Welcome to Psychiatry and Law
Training in psychiatry and law is integral to residency education in the Adult Division of the Department of Psychiatry and Behavioral Sciences at Stanford University School of Medicine. The faculty consists of Drs. Anthony Cozzolino, Harvey Dondershine, Howard Fenn, John Greene, Jose Maldonado (Program Director), and Brad Novak. We focus on legal issues that impact the general practice of clinical psychiatry and issues in forensic psychiatry that any psychiatrist needs to understand before offering professional comment. (Webmaster Harvey Dondershine, MD, JD)
Internet Prescribing – beware!
On April 17th, a psychiatrist licensed in Colorado was convicted in California for practicing medicine without a license – in California. The psychiatrist prescribed fluoxetine over the internet to a college student in California. Two months later, the student killed himself. The case may forewarn the end of internet prescribing. It also means physicians must reexamine when they are practicing medicine and where. The defendant acknowledged he didn’t possess a California license but challenged his prosecution because the “criminal acts occurred outside the state”. The Court of Appeals rejected this saying acts done outside California intended to produce effects inside California can be punished by California. It made no difference that the acts took place in cyberspace.
The case was also investigated by the Medical Board of California which examined the relationship between prescribing, internet prescribing, and the practice of medicine. A drug which requires a prescription is by law “dangerous.” Prescribing a dangerous drug is per force the practice of medicine. The practice of medicine creates a physician-patient relationship. A physician-patient relationship creates duties. For the psychiatrist, the duties include taking a medical and psychiatric history, performing a mental status examination, maintaining a medical record, ordering necessary tests, making a diagnosis, recommending treatment, prescribing only when indicated, engaging in risk/benefit "consent" dialogue, and performing appropriate follow-up monitoring. Initial contact with any person requesting medical services must include both dialogue and observation. This means a "face-to face" meeting. One cannot interview an online form. However, emerging telemedicine technologies may suffice under limited circumstances and adequate safeguards; e.g. as when performing a telemedicine consultation to assist a patient’s primary clinician.
Third party suits against psychiatrists
A 2009 California Court of Appeals case denied an aggrieved family a right to sue a psychiatrist for wrongful death after the psychiatrist’s patient killed two members of plaintiffs’ family. The family sued the psychiatrist for dereliction of duty not to create a risk of harm to third persons. Since there was no antecedent threat, Tarasoff did not apply. Instead, the family alleged the psychiatrist caused the danger by negligent treatment. The Court granted summary judgment for the psychiatrist. The case never went to the jury.
The decision rested on whether, as a matter of law, the psychiatrist owed a duty of due care to decedent’s family. The Court reaffirmed that such a determination is a matter of policy solely within the jurisdiction of the Court that involves a balancing of factors designed to limit the extent of liability that would otherwise result from a simple “but for” factual analysis (Calderon v. Glick (2005) 131, Rowland v. Christian (1968) 69 Cal.2d 108, and Biakanja v. Irving (1958) 49 Cal2d 647). Based on the Court’s analysis in this case, the psychiatrist owed no duty to decedent’s family. The 4 “D’s” of negligence are duty, dereliction (breach), damages, and defenses. Absent a duty, the other “D’s” are moot. Thus, there was no case for the jury to decide.
The Court distinguished this case from another which involved a patient involuntarily admitted under the LPS Act for dangerousness and released still dangerous because he lacked insurance (Bragg v. Valdez (2003) 111 Cal.App.4th 421). Nineteen days later, the patient killed plaintiff’s decedent. In this case, 3 “D’s” were met but not the 4th. The Court stated, “…there can be no moral justification for ejecting upon society, without notice, a person who is dangerous to others merely because he is uninsured.” The Court further held that the decision to discharge the patient was not a decision under the LPS Act (which would have conferred immunity) because the LPS Act did not anticipate actions contrary to its legislative purposes solely because the patient ran out of money
Indiana v. Edwards, 128 S. Ct. 2379 (2008): Competency to Stand Trial and the Pro Se Defendant’s Right of Self-Representation
This is a case of interest to the forensic as well as to the clinical psychiatrist and psychologist. For the forensic expert, it defines a new issue: when is a mentally ill defendant who is competent to stand trial (Dusky) and competent to waive right to counsel and plead guilty (Godinez) not competent to represent himself (appear without counsel) at trial. For the non forensic clinician, it is a reminder that competency is far from a unitary concept. Indeed, there are many specific competencies.
A finding of i ncompetence limits a person’s right to make a decision. It requires a determination that a person (1) has a mental deficit (a functional incapacity) steming from a mental illness and (2) a link between the deficit found and the decision made. To opine, the clinician needs to understand not only the nature of the decision but the mental skills needed to make that decision. Only then can the clinician do an examination crafted to address the relevant issues. Most cases do not involve global incompetence for all decisions but narrow questions of incompetence to make very specific types of decisions; e.g. make a will, practice a profession, sign a contract, give informed consent for medical care, refuse antipsychotic medications, etc.
ADA Amendment Act of 2008
On September 25, the ADA Amendment Act of 2008 became the law of the land. The underlying act is, “HR 3195: An act to restore the intent and protections of the Americans with Disabilities Act of 1990.” Depending on EEOC and appellate courts, this act clarifies impairment, disability and major life activities. The act will likely benefit qualified individuals with a disability and restore “the intent and protections” of the 1990 Act.
Advance Directive – Don’t leave home without one!
Respect for the autonomy of personal decision making is among the highest of ethical standards in medicine. The doctrine of informed consent is its shield. An advance directive is an exercise in “prospective” autonomy that continues effective after the author of the directive becomes incompetent. For a review of the legal principles involved, see the 2001 California Supreme Court case Conservatorship of Wendland.
Sex Offenders and Insanity
Sex Offenders and Insanity: Examination of 42 individuals found not guilty by reason of insanity. (J Am Acad Psychiatry Law 35:4:444-450, 2007)
Psychiatric Malpractice
A discussion of liability issues involving prescribing, suicide assessment, informed consent, and duty to protect under Tarasoff. (Psychiatric Times, April 15, 2007)
