Understanding legal and regulatory issues around suicide
Suicide is the most common cause of legal action against mental health care professionals. In a malpractice case, the plaintiff's lawyer and experts ask whether the clinician's actions were similar to what reasonable clinicians would do under the same or similar circumstances. If clinicians document a reasonable and fairly complete thought process and clinical considerations, it is difficult for a plaintiff's expert to criticize that final decision. Most importantly, proper documentation serves the higher purpose of promoting quality health care (Simpson & Stacy, 2004).
Importance of documentation
Juries and lawyers will always take the position, "If it isn´t written down, it didn't happen." Since suicide is the worst possible outcome for a psychiatric patient, most juries conclude that if a psychiatrist conducted a suicide assessment, it would have been documented (Simpson & Stacy, 2004).
Documenting properly takes time, but this intelligent use of time can pay huge dividends. Taking five minutes to properly document a suicide assessment can save years of stress and hundreds of hours dedicated to defending a lawsuit
Quality of documentation
The quality of documentation can determine whether a malpractice lawyer accepts or declines a suicide case. The lawyer, and the jury if a lawsuit is filed, will seek to determine just how thorough the clinician was in assessing the patient's suicide risk. A well-documented case reflecting good care means that a plaintiff's lawyer is likely to lose the case.
Often, the core of a suicide case is whether the mental health care professional properly assessed the patient's suicide risk and whether the suicide was "foreseeable." Decisions such as whether to hospitalize, whether to use ECT or whether the patient can be treated on an outpatient basis depend on the foreseeable risk of suicide.
Contemporaneous risk assessment
The suicide risk assessment should be recorded in the chart as soon as possible. A timely dictated note is more reliable and credible to a jury than a later one, since it is recorded before the doctor can be alleged to have motive to enhance or fabricate a suicide assessment (Simpson & Stacy, 2004). Post-suicide entries are looked upon with great suspicion by lawyers and jurors.
What needs to be documented?
it is important that the chart reflect an understanding of the patient's risk factors and that it indicate that the clinician elicited critical information about specific suicidal thoughts and methods, and the extent of the patient's planning and action (Simpson & Stacy, 2004). Both positive and negative assessment findings should be carefully documented, as should immediate plans for intervention and the rationale for not choosing alternative interventions.
A suicide assessment that focuses solely on the present is very likely to fall below the standard of care. It is important to obtain a proper history of the patient's present illness. In most cases, simply asking a few questions, such as, "Are you suicidal?," "Do you have a plan?" or "Do you have the means?" is grossly inadequate for defending against allegations of negligence.
Patients are not always reliable sources of information about suicidal thoughts and impulses. Clinicians should appreciate why patients may provide inaccurate information during a risk assessment. Accessing other sources of information, such as old medical records, previous health care providers or family members can be valuable (Simpson & Stacy, 2004). Documenting that you tried (diligently) to contact other sources or get permission to talk with the patient's family will help. If other sources are not available, the clinician should document that fact as well, and carefully describe his or her consideration of what to do next.
If the patient refused hospitalization, the defendant's (clinician's) case is bolstered considerably in the following circumstances:
- There exists clear documentation that the clinician recommended hospitalization carefully, in a way designed to convince the patient.
- Detailed chart evidence shows that the clinician enlisted the support of family in convincing the patient to come into the hospital.
- There is a good description of how the doctor seriously considered and/or attempted involuntary hospitalization.
Meetings and consultations
Documenting discussions and consultations with other qualified professionals can be a substantial part of defending one's actions if suicide occurs. Notes about team meetings and about the psychiatrist's actions after talking with the treatment team are important indicators that the clinician is seeking and considering information from others involved in the patient's care. Consultation with another psychiatrist about whether to discharge a potentially suicidal patient is a very good idea, documenting both good care and the original clinician's wish to do the right thing (Simpson & Stacy, 2004).
Consultation should be legitimate and not merely a brief conversation with someone who will automatically agree and "clear" the patient.
This section has been adapted from A Practical Guide to Mental Health and the Law in Ontario (Ontario Health Association, 2012).
The Mental Health Act sets out the criteria for voluntary, informal and involuntary admissions to specially designated psychiatric facilities, as well as for the management of psychiatric outpatients. The Act also requires the assessment of psychiatric patients' capacity to manage property following admission to a psychiatric facility. It protects the rights of psychiatric patients by requiring that patients receive formal rights advice in certain circumstances and providing for the review of informal and involuntary admissions, capacity to manage property and community treatment orders before the Consent and Capacity Board. To learn more about the Mental Health Act, click here.
The Health Care Consent Act, 1996
The Health Care Consent Act sets out rules for determining capacity in treatment decisions, admission to care facilities and personal assistance services. It also provides rules for obtaining informed voluntary consent from either the capable patient or a substitute decision maker (SDM), and provides for the review of findings of incapacity by the Consent and Capacity Board. The Act sets out who may take on the SDM role, and outlines the principles that should guide SDMs in making treatment decisions. The Act also indicates when treatment may be administered in emergency situations and whether and when treatment may begin pending the resolution of an appeal of an incapacity finding. To learn more about the Health Care Consent Act, click here.
The Substitute Decisions Act, 1992
The Substitute Decisions Act provides the legal framework for granting a power of attorney for personal care or property, which allows capable individuals to appoint someone to act on their behalf during a period of incapacity. The Act also sets out the procedure for an individual to apply to the court to be appointed as a guardian where a person has not completed a power of attorney, or where someone wishes to challenge the validity of a particular power of attorney. To learn more about the Substitute Decisions Act, click here.
The Personal Health Information Protection Act
The Personal Health Information Act (PHIPA) governs the collection, use and disclosure of personal health information. It is essential for health care providers to understand how the unique demands of providing mental health care affect the interpretation of the health information custodian's obligations under PHIPA, and to understand the circumstances in which the Mental Health Act, described earlier, takes precedence over the terms of PHIPA to allow for the collection, use and disclosure of personal health information without consent. To learn more about PHIPA, click here.
Part XX.I of the Criminal Code of Canada
This section of the Criminal Code governs the assessment, detention and release of individuals who have come into contact with the criminal justice system as a result of mental disorder, and who have been found either unfit to stand trial or not criminally responsible on account of mental disorder. The detention, treatment and supervision of criminally accused forensic psychiatric patients in specially designated psychiatric facilities is a sub-speciality of mental health law with which mental health care providers should have some familiarity, regardless of whether they work for a forensic facility.
College of Physicians and Surgeons of Ontario. (2006). Policy Statement: Confidentiality of Personal Health Information. Toronto: Author.
Involuntary Hospitalization Mental Health Act, R.S.O. 1990, c. M.7.
Ontario Hospital Association. (2012). A Practical Guide to Mental Health and the Law in Ontario. Toronto: Author.
Simpson, S. & Stacy, M. (2004). Avoiding the malpractice snare: Documenting suicide risk assessment. Journal of Psychiatric Practice, 10(3), 1-5.