Experts Share Advice on Reducing Risk When Treating Potentially Violent Patients

By Jacqueline M. Melonas, R.N., M.S., J.D.
Marynell Hinton, M.A.

The deadly shootout at the U.S. Capitol in July and the school massacres in the last 12 months or so have focused public attention on the issue of societal violence. Predictably, there has been a scramble to identify the cause of this problem, the implication being that there must be one or more factors at work that can be identified and fixed. The numerous causes proposed are familiar: mental illness, warped social values, access to guns, violence in the media, the decline of the family, poor parenting, poor schools, no religion, pure evil.

Unfortunately, knowledge about the epidemiology of violence is far from complete. Researchers have identified individual traits and situations that increase the likelihood of a person acting violently, but the ability to predict who, specifically, will become violent remains elusive.

Psychiatrists are in the forefront of working with violent and potentially violent individuals, and are called upon to balance the obligations of confidentiality and a "duty to warn." This article will discuss the balancing act that psychiatrists must perform, the particular twists present when dealing with minors, and risk management strategies to minimize potentialetadvice.rtf professional liability while providing good clinical care.

Despite the intensified stressors associated with caring for violent and potentially violent patients, the basic risk management issues remain the same-communication, documentation, and patient assessment that meet the accepted legal standard of care.

Confidentiality

An essential component of any therapeutic relationship is confidentiality. Knowing the boundaries of confidentiality can be especially important when working with violent and potentially violent patients, because, in such relationships, the ongoing act of balancing liability risks with ethical and legal obligations may have potentially devastating consequences. In general, communications between a psychiatrist and patient are confidential based on ethical considerations and the nature of the therapeutic relationship. The information is protected legally by a privilege, usually the physician-patient or psychiatrist-patient privilege. There are exceptions, but, in general, the privilege can be waived only by the patient or the patient's legal representative. State statutes and case law may define what information is considered confidential and what exceptions to the privilege exist.

Confidentiality involving communications with a minor is one of the more confusing and troubling areas of confidentiality rights. Rules governing disclosures about adults break down when applied to minors, because minors lack the same abilities and legal right to privacy as adults. For example, a frequent argument states that because parents must consent to treatment, and because parents are financially responsible for the care, they have the right to have complete information about their minor child.

Probably the best way to examine the confidentiality rights of minors is to divide them into two groups: very young minors and adolescents. With very young minors, the psychiatrist is probably justified in treating the parent as the decision maker. Many statutes explicitly state that parents have the right to otherwise confidential information about their minor child.

Usually, there is no clear distinction as to who is a very young minor and who is an adolescent. However, it seems reasonable that there be a connection between the authority to consent to treatment and the power to release one's medical information. Some states have made the connection explicit.

Unfortunately, according minors the right to confidentiality only when they are able to consent to treatment leaves a great deal of gray area. Even when an adolescent cannot consent to treatment, he or she may have a strong desire for and an expectation of confidentiality. Therefore, as a general rule, adolescents should be accorded the same confidentiality rights as adults unless there are strong countervailing interests. One such overwhelming interest may be the safety of individuals other than the patient.

Duty to Warn

As society has become increasingly aware of and threatened by violence, courts have become more critical of how the issue of violence is handled by psychiatrists. The belief that psychiatrists can or should be able to predict violent behavior is a basic assumption behind the liability associated with violent and potentially violent patients.

Until the mid-1970s, psychiatrists faced little risk of personal liability for violent acts committed by patients. Then, in 1976, the landmark case Tarasoff v. Regents of the University of California established the precedent for a "duty to warn." The Tarasoff court held that once a psychologist knows that a client poses a danger of violence to another, the psychologist has a duty to exercise reasonable care to protect the potential victim of that danger. Discharging the duty may mean warning the potential victim, notifying law enforcement, or taking whatever other reasonable steps are necessary. Failure to warn may result in the psychologist's being held liable for the client's actions.

Most state courts have adopted some variation of Tarasoff and have applied it to the conduct of psychiatrists and other mental health care professionals. Many courts have continued to limit the duty to warn to identified potential victims. Other courts have expanded the duty to include persons not identifiable in advance. The latter situation usually arises where the psychiatrist fails to restrain the patient, either by failing to postpone the patient's discharge or by failing to commit the patient.

Very few courts have rejected even a limited duty to warn. These courts have held that, absent a patient's consent, the psychiatrist is prohibited from disclosing confidential information for any reason. Nevertheless, psychiatrists in those states should not assume that a duty to warn will never be imposed.

As frequently happens in the law, court decisions are codified by state legislatures. Most states now have a statute addressing dangerous patients. These statutes allow a psychiatrist to breach confidentiality when a patient poses a danger to others. Some statutes are permissive, allowing the psychiatrist to choose whether or not to warn. Other statutes impose a duty, leaving the psychiatrist no discretion. In almost all cases, there is an accompanying immunity statute that protects the psychiatrist from liability as long as he or she acts in good faith.

Risk Management

Working with violent and potentially violent individuals can be a stressful and anxious experience. A sense of helplessness, fear for personal safety, and concern about being held liable for the consequences of destructive behavior can inhibit the development of an effective therapeutic relationship. Fortunately, there are some practical steps one can take in dealing with such individuals.

1. Deal candidly with patients regarding issues of confidentiality. Despite the obvious significance of confidentiality to the effectiveness of the psychiatrist-patient relationship, there are times when a psychiatrist is obligated to disclose confidential information. The patient should be made aware of these limits. Some practitioners may be concerned that such candidness might contribute to a defensive posture on the part of the patient, especially adolescents. Henry Gault, M.D., spokesperson for the American Academy of Child and Adolescent Psychiatry, disagreed: "From a therapeutic point of view it gives the youth a very powerful message. It's saying 'I'm on the side of health and safety and protecting you.' "



2. Be alert for signs of potential violence. When interviewing or treating patients, perform appropriate assessments. Inquire about past antisocial or violent acts, access to weapons, violence in the home, homicidal ideation, and so on.

   "The best risk management is to have a high level of suspicion for children who talk about violence and who write about violence either in poetry or diaries or express it to other peers and adults," said Ellen Fischbein, M.D., a child and adolescent psychiatrist in Connecticut and a member of the Board of Directors of Psychiatrists' Purchasing Group.

   In addition, said Gault, "[Those] who do not typically deal with children or adolescents may have a tendency to say that this is just adolescent talk when they are seeing an 11- or 12-year-old. Those of us who deal with kids all the time know that you have to take what they say seriously regardless of their age. Young kids do commit suicide, and, as we've seen, young kids commit homicide."




3. Engage in careful decision making. As with any patient, assure that decision making about treatment, hospitalization, discharge, passes, and so on, is thorough and appropriate. Make attempts to obtain past records so that you will have full information. Document all attempts to obtain records. Also document a patient's refusal to consent to the release of other records or to contacting prior or other treaters. If a patient refuses to allow you access to information, you should seriously consider whether you can work therapeutically with the patient. Where significant doubt exists about treatment decisions, consult with a colleague.



4. Be willing to commit if necessary. Many psychiatrists view civil commitment as a procedure to be used only in the most extreme cases, if at all. The failure to commit a patient who subsequently becomes violent may lead to the psychiatrist's being held liable for injuries caused by the patient. Know the standards and procedures for civil commitment in your state. Document that you have considered the option of civil commitment and the clinical basis for rejecting or proceeding with that option. As with any treatment decisions, consult with a colleague if necessary.



5. Give warnings when appropriate. As discussed previously, most states require psychiatrists to warn identifiable potential victims when a realistic threat has been made. Know the standards and procedures related to the duty to warn in your state. If necessary, consult an attorney knowledgeable in this subject.

   When looking for such an attorney, there are several potential resources available. Contact the local bar association and the local medical association. They frequently have referral services. You may also contact APA's Legal Consultation Service, if you are a member of that particular plan.




6. Make sure that postdischarge treatment plans are being followed. Many times, hospitals and psychiatrists who treat hospitalized patients view their responsibility for a patient as ending when the patient is discharged. When dealing with a potentially violent individual, such an attitude is legally perilous. In particular, the discharge summary should fully address the issues of potential violence. Furthermore, the discharging hospital or psychiatrist should set up a mechanism whereby the outpatient facility or doctor notifies the hospital and psychiatrist if the patient does not follow through with the recommended outpatient treatment. If plans are not being followed, the hospital and psychiatrist should assess what options are indicated: Is it possible to rehospitalize the patient? Are warnings now indicated? Should the family be contacted? If there are no other options, should the police be notified?

   The follow-up psychiatrist also bears responsibility for seeing that discharge plans are followed. If you know that a recently discharged individual is scheduled to see you, keep track of whether the individual is complying. Document your attempts to get the individual to comply with the treatment plan. If a patient is not keeping appointments or taking prescribed medication, assess what options are indicated and take action based upon your evaluation of the patient's potential for violence.




7. Stress responsibility to patients and their families. Where appropriate, get family members involved so that they understand their obligations to deal with potential violence. The necessity of treatment, medications, a stable environment, and so on should be stressed. Especially when working with minors, you should be aware of what other entities are involved, for example schools, courts, and government agencies. It may be appropriate to involve them in treatment planning. They may also be useful sources of information about the patient.

   The appropriate people should be advised about what to do if the patient begins to destabilize. For example, sometimes teachers, classmates, a social worker, parents, or others who know or work with an individual who acts out violently will claim that there were signs of the impending violence. However, they often do not know how serious the signs are or what steps to take when they are aware of them. Be as clear as possible about when you should be contacted and when other interventions should be used. Also, establish plans for who may be contacted when you are not available.




8. Assure that documentation is accurate and complete. Record keeping has become an increasingly burdensome and often mechanical endeavor. Nonetheless, when dealing with a patient who presents signs of potential violence, careful and thoughtful record keeping is essential. Document all assessments, evaluations, and actions taken (and why) and those rejected (and why). Document instructions and information given to the patient and the family. Also note whether they agree with the treatment decisions, as well as noncompliance with treatment recommendations.



9. Be mindful of the safety of you and staff. Risking safety is a fact of working with violent and potentially violent patients, especially in an outpatient setting. There are, however, ways in which to reduce the risks. For example, see patients only during business hours, decide when it is appropriate to see patients in your office as opposed to in the local hospital emergency department, have procedures in place to deal with violent outbursts, and discuss your concerns and ideas with your officemates.

   As Marilyn Benoit, M.D., a Washington, D.C., psychiatrist explained, "If a parent calls and describes a child who has already hit a couple of adults in the house who are supposed to be authority figures and the child is on the phone cursing me out, I don't want to see that kid in my office. That is not good risk management."

   Document the steps you take to address safety concerns. If such documentation is inappropriate for patient records, consider incorporating the documentation into your office policies and procedures.




10. Reduce your risk of liability when providing education and consultation about violent behavior. Many schools are hiring psychiatrists to participate in workshops to educate teachers and child care workers about how to identify the signs of potential violence in their students. Psychiatrists are also being asked to teach students and teachers conflict-resolution techniques in an attempt to prevent violent situations from erupting. A psychiatrist in an educational and consultative role should make it clear that he or she is discussing the topic in general and is not giving advice that is relevant to a particular student or individual.

    Some schools are now requiring a letter from a psychiatrist before a student who has made violent threats or engaged in violent behavior may return to campus. If you are asked to write such a letter, it should be done only after a comprehensive evaluation of the student and his or her situation. Be cautious not to predict or guarantee the future actions of a student because such prediction is unreliable and you may be held responsible for the consequences of such predictions.




11. Stay informed about professional developments in the prevention and treatment of violent behavior. New interventions for the prevention and treatment of violent behavior in both children and adults are being proposed, researched, and recommended. The accepted legal standard of care will be influenced by the development of these new treatments and interventions. Psychiatrists are responsible for keeping up with advancing standards of care.

Jacqueline M. Melonas, R.N., M.S., J.D., is director of risk management of the APA-sponsored Professional Liability Insurance Program. Marynell Hinton, M.A., is risk management coordinator in the same program.