Legal and Ethical Issues in Emergency Psychiatry

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SPECIAL REPORT: EMERGENCY PSYCHIATRY

Emergency psychiatry faces several unique legal and ethical issues given the high stakes of assessing acute lethality, determining disposition often with incomplete information, and interfacing with external stakeholders. The Health Insurance Portability and Accountability Act (HIPAA) often causes legal concerns for clinicians when deciding whether confidentiality can be breached over a patient’s objections. Working with pediatric patients old enough to consent to their own mental health treatment and who ask for privacy adds another layer of complexity. Ethical issues in emergency psychiatry include thoughtful consideration of autonomy, beneficence, and nonmaleficence as they pertain to clinical decision-making, high-risk discharges, initiation of treatment in the emergency setting, and use of restraint and/or seclusion. This article will review key practice points for each of these considerations.

Balancing Patient Privacy and Collateral

Despite HIPAA’s privacy exceptions, the decision to contact sources of collateral information over a patient’s objection can be a difficult one. Providers may hesitate even to accept information from others. After mass shootings in Aurora, Colorado, and Newtown, Connecticut, in 2012, the Office of Civil Rights released a letter addressed to “our nation’s health care providers” reminding them of privacy exceptions.¹ The letter outlined that clinicians are “presumed to be acting in good faith” if they base their opinion on either direct knowledge or a “credible report from a family member of the patient or other person” and can release information to individuals (eg, family) or entities (eg, law enforcement) who can help mitigate danger posed by the patient to themselves or others.¹ If someone calls with a concern, clinicians can accept information and integrate it into the assessment without releasing information. Disclosures should be limited to the minimum needed to mitigate risk.

Patients may not express suicidal or violent intent on interview for a variety of reasons. In fact, Shea wrote in 2009 that “real suicidal intent” equals “stated intent + reflected intent + withheld intent.”² A careful interview is essential, but the last 2 elements may hold the key to an accurate assessment. In 2021, Edwards et al acknowledged the critical importance of collateral information regarding withheld intent in a review of the essential role of natural supports in suicide prevention.³ Collateral information from family or other sources can provide missing puzzle pieces of reflected and withheld intent, allowing for more effective interventions.

Pediatric Confidentiality Considerations

Clinicians face an ethical challenge when safety concerns involving children and adolescents arise, particularly if these patients have concerns about their parent or guardian learning of these concerns. When individuals present with suicidal or homicidal ideation, self-harm, or other safety concerns, they must undergo a thorough risk assessment, which includes interviewing caregivers. This evaluation may be the first time parents or guardians learn about the child’s emotional distress. Clinicians should be transparent with the individual from the beginning of the interview about the limits of confidentiality, including suicidal and homicidal ideation and alleged abuse.⁴ If the adolescent resists sharing safety-related concerns with their parents, the provider should explore these feelings collaboratively and discuss the specific information that will be shared with the parent/guardian. Clinicians can ask the patient how they expect their parent/guardian to react and reassure them that support will be offered during this difficult conversation. It helps to acknowledge and validate that discussing topics such as lethality and self-harm may be uncomfortable but that it is a necessary part of the evaluation process and disposition planning. Creating a space for emotionally safe disclosure is the clinician’s responsibility, ensuring that parents/guardians are informed and can actively participate in safety planning, risk mitigation, and decisions about next steps in care.

Health systems face challenges with protecting adolescents’ mental health and substance use information, given that parents may have proxy access to their child’s electronic medical record. In addition, some states have passed a Parents Bill of Rights act, which curtails confidentiality, consent, and privacy rights for adolescents.⁵ States also vary on the age required to consent for mental health and substance use treatment.⁶

Balancing Autonomy With Beneficence and Nonmaleficence

Another common issue that emergency psychiatric clinicians face is the need for involuntary psychiatric hospitalization of patients at imminent risk of self-harm, harm to others, or self- impairment. In many cases, patients will present to emergency services or crisis settings requesting voluntary admission, which is typically legally and ethically straightforward.⁷ However, there are cases in which it may not be ethically advised to pursue a voluntary admission, even at the patient’s request, as in a patient with secondary gain using the hospital to avoid social stresses or a patient with personality characteristics that have led them to externalize coping in inpatient psychiatric settings as opposed to developing necessary distress tolerance skills.

In these cases, clinicians may experience the tension of autonomy vs nonmaleficence, whereby they try to decrease potential iatrogenic harms from patient-requested psychiatric admissions. More commonly, emergency psychiatric clinicians face the issue of patients with limited insight and dangerously impairing symptoms who need to be hospitalized against their wishes. This tension of autonomy vs beneficence, or the need to override the patient’s wishes to do what is medically appropriate, can be difficult but is medically and ethically necessary.⁸ In these cases, guaranteeing that clear evidence and indication exist to ensure the patient’s safety and well-being is critical in navigating this ethical tension. There is variance in involuntary commitment criteria between states. Psychiatrists and mental health clinicians should be aware of local involuntary commitment guidelines and procedures. If it is unclear whether involuntary commitment is legally appropriate, providers can consult with the hospital’s legal team.

High-Risk Discharges

Some patients may clearly benefit from inpatient admission but are unwilling to voluntarily consent, without involuntary commitment grounds being present. In these cases, providers should obtain collateral, thoughtfully discuss and document decision-making, and mitigate modifiable risk factors, eg, via safety planning and reducing access to lethal means. Evidence shows safety plans can help reduce suicidality and improve treatment outcomes.⁹

Some patients are at chronically elevated risk of lethality, such as those with repeated suicidal behaviors or a history of violence, who are frequently seen in the emergency psychiatric setting. At times, an acute inpatient psychiatric admission may not be clinically warranted and may actually be countertherapeutic. Clinicians often worry about the risk of adverse patient outcomes and associated litigation, as well as conversations with a patient’s supports on the rationale for discharge. Key components should include engaging the patient and their supports in safety planning and discussing the diagnostic formulation and appropriate treatment options/referrals. Consultation with colleagues, leadership, risk management, and/or legal counsel can be helpful. Organizations can consider patient care plans to help more cohesively care for patients with frequent presentations.

Lastly, some patients present with contingency-based suicidal threats. Results of studies have shown that patients who present with contingency-based threats do not appear to be at elevated risk of suicide, although they may have increased emergency department (ED) presentations for self-harm.^10,11 Bundy et al write that effective documentation surrounding discharge of patients with contingent lethality should contain 6 important items (Table).¹²

TABLE. Discharging a Patient With Contingent Lethality: Recommended Documentation Items¹²

Initiating Acute Treatment

In our current landscape of prolonged boarding for inpatient psychiatric beds, treatment should ideally be initiated in the ED setting and not be deferred to the inpatient teams, as it would for patients presenting with other emergent conditions. Treating substance withdrawal is critical, given the risks of complicated withdrawal (eg, with GABA-mediated agents) and of patients leaving against medical advice. Home medications should be continued in the emergency setting, as missing medications may worsen a patient’s psychiatric symptoms, place them at risk of withdrawal, and/or otherwise negatively affect their health. Patient harm can occur because of the withholding of home medications.

At times, obtaining informed consent before initiation of medication or other treatment can be difficult if a patient presents with severe symptoms and lacks decision-making capacity. Capacity has 4 components: (1) expression of a clear and consistent choice, (2) understanding of factual information, (3) ability to manipulate information to make decisions, and (4) appreciation of the current situation and consequences of a choice.¹³ Preferably, patients are involved in decisions about medications, including specific agents and routes of medication, thus promoting their autonomy. However, if a patient’s conduct is placing themselves or others at more imminent risk, even if a patient is not providing consent for treatment, beneficence may outcompete patient autonomy. Similarly, patients who refuse treatment after a significant overdose would likely necessitate treatment over objection. In these cases, pursuing an involuntary commitment may be warranted. In nonemergent situations, states differ on what is necessary to provide treatment over objection, so providers should be aware of their individual state laws.

Restraints and Seclusion

Workplace violence is on the rise, particularly in emergency settings, so early identification of and intervention for escalating agitation are of the essence in maintaining patient, visitor, and staff safety. Many factors can contribute to patient/visitor agitation, including prolonged boarding, unclear wait times or expectations, overstimulation, lack of interaction or structured activities, substance intoxication/withdrawal, and acute psychiatric conditions. As physical interventions increase the risk of patient and staff injury, general principles for agitation management include engaging the patient in verbal de-escalation (including choice of medications) and attempting less restrictive interventions.¹⁴

Organizations can proactively work toward critically appraising and modifying their environments (eg, improving screening of contraband/weapons), and available resources/personnel can provide robust training on verbal de-escalation and physical interventions, ideally via simulation-based education. Because patients and families may pursue legal action for patient injury from a restraint, it is imperative that a restraint technique be continuously re-evaluated with coaching and correction provided. Given disparities in agitation management in the emergency setting, providers should critically appraise the impact of bias in their perception of agitation, which may be partially mitigated via validated agitation rating scales.

Although verbal de-escalation and other nonrestrictive interventions are first-line recommendations, as boxer Mike Tyson said, “Everyone has a plan until they get punched in the mouth.” Staff are compelled to immediately intervene when there is imminent risk or assaultive behavior. If restrictive interventions are required, teams should debrief afterward and work toward discontinuing these interventions once it is safe.

Concluding Thoughts

By the nature of their work, emergency psychiatrists balance various legal and ethical principles in evaluating and caring for patients, such as privacy, autonomy, beneficence, and nonmaleficence. Clinical scenarios are unpredictable and often evolve rapidly, so providers must be cognitively flexible and agile in applying the various legal and ethical considerations presented in this article.

Dr Amin is an assistant professor of psychiatry at the University of Pittsburgh School of Medicine. Dr Coulter is an assistant professor of psychiatry at the University of Pittsburgh School of Medicine. Dr Golden is an assistant professor of psychiatry at the University of Pittsburgh School of Medicine. Dr Soliman is an assistant clinical professor of psychiatry and behavioral medicine at Atrium Health and Wake Forest University School of Medicine.

References

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13. Grisso T, Appelbaum PS. Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals. Oxford University Press; 1998.

14. Richmond JS, Berlin JS, Fishkind AB, et al. Verbal de-escalation of the agitated patient: consensus statement of the American Association for Emergency Psychiatry Project BETA De-escalation Workgroup. West J Emerg Med. 2012;13(1):17-25.