Malpractice Rx What is your liability for involuntary commitment based on faulty information? Christopher P. Marett, MD, MPH, and Douglas Mossman, MD Dear Dr. Mossman, • how patients, doctors, and courts view Last week, I hospitalized a patient against civil commitment her will, based in part on what her family • the role of collateral information in members told me she had threatened to do. decision-making The patient threatened to sue me and said I • relevant legal concepts and case law. should have known that her relatives were lying. What if my patient is right? Could I face liability if I involuntarily hospitalized her based on bad collateral information? Rationale for civil commitment Douglas Mossman, MD Submitted by “Dr. R” For centuries, society has used civil com- Department Editor mitment as one of its legal methods for n all U.S. states, laws permit psychiatrists intervening when persons pose a danger to to involuntarily hospitalize persons who themselves or others because of their men- pose a danger to themselves or others tal illness.4 Because incapacitation or death I 1 because of mental illness. But taking this could result from a “false-negative” deci- step can be tough. Deciding to hospitalize sion to release a dangerous patient, psychi- a patient against her will involves weighing atrists err on the side of caution and tolerate her wants and freedom against your duty many “false-positive” hospitalizations of to look out for her long-term welfare and persons who wouldn’t have hurt anyone.5 the community’s safety.2,3 Often, psychia- We can never know if a patient would trists make these decisions under pressure have done harm had she not been hospital- because the family wants something done ized. Measures of suicidality and hostility immediately, other patients also need atten- tend to subside during involuntary hospi- tion, the clinical picture is incomplete, or tal treatment.6 After hospitalization, many potential dispositions (eg, crisis care and patients cite protection from harm as a rea- inpatient beds) are limited.3 Given such son they are thankful for their treatment.7-9 constraints, you can’t always make perfect Some involuntary inpatients want to be DO YOU HAVE A decisions. hospitalized but hide this for conscious or QUESTION ABOUT Dr. R’s question has 2 parts: unconscious reasons,10,11 and involuntary POSSIBLE LIABILITY? • What liabilities can a clinician face if a treatment sometimes is the only way to help ▶ Submit your malpractice- patient is wrongfully committed? persons whose illness-induced anosogno- related questions to Dr. • What liabilities could arise from rely- sia12 prevents them from understanding Mossman at dmossman@ frontlinemedcom.com. ing on inaccurate information or making why they need treatment.13 Involuntary ▶ Include your name, address, a false petition in order to hospitalize a and practice location. patient? Dr. Marett is Volunteer Assistant Professor, and Dr. Mossman is Professor If your question is chosen for of Clinical Psychiatry and Director, Division of Forensic Psychiatry, publication, your name can We hope that as you and Dr. R read our University of Cincinnati College of Medicine, Cincinnati, Ohio. be withheld by request. answers, you’ll have a clearer understand- Disclosures ing of: The authors report no financial relationships with any company whose products are mentioned in this article or with manufacturers Current Psychiatry • the rationale for civil commitment of competing products. Vol. 16, No. 3 21 Malpractice Rx Table 1 Examples of statutory immunity in civil commitment decisions Statute Immunity provision Alaska Statutes “A person acting in good faith upon either actual knowledge or reliable §47.30.815(A,B) information … is not subject to civil or criminal liability.… [P]ersons may not be held civilly or criminally liable … if [they] have performed their duties in good faith and without gross negligence” California Welfare “Individuals authorized under this part to detain a person for 72-hour treatment & Institutions Code and evaluation … shall not be held either criminally or civilly liable for exercising §5278 this authority in accordance with the law” Nevada Revised “Any public officer or employee who … detains … shall not be rendered civilly Statute §433A.740 or criminally liable thereby unless it is shown that such officer or employee acted maliciously or in bad faith or that his or her negligence resulted in bodily harm” Clinical Point Ohio Revised Code “Persons … acting in good faith, either upon actual knowledge or information §5122.34(A) thought by them to be reliable … do not come within any criminal provisions, Measures of and are free from any liability to the person hospitalized” Wisconsin Statute “Any individual who acts in accordance with this section … is not liable for any suicidality and §51.15(11) actions taken in good faith.… Whoever asserts that the individual … has not hostility tend to acted in good faith has the burden of proving that assertion by evidence that is clear, satisfactory and convincing” subside during involuntary hospital treatment inpatient care leads to modest symptom Having seen many involuntary patients reduction14,15 and produces treatment out- undergo a change of heart after treatment, comes no worse than those of non-coerced psychiatrist Alan Stone proposed the patients.10 “Thank You Theory” of civil commitment: involuntary hospitalization can be justified by showing that the patient is grateful after Patients’ views recovering.20 Studies show, however, that Patients often view commitment as unjus- gratitude is far from universal.1 tified.16 They and their advocates object to How coercion is experienced often what some view as the ultimate infringe- depends on how it is communicated. The ment on civil liberty.7,17 By its nature, invol- less coercion patients perceive, the bet- untary commitment eliminates patients’ ter they feel about the treatment they involvement in a major treatment deci- received.21 Satisfaction is important because sion,8 disempowers them,18 and influ- it leads to less compulsory readmission,22 ences their relationship with the treatment and dissatisfaction makes malpractice law- team.15 suits more likely.23 Some involuntary patients feel disre- spected by staff members8 or experience inadvertent psychological harm, including Commitment decision-making “loss of self-esteem, identity, self-control, States’ laws, judges’ attitudes, and court Discuss this article at and self-efficacy, as well as diminished hope decisions establish each jurisdiction’s legal www.facebook.com/ in the possibility of recovery.”15 Involuntary methods for instituting emergency holds CurrentPsychiatry hospitalization also can have serious practi- and willingness to tolerate “false-positive” cal consequences. Commitment can lead to involuntary hospitalization,4,24 all of which social stigma, loss of gun rights, increased create variation between and within states risks of losing child custody, housing prob- in how civil commitment laws are applied. lems, and possible disqualification from As a result, clinicians’ decisions are influ- Current Psychiatry 22 March 2017 some professions.19 enced “by a range of social, political, and Malpractice Rx economic factors,”25 including patients’ sex, Tech shootings by the Virginia Office of the race, age, homelessness, employment status, Inspector General describes how collateral living situation, diagnoses, previous invol- sources can provide otherwise missing evi- untary treatment, and dissatisfaction with dence of dangerousness,34 and it often leads mental health treatment.22,26-32 Furthermore, clinicians toward favoring admission.35 the potential for coercion often blurs the line Yet clinicians should regard third-party between an offer of voluntary admission and reports with caution.36 As one attorney an involuntary hospitalization.18 warns, “Psychiatrists should be cautious of the underlying motives of well-meaning family members and relatives.”37 If you make Collateral information a decision to hospitalize a patient involun- Psychiatrists owe each patient a sound tarily based on collateral information that clinical assessment before deciding to ini- turns out to be flawed, are you at fault and Clinical Point tiate involuntarily hospitalization. During potentially liable for harm to the patient? a psychiatric crisis, a patient might not be A patient might forthcoming or could have impaired mem- not be forthcoming ory or judgment. Information from friends False petitions and liability or have impaired or family can help fill in gaps in a patient’s If you’re in a situation similar to the one memory or judgment; 33 self-report. As Dr. R’s question illustrates, Dr. R describes, you can take solace in information from adequate assessment often includes seek- knowing that courts generally provide friends or family can ing information from persons familiar immunity to a psychiatrist who makes a with the patient.1 A report on the Virginia reasonable, well-intentioned decision to help fill in the gaps Malpractice Rx Table 2 Statutory consequences for a bad faith commitment petition Statute Statutory consequence Alaska Statute “A person who willfully initiates an involuntary commitment procedure … without §47.30.815(C) having good cause to believe that the other person is suffering from a mental illness and as a result is gravely disabled or likely to cause serious harm to self or others, is guilty of a felony” California Welfare “If the probable cause is based on the statement