likely to cause offense, for I handle unconscious ideas, unconscious trains of thought, and unconscious emotional tendencies as though they were no less valid and unimpeachable psychological data than conscious ones. But of this I am certain — that any one who sets out to investigate the same region of phenomena and employs the same method will find himself compelled to take up the same position, however much philosophers may expostulate.
Freud, Fragment of an Analysis of a
Case of Hysteria

The technological revolution in medicine [1-3] and the fear that the courts, following the medical profession's lead, will equate subjective data and subjective judgment with unsound, unscientific, and even negligent practices have left psychiatrists, as practitioners of a "soft" clinical discipline, feeling uncertain and vulnerable. Psychiatrists who explicitly employ perceptions of their own and/or the patient's feelings in making crucial clinical decisions may feel an emotional, ethical, and legal burden descending. Silently or aloud, they may repeatedly ask themselves, "Is this really evidence that will stand up in court? Do we have enough evidence to commit (or discharge) this patient?"

The psychiatrist's concern with malpractice liability commonly acts as a lightning rod for these emotional and intellectual uncertainties. This preoccupation with what the law does and does not permit can be a form of clinical counter-transference [4,5]. It may, for example, be a projection of the clinician's superego, a means of removing from consideration those clinically valuable subjective responses to the patient (e.g., hate) that the clinician finds unbearable. In a high-risk procedure such as suicide assessment, a myth of an "exact" science grounded in objective verification [6] can be all too readily joined to a fantasy about malpractice law to produce repression or avoidance of valuable clinical data only because they are "subjective." This approach results in practices known as defensive medicine [7].

In fact, contrary to the fears of many psychiatrists, recent psychiatric malpractice case law has taken a realistic view of the uncertainties inherent in clinical science. [*] The subjective considerations which clinicians must take into account in any clinical assessment, particularly that of suicide risk, not only are sanctioned by contemporary scientific principles [6]; they also are validated by all three standards of negligence invoked by the courts in the determination of malpractice. Moreover, careful use of subjective data in meeting the informed consent requirement offers further protection against malpractice liability.

The Fantasy of an Objective Standard

Psychiatrists concerned about the extent of their liability for failing to protect suicidal patients from foreseeable self-inflicted harm have taken little comfort from Halleck's conclusion, derived in part from standard sources such as Perr [8,9], that "In some instances a psychiatrist certainly is liable [for failure to anticipate and take reasonable steps to prevent suicide], but the standards of care in this area are so vague, and court decisions so unpredictable, that it is difficult to offer the practitioner any absolute guidance as to how to avoid liability" [10]. Psychiatrists who look to medical malpractice law for relevant trends may imagine themselves being subjected to something approximating this actual courtroom interrogation of a nonpsychiatric physician:

Q. Can the patient control the extent to which he is prepared and willing to move his neck, whether in response to your request or in response to pressure from you?
MD. Yes, to a degree.
Q. Then it is not truly an objective test?
MD. No.
Q. What is cineradiography as applied to the range of motion of the neck?
MD. It is a method to determine the mobility of individual vertebral bodies in different neck positions.
* * *

Q. And is this an objective test that cannot be feigned?
MD. Yes.
Q. And did you perform this procedure?
MD. No.
Q. Then the only clinical finding that you made at the time of your examination on the first day that you examined him was a decreased range of motion of the neck, and this was not established by objective means; is that correct?
* * *

Q. Is there a significance (sic) between an "objective" finding or sign and a "subjective" finding?
MD. Yes, sir.
Q. And an "objective" finding is something that you can see with your own eyes or feel with your own hands on examination, as opposed to the "subjective," which is something that the patient volunteers to you and you have no way objectively of determining whether it does or does not exist?
MD. Yes, sir. [11]

Here the attorney hammers away at an "objective"/"subjective" distinction which, as we will later show, reflects an oversimplified and outmoded conception of science. Nonetheless, as part of a movement to have psychiatry return to a medical model [12-14], psychiatrists are being urged to conform to the standards of "hard" science by objectifying their findings. For example, psychiatrists serving as expert witnesses in legal proceedings have been advised to replace "opinion evidence" with "factual evidence" and to model their assessments of psychiatric impairment after the precise numerical estimates made by other medical specialists (e.g., "50% impairment"). Such "objective assessment," it is claimed, will raise the standing of psychiatry in the eyes of the law [15].

Such demands create a dilemma for the practicing clinician, taught both by theory and by experience that the assessment of suicide risk requires consideration of subjective factors. The psychodynamically trained therapist knows that, while it is theoretically possible (and sometimes useful) to quantify subjective judgments [16], subjectivity is not thereby eliminated. Both a patient's report of a feeling and the clinician's reaction have an irreducibly subjective component. No one has seriously proposed that the risk of a patient's committing suicide can be assessed without reference to such data. Even so, psychiatrists understandably fall prey to the fantasy that the law insists on a more purely objective approach. But it is hardly believable - and is not in fact the case -that the courts would reject out of hand what common sense, theory, and experience all attest to be essential to good clinical work.

Recent court decisions to be discussed here (especially those handed down since Halleck's pessimistic summary was written) enable us to see in clearer outline the evolution of negligence law as it concerns suicide assessment. In sketching this outline we may awaken the clinician, as it were, from the nightmare of imminent, omnipresent liability represented by the courtroom interrogation quoted above. For the concerns of the law are to safeguard the patient's right to due care by discriminating negligent from nonnegligent practice, and to safeguard the patient's right to due process by requiring that informed consent be obtained. In carrying out these mandates the courts have recognized that good psychiatric practice requires thorough consideration of all relevant data. Recent case law sanctions the use of subjective data in the assessment of both the risks of suicidality and the countervailing therapeutic benefits of less restrictive options.

Three Standards of Negligence

The standards of due care against which a psychiatrist's treatment of a suicidal patient is measured may be specified by appealing to one or more of the three major traditions of negligence law: community standards (professional custom); maximization of benefits relative to costs (Learned Hand rule); and the notion of a "reasonable and prudent practitioner." With each of these traditions we will show what the legal standard is and how its application in recent malpractice cases allows for a sound assessment of suicide risk combining subjective with objective factors.

Community Standards

The oldest tradition of negligence law, that of "community standards," holds that one has exercised due care if one has done what others in the relevant professional community would do in similar circumstances [17]. Originally the standards of care upheld by the law were those maintained by physicians in the same local community. As regional differences broke down, the range of reference was expanded to include "the same or similar communities" [18] and finally, in the case of nationally certified medical specialties, a nationwide community of practitioners [19].

The community standards rubric, either by itself or in conjunction with other legal standards, appears frequently in court decisions in malpractice cases based on suicide. In a number of cases the plaintiffs have used the wisdom of hindsight to charge a psychiatrist with malpractice, reasoning naively that a bad outcome itself signifies negligence. The courts, however, have turned aside this facile reasoning. In a case in which a patient who jumped out of a hospital window sued the psychiatrist who had transferred her to a more open, less secure ward, the court rejected her argument from hindsight on the grounds that the psychiatrist had followed procedures recognized as acceptable by the profession [20]. In a case involving the suicide of a patient who had previously been homicidal rather than suicidal, the court held that the plaintiff's expert witness had failed to establish a generally accepted medical standard (as opposed to personal opinion) to the effect that a patient showing homicidal tendencies should also be automatically regarded as at risk for suicide [21].

The notion of community standards has also been invoked in cases where the courts have refused to uphold the judgment of the treating psychiatrist. One psychiatrist was found liable for the suicide of a patient whom the psychiatrist had placed in a room with an openable window despite a previous suicide attempt. Regardless of fault this psychiatrist, by neglecting to introduce expert testimony in support of his contention that the patient was not at the time a serious suicide risk, failed to avail himself of a community standards defense [22].

Professional custom is not the last word in negligence law. On the one hand, it can be too tolerant of the established and conservative practices of a profession even when clearly superior alternative courses of action exist. On the other hand, it can be too intolerant of respectable minority positions within the profession. If taken too literally, it can lead the clinician to overly conformist decision making (and loss of individualization of treatment planning) when a consensus seems clear; and to a loss of moorings when it does not. Yet professional custom is still an important component of a good clinical assessment as well as a strong legal defense. As such, the "community standards" criterion is very supportive of the use of subjective data, since clinicians report that they do regularly consider subjective data in the assessment of suicide risk [7].

Maximization of Benefits Relative to Costs

To supplement the notion of accepted community standards of professional practice, another legal standard was needed that would more directly reflect what was best for the patient. The standard that came into being was the Learned Hand rule, first enunciated in 1947 [23]. 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" [24].

The Learned Hand rule was applied to medical malpractice in the controversial Helling v. Carey decision of 1974 [25]. In Helling v. Carey an ophthalmologist was held liable for the impairment of vision suffered by a young woman to whom (following the customary practice of his fellow specialists) he failed to administer a tonometry test for glaucoma over a nine-year course of treatment. The court emulated the Learned Hand approach by employing a series of mathematical calculations to reach the conclusion that the benefits of tonometry testing exceeded the costs. A perhaps unnoticed aspect of the case is the fact that, in practice, a mathematical procedure like the Hand rule for comparing the costs and benefits of alternate courses of action would tend to favor the more objective data, only because the latter are more amenable to numerical expression [26]. Although the cost-benefit rule makes sense in principle, this bias raises the grim specter of the courtroom vignette quoted earlier, where the cross-examining attorney kept the medical expert witness squirming on the pin of an illusory objectivity.

At first sight, then, the Learned Hand rule, by its focus on concrete costs, seems to be the standard least hospitable to subjective data. However, the overly rigorous contemporary insistence on objective diagnostic testing (ostensibly inspired by the mathematical cost-benefit approach) does not itself stand up under cost-benefit analysis. Defensive medicine - i.e., unnecessary testing or treatment for the sake of legal protection - has been shown to be clinically and economically disadvantageous in areas ranging from routine skull x-rays for head trauma [27] to routine electronic fetal monitoring [28]. In psychiatry, clinical experience tells us that this is even more obviously true for suicide assessment, where objective data such as blood or cerebrospinal fluid neurotransmitter levels [29,30] have little meaning outside the context of a subjective understanding of the patient, given the low frequency of suicide attempts in a general psychiatric population [31]. Using subjective data, then, is defensible on grounds of effectiveness, not simply because it is what psychiatrists do.

The courts have resolved this dilemma in psychiatric malpractice cases by keeping the principle of cost-benefit analysis as a framework for decision making, but not demanding that the analysis be laid out with mathematical precision - which, in the case of suicide assessment, is plainly impossible. While rejecting the panacea of tidy numerical solutions, the courts have also rejected the one-sided, "common sense" view (mistakenly held by some families of suicide victims) that the psychiatrist's duty is to prevent suicide at any price. In the first place, the courts recognize that no amount of precautions can give absolute assurance that a patient will not commit suicide [32]. Further, the decision to hospitalize a patient (by suggesting voluntary admission or by petitioning for commitment), to place a patient under closer observation and restraint in the hospital, or to discharge a patient from the hospital is a complex one, requiring the psychiatrist to balance a host of possible costs and benefits [7].

For the individual patient, the possible benefits of close monitoring and increased protective control must be weighed against the risks of regressive loss of ego-strength, stigma, reduced capacity to function autonomously, decreased liberty with compromise of some rights, and recurrent suicidality. The therapist who reduces restraints on a patient is taking a calculated risk of a suicide attempt, in return for therapeutic benefits that increase the likelihood of the patient's returning to normal life. As a matter of social policy, the practice of "defensive psychiatry" in an all-out effort to prevent suicide would impede and frustrate the recovery and rehabilitation of a large number of patients [33], and would as well profoundly decrease their constitutionally based freedoms. These considerations are summed up in a Florida decision disallowing a malpractice claim in the case of a paranoid schizophrenic patient who committed homicide and suicide shortly after being discharged from the hospital:

Modern psychiatry has recognized the importance of making every effort to return a patient to an active and productive life. Thus the patient is encouraged to develop his self-confidence by adjusting to the demands of everyday existence. Particularly because the prediction of danger is difficult, undue reliance on hospitalization might lead to prolonged incarceration of potentially useful members of society [34].

The courts have shown considerable deference to the judgment of psychiatrists in the delicate balancing of risks against benefits [35-37]. In reversing a jury's finding of malpractice against a psychiatrist who ordered a suicidal patient observed at 15-minute intervals rather than continuously, the New York Court of Appeals used cost-benefit language to reject the argument from hindsight put forth by the patient's widow:

[The patient's] reaction to constant surveillance, the possibility that his heart condition would be aggravated by continuing such surveillance, the gesture-like nature of his prior suicidal inclinations, the rehabilitative aspects of "open-ward" treatment and the enhanced possibility of obtaining [the patient's] consent to electroshock therapy in the more relaxed open-ward atmosphere were all factors which defendant doctor could properly consider in reaching the judgment whether, on balance, the prescribed program was worth the risk involved [38].

To avoid liability the psychiatrist does not have to be proved "right" by the outcome. But psychiatrists have been found liable for defective clinical reasoning, e.g., for failing to recognize the risk of suicide [39] and for underestimating the seriousness of the risk and with it the precautions needed to counter it [40,41].

The precision with which the courts are prepared to enter into cost-benefit reasoning is exemplified by a 1981 case concerning a patient who had been maintained on tricyclics and neuroleptics in a New York state hospital, where he was also seen by a private therapist. A hospital physician, deciding that the patient had a neurotic depression, discontinued the neuroleptics. The patient then went into a suicidal depression. Notified of this development by the private therapist, the hospital physician increased the dosage of tricyclics, at which point the patient became psychotic. This, too, was communicated by the private therapist to the hospital physician, who did nothing about it. A day later the patient injured himself by jumping from a second-story hospital window. The patient's family sued for negligence. The court held as follows: first, that the hospital psychiatrist had not been negligent in discontinuing antipsychotic medications, since this was an area where therapeutic approaches could legitimately differ; second, that the hospital psychiatrist's failure to take suicide precautions after the patient became suicidally depressed, while an error in professional judgment, did not constitute malpractice; third, that this psychiatrist had been negligent in her failure to take action after having been notified that the patient was psychotic [42].

Despite the finding of negligence the psychiatrist escaped liability, since the patient's precipitous departure was judged to have been an escape (rather than suicide) attempt and therefore not necessarily preventable by suicide precautions. What is of interest for our purposes, however, is that the judgment of negligence was made on the basis of a cost-benefit analysis in which the balance shifted when the patient was revealed to be psychotic. In the absence of this diagnosis the court accepted the reasonableness (if not the accuracy) of the psychiatrist's conclusion that the benefits of a less restrictive therapeutic approach outweighed the risks.

Popular perceptions aside, the courts do not impose on the psychiatrist a legally defensive posture that could have detrimental consequences for patients. Rather, legal as well as clinical considerations dictate a judicious assessment of costs and benefits. Included in this assessment are subjective factors, ones that are difficult to quantify. What the law demands, then, is not mathematical precision, but the seasoned (though imperfect) judgment, developed through clinical training and experience, which weighs both risks and benefits of any clinical intervention.

The "Reasonable and Prudent Practitioner"

The third tradition in negligence law holds that one has exercised due care if one has done what a reasonable and prudent person would do in similar circumstances [43]. In a profession such as psychiatry, the standard of care is that set by a reasonable and prudent practitioner of the same discipline [33]. In yet another refutation of judgment by hindsight, the courts have decided malpractice cases involving suicide, not by the mere fact of the tragic outcome, but on the basis of two related questions: Could the psychiatrist "reasonably" have been expected to foresee the likelihood of a suicide attempt or to take greater precautions to prevent it? Or could the psychiatrist "reasonably" have concluded that the risk of suicide was outweighed by the benefits of less restrictive therapy [21,22,34,35,44,45]?

Words such as "reasonably" appear in the courts' articulation of the risk-benefit criterion. In this context they signify a standard by which the courts evaluate the adequacy of the clinician's assessment of benefits and risks. Where does that standard come from? That is, what does it mean to say that a psychiatrist "could reasonably have concluded . . ."? The most compelling answer to these questions appears to lie in the scientific foundation of medical (and therefore psychiatric) practice. The evolution from local to national community standards, the mathematical precision of the Learned Hand rule, and the very wording of "reasonable and prudent" as applied to a practitioner of an applied scientific discipline all point to science as a source of standards for nonnegligent practice. One recent commentary, for instance, defines the standard of due care in medicine in terms of "the average skill exercised by members of the same profession practicing in the same locality in the light of the present state of scientific knowledge" [46].

As far back as 1930, however, Judge Jerome Frank observed that the law's perception of "the present state of scientific knowledge" might be in need of revision:

Even science is, for many, a new source of illusion, a new escape from change and chance, a new road to the absolute. For, unfortunately, too many persons, science is a charter of certainty, a technique which ere long will give man complete control and sovereignty over nature. Science seems to hold out an expectation that ultimately man will gain total relief from uncertainty and procure elimination of chance.

Of course that is an unscientific conception of science. Science thus falsely conceived becomes, in effect, another father-substitute, a guarantor of that absolute certainty which the child craves and which the fully adult man recognizes as infantile [47].

Judge Frank's vision of a science that includes uncertainty has been given a historical dimension in a recent reinterpretation of the scientific principles underlying medical practice [6]. From the demonstration that medicine must follow other disciplines in transforming itself from a science of certainty ("mechanistic paradigm") to a science of probability ("probabilistic paradigm"), clinical guidelines emerge for working within the new paradigm.

In psychiatry, the essential elements of a clinically sound suicide assessment correspond to the three criteria for scientific investigation which define this paradigm. First, there is an awareness of the intermingling of multiple causes together with chance in the etiology of suicide, as evoked by Havens' description of suicide as "the final common pathway of diverse circumstances, of an interdependent network rather than an isolated cause, a knot of circumstances tightening around a single time and place. . . ." [48] This view is consistent with the first criterion of the probabilistic paradigm, which sees causation as multiple, changing, and not fully certain.

Second, there is the building of a supportive therapeutic alliance and the monitoring of its impact on the patient. The patient is not seen in isolation, unaffected by the therapist's observation. Rather, the ongoing interchange between patient and therapist is recognized to influence the patient's state of being in more ways (for good and for ill) than can be accounted for by any planned intervention. This approach is reflected in the second criterion of the paradigm, according to which scientific investigation consists not of conclusive experiments, but of an ongoing process of action, observation, and interpretation. Side effects of observation on what is observed, such as the alienation of the patient from the therapist or, conversely, the building of a closer alliance during the suicide assessment [49], are viewed as a legitimate and significant subject for scientific inquiry.

Seen in this light, the creation of a therapeutic alliance and the careful observation and interpretation of the subjective data that emerge from the alliance are essential to the scientific procedure of clinical data gathering. The third criterion of the probabilistic paradigm reminds us that no information is completely objective or completely subjective. The two kinds of data exist on a continuum, with objective data having a subjective component and vice versa. This third criterion, in conjunction with the first two, thereby offers a therapeutic, scientific, and — ultimately — legal rationale for the critical use of subjective data in suicide assessment.

Historically, then, mechanistic science viewed subjective data as only a first approximation of unequivocal truths to be revealed subsequently by more objective data. Psychiatry, as a twentieth-century probabilistic science, is more attuned to the value of subjective data as a true representation of the uncertainties of human experience and interaction [50]. Although a modern science of probability might appear to be in conflict with the absolutism of the law, the law itself acknowledges degrees of uncertainty, as illustrated by the three standards of legal proof: "preponderance of evidence" (understood as 51 percent certainty), "clear and convincing evidence" (75 percent certainty), and "beyond a reasonable doubt" (90 or 95 percent certainty) [51].

In malpractice cases involving suicide, the courts have recognized that the prediction of suicidality in a particular patient is fraught with uncertainty [21,35]. A recent Florida decision, for example, stated that "accurate predictions of dangerous behavior, and particularly of suicide and homicide, are almost never possible" [34]. Another court noted that "... physicians and other professionals practice the arts and must be allowed a wide area of discretion" [20]. While some might argue that the traditional art/science distinction in medicine does not provide a sound basis for legal judgment, the informed clinician may conclude that the "art" is subsumed by probabilistic medical science [6]. Although judges and juries cannot be expected to have a prior familiarity with the philosophy of science, the clinician who documents probabilistic thinking in the interpretation of subjective data has a formidable defense (that of reasonableness and prudence) against the charge of negligence.

Informed Consent, Proximate Cause and the Competent Assumption of Risk

Informed consent is another legal requirement [52] which the clinician may experience as burdensome. Yet there are several ways in which informed consent can prove to be a crucial ingredient in malpractice prevention. Most straightforwardly, the attempt to obtain informed consent (when documented) constitutes evidence that the clinician has met the requirements of the Learned Hand rule by considering the costs and benefits of alternative treatments with the patient. However, the significance of informed consent with respect to malpractice liability extends beyond the question of negligence.

Negligence is only one of the four elements necessary to establish liability for malpractice; the others are duty to care, harm, and causation. Not only must the patient suffer physical or emotional harm, but the injury or death must follow so directly from the therapist's negligence that the latter can be said to constitute a "proximate cause" [7]. On this principle one psychiatrist was held not liable for a suicide in part because the suicide took place several weeks after the psychiatrist had allowed the patient to leave the hospital. (The psychiatrist had judged the patient in need of treatment, but not sufficiently dangerous to himself or others to be committable.) The court held that the passage of time had brought with it so many possible intervening causes as to make it impossible to establish a clear causal link between the decision to release and the suicide [44].

The patient's own actions themselves may constitute an independent intervening cause. A patient who sued her psychiatrist for allowing her the freedom to attempt suicide was held to be contributorily negligent because she failed to reveal information which might have enabled the psychiatrist to make a better judgment [20]. Here again the crucial importance of the informed consent procedure, in which the patient is encouraged to provide any information relevant to subsequent clinical decisions, is apparent.

The deeper significance of informed consent for malpractice law lies, however, in a growing legal recognition of the relationship between patient competence and proximate cause of death by suicide. Note that we are here proposing a conceptualization that probably will be — but, so far as we are aware, has not yet been — elaborated in specific cases by explicit legal decisions. It may, however, be implicit in the 1981 decision of a divided New York court that held the state not liable for the injuries suffered by a voluntary patient who threw himself in front of a moving vehicle after escaping from a mental hospital. An involuntary patient, the court noted, by having required greater safeguards, would have been entitled to damages under the same circumstances. The dissenting judges did not challenge this reasoning; rather, they were of the opinion that the hospital had been negligent in keeping the patient on voluntary status in the face of available information militating for commitment [53]. Underlying the court's reasoning may have been the assumption that involuntary (and, by implication, incompetent) patients are suspect in their ability to participate in a meaningful informed consent process. Therefore, the burden is on the clinician to foresee more dangers.

It has been further argued that even a psychiatrist who is found negligent should be relieved of liability on the grounds that suicide, when it can be said to be a voluntary act, constitutes an intervening independent cause. Perhaps reflecting the epistemological complexity of the issue, two decisions rendered in 1981 came down on opposite sides of this question. The traditional view was upheld in a Pennsylvania ruling that a hospital could be held liable for damages resulting from a patient's having set fire to his room. Rejecting the hospital's claim that the act of setting the fire was an intervening cause, the court declared such an act to represent the very kind of harm against which the hospital had a duty to guard [54]. In contrast, a Texas decision reflected an emerging view that an intentional suicide is itself the proximate cause of death. In the case of a patient who committed suicide unexpectedly, without forewarning, by overdose of the antipsychotic drug Etrafon, the court held that a Veterans Administration psychiatrist was not negligent in his treatment of the patient (which included prescription of this drug), while the hospital pharmacy was negligent in dispensing excessive quantities of the drug. In neither instance, however, was liability exacted. The court held that since the patient's intentional (but unforewarned of) overdose was not a foreseeable consequence of the pharmacy's negligence (or of the psychiatrist's, even had he been negligent), the act itself and not the prior negligence was the proximate cause of the harm suffered [55].

In both of these cases the question of proximate cause hinged upon the foreseeability of the patient's destructive act as a consequence of the alleged negligence on the part of treating personnel. Since the foreseeability of a suicide attempt is also a factor (under all three legal traditions) in determining negligence itself, there appears to be some overlap between two of the necessary conditions for malpractice liability: negligence and proximate cause. Thus, pending clarification of the law, two separate legal determinations may hinge on the adequacy of the clinician's assessment of the likelihood that a patient will attempt suicide.

Finally, for suicide to be truly intentional, i.e., for "intention" to have legal meaning, we might argue that the patient must be competent. Thus, when a tragic outcome is followed by a malpractice claim, the determination of the patient's previous competence to give informed consent to the treatment actually used may be, in retrospect, a moment of pivotal importance in the clinical history. The therapist's assessment of the patient's competence may, of course, be challenged; but the stronger the therapist's documented grounds for finding the patient competent, and thus able to act truly voluntarily, the more remote the prospect of malpractice liability for suicide may be, since it is thus more likely that the patient's independent and competent action is the proximate cause of the outcome.


Current trends in malpractice law pertaining to the subjective component of suicide risk assessment reveal a reassuring congruence between clinical and legal standards. Through an awareness of legal requirements in the areas of both negligence and informed consent, subjective data can be used along with objective data in a thorough consideration of all the variables that contribute to a sound clinical assessment of suicidality. Careful, documented interpretation of subjective as well as objective data reduces malpractice liability by whatever standards are invoked to determine negligence. Similarly, informed consent not only is good medical practice and a requirement of the law, but also is useful in minimizing the risk of a malpractice judgment. Its value for this purpose can be expected to increase as the courts come to recognize the competent patient's assumption of risk as an intervening independent cause of suicide.

For the practicing psychiatrist, consultation and documentation still comprise the two pillars of malpractice prevention [7]. Psychiatrists who face the uncertainties of suicide assessment should not only observe due care of the patient, care that might be judged by the three standards discussed above; they should also consult with colleagues about difficult decisions (itself evidence of attention to community standards) and document the clinical reasoning used. Any decision representing an apparent deviation from one or more of the standards described above or failure to obtain informed consent due to the patient's incompetence should also be documented. With such documentation the psychiatrist may find reassurance in a troubling area.

* This conclusion is supported by a review of recent case law prepared by Onek, Klein and Fare, Washington D.C., which was consulted in the preparation of this paper.

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