Do patients avoid psychiatrists for fear of legal holds?

Over on the Shrink Rap blog I got caught up in an off-topic debate.  The post was on why psychiatrists avoid insurance panels, something I've written about myself.  But the commentary wandered into exorbitant fees, inadequate mental health services for the poor, income disparity between psychiatrists and patients, a generation that expects something for nothing, and so on.  After a week, prompted by minor irritation with San Francisco's transit system the night before, I finally posted a comment.  I wrote that buses and taxicabs perform roughly the same service, but for many riders who can afford it, a cab is worth the extra money.  I acknowledged that the analogy to mental health care was flawed: bus and cab fares are both regulated, and psychiatric care is often more urgent and critical, and definitely more expensive, than an optional ride downtown.  Nonetheless, the comparison made the point that more affordable mental health services are inevitably "bus-like," and that there is a legitimate role for higher-cost "taxi-like" services for those willing and able to pay for them. It's important to realize that all analogies are flawed.  They only highlight certain similarities between two situations.  There will always be differences too, the salience of which are inevitably disputed by partisan debaters.  For this reason analogies illustrate far better than they convince.  One commenter noted that even "bus-like" mental health services are not always available.  A psychiatrist pointed out that many of us accept reduced fees or otherwise "come to some agreement" with cash-strapped patients in ways taxi drivers don't.  Then another commenter who frequently writes about forced psychiatric treatment argued that coercion never occurs with buses or cabs, rendering my analogy "shallow at best."

Going off-topic, I replied that forced treatment, e.g., being subjected to a 72-hour legal hold (the "5150" here in California), is uncommon in office psychiatry, and in any case didn't bear on the point I made.  I later added that a number of non-psychiatrists are also authorized to apply the 5150 in California, and in many instances would be far more likely to do so than a psychiatrist in a private office.  My interlocutor, and at least two others, pressed on: the mere possibility, however remote, of being placed on a legal hold is a threat that evokes fear in current and potential patients.  This fear keeps some who "truly need psychiatric intervention ... from even attempting to access 'help'."

I had already let it drop when our host asked everyone to return to the topic of insurance panels.  But it's a point that bears discussion, here if not there.  Do patients avoid office psychiatrists for fear of being placed on a legal hold?

I'm sure the answer is yes, at least sometimes.  In the first place, many patients do not know what triggers a 5150.  Movies, popular culture (such as the depicted t-shirt), and history itself prime the public to think a padded cell readily follows from a few ill-chosen words.  Often I've reassured patients that ideas or feelings, however destructive or horrific, never in themselves lead to involuntary commitment.  Patients are free to divulge fantasies of mass murder, elaborate suicide scenarios, gruesome torture, etc. without risk of being locked up.  Indeed, talking in confidence about disturbing ideas or feelings is a good way to defuse their emotional power.

But there's much more to this than simply not knowing the law.  In my experience a great many patients fail to distinguish feelings and actions.  They try unsuccessfully to control troubling feelings, and somehow equate this with uncontrolled behavior, a very different thing.  Yet the distinction is hugely important in life, and with regard to legal holds.  Feelings never justify a hold, whereas behavior, or its "probable" likelihood, does.  If this distinction is unclear, even feelings seem dangerous.

At a more subtle level, patients with hostile or self-destructive feelings often expect to be punished for them, or they unconsciously feel guilty, i.e., that they should be punished.  Indeed, people avoid psychotherapists of all types, imagining the therapist will condemn or humiliate them for the ugliness of their inner world.  Unconscious mixed feelings, i.e., simultaneously fearing and seeking a harsh response, are common as well.  A crucial part of dynamic psychotherapy is gradually trusting that the therapist won't fulfill this fantasy.  Seeing a psychiatrist evokes these usual fears of being judged and punished, heightened in some by the psychiatrist's power to diagnose and to initiate a legal hold — even if the risk of the latter is virtually zero.

I hasten to add that we psychiatrists don't make this any easier for ourselves or our patients when we are sloppy about applying legal holds.  Patients' fears of subjectivity and loose criteria are partly based in reality.  A casual "better safe than sorry" attitude may send the wrong message, trampling the treatment alliance and savaging trust.  Meticulous care in applying the 5150 is a "frame issue" as central to therapeutic success as any other treatment boundary.  As a profession we can never count on being afforded more trust than we have earned (and sadly, often less).

Of course, there are circumstances when we rightly apply a legal hold in the office.  A patient who believably voices, or behaviorally telegraphs, intent to die or to kill others should expect a trip to the psychiatric ER for further evaluation in a secure setting.  Conversely, there are presumably people intent on suicide or homicide who consciously avoid seeing psychiatrists who could thwart their plans, just as they avoid telling their family or the local police.  Such people, however, are not seeking psychiatric assistance to avoid dying or killing.  If they were, they would accept help, including inpatient treatment if needed.

I once had a patient who came to see me, he said, so I could convince him not to die.  If I failed, he would kill himself.  I quickly replied that I wouldn't play this game, although I was more than willing to talk with him about his suicidal feelings.  We met five or six times; he wasn't truly interested in overcoming suicidal feelings, and I wouldn't engage in the no-win challenge he set up.  He left — no hold applied — and months later I learned he was still very much alive.

Similarly, those who rail against the completely predictable response of psychiatrists to voiced threats of harm are enacting a "death by cop" scenario.  The paradigm is someone who brandishes a weapon in front of police, who then react the only way they can — and usually with great regret.  Fantasies of punitive authority, forcing the hand of those in power, and/or getting one's just desserts, are made real.  Patients who force their psychiatrists to take control of their behavior likewise sacrifice adult autonomy in order to enact a primitive unconscious fantasy.  Unlike most patients who are relieved to be protected from their own frightening impulses, these few harbor antagonisms that may feel more vital to them than life itself.

Jury duty, a psychiatric perspective

I just finished a day of jury service in criminal court, and have some thoughts about the whole process.  Some relate to me as a psychiatrist, some are more generic.  I'll start by admitting I've never served as a juror in an actual trial.  Doing so would interest me, and I do appreciate the role of juries in our legal system, yet the hassle of missing work and other obligations outweighs these factors in my mind.  Thus, I'm happy I've escaped so far.  Years ago I wrote to be excused whenever I received a jury summons.  I argued that my patients needed me more than the legal system did.  That argument worked once or twice in the distant past:  I was excused for the year without having to appear at all.  However, the last couple of times I tried it my request was denied.  I was instructed to show up like everyone else.  So I don't fight it anymore, although I still feel the argument has some merit. Do psychiatrists, and possibly other mental health professionals, have a valid claim that their jury service risks hurting their patients?   As described here, jury duty presents a unique uncertainty for psychiatrists and patients, one that isn't the same as a planned vacation or even a sudden illness.  (The issue is also discussed toward the end of this 1996 article in the New York Times.)

In my jurisdiction, the recipient of a jury summons is "at risk" for a week, and must call each evening to learn whether to appear the next morning.  Canceling patients for this entire week would be incredibly wasteful, resulting in many treatment disruptions and the forfeiture of a week's income, usually for no good reason.  The alternative is to warn patients in advance that they may be canceled the evening before their appointments — which is less advance notice of cancellation than a psychiatrist typically expects of his or her patients.  Some patients react poorly to last-minute cancellations, some cannot reschedule (or the psychiatrist has no other times to offer); as a worst case scenario this may constitute a "last straw" that ends a treatment.  Even when bad outcomes are avoided, it adds a wrinkle to the treatment of all affected patients.

When I warned my patients that I might be away for one or more days last week, several expressed surprise that I would receive a summons at all.  Realistically, there's no reason I wouldn't.  Potential jurors are selected randomly from voter and DMV lists; it's a pretty safe bet that one's psychiatrist is on such lists.  Perhaps this is another instance of patients having difficulty imagining their psychiatrist living a normal life outside the office.  In other words, it's a transference phenomenon.

Psychiatrists are rarely kept on juries.  The procedure for selecting a jury for a given trial is called the voir dire.  Prospective jurors state their names, occupations, and other key facts.  The attorneys then ask questions to elicit potential bias that would be unfavorable to their side.  The attorneys use peremptory challenges or challenges for cause to excuse problematic jurors.  Each time I've made it to the voir dire, I've been excused by peremptory challenge, which means no reason was given.  Attorneys prefer not to have "experts" on juries, i.e., legal experts such as other attorneys or police officers, or mental health experts who, they fear, may "see through" their arguments, or come to our own conclusions regarding the thoughts and motivations of the involved parties.  In any event, it's frustrating to cancel or reschedule a day of patients, and languish at the courthouse for most of the day, when I'm virtually certain never to serve on a jury.

While I was languishing, I contented myself by observing the process and the people involved.  Like mass transit and some public events, jury service offers a cross-sectional look at one's neighbors.  Adults of all ages, levels of education, and political views answer the call.  A 20 year old sits next to a 70 year old, a professor next to a factory worker.  Everyone gets along, mainly by benign indifference — and all of us are clearly subordinate to the people who work there: the bailiffs, the attorneys, and of course the judges.

A few potential jurors stand out by revealing their hatred of jury service.  Several have interesting stories or perspectives to relate in the voir dire.  A young woman is wary of police since her partner runs a medical marijuana dispensary.  A young man feels gun laws are too restrictive.  There were a surprising number of tech-workers — maybe I shouldn't have been so surprised.

The "presumption of innocence" in a criminal trial (i.e., innocent until proven guilty) seemed lost on many jurors; judges and attorneys must find it tedious to repeat over and over that a criminal defendant need not offer evidence or argument of any type to be acquitted.  But the main thing I found fascinating was how jurors in the voir dire defend their capacity to be unbiased and objective, even after they express overtly biased views, and even when they presumably would prefer to be excused from service.  Bias sounds like a weakness, a character flaw.  Perhaps for this reason many jurors declare themselves neutral and completely open-minded when that cannot possibly be the case.  I wonder to what degree the whole institution of trial by jury relies on pride — the pride of individual jurors in their own objectivity, and a social pride we feel in the "wisdom of the common man," despite clear evidence that basic legal tenets, like presumption of innocence, are often unappreciated.

I would prefer to avoid too much pride myself.  Psychiatric work is not the easiest kind to set aside for the obligations of jury duty, but I doubt it's the hardest either.  I don't plan to ask for special exemptions in the future.  All the same, I don't mind if attorneys continue to believe we can see through their arguments, and read the minds of their clients.  A little transference can be a good thing.

Image: "Justice," Edwin Austin Abbey (American, 1852 - 1911)

Psychiatry and ethics: A whirlwind tour

The following is my article originally published in San Francisco Medicine (Vol. 83 No. 10, December 2010), the monthly journal of the San Francisco Medical Society.  This issue was devoted to "Psychiatry for the Nonpsychiatric Physician."  Reprinted by permission. The practice of psychiatry is rife with ethical issues. Some critics, such as author-psychiatrist Thomas Szasz, attack the legitimacy of psychiatry itself, claiming it's unethical to treat mental distress as though it were a medical disease. Psychiatric diagnosis has been challenged on ethical grounds when used to punish political dissidents in other countries, and here in the U.S. when a criminal defendant is found not guilty by reason of insanity. Involuntary psychiatric hospitalization and treatment looms large as a matter of ethical concern. The “5150” became California law in the 1960s and authorizes civil commitment for up to seventy-two hours when a patient is “dangerous to self or others” due to a psychiatric disorder. It soon became the model for such laws nationally, yet revisions and reformulations are constantly put forward.

While each of these issues is profoundly important, they are not the ethical challenges that most psychiatrists face on a day to day basis. Most of us don't spend our time questioning whether the field is legitimate in general, nor whether making a diagnosis is an ethical act. Most psychiatrists have outpatient practices and rarely contend with involuntary hospitalization or treatment (although it happens). What are the more common ethical challenges in psychiatry?

Clear and professional boundary keeping is the cornerstone of psychiatric practice, especially for those psychiatrists who conduct psychotherapy. Just as a surgeon drapes the surgical field to assure a clean and well-demarcated work space, the psychiatrist establishes a “frame” of time, place, and purpose with each patient to assure a psychologically clean and well-demarcated space to do psychological work. The best known and probably most important ethical rule in psychiatry is not to exploit patients sexually. (Unlike in other specialties, this also extends to former patients.) Less understood is that this attention to psychological boundaries precludes many other social interactions that seem more innocuous. Unlike other physicians, psychiatrists who utilize psychotherapy cannot attend sporting, dining, or other events, public or private, with patients. Since we use the doctor-patient relationship as the very instrument of care, it cannot be put to other purposes. This illustrates something unique about psychiatry: Ethical and clinical issues often overlap. Clear professional boundaries are both an ethical matter and a clinical matter.

Here is another example. Psychiatrists deal with confidentiality dilemmas all the time. For example, young adult patients often have parents who both pay for the treatment and want to know about it. Yet such patients have ethical and legal rights to confidentiality. Other specialties deal with this as well, although in psychiatric practice the presenting problem may be the parental relationship. Thus, what to tell family members — or what to advise the patient to tell — is a matter of both ethical and clinical significance. The same is true of reporting confidential details to third party payers, magnified here by the social stigma attached to psychiatric disorders.

Many psychiatric problems do not cause immediate distress in the patient, but only in those around him. Typical examples include mania, paranoia, narcissism, sociopathy (antisocial behavior), some eating disorders, and so forth. Since subjective distress does not motivate treatment in such conditions, a large part of psychiatric practice is helping patients appreciate the need for treatment and choose it for themselves. While the ethical issues here are not as stark as plainly forcing treatment, there are still several matters to consider. It may be ethically problematic to try to change a patient for the benefit of others, even if the patient would also benefit in the long run. Most physicians would feel qualms about trying to change anything in a patient without that patient’s conscious assent, yet in psychiatry we often have no option but to proceed when the patient lacks the insight and judgment to assent. As a result, there are ethically problematic pressures to persuade the patient, using emotional appeals and slanted arguments — anything to gain cooperation. Such situations place the psychiatrist, at least temporarily, in an adversarial position with respect to the patient’s subjective desires and constitute a conflict of interest between the patient’s wishes and the psychiatrist’s.

A special case of divided loyalties occurs when a patient seeks psychiatric treatment for a reportable behavior. The state mandates the reporting of suspected child or elder abuse, and certain other behaviors. While there is obvious value in such reporting, unfortunately it can also prevent patients from receiving the very treatment than could curtail such behavior in the future. In some such cases, legal reporting requirements may conflict with ethical practice.

Another common set of ethical issues surrounds the placebo effect. Among the various medical specialties, psychiatry stands out in allying with the placebo effect. In internal medicine, a treatment that makes the patient feel better but leaves the infection or tumor unchanged is a failure, and a dangerously misleading one at that. In contrast, a psychiatric treatment that relieves a patient’s depressed mood or anxiety is a success, regardless of whether it changes the patient biologically.

Usually the patient’s subjective experience is the endpoint. Ethical dilemmas arise when honesty falls prey to the need to instill hope. For example, a depressed patient who has failed five medication trials of adequate dosage and duration presents for a sixth. The patient hopes the sixth medication, possibly a heavily promoted new product, will be the long-awaited miracle cure. The psychiatrist knows this track record bodes poorly but doesn’t want to be pessimistic in front of the patient, as success or failure often hinges on the patient’s expectations. So the sixth medication trial proceeds despite the psychiatrist’s better judgment, and it typically fails. Putting aside the placebo effect, the psychiatrist would advise a different approach — psychotherapy maybe, or perhaps a fresh look at the patient’s work history, coping skills, nutrition, exercise, and social support. None of these, however, are what the patient believes in or wants to hear, and thus potentially effective alternatives aren't even tried.

Speaking of heavily promoted products, psychiatry has the dubious distinction of prescribing the most expensive drugs in the whole medical armamentarium. According to a recent New York Times article, antipsychotics are the top-selling class of pharmaceuticals in America, with annual revenue of about $14.6 billion. Antipsychotics were formerly a niche product, but recently manufacturers have gained FDA approval for a much wider range of indications. Moreover, most antipsychotic prescriptions are now written off-label (not always, or even primarily, by psychiatrists). The burgeoning use of expensive and potentially hazardous antipsychotic medications for relatively minor indications — insomnia, anxiety, nonpsychotic depression, and so forth — has both clinical and ethical implications. Psychiatrists, and all physicians, should recommend treatments based on risk/benefit considerations, and not on extraneous factors such as lavish marketing, financial ties with industry, and so forth. Such conflicts of interest remain endemic in medicine despite recent voluntary restrictions by the pharmaceutical industry and some professional organizations. Psychiatrists in particular should be acutely aware that such influences can, and do, operate unconsciously and despite one’s best intentions. Yet again and again, prominent psychiatrists appear in news headlines about improper funding by industry and failure to disclose financial conflicts of interest. The field risks trading away its most valuable commodity — trust.

This whirlwind tour of psychiatry and ethics has barely scratched the surface. These are only some of the most common ethical issues in clinical practice; there are many other equally worthy contenders. Nonetheless, it illustrates some of the range of issues faced in the field, the many commonalities with other medical specialties, the great overlap with purely clinical decision-making, and the way psychiatry, more than any other medical specialty, is defined and shaped by the social context in which it is practiced.

Psychiatric holds and refusal of medical treatment

I apologize for the stagnant blog of late.  I've been working on an idea or two that hasn't jelled yet.  Meanwhile, I ran across a familiar yet troubling occurrence the other day: The use of a psychiatric hold on an inpatient with no psychiatric disorder but who was refusing life-saving medical treatment. My comments are limited to California, as each state has its own laws about psychiatric holds, a.k.a. involuntary civil commitment.  The Lanterman-Petris-Short (LPS) Act, signed into law by Governor Ronald Reagan in 1969, made California the first state to employ a "dangerousness" standard to justify psychiatric holds.  Prior to this, mental patients were generally committed on the basis of "need for treatment."

Dangerousness is defined in the LPS law as danger to self (usually interpreted as intentional self-harm or suicide risk, not mere recklessness), danger to others, or grave disability (inability to provide for one's own food, clothing, or shelter).  For LPS provisions to apply at all, the alleged dangerousness must be the result of a mental disorder or chronic alcoholism.  The LPS Act is part of the state Welfare and Institutions Code, sections 5000 and following.  The initial 72-hour hold in California is called a "5150" as it is authorized in section 5150 of the WIC.  Here is a brief history of California mental health law.

Virtually all other states adopted psychiatric commitment laws similarly based on dangerousness after the US Supreme Court ruled in O’Connor v. Donaldson, 422 U.S. 563 (1975) that, "There is...no constitutional basis for confining such persons involuntarily if they are dangerous to no one."

Let's turn now to a non-psychiatric setting, the general medical-surgical hospital.  Some hospitalized patients cannot make informed medical choices, or they may express unpopular, "crazy" opinions.  At one extreme are patients who arrive unconscious and cannot express a choice at all.  In the typical emergency situation, doctors and nurses reasonably assume such a patient wants to receive lifesaving treatment, and proceed accordingly.   Other patients may be delirious, in great pain, or suffering from a brain injury or stroke.  They may express preferences that make no sense to the medical professionals, choices that seem "crazy."  (Questions about decision-making capacity almost never arise when the patient agrees with the doctor, only when there is disagreement.)

These situations have nothing to do with psychiatric illness.  It is well recognized that some patients lack the capacity to make medical decisions while in the throes of severe illness or injury.   As with the unconscious patient, lifesaving treatment proceeds with assumed consent.  No one lets a confused delirious patient stagger out of the hospital just because he lurches blindly in that direction.

More challenging ethical dilemmas arise when a refusing patient is simply uneducated or from another culture.  When I was a medical intern, I saw an elderly Filipino man with intestinal bleeding.  He had never been seriously sick before, and did not understand Western medicine.  He refused blood transfusion on the theory that "the more you put in, the more will leak out."  The senior medical resident requested a psychiatry consult to declare the man incompetent to make such decisions.  (This was a mistake, as I'll explain shortly.)   He then received transfusions against his will.  Soon thereafter the patient refused surgery needed to stop the bleeding.  The surgeon proclaimed he would never operate on an unwilling patient — but in an odd twist, when the patient lapsed into unconsciousness, he was "no longer objecting" and the surgery proceeded.  The patient died in the post-surgical ICU, never having regained consciousness.

This sad case highlights a few important points I'll just touch on here.  First, assessment of medical decision-making capacity is not a special skill of psychiatrists.  All physicians are supposed to do this routinely (albeit usually implicitly).  Internists need to know whether their patients can give informed consent for medical treatments, and surgeons should likewise assess the capacity of their patients to consent to surgery.  "Competence" is an overarching legal status decided by a court, not by medical or psychiatric assessment alone.  Perhaps the most obvious point: Once a patient's consent or refusal is considered valid, its ethical force doesn't diminish when the patient falls asleep or lapses into unconsciousness.

Now, how does the "5150" apply in the non-psychiatric hospital setting?  Hardly at all.  Patients with severe mental illness are sometimes hospitalized for unrelated conditions, and occasionally meet dangerousness criteria for a 5150 hold while receiving medical treatment.  But the more common situation is the misuse of the "5150" to prevent an apparently lucid patient from refusing lifesaving medical or surgical treatment and leaving the hospital.  This is startlingly common — it startles me, anyway — and happened just the other day at my hospital.

It should be obvious why the 5150 cannot be used this way.  First, it only applies to a situation in which a mental disorder or chronic alcoholism leads to dangerous behavior.  Second, refusal of lifesaving medical treatment is not "danger to self" as the law is normally understood.  Third, even a legitimate 5150 hold only compels three days of psychiatric evaluation and protective custody; it says nothing about forcing medical or surgical (or even psychiatric) treatment on anyone.

The solution is for physicians to assess the medical decision-making capacity of their own patients.  Where available, a hospital ethics consult can clarify the relevant issues, but this is usually optional.  Patients who possess medical decision-making capacity have the right to refuse treatment and to leave the hospital if they wish, even if they die as a result.  Those who lack such capacity can be treated, like the comatose or delirious patient, with assumed consent.  However, a superior court determination of incompetence to make medical decisions is required to force non-emergency medical or surgical treatment.  LPS law is silent on these matters.