State and federal legislation and guidelines are also used to determine standard of care, not so much for diagnosis as for treatment. State involuntary commitment laws, for instance, determine how long a patient may be held in a hospital against his will before some type of hearing must take place to decide how long the patient will continue to be held. Involuntary length of stay is a legal issue in this case, not to be determined solely by the psychiatrist. For extended involuntary stay, psychiatric input is usually solicited. In most states, however, there are also statutory limitations on extended involuntary length of stay. An example is the Pennsylvania Mental Health Procedures Act, which mandates an initial judicial hearing within 120 hours of an involuntary hospitalization; it allows an extended stay of 20 days if the patient is adjudicated to be in need of additional treatment.6
Another mechanism by which the state influences the treatment rendered by physicians is the various practice guidelines issued by state licensing boards. An example is the Federation of State Medical Boards’ Model Policy for the Use of Controlled Substances for the Treatment of Pain, which has been adopted by individual state medical licensing boards across the United States. Initially published in 1998 and updated in 2004, these guidelines describe the appropriate physician evaluation, treatment, patient informed consent, agreement to treatment, when to obtain consultation, what needs to be contained in the medical records, and compliance with controlled substance laws and regulations.7
Clearly, any psychiatrist involved in the treatment of pain with opioid medications needs to be familiar with these guidelines, which inform the standard of care for patients with pain diagnoses. It is important to know specific state laws/regulations and/or state licensing board requirements because the Model Policy for the Use of Controlled Substances for the Treatment of Pain may be adopted with changes by state medical boards or as laws or regulations rather than just as guidelines.
Clinical practice guidelines authored by expert workgroups in recognized medical organizations such as the APA are also used to clarify questions of standard of care.8 Most practice guidelines contain the caveat that each patient’s care must be tailored to his unique needs, which requires the physician’s specific clinical judgment. Nevertheless, the very existence of such guidelines—which are the consensus recommendations of experienced practitioners—indicates that there are universal physician practices that should be followed for particular diagnostic entities.
Although evidence of a third party may be excluded as hearsay in the courtroom, clinical practice guidelines are usually admitted under the learned treatise exception to the hearsay rule.2 A treating psychiatrist would want to be familiar with the practice guidelines regarding diagnosis. If a treating psychiatrist wishes to diverge from clinical practice guideline recommendations, then it is important to document the specifics of how and why a particular treatment was chosen. It is also helpful to include in the patient’s medical record a reference to an authoritative source as the basis for the alternative treatment.
Policies and procedures
Hospital policy and procedures are also used as part of the determination of standard of care. As an example, the hospital where I admitted inpatients had a standard practice in which every newly admitted psychiatric patient had to be checked at least every 15 minutes. Of course the option to tighten those checks or give one-on-one supervision also existed. If a physician chose to admit a psychiatric patient and ordered less frequent checks, the specific reason had to be written in the chart. Generally, even if the danger to self or others was low, most psychiatrists admitted patients with the standard checks, and then advanced them as needed with input from the nursing staff.
Deviation from standard policies and procedures increases the physician’s risk of liability; one can expect increased scrutiny of such practices. An article in The Philadelphia Inquirer noted that a local hospital was under tight government scrutiny for inadequate checks of psychiatric patients by staff in its crisis center after a patient, who was in isolation and who was supposed to have been viewed on a video monitor, committed suicide.2 Supervising government agencies will look at a facility’s policies and procedures for the treatment of acutely suicidal patients, specifically regarding the level and type of supervision that is appropriate to keep such a patient safe.
While managed care policy and procedures are influential on psychiatric practice, caution must be used when interpreting them as standard of care. Policies and procedures that involve managed care and outpatient clinics may be primarily designed for cost-containment because mental health resources are limited.9
The psychiatrist needs to know how policies and procedures are derived for the organizations where they are employed. An example from my own experience at a not-for-profit psychiatric clinic is the time allotted for the initial psychiatric evaluation: to maximize the number of patients seen by the psychiatrists, the standard at that clinic was 30 minutes. The clinic’s business administrator (someone with no medical or nursing background) had made that decision, and the clinicians were following this rule. If a psychiatrist works for an organization that has policies and procedures that are below the standard of care, the psychiatrist is obligated to discuss them with the clinical and business administrators of the organization. Documentation of such discussions may be useful as well.
There are a number of determinants of standard of care, which include court opinions, hospital policies and procedures, psychiatric literature, and state and federal guidelines. The standard of care concept is an important constituent of psychiatric malpractice because it is used to determine whether a physician has been derelict or has deviated from his duty to the patient. Practicing psychiatrists must be familiar with the constituents of standard of care to improve patient treatment and to decrease the risk of malpractice litigation.