Risk Management for the Supervising Psychiatrist

The need for expert supervision of residents and other health professionals by psychiatrists is growing as a result of the increased demand for accountability by third parties and the expanded number of clinical specialists seeking supervision in psychiatry. The Accreditation Council for Graduate Medical Education has placed professional competency of graduating residents in the national spotlight, and insurers are increasingly scrutinizing patient care provided by trainees and oversight provided by their supervisors.

The details of a training program at Massachusetts General Hospital (MGH) for psychotherapy supervisors have recently been published.¹ Despite the necessity for extensive supervision of mental health practitioners, there have been cases of supervisor liability for failure to provide supervision that met the standards of care of specific states. However, there have been relatively few lawsuits arising from providing inadequate supervision.²

Supervision by full and part-time faculty in psychiatry is often voluntary. Most supervisors find inherent satisfaction in this activity, yet many are unaware of their legal vulnerability.^3,4 Because of their role in training young professionals, supervisors must always walk a fine line between allowing trainees to make decisions, trusting their clinical judgment, and providing enough structure, guidance, and feedback to prevent harm to patients and avoid malpractice.⁵ Here we outline potential pitfalls and strategies to prevent them.

Standards of supervisory care

Licensing statutes and case law provide some guidelines on how courts may define standards of care in supervision, but there is no consensus or defined standard of care in psychotherapy supervision.⁶ While no explicit standard has been uniformly adopted by all 50 states, the 5 generally accepted ethical principles of supervision endorsed by most men-tal health professional boards include the following⁷:

• Competence of supervisors

• Confidentiality

• Informed consent

• Avoidance of dual relationships

• Monitoring the welfare of patient and trainee

As in all medical training, supervisors are ultimately responsible for the care of the patient. Moreover, supervisors may not only be held directly liable, but they may also incur vicarious liability for the negligent treatment of the patients they oversee. (Direct liability results from a supervisor’s recommendations, while vicarious liability is incurred when a patient’s injuries are the result of actions taken by the trainee regardless of whether those actions were sanctioned by the supervisor.⁸) The supervisor is held accountable because of the agency relationship that exists between the supervisor and the trainee. The agency relationship, defined by contract law, is the legal basis for injured parties to seek compensation for damages by the party who is in the best position to provide compensation. Supervisors have a legal responsibility for the patient’s care because the trainee is acting as the supervisor’s authorized representative in delivering care.⁹

The nature of vicarious liability stipulates that the actual degree of involvement of the supervisor in the case is not considered relevant in legal matters, nor is the status of the supervisor as either a paid faculty member or a volunteer with an academic appointment.^3,4 Supervisors are held legally responsible because the trainee is the authorized representative, or agent, of the training program that selected the trainee and the supervisor works for the training program. Each of the 50 states has its own regulations, and there are at least as many different statutory bases for standards of care in supervision. Several patterns have emerged to highlight legal pitfalls in supervision.

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