Risk Management for the Supervising Psychiatrist

The need for expert supervision of residents and other health professionals by psychiatrists is growing as a result of the increased demand for accountability by third parties and the expanded number of clinical specialists seeking supervision in psychiatry. The Accreditation Council for Graduate Medical Education has placed professional competency of graduating residents in the national spotlight, and insurers are increasingly scrutinizing patient care provided by trainees and oversight provided by their supervisors.

The details of a training program at Massachusetts General Hospital (MGH) for psychotherapy supervisors have recently been published.¹ Despite the necessity for extensive supervision of mental health practitioners, there have been cases of supervisor liability for failure to provide supervision that met the standards of care of specific states. However, there have been relatively few lawsuits arising from providing inadequate supervision.²

Supervision by full and part-time faculty in psychiatry is often voluntary. Most supervisors find inherent satisfaction in this activity, yet many are unaware of their legal vulnerability.^3,4 Because of their role in training young professionals, supervisors must always walk a fine line between allowing trainees to make decisions, trusting their clinical judgment, and providing enough structure, guidance, and feedback to prevent harm to patients and avoid malpractice.⁵ Here we outline potential pitfalls and strategies to prevent them.

Standards of supervisory care

Licensing statutes and case law provide some guidelines on how courts may define standards of care in supervision, but there is no consensus or defined standard of care in psychotherapy supervision.⁶ While no explicit standard has been uniformly adopted by all 50 states, the 5 generally accepted ethical principles of supervision endorsed by most men-tal health professional boards include the following⁷:

• Competence of supervisors

• Confidentiality

• Informed consent

• Avoidance of dual relationships

• Monitoring the welfare of patient and trainee

As in all medical training, supervisors are ultimately responsible for the care of the patient. Moreover, supervisors may not only be held directly liable, but they may also incur vicarious liability for the negligent treatment of the patients they oversee. (Direct liability results from a supervisor’s recommendations, while vicarious liability is incurred when a patient’s injuries are the result of actions taken by the trainee regardless of whether those actions were sanctioned by the supervisor.⁸) The supervisor is held accountable because of the agency relationship that exists between the supervisor and the trainee. The agency relationship, defined by contract law, is the legal basis for injured parties to seek compensation for damages by the party who is in the best position to provide compensation. Supervisors have a legal responsibility for the patient’s care because the trainee is acting as the supervisor’s authorized representative in delivering care.⁹

The nature of vicarious liability stipulates that the actual degree of involvement of the supervisor in the case is not considered relevant in legal matters, nor is the status of the supervisor as either a paid faculty member or a volunteer with an academic appointment.^3,4 Supervisors are held legally responsible because the trainee is the authorized representative, or agent, of the training program that selected the trainee and the supervisor works for the training program. Each of the 50 states has its own regulations, and there are at least as many different statutory bases for standards of care in supervision. Several patterns have emerged to highlight legal pitfalls in supervision.

All supervisors who work with trainees in academic settings are part of a system that includes 6 key relationships that must be strong and dynamic for effective, ethical supervision to take place. This system can be visualized as 6 interconnected lines that represent either 1 of 2 situations: strong and flexible lines of communication, or 6 potential fault lines, where cracks can affect or disrupt the entire system (Figure).

Fault line 1: administration and supervisor

Schulte and Bienenfeld⁵ conducted a survey of psychiatry program directors to determine whether they provided training for supervisors, including the dissemination of information about their legal liability for patients being treated by residents. Of the 69% of program directors who responded, 87% reported that their psychother-apy supervisors received no formal training in these areas. Many supervisors and more than 25% of chief residents were unaware that supervisors can be legally responsible for their trainees’ actions. Four common pitfalls can result from a lack of institutional training of supervisors.

The first pitfall stems from a lack of guidance as to what information must be given to the patient before he or she signs an informed consent form, including (1) the training status of the clinician (some states require written disclosure of the clinician’s training status⁷); (2) the existence of a supervisor and the need to record the supervisor’s name in the patient’s medical chart; and (3) a clear statement that patient information (including the method of case presentation) will be shared with a supervisor. This information can be given to the patient by the clinic administration at the time the patient registers for treatment but must be reiterated by the trainee. Finally, the supervisor must make sure that the patient has signed the informed consent form.

The second pitfall is the ineffective monitoring of the welfare of the trainee-and thus his patient-and not knowing when to involve the administrative program director. Many supervisors worry in isolation rather than share concerns with other supervisors to determine whether supervisory problems are systemic. The program director should be notified if the trainee does not report to the supervisor regularly; the trainee does not follow the agreed upon case method; learning is not proceeding at the expected rate; concerns exist about the trainee’s physical or mental health; and unethical behavior exists or there is a question about possible unethical behavior.

The third pitfall results from insufficient guidelines and thus a lack of understanding by trainees about evaluation methods and opportunities for feedback.

The fourth pitfall is caused by a lack of institutional policies regarding dual relationships. Supervision that evolves into friendships or romantic relationships is unethical, and supervisors are duty bound to request a replacement if a dual relationship occurs.

Fault line 2: supervisor and trainee

Supervisors can take 7 steps to ensure ethical and effective supervision (Table 1).¹ The early phase of supervision is the foundation on which a relationship of trust, anxiety reduction, and openness to feedback is established. An alliance between the supervisor and trainee is required and a framework and learning goals are key to a collaborative learning experience that fosters development of the trainee’s critical thinking and decision making.¹⁰

When discussing the framework and goals of the program, the supervisor must be clear about what the expectations are for the trainee and what the evaluation process will entail. Some state laws require supervisors to inform trainees in writing what the evaluation process involves.⁷ It is considered unethical to evaluate the work of a trainee without making sure that the trainee has a clear understanding of the expectations and of the methods for evaluation and trainee feedback. A collaborative learning environment provides opportunities for feedback and ensures that the supervisory alliance shares responsibility for what is learned.^1,11 Trainees learn that they share the ethical responsibilities for their patients’ care: keeping their supervisor abreast of all the activities undertaken with the patient allows the supervisor to provide direction for the highest standards of care.

Limits of confidentiality in supervision must be made clear to trainees at the outset. Supervisors must inform program directors when concerns arise about the learning process or about the physical or mental health of trainees. Supervisors are responsible for the welfare of both the patient and the trainee to the extent that the trainee’s mental or physical health affects the care and safety of the patient.

Effective supervision also requires teaching the importance of self-reflection and self-knowledge to the trainee regarding countertransference, personal dynamics, and emotional vulnerabilities. The early phase of supervision is the best time for all trainees to learn that their personal psychotherapy can enhance self-reflection and add support for difficult emotions that may accompany psychiatric training.¹

While many supervisors struggle with simultaneous roles as teacher, supervisor, overseer of the patient’s care, and evaluator, there is no place for blurring the boundaries into friendships and romantic relationships with trainees. Because of the imbalance of power and experience, and the evaluator role, such relationships are unethical and confusing for trainees.¹² An estimated 5% of supervisors acknowledge having dual relationships with their trainees, and these trainees may be more likely to commit boundary violations with patients.¹³ Because of vicarious liability and the position of authority and the control that a supervisor has over a trainee, supervisors have been held liable for the sexual misconduct of a trainee with a patient.¹⁴

The pitfalls of failing to foster a collaborative supervisory alliance with the trainee include having an undercurrent of secrecy, shame, and anxiety.¹⁵ When trainees are afraid to reveal mistakes, the safety of patients is at risk. Also, collaboration reveals a trainee’s countertransference feelings that may lead to dual relationships with patients and provides a safe place to discuss and understand them and avoid acting on them.¹⁶

Documentation is invaluable in the event of a lawsuit for negligent supervision. All pertinent diagnostic and treatment information must be noted in the patient’s record by the trainee and monitored by the supervisor.⁵ Documentation of the supervisory process itself, especially if problems exist, is also necessary. This is true whether the supervision is being conducted privately or in a teaching institution.

Fault line 3: trainee and patient

The structural framework of an alliance, a therapeutic frame (ie, place and time they meet and other logistical agreements, such as how to be reached in a crisis), and therapy goals, must also be applied between trainees and their patients. Helping trainees learn to distinguish feelings from actions is crucial in order to avoid guilt and shame that can arise from countertransference.¹⁶

The 2 most frequent causes of malpractice litigation in psychiatry are sexual boundary violations, followed by patient suicide.⁵ More than 6% of psychiatrists are sued for sexual boundary violations. Consequently, trainees must be taught to avoid dual relationships and how to recognize, formulate, and respond appropriately to sexual feelings and other intense affects.^7,16,17

Obtaining written informed consent from patients includes disclosing the training status of the clinician and notifying the patient of the existence of a supervisor. This safeguards against potential malpractice suits by disgruntled patients who claim that they were never informed about the trainee status of their clinician or the existence of the supervisor.

Fault line 4: patient and supervisor

While the supervisor is ultimately responsible for the care of the patient, the supervisor and patient do not always meet face-to-face. While many programs continue to rely on self-report by the trainee, more programs now require audio or videotapes to help uncover and monitor blind spots that may not be reported but may put patients at risk. Many programs now encourage at least 1 meeting between the patient and the supervisor as well as audiotaping and videotaping sessions. Patients have the right to meet the supervisor and must give consent before the audio or videotapes are shown.⁷

Training programs would do well to set their own guidelines to ensure that supervisors have sufficient information about the patient and his treatment.

Fault line 5: administration and trainee

Hospital administration must ensure that all trainees have dedicated time to meet with their supervisor. Many trainees do not realize that for the care they provide, their supervisor is legally responsible. This issue served as the impetus a decade ago for the Psychiatry Residency Training Program at MGH to institute an orientation lecture on supervision for all residents. Trainees are introduced to the all-important aspects of supervision. A companion continuing education seminar was offered to MGH supervisors for 5 years.¹⁸ The seminar was then translated into an 8-session course, which has been offered to new and veteran supervisors for 6 years to ensure that the current standards of supervision are disseminated (Table 2).¹

Fault line 6: administration and patient

To avoid confusion and provide the legal framework for the therapeutic relationship, it is recommended that teaching hospitals and clinics disclose on patient registration documents the teaching nature of the facility. The medical record is the bridge between the patient’s care and the treatment facility. The supervisor must ensure that all relevant medical and psychiatric care is documented and that the attending physician of record and the trainee’s status are identified in the medical record.

Conclusion

With the increased scrutiny and responsibility demanded of supervisors in mental health settings across the country, protection of all members of the psychiatric network must be given a priority. Psychiatry training programs should be required to train supervisors about the ethical, legal, and educational aspects of their role, as well as to provide forums in which excellence in supervision is taught.

Studies have demonstrated the qualities of excellent supervisors. They are active and are focused on the case; they clearly express opinions and track the main concerns of the trainee.¹⁹ With the aid of videotape, peer supervision, and formal courses, supervisors have multiple resources to improve the safety of all parties involved, to refine their skills, and to make supervising more rewarding as a lifelong teaching and learning adventure.

References:

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