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Once the potential for violent behavior has been identified in a patient, how should it be dealt with? What steps can the clinician take to ensure the physical and legal safety of themselves and their patients? Furthermore, what are the clinician's legal and ethical responsibilities if the patient does commit a violence act?
(This is the second of a two-part article discussing dangerousness. Part 1 [June Psychiatric Times, p74] discussed assessment and diagnosis of potential violence and danger in clinical psychiatric practice--Ed.)
This article will review treatment and legal considerations in dealing with patients who have been assessed and diagnosed as having a potential for violence and danger.
It is important to share your evaluation with the patient and insist on full discussion of the risk of dangerous behavior. For example, I ask, "What is your estimate of the risk that you will do violent acts to others or to yourself in the next 24 hours; in the next week; in the next few months?"
Frequently, patients answer, "You're the doctor. You're supposed to know that. How would I know?"
To which I reply, "Yes, but you're the one with the impulses to hurt or kill others or yourself. You need to get into the game and help us estimate this risk together."
By working on this issue in an interactive manner, the patient and I usually can come up with a reasonable estimate of the degree of risk of actual disastrous behavior, distinct from feelings or fantasy. I then restate our joint estimate and ask the patient if that is their understanding and whether my formulation of our joint conclusion needs any revision. The time frame is important here. Doctors are better at assessing the risk for violent behavior in the short-term than in the long-term. The patient is also likely to have a better sense of the likelihood for such conduct in the near future than in the long-term.
Note the difference between this collaborative process and obtaining a contract from the patient promising that they will not kill themselves or others--the unfortunate process some clinicians call "contracting for safety." Some clinicians think this process is reasonable; they believe that it provides medicolegal protection for them in the event the patient does something violent in violation of the contract.
Nothing, I believe, is much further from the truth. If the patient goes on to kill or seriously harm others or self after endorsing one of these contracts, the following is likely: The physician will have documented that they recognized the risk, but did nothing about it other than try to transfer the blame entirely to the patient. The clinician who encounters such a risk has a duty to perform an adequate suicide and/or homicide risk assessment, evaluate the presence or absence of danger, and then structure an adequate treatment/management plan or take other appropriate measures. That is the acceptable standard of practice. Not following this standard exposes the doctor to severe malpractice risk. Following standard care protects the doctor, the patient and the community.
Imagine the following series of questions from the plaintiff's attorney, in the subsequent lawsuit against the doctor:
"So, Doctor, you recognized your patient, Mr. X, had a real potential for violent behavior, correct? Is that not why you had him sign this so-called 'contract for safety?' Your patient had some mental disorder, did he not, Doctor? Well, then, how did you ascertain that he had the full mental capacity to enter into this so-called contract? Did you perform an examination to determine whether or not he had the competence to enter into this contract? Did you obtain his informed consent?
"And, Doctor, how did you acquit your professional responsibility in this situation? You diagnosed danger. What is the doctor supposed to do in such a situation? Did you do it? What is the standard of acceptable practice for doctors in such situations in your state? Do you know? Did you follow those requirements?"
Getting a patient to contract for safety and doing little else is a terrible example of what some regard as "defensive medicine." The only form of defensive medicine of any value is good clinical medicine, informed by common sense and sound knowledge, but with flexible use of the legal and ethical principles involved. Simon (2001) wrote:
These contracts have no legal force Contracts against suicide may be of therapeutic value when used to affirm the therapeutic alliance, but their limitations should be understood by the therapist. Finally, contracts must never be used as a substitute for the adequate assessment of suicide risk.
Bolstering Impulse Control and Ego Strength
A vivid example of this important treatment weapon is to be found in the fall 2002 issue of The Academy Forum. Ingram (2002) discussed clinical/ethical burdens of confidentiality: "When must confidentiality be breached? If we judge that a patient is dangerous to self or others, we need to place the value of life above the patient's right to privacy."
The author goes on to describe a very moving clinical situation in intensive therapy in which his patient was trying to cope with her feelings as her husband became abusive, nasty and violent while deteriorating from a brain tumor. She developed strong impulses with specific ideas of killing her husband:
She said she could not bear to see him suffer, and she could not bear the suffering he put her through. She said she knew I cared greatly about confidentiality and that she didn't need to worry that I would intervene. She was aware of duty-to-warn statutes and believed I would have nothing to do with them ... Decisively, unequivocally, I told her that she was mistaken. Regardless of what the statutes might say, I would not stand by if she represented a threat to her husband.
Ingram drew on the strength of the strongly positive transference as he structured a plan: "Terrified of her homicidal rage, which I regarded as arising as a vindictive solution to a profound and continuing disruption of primitive attachment needs, she did as I directed." His orders included hiring full-time help, no longer sleeping in the same bedroom as her husband and seeking residential placement for her husband. Ingram insisted on an explicit contract:
One, you will not kill him [your husband] or neglect him. Two, if he dies and you stop coming, I will phone the district attorney. Three, if you kill him or allow him to die, I will insist that you turn yourself in, or I will turn you in. Four, you will call me if the feeling of hurting him becomes very strong in you.
These measures succeeded: "She was relieved to have such explicit direction and a clear sense of consequence. She engaged both her son and daughter to help and by that same night had round-the-clock help."
Sometimes in consultation, or early in therapy, a strong limit-setting approach works to stabilize patients and prevent violent acting-out. When I see a couple where physical abuse is happening, I may say, "That behavior must stop, now. I can see you for treatment, but only if you stop that right now. You can put your feelings into words, punch a bag or whatever, but you may not strike your partner again. If that keeps happening, I will not see you but will recommend you be jailed or hospitalized." On several occasions, this approach has produced a workable treatment situation, free of intolerable violence.
Confidentiality should be respected and strictly adhered to, except where there is an ongoing, present danger of violence to self or others. If someone tells me of a violent crime, including murder, committed years ago, I will preserve that person's confidence. The psychiatrist is not a police officer. Law enforcement personnel have an important role to play in society but ours is a different one.
The same is true of accounts given to me of long-ago child abuse. I do not report these to the police. There is much misunderstanding, I believe, of the child-abuse mandatory reporting laws. These were designed to assist children who are presently endangered by abusive adults. These laws were not designed to deal with long-ago events, either real or imagined. This misunderstanding was one of the sources of the false-memory syndrome misdirection in psychiatry, which did so much damage to families, patients and the mental health care professions in recent years. Consider this example:
A psychiatrist asked me to consult on a 30-year-old male inpatient who recounted memories of his father having killed several children and buried them in the adjacent town 20 years ago. I suggested that the patient pinpoint the location as best he could, so that we could have the police try to dig up the bodies. I assured him that the crime would be taken seriously by county authorities, even after so long an interval, and justice would be done. My suggestion was not what he wanted. The patient wanted me to validate his memories by believing them. I told him that murder was a very serious allegation, and it was important to discover the truth. He seemed to lose interest in the matter, or at least in my approach to it.
My recommendation in these situations of danger is that seasoned psychiatrists combine their clinical skill and knowledge with an adequate understanding of the relevant legal and ethical principles and then craft a responsible, creative approach to the problem at hand.
Or another example: A nurse on the psychiatric ward of the general hospital told me she feared that if she did not report a particular patient for child abuse to the authorities, she might lose her nursing license. I picked up the chart on this patient, whose name was currently in the newspapers in connection with charges of several alleged pedophilic acts. I pointed to the several business cards affixed to this patient's chart: the defense attorney, the prosecutor, the child protective services worker and the lead police detective. I pointed that the problem had been very well-reported already, and that the reporting duty in our state fell to the chief executive officer of the hospital, not her. I further suggested she talk with the head nurse or hospital risk manager to relieve any lingering anxiety.
Voluntary or Involuntary Hospitalization
All practicing clinicians have occasion to recommend hospitalization to a patient during the initial consultation or treatment. All psychiatrists need to know the legal procedures in their state, as they do vary. For example, in Maryland, a petition for emergency psychiatric evaluation may be initiated by almost any citizen, where there is an imminent danger to self or others. If that petition is executed by a physician or a police officer above a certain rank, it does not have to be reviewed by a judge for probable cause. Such petitions are handled speedily, and the police or sheriff will take the person to the nearest hospital for psychiatric examination.
The consulting or treating doctor, of course, can usually influence the patient, with or without the support of relatives, to go for voluntary hospitalization. Doctors should manage patient crises involving out-of-control aggressive impulses, whether directed to others or self. Various methods of abandoning, or nearly abandoning, such patients should be avoided. These may include prolonged unavailability or apparent indifference to emergency situations. This may, in my opinion, also include putting a recording on one's phone that says, "If you have an emergency, go to the emergency room of the nearest hospital, where someone will help you."
I believe the standard of care requires handling such crises in a professionally competent manner. I discuss what to do in event of emergency with patients I know are prone to decompensation. This would usually involve having them call me or the covering physician. In the event they cannot reach me soon enough, they should go to the emergency room of the hospital where I regularly see patients, and where I know they will get good care and I will be contacted.
Tarasoff and the Duty toWarn Third Partides
The Tarasoff case in California created a legal duty for the psychotherapist to take action to warn or protect the known victim or victims of aggression of a patient in treatment (Tarasoff v Regents of University of California, 1976). In its decision, the California Supreme Court said, "The protective privilege ends where the public peril begins."
The holding was unwelcome in the mental health care profession, with many feeling it would unduly compromise confidentiality and interfere with treatment. Appelbaum et al. (1989) wrote, "The ill-defined nature of the duty to protect has led to great confusion about clinicians' obligations."
But more than 25 years later, I believe that, in general, such a chilling effect or detrimental impact upon therapy has not occurred. To alleviate such concerns, a model statute was drawn up by the Council on Psychiatry and Law of the American Psychiatric Association in 1987. This has been quite useful to district branches in guiding post-Tarasoff legislative enactments in the various states. In the early years after Tarasoff, many states either did not adopt the doctrine or their courts enunciated outright hostility to the Tarasoff doctrine: that is, they rejected the idea that the therapist should breach patient confidences in order to warn or protect third parties. In recent years, however, the Tarasoff doctrine has spread rather widely.
While the APA model statute does create a duty to take action, it does so only under the condition that the patient has communicated to the doctor an explicit threat to kill or seriously injure a clearly identified or readily identifiable victim or victims, and "the physician fails to take such reasonable precautions to prevent the threatened harm as would be taken by a reasonably prudent physician under the same circumstances."
Such steps to be taken in Maryland law are: 1) Civil commitment; 2) "Formulate a diagnostic impression and establish and undertake a documented treatment plan calculated to eliminate the possibility the patient will carry out the threat"; or 3) Inform law enforcement and, if feasible, the victim. Immunity from civil liability is given to the physician who adheres to this plan of action.
The law uses the interesting concept of foreseeable. If our patient's risk of killing someone else, or themselves, is foreseeable, a legal duty is created for us to do something to try to prevent loss of life. If homicide or suicide is not foreseeable, we are not legally liable. As Simon (2001) explained, "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."
On reflection, I believe that what is now required of us is no more than what we should have done anyway in the rare scenario of a patient imparting a specific lethal threat, and that we are now granted legal immunity for doing what we should have done anyway.
We have reviewed the warning signs of actual danger in psychodynamic practice; the method of assessing dangerousness; and the appropriate steps to be taken in managing such risks. The clinician who is armed with such knowledge will practice with increased professional satisfaction and comfort.
References 1.Appelbaum PS, Zonana H, Bonnie R, Roth LH (1989), Statutory approaches to limiting psychiatrists' liability for their patients' violent acts. Am J Psychiatry 146(7):821-828 [see comments].
2.Ingram DH (2002), The burdens of confidentiality. The Academy Forum 46(2):2-5.
3.Simon RI (2001), Concise Guide to Psychiatry and Law for Clinicians, 3rd Ed. Washington, D.C.: American Psychiatric Publishing Inc.
4.Tarasoff v Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976).
6.Macbeth JE, Wheeler AM, Sither JW, Onek JN (1994), Legal and Risk Management Issues in the Practice of Psychiatry. Washington, D.C.: American Psychiatric Press Inc.
7.Meloy JR (2000), Violence Risk and Threat Assessment. San Diego: Specialized Training Services.
8.Pinard G-F, Pagani L, eds. (2001), Clinical Assessment of Dangerousness: Empirical Contributions. New York: Cambridge University Press.
9.Stone AA (1999), Psychiatry and the law. In: The Harvard Guide to Psychiatry, Nicholi AM, ed. Cambridge, Mass.: Harvard University Press.