Core Ethical Questions: What Do You Do When Your Obligations as a Psychiatrist Conflict with Ethics?

| May 19, 2010 | 0 Comments

by Edmund Howe, MD, JD
Dr. Howe is Professor, Department of Psychiatry, Director, Programs in Medical Ethics, and Senior Scientist, Center for the Study of Traumatic Stress, Uniformed Services University of the Health Sciences, Bethesda, Maryland.

Psychiatry (Edgemont) 2010;7(5):19–26


Key words:
Informing patients, warning, reporting, dangerousness, suicide, genetics, dementia, unprofessional conduct, child abuse

Abstract

Psychiatrists face many difficult ethical decisions in which they must exercise their discretion. In the most difficult decisions they confront, there are significant “harms,” regardless of what they choose. The best they can do in these instance is to be as acutely aware of the most important pros and cons as they can. This article will discuss such pros and cons in regard to, particularly, informing patients when they may be dangerous to themselves or others, have dementia, and have genetic illness. This article will also discuss giving moral weight to the psychiatrist’s own interests when making these ethical decisions.

Introduction

Psychiatrists may confront difficult ethical questions when they have obligations that conflict with ethical matters. An example of this is when a patient indicates that he or she might harm another individual(s). Not all states follow Tarasoff, and even in states that do, a psychiatrist still must use his or her discretion.[1] The strength of the ethical obligation to obey the law is, in the view of some, “context dependent.”[2,3]

In this article, I shall discuss three different kinds of situations involving these value conflicts that psychiatrists commonly encounter. The chief questions are as follows: 1) When should the psychiatrist warn the patient that the psychiatrist may violate patient confidentiality in order to meet overriding duties as a physician to other parties? 2) When should the psychiatrist tell the patient that the psychiatrist may violate the patient’s interests at a later date in order to benefit the patient? 3) When should the psychiatrist respect patient confidentiality, even though this may result in greater harm to others?

In this article, I shall not give conclusions in regard to what, in each situation, psychiatrists should do. This would, in fact, be bad ethics, since ethical analysis often cannot give right answers as to which values should prevail when competing values are mutually exclusive. Rather, I shall highlight key factors psychiatrists should consider.

Warning Patients

Psychiatrists serve many interests in many contexts. Since forensic evaluations are a paradigmatic example, I shall use this context to begin this discussion.

Forensic settings. Psychiatrists conducting forensic exams routinely give appropriate initial warnings to the individuals being examined, as that information gathered from the evaluation may be shared with other parties. This may not be enough, however. The individual on which the psychiatrist is conducting an evaluation may, during the course of the interview, begin to trust the psychiatrist too much. As a result, the individual may forget the warning he or she was given and say things against his or her best interests. Some psychiatrists add to their initial warning that they will try to keep information confidential according to the individual’s wishes. Thus, the psychiatrist should ask patients to indicate when they wish to keep information confidential. Even this, however, may be ethically problematic for the reason I have indicated above. In other words, this special effort may engender greater trust by the patient, and this may be more likely to work against the patient’s best interests. What this suggests is that psychiatrists, counter-intuitively perhaps, ethically may both respect and benefit patients more in this and similar instances by using some of their exceptional clinical skills less, such as their ability to feel and convey genuine empathy. If they use these clinical skills too much, individuals may trust them too much.

Likewise, psychiatrists doing forensic exams should ask themselves regularly whether it appears to them that these individuals may have “forgotten” the warnings they gave them. Thomas Gutheil, a renowned forensic psychiatry expert, states in this regard that he believes that just one initial warning may at times be insufficient. If and when “examinees are overly self-disclosing,” Gutheil states, “warnings may need to be repeated.”[4]

Alan Stone, another eminent forensic psychiatry expert, said in regard to this decades ago, “[T]he better an interviewer and more empathic a clinician the forensic psychiatrist is, the more examinees might be lulled into confiding, possibly to their own detriment”.[4] It remains as challenging an insight now as it was then.

Patients who have human immunodeficiency virus (HIV) but do not tell their partners. A related conflict can occur in clinical practice when patients with HIV do not tell their sexual partners they have the virus.[2,5] Psychiatrists should know the specific law regarding their requirements as physicians to report HIV and related information in their state. Still, before the patient and psychiatrist even discuss whether or not the patient with HIV has sexual partners or has told them about the HIV, the psychiatrist must decide, notwithstanding the laws, what he or she will tell the patient regarding what he or she plans to do with the information the patient provides.

If the psychiatrist tells the patients in advance that if the patient does not tell his or her partners about the HIV, the psychiatrist may take actions that could result in these partners being informed, the patient may not tell the psychiatrist who his or her partners were. The patient may say, for example, that he or she had casual sex with partners whose names he or she did not know.[6]

In the not-so-distant past when HIV first emerged, state laws were greatly divided. Some states required providers to report the patients’ partners. Others did not. In some states, providers doing either could be immune from suit, and in still other states they could be sued by the state for not informing and by the patient for informing. Some of the states that did not require reporting did not require it in part for the following reason (though they did still require reporting for some other sexually transmitted diseases): It was thought by many that the best approach to preventing the spread of HIV was for providers to urge patients with HIV to practice safe sex. But if all providers were required to report their patients with HIV and their patients’ partners, the patients with HIV might not come to them. With the treatments not being as effective then as they are now, it was feared, in sum, that if reporting was required, this might “drive HIV underground.”

Today, psychiatrists, notwithstanding different state laws and much more effective treatments, may face an ethically similar conflict: They must consider what, if anything, they will say to these patients in advance, for while they may be trying ultimately to benefit others (by preventing the spread of HIV), they may want to also maximally respect the autonomyof the individual patients who have HIV. If a psychiatrist gives these patients advance warning that he or she may need to inform the state of the HIV, for some patients this may maintain a positive relationship with the psychiatrist because the patients will trust him or her, and ultimately this could greatly benefit the patients and their partners. For others, however, psychiatrists not giving this warning in advance may prove more beneficial to patients’ partners since psychiatrists may get more information regarding these patients’ partners than these patients might otherwise share. The psychiatrist must use his or her best judgement on a patient-by-patient basis.

Pregnant women using drugs. Psychiatrists may face an analogous quandary when they treat pregnant women who use illegal drugs.[7] The value of protecting the fetus might move providers to want to test these women for drugs without telling them, and then, if they test positive, to try to admit them to the hospital, even involuntarily, if they can. If all providers could do this and this became well known, this practice could result in greater overall harm, at least to these fetuses. As with the patients with HIV, pregnant women addicted to drugs might learn through the “grapevine” that if they go to the doctor, they could be involuntarily hospitalized. This might cause fewer women to go to the doctor for prenatal care. Then, these fetuses might be doubly subject to harm: They could be harmed by the drugs and by not getting prenatal care. Psychiatrists, accordingly, may have to decide what to tell these patients in advance. If they tell these patients in advance that they will test for illicit drugs, these women may choose not to be tested. However, if psychiatrists test these women for drugs without telling them in advance what they would do if these tests are positive, this implicitly would deceive these women, but it may benefit both them and their fetuses in the long run.

Informing Patients

When patients pose a danger to others, psychiatrists acting to serve other parties may or may not serve these patients’ best interests and may go against what patients see as their best interests.[8,9] This may be true also when a patient poses an inordinate amount of danger to him- or herself.

Patients who are dangerous to themselves or others. A psychiatrist may routinely tell patients he or she sees in the clinic that he or she may override a patient’s wishes if the psychiatrist believes the patient poses too much of a danger to him- or herself. The psychiatrist should consider, however, providing the patient with more information in some instances. A patient may not know as much as he or she should regarding the conditions under which a psychiatrist can involuntarily hospitalize him or her. How much more information, if any, should the psychiatrist provide his or her patients regarding involuntary hospitalization? Giving patients additional information may show them what ethicists call greater respect, and may be beneficial to them. This possibility is exemplified by a so-called “collaborative approach” that some use and advocate for patients who are suicidal. This approach is intended, in part, to help psychiatrists treat suicidal patients without hospitalizing them. Jobes, a “suicidologist,” states, “…a central and overt goal [of this approach] is to consider what interventions will be necessary to be able to justify outpatient care.”.10 Psychiatrists using this approach give, throughout treatment, information that they believe would most enable outpatient care to remain possible. As Jobes says, this (collaborative) treatment “is designed to fundamentally optimize the patient’s motivation.”[10]

Patients dangerous to themselves could, on the other hand, use this additional information to harm themselves. They could learn to not give specific information, which might prevent the psychiatrist from being able to involuntarily hospitalize them. In other words, a patient could use this additional information regarding the criteria for involuntary hospitalization to game the system so that he or she could be released from the hospital.[11]

Patients given a Tarasoff-like warning may also use any additional, advance information to “game the system.” In other words, knowing in advance what the psychiatrist will report may enable some patients to better know when they should remain silent so that they are able to carry out a plan later to harm others.[12]

Patients with dementia. The ethical dilemma of how much information psychiatrists should share, in advance, with their patients regarding their patients’ illnesses may also arise when treating patients with dementia.[13] Psychiatrists may be able to help these patients most by collaborating with them early on in their disease state in regard to needs that may arise later. Core examples of this are discontinuing driving and being admitted to a nursing home. In regard to driving, the patient in advanced stages of dementia may pose an inordinate amount of danger to others as well as him- or herself. In regard to a nursing home, even if his or her caregiver remains optimally healthy, the patient with dementia may only be able to get the care he or she needs in a nursing home.

Ideally, in most instances, psychiatrists can help these patients prepare for these transitions by introducing and discussing the issues early on in the disease state before severe mental decline occurs. For example, patients who may, in time, need to be admitted to a nursing home may transition better if the psychiatrist, early on in the disease process, facilitates the following: 1) assists the patient in preselecting the nursing home; 2) assists the patient in working at the selected nursing home as a volunteer before it is necessary for him or her to be admitted; and 3) recommends the patient attend daycare at the nursing home until round-the-clock care becomes necessary.

Rarely, some patients with dementia may react negatively to the psychiatrist for even bringing up such difficult topics as driving or nursing home care, even when the topics are broached early on in the illness. This anger may cause the patient to choose to stop coming to the psychiatrist for care. However, as difficult as it may be, it is often better that the psychiatrist approach these difficult topics with the patient who has dementia rather than leave this to the patient’s primary caregiver.[14] The reason is that the caregiver may be the only person who knows and cares for the patient, and the patient-caregiver relationship should not be sacrificed, if at all possible. If the psychiatrist leaves it up to the caregiver to discuss these difficult matters with the patient, then the patient may respond negatively to his or her caregiver, making interaction between the patient and caregiver difficult, which over the long term may cause more harm to the patient.

Family members of patients. Exceptional considerations involving advance information also may arise in regard to patients and their close family members.

Clinical treatment. Family members may play a significant role in helping patients get better and then staying well. They may, for example, detect the first signs that patients are relapsing, which may encourage patients to seek care earlier. In light of this potential benefit, some psychiatrists encourage patients to give the psychiatrist permission to stay in close touch with their family members. Some psychiatrists require this. Should they? This is an instance in which these questions regarding advance information arise in their most subtle form. Involving a patient’s family in the treatment, much less trying to persuade a patient to do this, is paternalistic and, to an extent, ethically and clinically coercive. Yet, patients may benefit from this profoundly. Similar questions arise when patients are adolescents.[15]

Genetics. Questions involving genetics for the families of patients have not become common in psychiatric practice. They have arisen, however, in regard to many polygenic psychiatric disorders.16 Huntington’s chorea is a paradigmatic example because there is a 50-percent chance parents will pass it on to their children. Thus, if one child has this gene, his or her sibling is quite likely to have it too. Family members may want to know whether they have this gene.[2,17] They may, for example, want this knowledge to plan for their own children.

Controversy has emerged in regard to what in these instances providers should do.[18–21] Should a psychiatrist insist, for example, that a patient with Huntington’s tell his or her family members prior to seeing the psychiatrist? If not, to what extent should providers try to persuade the patients to tell their family members?

Some emphasize in regard to this ethical question the probability and magnitude of a genetic condition and whether presently this condition can be treated or cured. Psychiatrists may be particularly concerned about how this information is or is not shared and the effects of this on patients and their relations with other family members. Guidelines have been put forth on this in regard to Huntington’s.[22] Psychiatrists may face similar concerns, ethically, even now in regard to not only Alzheimer’s disease but many others, such as bipolar illness and schizophrenia.

Family members may want to know what disorders patients have and to what extent, if any, they are also at risk. Psychiatrists discussing these concerns in advance with patients may want to keep, principally, two conflicting, emotional considerations in mind, both derived from providers’ past experiences with Huntington’s: 1) Patients keeping knowledge of a genetic disorder or disease a secret from their family members may adversely affect the patients by preventing them from properly planning and transitioning; and 2) patients sharing knowledge of a genetic disorder with their family members may also adversely affect them and their family members because now the family members might live in fear of developing the disorder (though this knowledge may allow family members to use their remaining time more richly). Psychiatrists may want to discuss these conflicting concerns in advance with all patients who have conditions that involve genetic factors.

Excepting Patients

In some situations, psychiatrists might choose to not violate patients’ confidentiality by “reporting” them, even at some risk to others and/or themselves. This is, of course, the opposite of Tarasoff.

Patients at exceptionally “low risk” to harm. A psychiatrist was seeing a middle-aged patient who told him that years ago, when he had been much younger, he had sexual relations with a girl who was underage. This psychiatrist believed that he had a legal obligation to report this crime, believing if he did not, he would be breaking the law. Still, he chose not to report the patient because he thought the patient posed a very low risk to harm other people.[2] The ethical dilemma this psychiatrist faced mirrors that which many face in other contexts, though often to a lesser extent.[23] When considering whether or not to report a patient to authorities, the psychiatrist not only considers the patient’s best interest but also his or her own best interests. In other words, would the decision not to report a patient to authorities possibly cause negative legal ramifications to the psychiatrist? How much moral weight should the psychiatrist give his or her own risk of being harmed compared to the risk of harm the patient and/or others might suffer? And finally, should the psychiatrist inform the patient that, in addition to the best interests of the patient, he or she will factor in his or her own best interests when deciding whether or not to report a patient?

Choosing what to do. In the above case involving the middle-aged patient who many years previously had sexual relations with a minor, the psychiatrist presumably did not anticipate that the patient would report himself to the authories. Thus, unlike the situations I have discussed previously, an additional question a psychiatrist may face is what to do when a patient says something that the psychiatrist could not anticipate, and thus the psychiatrist could not warn the patient in advance what the psychiatrist would do with this information. The psychiatrist in the case involving the middle-aged man and the minor based his decision not to report the patient’s unlawful act on his belief that the patient did not pose a significant risk of repeating this behavior and harming others. A second, ethical consideration of theoretical, if not practical, importance involves justice in the sense of treating patients equally. For example, some patients may trust their psychiatrists enough to reveal this kind of information, but not be “savvy” enough to imagine that their psychiatrists might report them while other patients are more distrustful and are savvy enough to imagine their psychiatrists might report them. A psychiatrist who always reports patients, whether right or wrong, “punishes” the patients who are more trusting and less savvy.

The most difficult decision for psychiatrists may be what to do when they perceive a patient needs to be warned because of easily anticipated ambiguity, but they do not warn the patient. The ethical question this situation raises is whether an error made by the psychiatrist retrospectively should result in the patient being harmed when, otherwise, this would not have been the case? Stating this differently, should the psychiatrist try to “compensate” a patient at all for a mistake the psychiatrist made? It is not, of course, the psychiatrist’s error that resulted in the patient having this problem. Still, a psychiatrist not perceiving the need to warn a patient about confidentiality may, rightfully, rue this, or he or she may also use, rightly or wrongly, as a self-serving rationalization of guilty feelings, the fact that it is the patient, not the psychiatrist, who is responsible for the patient’s actions.

I recall, still painfully, a time when I was asked to consult and give advice both on how to best treat a patient and on whether she posed a significant danger to her child. I did not warn her that based on her evaluation with me actions may be taken against her, in part because I believed, perhaps rightly, that if I warned her, she would not speak openly with me. Fortunately, she was not a risk to her child.

Sacrificing self-interest. Psychiatrists who fear they may be breaking the law by not reporting a patient may in fact be fearing mostly for themselves. A question this raises is the extent to which, if any, psychiatrists should give their own interests moral weight.

In ethics, there is a distinction between acts that are morally exceptional, or in ethical terms supererogatory, and those that are common morality demands.[24] The former are seen as highly praiseworthy; the latter as ethically obligatory. This distinction is generally seen as important because some “high standards” may be too high to reasonably expect all people to meet them. Psychiatrists, accordingly, may reasonably take their own interests into account to some extent, while others would self-sacrifice to a greater and more praiseworthy extent. Some psychiatrists might report a patient because they fear the possible, negative repercussions to themselves if they do not.

Self-disclosing. A last consideration pertaining to the same case of the patient who had sexual relations many years previously with a minor is whether the psychiatrist should tell the patient that he or she is acting in part to protect his or her own interests. There is a strong, general belief in psychiatry that psychiatrists should not disclose too much information about themselves. Do the circumstances in this situation warrant making an exception to this belief? A psychiatrist would be self-disclosing in this case not because it is clinically indicated, but rather to remain open and honest by letting such a patient know why, in truth, the psychiatrist has made a choice.

Unprofessional conduct by another medical professional. Counter-transference feelings a psychiatrist may feel are likely to be evoked when the psychiatrist learns that another medical professional or, particularly, another therapist has engaged in unprofessional conduct in regard to a particular patient. Their own patients may have reported the medical professional to the psychiatrist or the medical professional who transgressed may be the actual patient seeing the psychiatrist. A psychiatrist who is treating a patient who was on the receiving end of unprofessional conduct by another healthcare professional may feel in either case that it is necessary for him or her to act immediately to take steps to ensure that other patients are not endangered. The psychiatrist may consider only taking informal steps, as opposed to reporting the professional formally. Legal and professional requirements may, of course, dictate what an individual chooses.

If a psychiatrist responds informally to claims by a patient that he or she was treated inappropriately by another medical professional, the psychiatrist may struggle with how to follow up to ensure that the medical professional in question discontinues the harmful behavior. The psychiatrist may also fear that if he or she does not formally report the medical professional in question, he or she may suffer harmful repercussions. These conflicts in the psychiatrist may cause him or her to have negative feelings toward the patient (countertransference) for “imposing” this situation on the psychiatrist.

I know of a psychiatrist who called his state medical board for advice on what to do regarding the unprofessional conduct of one of his colleagues. The person with whom he spoke told him that just by calling and making the inquiry he would now have to follow up the matter and give “the specifics” about the professional in question. The psychiatrist, who was merely trying to inquire on what the best course of action would be, now lost his discretion in the case.

Psychiatrists trying to decide what they should do in these situations should keep in mind how their decisions may affect them and their patients. If, with their own patients, they do not take certain actions and risk adverse repercussions to themselves, they may, in the future, experience countertransference anger toward these patients if and when they continue to see them.

When patients report that another professional has engaged in misconduct with them, ethically as well as clinically, it is generally accepted that these patients should be the ones who decide what, if anything, they will do. Some psychiatrists may also believe that patients would do better if they “erred” by acting to redress these past wrongs, as by taking action themselves to report the medical professional who transgressed, as opposed to not reporting him or her or forgiving him or her for what he or she did. The choice is emotionally complex. Patients taking such action may, for example, relive the traumatizing event, which may retraumatize them and leave them worse off than they were before.[25]

Child abuse. The fear of causing harm to themselves professionally may be greatest among psychiatrists when they fail to report suspected child abuse, since reporting child abuse is required by law in all states.[26] Nonetheless, the decision on whether or not to report child abuse will still involve the discretion of the individual psychiatrist regarding the case at hand.

Some providers, notwithstanding this risk to themselves, do not report child abuse they suspect even under conditions in which they believe that the prerequisite legal requirements to report are met. They do this most often because they believe this decision not to report will be far better for these children and their families than the decision to report.[27–29] They may make the choice not to report suspected child abuse for two reasons: 1) they feel that the child protection agencies available in that particular state are over-loaded and thus not in a position to effectively intervene and that this is especially important to consider when the suspected child abuse does not appear to be severe; and 2) the psychiatrist believes that continued psychiatric treatment of the family will result in more positive outcomes for all family members and thus stop and/or prevent any abuse that may be happening.

Once again, what warning to give, if any, is a profound ethical consideration. What advance “notice,” if any, should the psychiatrist give the child’s parent(s) regarding suspected child abuse? If the psychiatrist provides too much information, it may prevent the parent from disclosing much needed information that will help the psychiatrist decide whether or not it is necessary to report the parent(s) to the state. It may also result in the patient not pursuing much needed help. If the psychiatrist provides too little information, and then ultimately decides that he or she must report the child abuse, the patient may then feel betrayed and refuse to seek further help from medical professionals. In other words, the “legitimate use of empathy can lead to a quasitherapeutic interaction that ultimately leaves the evaluated feeling betrayed by the evaluator’s report.”[30]

Similar concerns to those I discussed in regard to forensic psychiatry exist also in regard to psychiatrists eliciting information from these parents. Psychiatrists might consider carefully whether, for ethical reasons, they want to use their exceptional skills to acquire information. Psychiatrists purposefully doing this for the sake of these children would be not only allowing the ambiguity of their role to persist, they would be exploiting this, and in their doing so would be treating these parents primarily as “means” to their children’s “ends.” This would “betray” these parents’ trust to a greater extent.

Conclusion

There are several factors psychiatrists should consider when they confront important values that conflict. These factors should be considered whether conducting a forensic evaluation, assessing a family for child abuse, or counseling a patient with dementia. These issues lack self-evident answers. Psychiatrists facing these questions should take into consideration morally relevant factors as discussed in this article and make their decisions on a case-by-case basis.

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Category: Alzheimer's Disease, Anxiety Disorders, Dementia, Ethics in Psychiatry, Genetics, Mood Disorders, Neurologic Systems and Symptoms, Neurology, Past Articles, Psychiatry, Psychology

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