Informed consent flows from the principle that competent individuals have the right to make their own treatment decisions.16 Informed consent respects patient autonomy, optimizes the doctor-patient relationship, and reduces liability by eliminating surprises from the care. Proper informed consent involves discussions with the patient on the condition and proposed treatment, including discussion of the risks and benefits of the proposed intervention as well as reasonable alternatives.17 This requires a focus not only on what a reasonable physician would say18 and what a reasonable patient would want to know19 but also on the quality of physician- patient communication.
Physicians are not obliged to review all possible outcomes, only reasonably foreseeable outcomes. The burden to inform is higher, however, in situations where a poorly informed refusal would place the patient at substantial risk. The psychiatrist should be aware that liability may attach to outcomes that were not due to negligence but were foreseeable, yet not covered by the informed consent process.20 In practice, physicians often use a consent form that patients are asked to sign in lieu of substantive discussion. Doing so places more emphasis on the disclosure of facts than on the patient's understanding of those facts. Informed decision making is best achieved when, through a dialogue with his physician, an individual receives enough information to meaningfully weigh the risks and benefits of treatment and then uses this understanding to make treatment decisions. Documentation of the consent discussion is critical for liability protection.
Optimal informed consent procedures involve a dynamic process of informing and updating, rather than a singular event at the initiation of a treatment.21,22 When "consenting" occurs throughout treatment, the patient has the opportunity to reaffirm or withdraw consent at any point, based on information received or new alternatives identified. The patient also shares the therapeutic uncertainty and accepts an "owner's interest" in the outcome.
Since symptoms of illness often fluctuate, treatment often occurs in phases. This suggests informed consent ought to be approached in phases as well. Phase-specific informed consent involves consideration of the patient's capacity to comprehend increasingly sophisticated information, new information a patient would want to know at various points during treatment and recovery, and how to most effectively present this information. This may be summarized by the following inquiry:
- Has the mental status of my patient changed?
- Would my patient wish to alter the treatment decision based on better understanding or more information?
In addition to being a good risk management strategy, the informed consent doctrine is essential to ethical medical care. The goal and emphasis must not be simply to obtain consent but to engage patients in an ongoing dialogue that provides information and ensures voluntary compliance with recommended treatments. This is not achieved by a one-time consent event. The psychiatrist's liability is reduced by the implementation and documentation of consent procedures that reinform and reconsent throughout treatment, accompanied by adequate documentation.
Duty to protect
One of the most complicated duties of the psychiatrist is the duty to protect third parties from a potentially harmful patient when the patient has expressed a viable threat to that third party. Before 1970, this was not a legal issue for psychiatrists. However, with the Tarasoff ruling in 1976, a responsibility was confirmed for therapists, and subsequently all psychiatrists, to protect certain individuals who were not their patients. Many jurisdictions beyond California have adopted this ruling, holding psychiatrists to a similar standard.23,24 The difficulty for psychiatrists lies in understanding exactly whichthird parties need to be protected and howthe psychiatrist is supposed to protect them. All psychiatrists practicing in a Tarasoff jurisdiction should know what that means for their clinical behavior.
A common misunderstanding is that the Tarasoff duty, as defined in California and other jurisdictions, is a duty to warn, rather than a duty to protect. However, the duty is not to warn; it is a duty to protect. This misunderstanding is not limited to psychiatrists.25 As recently as 2001, a California court incorrectly defined it as a duty to warn in its jury instructions prompting a petition to amend the California Civil Code to more explicitly define a duty to protect.26 The California Supreme Court27 had, in fact, held:
The discharge of this duty may require the therapist to take . . . various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.
Warning an intended victim is only one of several ways to protect the person at risk. Informing the police is another. Sometimes these are the only actions available. However, neither of these actions may be sufficient to protect the psychiatrist against suit if negligent treatment rather than failure to warn is held to be the proximate cause of injury to the third party. To determine this, the court will ask if the treatment should have been changed or if the patient should have been seen more frequently or hospitalized. Some clinicians remain concerned about warning third parties (even when legally required) because of confidentiality issues, potential reactions from the person being warned, and so forth. These concerns can be managed clinically. It must be kept in mind that the Tarasoff court clearly stated, "In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal."
Because jurisdictions in the United States are different, the first step is to find out whether your jurisdiction has a duty to protect third parties requirement and whether there are guidelines for informing psychiatrists how that duty is to be discharged. When faced with a situation in which a patient has expressed a viable threat to harm an identifiable victim, the psychiatrist must take the following steps to ensure the duty to protect is performed:
- Assess the threat for imminence and likelihood.
- If the threat is determined to be imminent and likely, establish a method of protecting the victim.
- Execute the method of protection.
- Follow up with the method to ensure it was effective.
There are several sources that are helpful for guidance on each of these steps.28-30 In performing a stepwise assessment and execution of a method of protection, psychiatrists will be able to treat their patients effectively, protect the third parties as mandated by law, and minimize risk of liability.
Not all negligent acts cause injuries and not all injuries result in lawsuits. However, many untoward outcomes of treatment, both medical and legal, are avoidable by focusing on evidence-based care and applying the principles outlined in this article. We accomplish this by practicing psychiatric medicine with compassion and competence, with an eye on evolving legal and medical standards. Although society has delegated health care delivery to us, it has delegated the resolution of disputes over the results of health care delivery to the law.