Famous in the Emergency Department: Emergency Psychiatry, Law, and Ethics
Emergency psychiatry has developed as a distinctive subfield that has grown exponentially since the 1960s, exacerbated by deinstitutionalization and shortages of psychiatric and social services (1, 2). Although some emergency psychiatrists work in medical emergency departments (EDs) and others in designated psychiatric EDs, all are likely to face patients experiencing a wide range of acute psychiatric challenges, including psychosis and suicidality, as well as exacerbations of affective diseases, personality disorders, and substance misuse (3). Malingering is also a frequent challenge for emergency providers (4). A significant portion of the ED psychiatrist’s responsibility is triage—specifically, determining which patients should be admitted for care inside an institutional setting and which patients are sufficiently safe and stable for follow-up treatment as outpatients. Emergency practice often involves quick decisions made on the basis of limited information, such as forcibly medicating an aggressive or violent patient in the absence of a clear medical or psychiatric history or of collateral information from associates. A distinct set of ethical and legal issues is likely to arise in the emergency setting.
Unlike in most other care environments, the interaction between the psychiatric provider and patient in the ED is frequently brief and restricted to one meeting. Such limited interactions make building rapport and trust challenging. Many patients will never have encountered a psychiatric provider before, so the process of evaluation may prove stressful or even traumatic for them. The risk of bias against non-White patients, in both diagnosis and treatment, is also a major concern, especially because structural factors have led to significant overrepresentation of African American patients in psychiatric EDs (5). Emergency care is often provided outside of regular working hours; as a result, providers may not have real-time access to resources, such as a hospital legal department, risk management service, or clinical ethics consultant. Under such circumstances, emergency psychiatrists must possess a working knowledge of relevant laws and principles.
Many aspects of the regulation of emergency psychiatry occur at the state level. Legal standards for admission vary from jurisdiction to jurisdiction, with most—but not all—states requiring dangerousness as a prerequisite for involuntary commitment (6). Similarly, rules governing the duty to warn and protect threatened third parties (called the Tarasoff rules) vary significantly by location (7). However, two federal statutes, the Emergency Medical Treatment and Labor Act of 1986 (EMTALA) and the HIPAA Act of 1996, respectively, regulate health care access and confidentiality, and both of these laws are binding on nearly all emergency psychiatric providers. Failure to follow these rules may result in civil liability through malpractice. In extreme cases, HIPAA violations can lead to criminal penalties for physicians, whereas EMTALA violations can lead to fines not covered by insurance.
Case 1, Part 1
Mr. A is a 52-year-old man who presents to the psychiatric ED after his second wife called 911 to report that he has been acting “out of his mind” for approximately 1 week. She explains that her husband—to her knowledge—has no history of psychiatric illness; she does recall that he used cocaine recreationally before their marriage, but as far as she knows, he has “not touched the stuff” since they met 5 years earlier. She acknowledges that he uses both alcohol and cannabis socially, but “never to excess,” although she also concedes that he “traveled with a rough crowd” when he was younger and “probably tried everything.” Mrs. A reports that she first noticed something amiss with her husband when he returned from his 30th college reunion after a weekend away. Shortly after his return, he warned her against drinking water from the tap, because he said, “that would be an easy way for our enemies to poison us.” Over the next several days, he developed worsening delusions that his “enemies” were conspiring against him—although he proved evasive when she asked about their identities. On several occasions, she found him arguing with himself when alone, as though he were speaking to an invisible person, although he stopped when she entered the room. That morning, he seemed to have had a hard time gathering his thoughts at all and “spoke nonsense” when she asked him what was wrong. Alarmed, she phoned his college roommate who—after she promised confidentiality—acknowledged that the pair had experimented with methamphetamine at the reunion.
Dr. Q is the attending psychiatrist on call that evening in the ED. He recognizes Mr. A as the meteorologist for the local television station. On evaluation, Mr. A appears extremely disorganized, with considerable thought blocking; in a lucid moment, he explains to Dr. Q that he has developed a method for controlling the weather with his thoughts, which is why his enemies are determined to destroy him. He appears to be experiencing methamphetamine-induced psychosis (8) and grows increasingly agitated during the evaluation. Eventually, Dr. Q persuades Mr. A to accept a dose of lorazepam, “to help take the edge off,” and Mr. A falls asleep.
1.1. While Mr. A is sleeping, a woman calls the ED and states, “My name is Ms. B. I am looking for my father, Mr. A, and I think he might be at your hospital. Can you please tell me if he is there and how he is doing?” Dr. Q believes that Mr. A is too incapacitated on account of his psychosis to clarify whether and with whom he wishes to share information about his location and health. How should Dr. Q proceed?
A.
Dr. Q should inform Ms. B that HIPAA prevents him from answering her questions.
B.
Dr. Q should tell Ms. B to phone Mrs. A, because Mrs. A is the patient’s closest relative.
C.
Dr. Q should first take steps to verify Ms. B’s identity.
D.
Dr. Q should ask Ms. B to come to the hospital in person to discuss the matter further.
E.
Dr. Q should ask Ms. B to phone back in 24 hours in the hope that Mr. A will improve enough in the interim to clarify his preferences.
1.2. If Dr. Q is able to verify Ms. B’s identity, what information may he share with her?
A.
None, because HIPAA still prohibits information sharing under these circumstances
B.
Mr. A’s presence in the ED, but nothing more
C.
Mr. A’s general condition, but nothing more
D.
Mr. A’s presence in the ED and general condition
E.
Mr. A’s location, general condition, and Dr. Q’s plan for care
Case 1, Part 2
Dr. Q holds Mr. A in the ED for 24 hours, the legal limit in his jurisdiction, and Mr. A agrees to accept several doses of oral antipsychotics. By the end of the 24-hour stay, Mr. A has improved enough that he no longer presents as psychotic. He readily acknowledges to Dr. Q that he used methamphetamines at his reunion. He also explains that he is highly ashamed of himself and expresses fear that, if either his drug use or his visit to the psychiatric ED becomes public, this exposure will ruin his career as a meteorologist.
“If a sportscaster or an entertainment reporter gets high on occasion, people shrug it off,” he explains. “But forecasting the weather requires the confidence of the public. We must be above reproach.”
With Dr. Q’s permission, Mr. A then phones his wife and discovers that his methamphetamine use has been catalogued on the front page of the local newspaper. His college roommate, Mr. C, is quoted in the story.
“Let me out of here,” demands Mr. A. “I swear I’m going to track that guy down and pummel the living daylights out of him.” Dr. Q asks Mr. A if he really means this or is just frustrated, and Mr. A responds, “Do I sound like I’m joking? Even if I go to prison, it’s worth it.”
1.3. When Mr. A makes this threat, Dr. Q does not believe that Mr. A is psychiatrically ill or intoxicated. How should he proceed?
A.
Dr. Q should discharge Mr. A, but not warn Mr. C because this is a criminal justice matter and not a psychiatric one.
B.
Dr. Q should discharge Mr. A, but not warn Mr. C because it would be a breach of confidentiality.
C.
Dr. Q should not discharge Mr. A from the hospital because Mr. A remains violent.
D.
Dr. Q should discharge Mr. A, but should warn Mr. C if he is legally permitted to do so.
E.
Dr. Q should discharge Mr. A, but should ask Mrs. A to warn Mr. C of the threats.
1.4. Dr. Q informs Mr. A that he intends to warn his former roommate of this threat. The decision to contact Mr. A’s former roommate over Mr. A’s objections reflects the ethical principle of which of the following?
A.
Therapeutic privilege
B.
Harm reduction
C.
Justice
D.
Therapeutic misconception
E.
Dual loyalty
Case 2, Part 1
Mr. D presents to the psychiatric ED of a busy urban hospital one evening, complaining of depression and suicidality since the death of his mother the previous week. Dr. R conducts an evaluation, in which Mr. D appears dysphoric and tearful. Mr. D states he lives in an apartment, but he refuses to share the address and also refuses to provide the names of friends or family members who might provide corroborative information. However, the ED is equipped with security cameras, and Dr. R notes that the patient appears bright and cheerful on the cameras when medical staff are not present—laughing and sharing jokes with the other patients. In reviewing notes from previous visits, Dr. R discovers that Mr. D has come to the ED on multiple prior occasions over several years, reporting the recent death of his mother. On each of these occasions, Mr. D had reported that the symptoms had resolved in the morning, and he had demanded discharge.
2.1. What is the most likely explanation for Mr. D’s current symptoms?
A.
Factitious disorder
B.
Malingering
C.
Normal grief
D.
Persistent complex bereavement disorder
E.
Mixed episode of bipolar disorder
2.2. Dr. R determines that Mr. D does not have any acute medical or psychiatric needs and discharges him from the ED. Twenty minutes later, he receives a call from the triage nurse reporting that Mr. D has returned to the hospital and is now complaining that he is hearing voices and seeing visions. She asks whether Mr. D should be transferred from triage to the psychiatric ED for another evaluation. How should Dr. R proceed?
A.
Dr. R may decline to evaluate Mr. D because he has already evaluated him.
B.
Dr. R must decline to evaluate Mr. D because such repeated evaluations constitute billing fraud.
C.
Dr. R must agree to evaluate Mr. D as legally required by EMTALA.
D.
Dr. R must agree to evaluate Mr. D only if doing so is required by state law.
E.
Dr. R should arrange for Mr. D to be transferred to a different hospital for evaluation.
Case 2, Part 2
Dr. R evaluates Mr. D a second time and once again discharges him from the hospital. Six hours later, a nearby outside hospital calls and reports that Mr. R has presented to their medical ED and appears floridly psychotic. The consulting psychiatrist at the other hospital believes that Mr. D requires an admission to a psychiatric unit—and even after learning the patient’s history from Dr. R, insists that the patient must be transferred for potential admission. The other hospital does not have an inpatient psychiatric unit, and Dr. R’s hospital is the closest hospital with open psychiatric beds.
2.3. The consulting psychiatrist at the other hospital states that he would like to transfer Mr. D to Dr. R’s hospital for admission to an inpatient unit. May Dr. R refuse to accept the patient for transfer?
A.
Dr. R must accept the patient because his hospital offers services that the other hospital does not.
B.
Dr. R may refuse the patient because this is an example of patient dumping.
C.
Dr. R may refuse the patient because he has already been evaluated twice and because Dr. R disagrees with the assessment of the consulting psychiatrist at the other hospital.
D.
Dr. R may refuse the patient if his hospital does not accept Mr. D’s insurance.
E.
Dr. R may refuse the patient unless Dr. R works at a public hospital.
2.4. Dr. R agrees to accept the transfer, but he asks a colleague to conduct the evaluation when Mr. D arrives, because he is fed up with Mr. D. What phenomenon does this represent?
A.
Beneficence
B.
Transference
C.
Countertransference
D.
Autonomy
E.
Fiduciary responsibility
Answers
1.1. The answer is C. ED psychiatrists are responsible for taking reasonable steps to confirm the identities of interested third parties, such as health care proxies or family members, before providing them with any information about patients. Sharing any information without doing so is a clear breach of HIPAA and can open providers to civil and criminal liability. Such verification is particularly important in the case of a celebrity or public figure, such as Mr. A, because journalists have been known to impersonate family members in seeking such information. In one such notorious case, two Australian radio hosts tricked a British nurse into sharing information about the Duchess of Cambridge’s health in 2012 by impersonating Queen Elizabeth II and Prince Charles. Although HIPAA places strict limits on what information may be shared with family members of patients, it does allow for certain exceptions, and these exceptions may prove relevant in this case. Under these exceptions, it is not necessary to wait until a patient recovers capacity to clarify his preferences. Although asking Ms. B to come to the hospital may be one method to verify her identity, doing so might prove difficult if, for example, Ms. B lived in a different city, and other measures may suffice as well. Although some states give priority to closer relatives for medical decision making in the absence of appointed proxies, HIPAA does not place such restrictions on information sharing, but treats all close relatives equally.
1.2. The answer is D. HIPAA contains an exception for sharing limited information with family members of patients when they are incapacitated in emergencies and the providers, “in their professional judgment,” believe “doing so is in the patient’s best interest” (9). Such information is limited to “the individual’s location in the covered health care provider’s facility” and the “individual’s condition described in general terms that [do] not communicate specific medical information about the individual” (10). Dr. Q would not be permitted to share Mr. A’s plan of care with his daughter without the patient’s permission or evidence that she was the patient’s appropriate thirty-party agent.
1.3. The answer is D. HIPAA allows for the sharing of private health information for public safety reasons, such as to warn and protect third parties from direct dangers. The landmark case of Tarasoff v Regents of the University of California (1976) imposed such an obligation in the state of California. However, under what circumstances a physician may do so varies from state to state, so psychiatrists should familiarize themselves with the rules in their jurisdictions (11). Whether the cause of danger to third parties is psychiatric or criminal is generally not relevant to the duty to warn. Because Mr. A does not have a psychiatric illness, no grounds exist to continue to detain him in the hospital. As a general rule, physicians should not entrust third parties with Tarasoff duties. It is possible that state confidentiality laws prevent sharing such information, but not in all jurisdictions, so Dr. Q must know the local law and should breach confidentiality only if he is legally required to do so.
1.4. The answer is E. Dual loyalty refers to circumstances in which a physician’s fiduciary duty to a patient comes into conflict with broader obligations to society or to other individuals (12). Such situations arise frequently in the emergency setting in regard to the need to breach confidentiality (13). Tarasoff obligations are a classic example of such dual or multiple loyalties. Therapeutic privilege refers to the ethics of withholding information from patients when sharing it would result in negative outcomes. Harm reduction involves offering interventions, in areas such as addiction, that mitigate rather than eliminate health risks. Justice broadly refers to giving each individual his or her due, but in medical ethics it generally refers to the equitable allocation of resources. Therapeutic misconception is the phenomenon in which research participants mistakenly believe they will receive benefit from participation in studies. None of the other responses are directly relevant.
2.1. The answer is B. Malingering, or feigning symptoms for secondary gain, is a significant challenge in psychiatric EDs and may account for between one-third and one-fifth of all presentations (4). Although malingering is a rule-out diagnosis, a number of factors suggest this as the most likely explanation for Mr. D’s condition, including the disparity between his affect in the presence and absence of medical staff, his unwillingness to provide corroborating information, vagueness about his living circumstances, and most importantly, a reported history markedly at odds with that documented in past presentations. That Mr. D consistently retracts his symptoms in the morning after sleeping in the hospital overnight raises the possibility that he is undomiciled and is seeking a place to stay. Patients with factitious disorder seek psychological gratification in feigning the sick role and are unlikely to retract their symptoms spontaneously. Normal grief is unlikely to cause suicidality. Prolonged or pathological grief, known in the DSM-5 as persistent complex bereavement disorder, is a serious psychiatric condition in which grief does not resolve with time (14). However, that Mr. D has reported on multiple occasions that his mother has recently died suggests that bereavement does not underlie his reported symptoms. A mixed episode of bipolar disorder might account for rapid fluctuations in mood but would not explain why Mr. D’s symptoms consistently resolve in the morning.
2.2. The answer is C. EMTALA (15) requires that patients presenting to EDs (at hospitals receiving federal funds, which is nearly all facilities in the United States) be evaluated and stabilized prior to discharge. EMTALA is a federal law that applies in all states, so any state law to the contrary is not relevant. Transferring patients to outside hospitals before they are stabilized is only permissible under very rare conditions, none of which apply here; otherwise, doing so is considered “patient dumping” and is illegal. The fact that Mr. D has recently been evaluated does not absolve Dr. R of his obligations under EMTALA. Although Dr. R is entitled to bill the patient or the patient’s insurer for the services rendered, there is no guarantee that insurers will cover multiple visits for suspected malingering.
2.3. The answer is A. EMTALA requires that hospitals accept patients for transfer if the hospitals have the capabilities to treat those patients and the transferring hospital does not. In this case, the other hospital does not have an inpatient psychiatric unit, and Dr. R’s hospital is the closest facility that does. Refusing to accept a transfer is known as “reverse dumping” and is illegal (16). “Patient dumping” refers to the practice of transferring patients who cannot pay to other hospitals; this practice is also illegal under EMTALA. EMTALA applies to all hospitals, both public and private, that have accepted any federal dollars—including nearly all U.S. EDs. EMTALA does not allow providers to refuse to provide care or to transfer a patient on the basis of insurance status. That Dr. R has already evaluated the patient twice might justify reevaluating Mr. D on arrival and subsequently discharging him, but it does not justify refusing the transfer prior to doing so.
2.4. The answer is C. Countertransference is a psychodynamic term that refers to the psychiatrist’s emotional response to the patient. In this case, Dr. R has chosen to have another colleague evaluate Mr. D, because of his own negative countertransference toward the patient. In contrast, transference refers to the emotional response of the patient to the provider. Autonomy and beneficence are two of the key principles of bioethics. Autonomy refers to the right of competent patients to make their own medical decisions, whereas beneficence refers to the physician’s obligation to serve the patient’s well-being. Neither is significantly affected by Dr. R’s decision. Fiduciary responsibility is the duty of the provider to place the patient’s interests ahead of others, especially when economic conflicts of interest arise, but it is not clear that Dr. R’s decision has any negative fiduciary impact on Mr. D.
References
1.
Wellin E, Slesinger DP, Hollister CD: Psychiatric emergency services: evolution, adaptation and proliferation. Soc Sci Med 1987; 24:475–482
2.
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3.
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4.
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5.
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6.
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7.
Appel JM: Trends in confidentiality and disclosure. Focus 2019; 17:360–364
8.
Wearne TA, Cornish JL: A comparison of methamphetamine-induced psychosis and schizophrenia: a review of positive, negative, and cognitive symptomatology. Front Psychiatry 2018; 9:491
9.
Bulletin: HIPAA Privacy in Emergency Situations. Washington, DC, U.S. Department of Health and Human Services, Office for Civil Rights, 2014. https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/special/emergency/hipaa-privacy-emergency-situations.pdf
10.
Uses and Disclosures Requiring an Opportunity for the Individual to Agree or to Object. 45 CFR § 164.510, 2002
11.
Herbert PB, Young KA: Tarasoff at twenty-five. J Am Acad Psychiatry Law 2002; 30:275–281
12.
Atkinson H: Preparing physicians to contend with the problem of dual loyalty. J Hum Rights 2019; 18:339–355
13.
Appel JM: Divided loyalties: Fire and ICE. Hastings Cent Rep 2021; 51:4–5
14.
Boelen PA, Smid GE: Disturbed grief: prolonged grief disorder and persistent complex bereavement disorder. BMJ 2017; 357:j2016
15.
Examination and Treatment for Emergency Medical Conditions and Women in Labor. 42 Code US § 1395dd, 2008
16.
Iscan EE: EMTALA’s oft-overlooked “reverse dumping” provision and the implications for transferee hospital liability following St. Anthony Hospital. Washington University Law Quarterly 2004; 82:1201–1224
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Published in print: Winter 2023
Published online: 16 January 2023
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The author reports no financial relationships with commercial interests.
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