Legal Considerations in Emergency Psychiatry

Perhaps more than any other area of clinical practice, within psychiatry or across other specialties, emergency psychiatry stands in special relation to the law. Nearly every stage of emergency psychiatric assessment, decision making, and treatment is closely entwined with and dependent on legal rules and protections—from informed consent to involuntary treatment, rights of confidentiality balanced against duties to third parties, and more. This article provides a focused review of legal issues of particular relevance to emergency psychiatry.

Some of the questions regarding legal issues in psychiatric emergency services (PES) arise from federal statutes, regulations, or case law and apply consistently across the United States. Examples include Health Insurance Portability and Accountability Act regulations on protected health information, the Emergency Medical Treatment and Active Labor Act with regard to medical stabilization and transfer, and the Jaffee v Redmond decision establishing therapist-patient privilege. Other legal standards vary substantially by state or territory and arise from those specific legislatures and court systems such as involuntary commitment processes, duties to third-party standards, and extreme-risk protective orders. Because these laws can vary substantially across state and jurisdictional lines, it is incumbent upon any emergency psychiatrist to understand the appropriate local standards (1).

None of this is to say that the psychiatrist alone should interpret the complex and overlapping legal rules applying to emergency psychiatry. Rather, emergency psychiatry teams should cultivate collaborative relationships with hospital legal counsel. As much as emergency psychiatrists may need to rely on legal counsel to interpret laws, emergency psychiatrists must also educate and engage legal counsel on the specific context, goals, and challenges of emergency psychiatric work. An overly cautious legal advisor who anchors legal interpretation to the avoidance of all risk is substantially inferior to an attorney who works to find the elements of the law that support the clinical mission and to find ways to overcome potential legal obstacles to the clinical mission. This article is intended to provide a framework for emergency psychiatrists to use as they engage with their own legal counsel and is not intended to offer legal advice.

The Role of Informed Consent

When assessing a patient for an emergency psychiatric evaluation, a psychiatrist is expected to treat any urgent psychiatric symptoms, make a diagnosis or differential, rule out any medical issues contributing to the presentation, and ultimately make an appropriate disposition recommendation. Patients may or may not consent to such evaluation and treatment recommendations, and therein lies much of the complexity of emergency psychiatry. All of these steps require that the psychiatrist has the patient’s consent to do so or is legally authorized to do so with a nonconsenting patient; the former pathway involves the capacity for informed-consent decision making, and the latter involves state-level laws and procedures for involuntary treatment.

Informed-consent decision making is a cornerstone of contemporary medical ethics, and emergency psychiatry poses a unique challenge in PES, given the routine presentation of people with autonomy-disrupting illnesses. Informed consent is generally recognized to involve an interactional process wherein a provider educates a patient about their diagnosis, treatment recommendations, and potential outcomes in a way that is understood by the patient who, in turn, expresses a preference in a manner that is clear, consistent, rational, and free of coercion (2). The generally accepted standard is that the risks shared with the patient are what a reasonable patient would want to know, not what the psychiatrist feels is appropriate for them to know (3). States provide an array of pathways allowing for voluntary and involuntary evaluation, treatment, and admission of psychiatric patients. Psychiatric treatment within the Veterans Administration facilities will usually follow prevailing local state laws, whereas psychiatric treatment in Indigenous territories may fall under tribal law (4).

Involuntary civil commitment generally applies to people at risk of imminent and serious harm to themselves or others because of psychiatric illness. Availability and use of commitment laws for substance use disorders vary substantially across jurisdictions (5). Of note, at least two courts have agreed that the lack of an available inpatient bed does not reduce the rights of involuntarily committed patients: Boarded patients are still entitled to timely review of their involuntary status (6, 7). Additionally, failure to provide active treatment to psychiatric patients boarding for transfer has led to substantial penalties against at least two hospitals for violating the Emergency Medical Treatment and Active Labor Act (8).

Adults are entitled to make decisions about their health care if they are competent to do so. When a patient requests to leave PES and does not meet the criteria for a psychiatric hold, a physician must decide whether discharge of the patient is appropriate on the basis of capacity. Substance use and intoxication can complicate this decision.

The mere fact that a patient is intoxicated does not preclude their ability to make appropriate medical decisions. In Miller v Rhode Island Hospital, a hospital was sued for conducting an emergent surgical procedure on a conscious but intoxicated patient who had refused the intervention. The court held that medical competency was the relevant standard; that is, whether the patient is able to reasonably understand the medical condition and the nature of any proposed medical procedure, including the risks, benefits, and available alternatives (9). Failure to assess and appropriately document the patient’s capacity or lack thereof when involuntarily treating a patient may expose the emergency psychiatrist to liability.

Similarly, management of acute agitation may also create liability if the emergency psychiatrist fails to follow and document due consideration and adherence to pertinent laws and policies (10). A patient must be deemed incompetent and a danger to himself or someone else before his rights may be taken away and the patient placed in restraints and kept in the hospital against his wishes. If a patient does not want to stay but has not been deemed incapable of making this decision, the hospital and its staff can be held accountable for false imprisonment or other torts.

Effective Documentation as a Tool to Reduce Malpractice Risk

Medical malpractice is an ever-present concern, even though psychiatrists are at a relatively low risk for litigation (11). Recent reviews of malpractice risk relating to suicide and violence assessment in Focus remain applicable (12, 13). Clear communication of indications, recommendations, and risks (to wit, a good informed-consent dialogue, as discussed earlier) is a strong protection against malpractice litigation (14, 15). What follows is a brief review of critical concepts relevant to understanding malpractice litigation.

In the United States, the party alleging medical malpractice must generally prove four elements by a preponderance of the evidence in a civil court of law. Cases are usually brought by an injured party with standing to sue: commonly, an injured patient or, less commonly, a patient’s victim or the families or estate when the patient or victim is deceased. Negligence or malpractice claims occur in civil court and should not be confused with criminal charges or disciplinary actions through medical boards. The four elements of negligence are colloquially referred to as the four Ds of medical negligence.

First, there must have been a duty of the provider (the defendant) to the injured person (usually the patient). Second, the psychiatrist must have been derelict in that duty of care; to wit, they either did something that no reasonable psychiatrist would have done or failed to do something reasonable that similarly situated psychiatrists would have done. Said dereliction of duty must, in turn, be the direct cause of any damages suffered, which can be remedied through remuneration (16). There is also a proverbial fifth D—documentation, which is the clinician’s way of demonstrating that they applied reasonable medical judgment (17). The reasonableness and judgment applied by a psychiatrist may be compared with a recognized clinical standard of care from a professional organization—however, a reticence to interject themselves into the legal arena may explain the preference of many professional organizations to espousing “guidelines” and “best practices” rather than “standards of care.”

There are several ways to ensure that documentation adequately reflects clinical process. First, objective and concurrent documentation of mental status (especially judgment, insight, and lethality) is needed, both at the time of initial examination and, if it has improved appreciably during the course of care in PES, at the time of discharge. Second, stating that a patient is “clinically sober” is inadequate: Objective details are needed that describe both the patient’s sobriety and the basis for the physician’s impression that the patient has appropriate judgment. Finally, there should be documentation of the patient’s clinical capacity, including their ability to communicate a choice, their understanding of relevant information, their appreciation of the situation and its consequences, and their reason for making their choices (18).

Special Considerations in High-Risk Discharges

There are many cases in which psychiatric patients may be discharged from the emergency setting, despite having elevated risk. Inpatient psychiatric admission is a specific intervention and not a universal bromide: Some patients with chronically elevated risk of suicide or violence may not be appropriate for acute psychiatric hospitalization. Other individuals may appear at an acutely elevated risk of lethality but may not meet the legal criteria for an involuntary commitment. In these situations, clinicians should consider careful documentation, collaboration with patients’ supports, and communication with pertinent stakeholders.

When proceeding with a high-risk discharge, document the risk assessment and a review of the safety planning discussion. The risk assessment includes both static and dynamic risk factors for lethality and outlines interventions to bolster protective factors and to address modifiable risk factors. For example, if a patient presents with suicidal ideation, with thoughts to overdose on medication as well as a history of prior overdoses and access to medications, then clinicians should engage in discussions with the patient and their supports with regard to removing or securing medications and then document these discussions in the medical record. Safety planning can reduce the risk of suicidality and involves discussion of coping strategies; crisis triggers and warning signs; supports; resources; and counseling on lethal means removal and reduction, including access to firearms (19).

Some patients appear at a chronically elevated risk for lethality. Patients who have had recurrent inpatient admissions with a well-documented history of regression of coping skills while in the inpatient setting, iatrogenic trauma, and a maladaptive reliance on institutionalized settings may not benefit from repeated inpatient admissions. These individuals, although at chronically high risk of lethality, may have risks that outweigh potential benefits of repeated admissions. Starting the interview by establishing rapport and obtaining a social history, including a list of the people whom they identify as supports, can help in developing a robust safety plan later. Summarizing salient parts of the medical record in decision making can help support clinicians’ decision to potentially discharge such individuals, given that there is adequate discussion and effort in developing a safe discharge plan with close follow-up and strict return parameters.

Certain patients with chronically elevated suicide risk may worsen with admission, and such admission is contraindicated (20, 21). Careful documentation of clinical reasoning in such cases is critical, as these are complex cases that cannot be easily countenanced by some of the more reductionistic approaches to evaluating suicide risk as seen in universal screening (22 , 23).

It should be reiterated that the best practice is generally recognized to be safety planning, not contracting for safety (19). “Contracting for safety” lacks empirical support and may engender heightened legal scrutiny in the event of litigation (24, 25). Notably, as many as two-thirds of people who die by suicide denied having any suicidal thoughts when they had been seen recently by a health care professional; safety planning may be worth considering in all patients, not just those expressing suicide (26).

Patients who may present at a chronically high risk for violence because of their history of prior violence, hostile and external attributional styles, and other risk factors are not inherently struggling with a psychiatric disorder for which it would be clinically appropriate to admit them. In these cases, clinicians must fulfill any duties to third parties that are evident (discussed later in “Duties to Third Parties”). In the event of a patient appearing at high risk of homicide, though without a psychiatric illness for which inpatient admission would be indicated, providers can review their conceptualization of the patient’s behaviors and encourage concerned parties to pursue legal action to reduce their risk.

With high-risk discharges, whether for suicidality or homicidality, it can be helpful to obtain a second opinion, preferably from another emergency psychiatrist. When providing a second opinion, independently review the chart, evaluate the patient, and document this consultation in the medical record.

Other patients may appear to be at high risk, given contingent lethality threats if discharged. In these cases, Bundy et al. (27) proposed the following framework: summarizing the clinical scenario; documenting the aforementioned elements regarding current risk and steps to modify risk; and providing both a clear rationale for why inpatient admission is not clinically appropriate and a summary of the discussion with the patient, including their understanding.

There are times when patients may appear at high risk of lethality such that inpatient admission is indicated but they are unwilling to be admitted and do not meet criteria for involuntary commitment. In these cases, obtaining collateral and involving supports (e.g., family and friends or outpatient providers) can help clinicians better address the barriers that patients experience to inpatient admission, such as care for dependents or a pet or needing an excuse from work. Using motivational interviewing techniques could be helpful in eliciting concerns that patients may have with regard to admission and collaborating on solutions (28). If such a patient continues to decline inpatient admission, clinicians should engage them in a safety planning discussion, involve others who may have commitment grounds, facilitate close follow-up, provide strict return parameters to the patient and their supports, and document their efforts in the medical review. Having a phone-based intervention postdischarge from the emergency setting could be helpful in reducing the risk of suicide (29). When proceeding with a high-risk discharge, providers could consider corresponding with key stakeholders, including family members, to alert them about the potential of repeated presentation with clinical background and treatment recommendations ( 30). Such communication can be beneficial for clinical leadership in emergency, crisis, or inpatient settings as well as risk management, patient safety, and legal.

Confidentiality and Record Access

Psychiatric treatment records and communications to mental health professionals are presumed to be confidential and may not be disclosed without the permission of the patient or decision maker, or in accordance with certain recognized exceptions such as reporting child abuse, elder abuse, or certain crimes such as gunshot wounds. Many of these standards reflect a complex interplay of state and federal standards and have been well addressed in recent issues of Focus (31).

Notably, the 21st Century Cures Act, primarily focused on promoting the sharing of health care information between medical professionals, also substantially expands patient access to their own medical records (32). Although there are benefits to patients having access to their own medical records, the PES may be a “special use scenario,” in which blocking needs to be considered because of potential risk to providers named in the record or to collateral informants who provide adverse information about a patient. This is especially concerning in an era when psychiatrists may be at elevated risk of harassment and stalking by patients (33).

Duties to Third Parties

While the Tarasoff case is the most notorious case regarding duty to a third party, it only ever applied to California—and, even then, was subsequently revised by legislation and further court rulings (34). In the archetypal fact pattern, a person is injured by a patient when a clinician knew in advance and with some specificity about the patient’s intent. Every state has articulated its own particular interpretation of the laws—duties to warn or protect with various thresholds to act and pathways to intervene. Although not definitive, The National Conference of State Legislatures maintains a reasonably accurate and up-to-date listing of duties by state, including the relevant case or statutory citation (35). It should be noted that, although some states allow or require notification of law enforcement, responses by law enforcement vary substantially (36). In fact, in Castle Rock v Gonzales, the Supreme Court ruled that law enforcement had no duty to protect people from intentional violence, even when notified of such risks (37). It is hard to understand how a duty can be discharged by informing individuals who, themselves, have no duty to act. When statutes are unclear, the benefits to the patient and public safety both need to be considered (38 ).

Conclusions

Emergency psychiatry is an important and exciting subspecialty requiring exacting clinical decision making, thorough awareness of relevant laws, and thoughtful documentation of care. Optimal clinical care goes far beyond what can be described by applicable laws: for instance, the art of engagement and de-escalation, communications with families and other interested parties, and contemplations of differential diagnosis. Nonetheless, in emergency psychiatry, legal standards for commitment, confidentiality, and malpractice play a critical role in structuring clinical care and decision making.