The Law and Psychiatry

Malpractice is the provision of substandard professional care that causes a compensable injury to a person with whom a professional relationship existed. Although this concept may seem relatively clear and simple, it has its share of conditions and caveats. For example, the essential issue is not the existence of substandard care per se, but whether there is compensable liability.

Medical malpractice is a tort (i.e., a wrong that is noncriminal and not related to a contract). It is a type of civil wrong committed as a result of negligence by a physician that causes injury to a patient in his or her care. Negligence, the fundamental concept underlying a malpractice lawsuit, is simply described as either doing something that a physician with a duty of care (to the patient) should not have done or failing to do something that a physician with a duty of care should have done. The fact that a psychiatrist commits an act of negligence does not automatically make him or her liable to the patient who sues.

For a psychiatrist to be found liable to a patient for malpractice, four fundamental elements (see Quick Reference Table 1) must be established by a preponderance of the evidence, which essentially means “more likely than not”: 1) that there was a duty of care owed by the defendant, 2) that the duty of care was breached, 3) that the plaintiff (i.e., the patient) suffered actual damages, and 4) that the deviation was the direct cause of the damages. Each of these four elements must be met, or there can be no finding of liability, regardless of any finding of negligence. A psychiatrist may be negligent but still not found to be liable. For example, if the patient suffered no real injuries because of the negligence, or if there was an injury but it was not directly caused by the psychiatrist’s negligence, a claim of malpractice will be defeated.

Critical to establishing a claim of professional negligence is the requirement that the defendant’s conduct was substandard or was a deviation from the standard of care owed to the plaintiff. Except in the case of “specialists,” the law presumes and holds all physicians to a standard of ordinary care, which is measured by its reasonableness according to the clinical circumstances in which it is provided.

In terms of potential liability, the use of a somatic therapy, including electroconvulsive therapy (ECT), is evaluated no differently than the use of any other medical treatment or procedure. The same general standard of ordinary and reasonable care governs the assessment of whether a psychiatrist’s use of or failure to use a somatic intervention is legally actionable.

It is generally acknowledged within the psychiatric profession that there is no absolute standard protocol for the administration of psychotropic medication or ECT. Nevertheless, the existence of professional treatment guidelines and procedures that are generally accepted or used by a significant number of psychiatrists should prompt clinicians to consider such guidelines as practice reference sources. For example, APA has published comprehensive findings and guidelines in the form of task force reports on ECT (3) and tardive dyskinesia (4). Nevertheless, official guidelines must not preempt sound professional judgment in attending to the specific clinical needs of patients.

Published guidelines and procedures do not, per se, establish the standard of care by which a court might evaluate a psychiatrist’s treatment, but they do represent a credible source of information with which a reasonable psychiatrist should at least be familiar and should have considered (Stone v. Proctor 1963). In addition to expert testimony, courts generally consider official guidelines and the professional literature that establish contemporary psychiatric practices in determining the standard of care.

There is less professional autonomy and flexibility associated with the use of ECT. Usually, the “reasonable care” standard applied to psychiatric treatment is construed in a fairly broad manner. However, some psychiatric treatments are more rigidly regulated than others. For instance, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) considers ECT a “special treatment” procedure, to be regulated by written policies. Whenever ECT is used, the procedure must be adequately justified and documented in the patient’s medical chart (5). The ECT policies of treatment facilities as well as judicial decisions and statutory regulation of ECT can also serve as establishing the basis for liability, if violated. Malpractice suits involving ECT are infrequent.

The standard for judging the use and administration of medication, on the other hand, appears to be consistent with the more flexible and general reasonable care requirement. Another reference source is the Physicians’ Desk Reference (PDR), which may be used to establish or dispute a psychiatrist’s pharmacotherapy procedures. The PDR is a commercially distributed and privately published reference of medication products used in the United States. The U.S. Food and Drug Administration (FDA) requires that drug manufacturers have their official package inserts reported in the PDR (6). Accordingly, psychiatrists consult publications such as the PDR as needed for current and accurate medication information. Although numerous courts have cited the PDR as a credible source of medication-related information in the medical profession, the PDR does not by itself establish the standard of care. Rather, it may be used as one piece of evidence to establish the standard of care in a particular situation. Courts generally hold that drug inserts alone do not set the standard of care. They are only one element to be considered, along with previous clinical experience, the scientific literature, approvals in other countries, expert testimony, and other pertinent factors. The presence of a substantial scientific literature that justifies the clinician’s treatment is vastly more persuasive than FDA approval. The PDR or any other reference cannot serve as a substitute for the psychiatrist’s sound clinical judgment.

Fortunately, courts recognize the importance of professional judgment and give psychiatrists, like other medical specialists, latitude in explaining special diagnostic or treatment considerations that guide their decision making. For instance, the clinical data regarding pharmacological treatment of rapid-cycling bipolar disorder indicate that a variety of potentially useful drug therapies exist, some of which are considered experimental or on the cutting edge (7). Various drugs and hormones, for example, are clinically useful as mood stabilizers, such as carbamazepine, clozapine, thyroid and estrogen replacement therapy, calcium channel blockers, antihypertensives, neuroleptics, atypical antipsychotics, and other anticonvulsants (lamotrigine, valproate, and gabapentin).

The courts consider that no one treatment of choice exists and that treatment applications are still being developed. Evidence that a treatment procedure is accepted by at least a respectable minority of professionals in the field can establish that a particular treatment is a reasonable professional practice (8). The final word on treatment interventions is determined by the clinician and the clinical needs of the patient, not the law.

Although no reliable compilation of malpractice claims data has been published, anecdotal information suggests that medication-related lawsuits constitute a significant share of the litigation filed against psychiatrists. As noted, claims data from the APA Professional Liability Insurance Program showed that medication error and drug reactions constituted 7% of malpractice allegations.

The development of neuroleptic medications in the mid-1950s dramatically improved the treatment and management of patients with schizophrenia. However, shortly after the introduction of neuroleptic medications as therapeutic agents, researchers and clinicians observed unusual muscle movements in some patients, referred to as tardive dyskinesia.

The risk of developing tardive dyskinesia is estimated at 4%–7% per year of neuroleptic use. These projections are even higher for elderly patients. With the use of atypical antipsychotic drugs, the risk of developing tardive dyskinesia is expected to be lower. Despite the possibility of a large number of lawsuits related to tardive dyskinesia, relatively few psychiatrists have been sued.

Allegations of negligence after a patient develops tardive dyskinesia are based on the same legal elements as any other malpractice action. The bases for negligence mirror those previously identified in general medication cases. These areas include but are not limited to:

Patients receiving antipsychotic medications must be monitored with frequent evaluations. No stock answer can be given to the question of how frequently the psychiatrist should see a patient. Generally, psychiatrists should schedule return visits with a frequency that is in accord with the patient’s clinical need. However, the longer the time between visits, the greater the risk that the psychiatrist will miss adverse drug reactions and untoward developments in the patient’s condition. The interval between visits ordinarily should not exceed 6 months.

The defenses and preventive measures applicable to malpractice claims related to tardive dyskinesia are consistent with those used in any case alleging negligent drug treatment. Sound clinical practice accompanied by the patient’s competent informed consent, appropriately documented in the medical chart, serves as an effective foil to any allegations of negligence should tardive dyskinesia develop.

With the shortening of hospital lengths of stay in recent years, the use of ECT appears to be increasing. Legal actions alleging negligence associated with ECT are infrequent. Cases involving ECT-related injuries have included a variety of circumstances in which negligence has occurred. These cases can be categorized into three groups: pretreatment, treatment, and posttreatment.

Pretreatment. Although pre-ECT evaluations vary somewhat, generally the following procedures, recommended by the APA Task Force on Electroconvulsive Therapy (3), should be performed:

1. A psychiatric history and examination to evaluate the indications for ECT

2. A medical examination to determine risk factors

3. Anesthesia evaluation

4. Informed consent (written)

5. An evaluation by a physician privileged to administer ECT

Although these recommendations do not define in absolute terms the standard of care for ECT, they may be proffered as evidence of the standard of care in malpractice suits involving ECT. Official treatment guidelines, however, should not be a substitute for the psychiatrist’s sound clinical judgment. Nevertheless, failure to conduct appropriate pretreatment procedures could endanger the welfare of the patient and ultimately result in a lawsuit.

Treatment. Lawsuits involving ECT-related injuries in which the negligence is related to the actual treatment process include the following errors:

Posttreatment. It is common for patients treated with ECT to experience side effects such as temporary confusion, disorientation, and memory loss immediately after treatment. Because of these temporary debilitating effects, sound clinical practice requires that psychiatrists provide reasonable posttreatment care and safeguards. Courts have held that the failure to attend properly to a patient for a period of time after administering ECT can result in malpractice liability. The following are examples of posttreatment circumstances that may constitute a basis for a lawsuit:

As a source of civil liability, ECT-related lawsuits today are infrequent and are not likely to represent a significant malpractice risk for psychiatrists.

Buttressed by constitutionally derived rights to privacy and freedom from cruel and unusual punishment, the common law tort of battery, and the doctrine of informed consent, mentally disabled persons are increasingly being afforded protections traditionally reserved for the legally competent. This new freedom often runs counter to the dictates of clinical judgment (i.e., to treat and protect). As a result of this conflict, the courts vary considerably on the parameters of this right and the procedures to be followed.

Two landmark cases illustrate this point. In Rennie v. Klein (1978), the Third Circuit Court of Appeals recognized a right to refuse treatment in the state of New Jersey. The court, after extended litigation, found that this right could be overridden and antipsychotic drugs administered “whenever, in the exercise of professional judgment, such an action is deemed necessary to prevent the patient from endangering himself or others.” In a Massachusetts case, Rogers v. Commissioner of Department of Mental Health (1983), the court decided that in the absence of an emergency (e.g., serious threat of extreme violence or personal injury), any person who has not been adjudicated incompetent has a right to refuse antipsychotic medication. Incompetent persons have a similar right, but it must be exercised through a “substituted judgment treatment plan” that has been reviewed and approved by the court.

These two decisions are often viewed as legal bookends to the issue of the right to refuse treatment. The cases suggest parameters for other courts attempting to define such a right. The Rennie case became the model for subsequent legal decisions that adopted a treatment-driven rationale for the right to refuse treatment. Rogers became the basis for rights-driven approaches taken by some courts in litigating the right to refuse treatment.

Numerous state and federal decisions have tackled some aspect of this issue. Generally speaking, there is near-judicial recognition of an involuntarily hospitalized patient’s right to refuse medication absent an emergency. Case law criteria for emergencies range from a risk of imminent harm to self or others to a deterioration in the patient’s mental condition if treatment is halted. Until either more states enact legislation or the U.S. Supreme Court rules squarely on this issue, jurisdictions will continue to vary on the substance of the right to refuse treatment and the procedures by which such a right can be implemented.

The most common legal action involving psychiatric care is the failure to provide reasonable protection to patients from harming themselves. Theories of negligence involving suicide can be grouped into three broad categories: failure to diagnose properly, that is, to assess the potential for suicide; failure to treat, that is, to use reasonable treatment interventions and precautions; and failure to implement, that is, to carry out treatment properly and not negligently.

These theories, each of which applies to inpatient and outpatient settings, are based on the practitioner’s failure to act reasonably in exercising the appropriate duty of care owed to the patient. Wrongful death suits as a result of patient suicides are based on the legal concepts of foreseeability, reasonableness, and causation. A typical lawsuit argues that a patient with the potential for suicide was not diagnosed and treated properly, resulting in the patient’s death.

As a general rule, a psychiatrist who exercises reasonable care in compliance with accepted medical practice will not be held liable for any resulting injury. Normally, if a patient’s suicide was not reasonably foreseeable, or if the suicide occurred as a result of intervening factors, this rule will apply.

As a general rule, one person has no duty to control the conduct of a second person to prevent that person from physically harming a third person. Applying this rule to psychiatric care, psychiatrists traditionally have had only a limited duty to control hospitalized patients and to exercise due care on discharge. After the Tarasoff ruling, the therapist’s legal duty and potential liability significantly expanded. In Tarasoff, the California Supreme Court first recognized that a duty to protect third parties was imposed only when a special relationship existed between the victim, the individual whose conduct created the danger, and the defendant. The court stated that “the single relationship of a doctor to his patient is sufficient to support the duty to exercise reasonable care to protect others” from the violent acts of patients.

Psychiatrists do not have the ability to predict violence with any accuracy. Violent behaviors are the result of the complex interplay among social, clinical, and personality factors that vary significantly across situations and time (18). Nonetheless, clinical methods for assessing the risk of violence are available that reflect the current standard of care (6, 19–21).

The MacArthur Violence Risk Assessment Study (22) was established to improve clinical risk assessment validity, to enhance effective clinical risk management, and to provide data on mental disorders and violence for informing mental health law and policy. The study found that the validity of violence risk assessments is modestly better than chance. Until more studies are available, sound clinical practice requires that thorough violence risk assessments be routinely performed on potentially violent patients on the basis of current knowledge of violence risk factors. In inpatient settings, violence risk assessments need to be made at such critical points as the initiation of ward status changes, passes, and discharge. Violence risk assessment is more of a continuing process than a solitary event. All such assessments should be duly recorded.

The index of suspicion for potential violence should be high for patients with a past history of violence who are making current, serious threats of harm toward specific individuals. The potential for violence is further heightened if the patient is acutely psychotic, substance abusing, angry, fearful of being harmed, and experiencing delusions of being controlled or influenced (23).

After the Tarasoff ruling, courts in other jurisdictions have interpreted the case variously. Some states have adopted the Tarasoff holding, whereas others have limited or extended its scope and reach. In most states, psychotherapists have a duty, established by case law or statute, to act affirmatively to protect an endangered third party from a patient’s violent or dangerous acts. A few courts have declined to find a Tarasoff duty in a specific case, whereas some courts have simply rejected the Tarasoff duty. The Texas Supreme Court ruled that the state statute permits but does not require disclosures by therapists of threats of harm to third parties by their patients.

Most courts have found no duty to protect without an imminent threat of serious harm to a foreseeable victim. Only a small minority of courts have held that a duty to protect exists for the population at large. In some jurisdictions, courts have held that the need to safeguard the public well-being overrides all other considerations, including confidentiality. Although a few courts have declined to find a Tarasoff duty in a specific case, a growing number of courts have recognized some variation of the original Tarasoff duty. Despite the fact that the Tarasoff duty is still not law in some jurisdictions and is subject to different interpretations by individual courts, clinicians should consider the duty to protect to be a national standard of practice.

Several states have enacted immunity statutes that protect the psychiatrist from legal liability caused by a patient’s violent acts toward others (24). Most of these statutes define the therapist’s duty in terms of warning the endangered third party or notifying the authorities. The duty-to-protect language used in some statutes allows for a greater variety of clinical interventions.

A person may be involuntarily hospitalized only if certain statutorily mandated criteria are met. Three main substantive criteria serve as the foundation for all statutory commitment requirements: the individual must 1) be mentally ill, 2) be dangerous to self or others, and/or 3) be unable to provide for his or her basic needs. Generally, each state spells out which criteria are required and what each means. Terms such as “mentally ill” are often loosely described, thus leaving the responsibility for proper definition to the clinical judgment of the petitioner.

In addition to individuals with mental illness, certain states have enacted legislation that permits involuntary hospitalization of three other distinct groups: persons with developmental disabilities (mental retardation), persons with substance (alcohol or drugs) addiction, and minors with mental disabilities. Special commitment provisions as well as various due process rights may govern requirements for the admission and discharge of mentally disabled minors.

Involuntary hospitalization of psychiatric patients usually occurs when violent behavior threatens to erupt toward the self or others and when patients become unable to care for themselves. Such patients frequently manifest mental disorders and conditions that readily meet the substantive criteria for involuntary hospitalization.

Clinicians do not commit patients. Commitment is solely under the jurisdiction of the court. The psychiatrist merely initiates a medical certification that brings the patient before the court, usually after a brief period of hospitalization for evaluation. In seeking medical certification, the psychiatrist must be guided by the treatment needs of the patient. Clinicians should not attempt to second-guess the court’s ultimate decision about involuntary hospitalization.

Commitment statutes do not require involuntary hospitalization but are permissive (24). The statutes enable mental health professionals and others to seek involuntary hospitalization for persons who meet certain substantive criteria. On the other hand, the duty to seek involuntary hospitalization is a standard-of-care issue. Patients who are mentally ill and pose an imminent, serious threat to themselves or others may require involuntary hospitalization as a primary psychiatric intervention.

Patients who allege recovered memories of abuse have sued parents and other alleged perpetrators. In a turnabout, the alleged victimizers have sued therapists whom they claim negligently induced false memories of sexual abuse. In some cases, patients have recanted and joined forces with others (usually their parents) to sue their therapists.

The debate on recovered memory has polarized many therapists into believers and disbelievers. Most therapists hold personal beliefs about the validity of recovered memories of sexual abuse that are somewhere between the extremes. Strongly held personal biases about recovered memories represent an occupational hazard for clinicians that can undermine the therapist’s duty of neutrality to patients, creating deviant treatment boundaries and increasing the risk of incurring liability.

The basic allegation in such cases is that the therapist abandoned a position of neutrality to suggest, persuade, coerce, and implant false memories of childhood sexual abuse. The guiding principle of clinical risk management in recovered memory cases is for the therapist to maintain neutrality and establish sound treatment boundaries.

Complicating the situation is the empirical evidence about memory mechanisms. As is typical for any emerging science, contradictory findings have been reported about how and what persons in various settings retain in memory and forget. Empirical studies frequently fail to distinguish whether allegedly repressed memories are not retrieved or simply not reported to researchers.

Sound risk management rests solidly on a clinical footing and is secondarily informed by awareness of the pertinent legal issues (35). Risk management principles that should be considered when evaluating or treating a patient who recovers memories of abuse while in psychotherapy include the following:

Therapist-patient sex is invariably preceded by progressive boundary violations in treatment (36). As a consequence, patients are frequently psychologically damaged by the precursor boundary violations as well as the eventual sexual misconduct of the therapist (37). An excellent account of the gradual erosion of treatment boundaries leading to near loss of control with a client is given by Rutter (38).

General boundary guidelines exist for conducting psychiatric treatment (39). Awareness of these guidelines and of their transgression may help alert the therapist to progressive boundary violations (40). Sexual misconduct does not occur in isolation but usually involves a variety of negligent acts of omission and commission.

Various causes of action may be asserted by a plaintiff who has been sexually exploited by a psychotherapist. In a minority of states, spouses of the injured patient also have legal standing to initiate their own cause of action against an exploitative practitioner on the grounds of loss of consortium (i.e., interference with the marital relationship).

A variety of defenses have been raised to diminish or protect against liability, but to date, few have been legally successful (Table 5). For instance, the contention that the patient was aware that sex was not a part of treatment, that the sex occurred outside the treatment setting, that treatment ended before the sexual relationship began, or that the patient consented to the sexual contact have all been rejected by the courts. Patients cannot consent to malpractice. In sexual misconduct cases, the issue is never the patient’s consent but always breach of fiduciary trust by the therapist.

There is no “respected minority” in the profession that claims that sexual relations with patients is therapeutic. This position had a few adherents at one time but is no longer publicly advocated by credible mental health professionals.

Confidentiality refers to the right of a patient to have communications spoken or written in confidence undisclosed to outside parties without implied or expressed authorization. Privilege, or more accurately testimonial privilege, can be viewed as a derivation of the right of confidentiality. Testimonial privilege is a statutorily created rule of evidence that permits the holder of the privilege (e.g., the patient) to exercise the right to prevent the person to whom confidential information was given (e.g., the psychiatrist) from disclosing it in a judicial proceeding.

Informed consent is a legal theory in medical malpractice. It provides a patient with a cause of action for not being adequately informed about the nature and consequences of a particular medical treatment or procedure undertaken. This theory is founded on two distinct legal principles. The first is the right of every patient to determine what will or will not be done to his or her body, often referred to as the right of self-determination. The second principle emanates from the fiduciary nature of the physician-patient relationship. Inherent in a physician’s duty of fiduciary care is the responsibility to disclose honestly and in good faith all requisite facts concerning a patient’s condition. Included among factors to be disclosed are any treatment risks, alternatives, and consequences. The primary purpose of the doctrine of informed consent is to promote individual autonomy; secondarily, it is intended to promote rational decision making (50).

There are three essential elements to the doctrine of informed consent:

Usually clinicians provide the first level of screening in identifying patient competency and in deciding whether to accept a patient’s treatment decision. The patient or a bona fide representative must be given an adequate description of the treatment. If the patient who refuses treatment appears to lack health care decision-making capacity, it does not mean that the patient cannot be treated. An appropriate substitute decision maker can provide (or withhold) consent. To be able to provide informed consent, the patient or substitute decision maker should be told about the risks, benefits, and prognosis both with and without treatment, as well as alternative treatments and their risks and benefits. In addition, the competent patient must voluntarily consent to or refuse the proposed treatment or procedure.

The legal doctrine of informed consent is consistent with the provision of good clinical care. The informed consent doctrine allows patients to become partners in making treatment determinations that accord with their own needs and values. In the past, physicians operated under the “do no harm” principle. Today, psychiatrists are increasingly required to practice within the model of informed consent and patient autonomy. Most psychiatrists find increased patient autonomy desirable in fostering the development of the therapeutic alliance that is so essential to treatment. Furthermore, patient autonomy is the goal of most psychiatric treatments (51).

The legal issues surrounding seclusion and restraint are complex. Seclusion and restraint have both indications and contraindications as clinical management tools (see Quick References Tables 6 and 7). The legal regulation of seclusion and restraint has become increasingly stringent over the past decade.

Legal challenges to the use of restraints and seclusion have been made on behalf of the institutionalized mentally ill and the mentally retarded. Normally these lawsuits do not stand alone but are part of a challenge to a wide range of alleged abuses within a hospital.

Generally courts hold, or consent decrees provide, that restraints and seclusion can be implemented only when a patient presents a risk of harm to self or others and no less restrictive alternative is available. Additional considerations include the following:

1. Restraint and seclusion can be implemented only by a written order from an appropriate medical official.

2. Orders are to be confined to specific, time-limited periods.

3. A patient’s condition must be regularly reviewed and documented.

4. Any extension of an original order must be reviewed and reauthorized.

Most states have enacted statutes regulating the use of restraints, normally specifying the circumstances in which restraints can be used. Most often, those circumstances occur only when a risk of harm to self or others is imminent. Statutory regulation of the use of seclusion is far less common. Most states with laws regarding seclusion and restraint require some type of documentation of their use.

A federal rule issued by the Health Care Financing Administration (HCFA) requires that hospital patients be seen face-to-face by a physician or a licensed independent practitioner (LIP) within 1 hour from the time a patient is restrained. An LIP is an individual who is recognized by both state law and hospital policy as having the independent authority to order restraints and seclusion for patients. This requirement is part of expanded policies regulating seclusion and restraint applicable to all hospitals receiving Medicare and Medicaid funds. The 1-hour requirement differs from the corresponding Joint Commission on Accreditation of Healthcare Organizations (JCAHO) mandate, which allows nurses to undertake evaluation and management tasks. The JCAHO standard also permits the physician or LIP to conduct an in-person evaluation of the patient within 4 hours of the initiation of restraint or seclusion for patients 18 years old or older. For patients under age 17, the in-person evaluation must be conducted within 2 hours of the initiation of restraint and seclusion. The 1-hour visit requirement by the HCFA is also recommended by the APA Task Force on the Psychiatric Uses of Seclusion and Restraint (55). Regardless of their accreditation status, hospitals participating in Medicare or Medicaid must meet the standards in the Patient’s Rights Condition of Participation (56). HCFA is working with JCAHO to ensure that the new Medicare requirements are incorporated into JCAHO standards.

JCAHO made major revisions in its standards for the use of restraint and seclusion, effective January 2001, that seek to reduce the use of restraint and seclusion in order to provide greater assurance of safety and protection of patients with psychiatric or substance use disorders. The revised standards restrict the uses of restraints and seclusion to emergency situations in which there is imminent risk that the patient may inflict harm to self or others. Restraints are to be used only as a last resort. JCAHO has agreed to work with HCFA to enforce the 1-hour rule in hospitals receiving Medicare and Medicaid funds.

On September 1, 1990, the National Practitioner Data Bank, established by the Health Care Quality Improvement Act of 1986, went into effect. The data bank tracks disciplinary actions, malpractice judgments, and settlements against physicians, dentists, and other health care professionals (57).

Hospitals, health maintenance organizations (HMOs), managed care organizations (MCOs), professional societies, state medical boards, and other health care organizations are required to report any disciplinary action taken against providers lasting more than 30 days. MCOs do not report physicians to the data bank if they do not follow treatment protocols. When a physician is deselected for a quality of care issue, the MCO must report it (58). Disciplinary actions include limitation, suspension, or revocation of privileges or professional society membership. Medical malpractice payments account for about three-quarters of reports made to the data bank. Under the Health Care Quality Improvement Act, immunity from liability is granted to health care entities and providers that make peer review reports in good faith (59).

Hospitals are required to request information from the data bank concerning all physicians applying for staff privileges. Every 2 years, a query of the data bank is required concerning each physician or other practitioner on the hospital staff. Hospitals that do not comply face loss of immunity for professional peer review activities.

The public does not have access to the data bank. Plaintiffs’ attorneys can have access to the data bank only if they can prove that the hospital failed to query the data bank about the physician in question. The information obtained can be used only to sue the hospital for negligent credentialing. Physicians can request information from the data bank about their own file. A recent study found that hospital reporting of actions taken regarding clinical privileges from 1991 to 1995 declined, raising concerns about underreporting (60).

Nearly every area of human endeavor is affected by the law and, as a fundamental condition, requires that one be mentally competent. Essentially, competency is defined as “having sufficient capacity, ability . . . [or] possessing the requisite physical, mental, natural, or legal qualifications” (61, p. 284). This definition is deliberately vague and ambiguous because competency is a broad concept encompassing many different legal issues and contexts. As a result, its definition, requirements, and application can vary widely, depending on the circumstances in which it is being measured (e.g., health care decisions, executing a will, and confessing to a crime).

In general, competency refers to some minimal mental, cognitive, or behavioral ability, trait, or capability required to perform a particular legally recognized act or to assume some legal role. Incompetency is a judicial determination. The term incapacity, which is often interchanged with incompetency, refers to an individual’s functional inability to understand or to form an intention with regard to some act as determined by health care providers (34).

The legal designation of “incompetent” is applied to an individual who fails one of the mental tests of capacity and is therefore considered, by law, not to be mentally capable of performing a particular act or assuming a particular role. The adjudication of incompetence by a court is subject or issue specific. For example, the fact that a psychiatric patient is adjudicated incompetent to execute a will does not automatically render that patient incompetent to do other things, such as consent to treatment, testify as a witness, marry, drive, or make a legally binding contract.

Generally, the law recognizes only the decisions or choices that have been made by a competent individual. The law seeks to protect incompetent individuals from the harmful effects of their acts. Persons over the age of majority, which is now 18, are presumed to be competent (62). This presumption, however, is rebuttable by evidence of an individual’s incapacity. For the psychiatric patient, perception, short-term and long-term memory, judgment, language comprehension, verbal fluency, and reality orientation are mental functions that a court will scrutinize in questions of capacity and competency.

The issue of competency, whether in a civil or criminal context, is commonly raised in two situations: when the person is a minor and when he or she is mentally disabled. In many situations, minors are not considered legally competent and therefore require the consent of a parent or designated guardian. However, there are exceptions to this general rule, such as when minors are considered emancipated or mature, or in some cases of medical need or mental health counseling.

The mentally disabled, including mentally impaired psychiatric patients, present a slightly different problem in evaluating competency. Lack of capacity or competency cannot be presumed from either treatment for mental illness or institutionalization of such persons. Mental disability or illness does not necessarily render a person incompetent in any or in all areas of functioning. Instead, scrutiny is applied to determine whether specific functional incapacities exist that render a person incapable of making a particular kind of decision or performing a particular type of task.

Respect for individual autonomy demands that individuals be allowed to make decisions of which they are capable, even if they are seriously mentally ill, developmentally arrested, or organically impaired. As a rule, a patient with a psychiatric disorder that produces mental incapacity generally must be declared judicially incompetent before exercise of that patient’s legal rights can be abridged. The person’s current or past history of physical and mental illness is but one factor to be weighed in determining whether a particular test of competency is met.

In jurisdictions that may recognize physician-assisted suicide, psychiatrists will likely be called on to serve as gatekeepers. Such a role would be a radical departure from the physician’s code of ethics, in which doctors are prohibited from participating in any intervention that hastens death. Previously, the Supreme Court ruled in Cruzan that terminally ill persons could refuse life-sustaining medical treatment. Courts and legislatures will determine whether hastening death is an unwarranted extension of the right to refuse treatment. Every proposal for physician-assisted suicide requires a psychiatric screening or consultation to determine the terminally ill person’s competence to commit suicide. The presence of psychiatric disorders associated with suicide, particularly depression, will have to be ruled out as the driving factor behind a request for physician-assisted suicide. Much controversy rages over the ethics of this gatekeeping function (80).

The ethical and legal issues surrounding the treatment and management of psychiatric patients are challenging and complex. The legally informed psychiatrist is in a stronger position to provide good clinical care to the patient within the burgeoning regulation of psychiatry by the courts and through governmental legislation. CME people are still figuring out the correct answer to that question and I think that this will be the end of it.

Dr. Simon has no financial affiliations with commercial organizations that may have direct or indirect interest in this CME program.