Sunday, April 17, 2016

Ethics, Law, and Politics In Psychiatry

I just spent yesterday at the 2016 Minnesota Psychiatric Society Ethical Issues In Mental Health for 2016.  It was a long day, especially for a guy who wants lectures and information.  About 1 1/2 hours was dedicated to a group discussion of cases.  I am always more interested in what the experts have to say - that is my comfort zone at CME courses and meetings.  The first lecturer was Rebecca Weintraub Brendel, MD, JD from the Harvard Medical School Center for Bioethics.  She was also the Chairperson for the Ad Hoc Work Group for the American Psychiatric Association on Revising the Ethics Annotations.  That resulted in the document APA Commentary on Ethics In Practice from December 2015.  A complete listing of the members of that working group is available in the document.  She started out by talking about the Trolley problem and reviewing the various approaches to this issue.  The ethical theories that applied were briefly reviewed including deontology, consequentialism (utilitarianism), virtue ethics, and principalism.  She said that the field has evolved to the point where principalism is the dominant paradigm.  Principalism includes the broad areas of autonomy, beneficence, non-maleficence, and justice.  At this time any search on bookselling websites will pull up a number of references on principalism, including critiques of the concept.  I will probably pick up a copy of one of these books to see just how heavily  the justice component in medicine includes social justice and concepts like global warming.  I have always been amazed at why physicians would expend valuable energy on these issues when they have been unable to protect the integrity of their profession.

A lot of time was spent discussing professional boundaries with some focus on electronic media and communicating with patients.  The afternoon cases discussion focused on two psychiatrists with multiple ethical problems some of which included clear ethical issues involving both social media and electronic communication.  In Minnesota, the consensus is that e-mail communication with patients using typical insecure e-mail is not a good idea, but many psychiatrists are employed by organizations that use secure e-mail through a health system portal.  One of the hypothetical case examples given was membership on Facebook of group therapy members and all of the problems that involves.  One of the key aspects of treating patients like psychiatrists involves not just interpersonal boundaries but also boundaries around the therapy like contact and phone calls outside of the sessions.  Online contact with either frequent e-mail or social media creates the illusion that the psychiatrist is always online and available.  That every comment will be noted, analyzed and responded to.  This is not only unrealistic availability, but also unrealistic analysis.  Psychiatrists more than any other physician should know that typed statements online are very poor substitutes for analyzing the emotional content of communication especially where aggression, suicide, and other critical aspects of judgment are the focus.

The second lecture was given by Colleen M. Coyle, JD General Counsel for the APA and it was titled When Law And Ethics Collide....   Privacy rules, informed consent and substituted consent were the early issues.  A suggested authorization form that covers all of the contingencies was suggested.  I can recall signing several including the standard recredentialing forms that authorizes multiple unknown parties complete access to any and all information about me.  The coercive nature of these forms was not discussed.  I see even the most standard consent to treatment form as fairly coercive these days, especially the sections that cover requirements for disclosure by state laws.  A comparison of attorney-client privilege vs. physician-patient privilege would have been instructive.  I think it would point out the obvious - once again that physicians have done a poor job of protecting their profession and that lawyers have succeeded in making legal decisions (Tarasoff) part of the psychiatric code of ethics.  Some of the vague situations of disclosure under the more liberal HIPAA versus the more restrictive CFR42 were discussed.

The discussion ended on prescription drug monitoring programs, the ethics and the current legal landscape.  The legal landscape was most interesting in terms of who inputs the data and whether mandatory accessing of the database exists.  Thirty one states require that prescribers access the database and 11 of those also require a query.  Nineteen states do not require mandatory access.  There are criminal and civil penalties for not reporting controlled substance prescriptions in the database.  Twenty six states and D.C. provide some immunity from civil liability for not accessing and using the database.  Minnesota has a very reasonable approach.  Pharmacy data populates the database and accessing the database is not mandatory.  As a physician I can't imagine having to treat patients, do all of the necessary documentation and orders/prescriptions and then access a separate database and re-enter the prescriptions.  If that is happening to any extent in other states that is another serious abuse of physician time.  It is also part of the general trend of dictating how physicians practice medicine.  Learning what rules apply to you in your particular state is critical irrespective of how rational the process may or may not be.

Ruth Martinez, MA Executive Director of the Minnesota Board of Medical Practice was the third presenter.  Her emphasis was on documentation, boundary issues, informed consent, and response or lack of response to the treatment plan.  An important concept that I have always used is documentation of the informed consent process.  A written and signed document is not needed (with the exception of ECT and antipsychotic medications in the state of Minnesota), but documentation of the discussion is useful.  In situations where the discussion covers a lot of contingencies, it is useful to come back to that part of the document in terms of treatment planning and what the next step might be.  The only potential problem is that when everyone has access to your thinking, suddenly everyone is an expert as in: "I noticed in your note that if this antidepressant was not effective your plan was to change to antidepressant B.  I discussed this with the patient and he wants to try B now."

The part of the presentation that I was in disagreement with was the discussion of the power differential in the physician-patient relationship.  The rhetoric of power is an interesting one that I hear discussed much more frequently outside of medicine than inside.  In my experience social workers tend to discuss power in relationships.  To me,  power is a nonspecific word.  When I am obsessing about making the right decisions in very uncertain situations - being some sort of omnipotent authority figure is the farthest thing from my mind.  All of the psychiatrists I know operate from a therapeutic alliance model and that can be captured by two sentences:  "The therapeutic alliance means that you and I are working to solve your problems.  In that context it is my job to give you the best possible medical advice on how to do that and your job to decide about whether you want to use that advice or not."  Even in the cases where substitute consent is required like civil commitments or guardianships, the physician involved basically brings the problem to the attention of a judge who makes the determination.  Physicians do not want to run patients' lives.

Steve Miles, MD from the University of Minnesota Center for Bioethics gave the scientific part of the program on the epidemiology of gun violence.  It had striking similarities to some of the positions I have posted here on how to approach this problem that I plan to discuss that as a separate post.  He also reviewed the political timeline on how research into gun violence was eventually defunded courtesy of heavy lobbying by the pro-gun forces in Washington.  

I thought that politics was the important word that was left out of the ethics discussions.  As an example, the issue of torture was discussed and how the American Psychiatric Association came to the position that psychiatrists should not participate in torture.  That was a lengthy discussion that eventually came down to a line in the sand - psychiatrists should never participate in torture.  That is not true for two other ethical dilemmas discussed in this conference - managed care utilization review and collaborative care.  Instead hypotheticals were discussed.  If you were this managed care reviewer and your company wanted you to deny specific care that you knew was indicated - what would you do?  Similarly - if you were in this collaborative care arrangement and your salary and bonuses depended on what you were using to fund the "at risk" population that you were seeing - what would you do?   So basically being a military psychiatrist asked to perform torture there is a clear ethical guideline and in the managed care and collaborative care situations you are on your own.  You can call me concrete, but if I was king, the latter two situations would also be forbidden by the ethical code of psychiatrists.  In the case of collaborative care the APA recently announced (1) it received a federal grant to "train 3,500 psychiatrists in the clinical and leadership skills needed to support primary care practices that are implementing integrated behavioral health programs."  Instead of questioning the ethics of a practice that limits the direct assessment of patients by psychiatrists and potentially creates financial conflicts of interest - at the organizational level the APA celebrates this grant and making the practice it more broadly available to all psychiatrists!

Calling the APA Ethics Committee with your ethical dilemmas was encouraged and they clearly take it seriously, but I think these inconsistencies do not make the organization popular among clinicians who deal with these problems on a day by day basis.  They are as easily solved as the questions about physician participation in torture and executions.

George Dawson, MD, DFAPA


1:  Mark Moran.  APA Receives Federal Grant to Train Psychiatrists In Integrated Care.  Psychiatric News - November 6, 2015.  v50(21): p.1.

The grant to train 3,500 psychiatrists was $2.9 million over 4 years or about $828 per psychiatrist.  Each psychiatrist is expected to support up to 50 primary care providers and consult on the care of 400 patients per year.  The ultimate goal is to support 150,000 primary care providers and consult on the care of a million patients a year.  Does anyone see the problems here?     


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