Legal Regulation of Psychiatry – Special Duties
The chart belongs to the doctor (or hospital) but the patient has a right to the health care information contained in it. The psychiatric chart contains progress notes, but psychotherapy notes may be kept separate. A release of information should be in writing, but an oral release is adequate for some purposes. A release should specify “who, what, how long” and “for one transmittal only." The release should be made a part of the permanent record. When responding to a release, be austere. Provide only what is asked for and volunteer no fantasies, psychodynamic formulations or high-risk jargon. Inform the patient about what is to be disclosed and the possible consequences of the disclosure. Some releases, however, do not require consent: (1) emergency disclosures; (2) consent given by proper person acting in an incompetent patient's best interests; (3) when necessary to effect hospitalization; (4) pursuant to lawful reporting statutes (child abuse, unsafe driver, Tarasoff); and (5) for clinical supervision. Caveat: group therapy participants may not be similarly bound to keep secrets. Be circumspect when speaking to family, a referring colleague, and the patient's lawyer. Be careful whenever charting third party confidences.
Prescribing Requirements
There must be a good faith prior exam, medical necessity, informed consent, and proper monitoring.
Covering doctor’s right to prescribe without good faith exam (B&P Code d2242)
- 72 hours without chart
- One prescribing interval if review chart
Excessive prescribing is misdemeanor. Therefore, a death that results from over prescribing is manslaughter.
Psychiatric Consultation in the Emergency Room
Is the patient psychiatric? Does the patient need to be hospitalized? Can the patient be hospitalized involuntarily? Can the patient be maintained safely in the community until the outpatient follow-up appointment? Always assess for suicide, violence, cognitive deficit/delirium, and decisional competence. A risk determined requires a plan. A plan requires action. Document a decision to use a lesser intervention more thoroughly than a decision to use a greater intervention. Your decision must be timely made. Courts recognize the constraints of the emergency examination, requiring only reasonable efforts under the circumstances while recognizing decisions cannot be put off until all information is available. “Think out loud” in the record. Watch out for borderline patients, anger-dominated counter-transference tantrums, and constructive abandonment.
Involuntary Treatment
Civil commitment lies across the conflict-strewn interface of law and psychiatry. It is a tool of government designed to provide psychiatric detention and coercive treatment. It is limited by statute and surveilled by the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution. A person cannot be detained or forcibly treated for the mere status of being mentally ill. A mentally ill person can be detained if she poses a threat of serious, imminent harm to herself (Danger to Self) or others (Danger to Others) or is gravely disability (Grave Disability). The power of civil commitment emerges from two societal doctrines: parens patriae and police power. Government is deemed to be the "parent of last resort" (parens patriae) with the responsibility to protect dependent "infants and lunatics." It is also given the power to act against those who pose a threat of harm to the community at large (police power). The Supreme Court of Massachusetts said in 1845 (Matter of Josiah Oaks), said "the right to restrain an insane person of his liberty is found in that great law of humanity, which makes it necessary to confine those ... dangerous to themselves or others...and the necessity which creates the law, creates the limitation of the law...restraint can continue as long as the necessity continues."
Reporting Statutes
Sex Between Therapist and Patient (B&P 726)
Permissive Reporting of HIV to Exposed Partner (H&S 121015)
Business and Professions Code Sec. 805 Reports
Title 42 USC Federal Physician Reporting
Civil Code Section 43.92.
(a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient's threatened violent behavior or failing to predict and warn of and protect from a patient's violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.
(b) (b) If there is a duty to warn and protect under the limited circumstances specified above, the duty shall be discharged by the psychotherapist making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.