EXECUTIVE SUMMARY

Recent amendments to federal patient privacy regulations give clinicians new allowance to report patients with mental health issues, but state laws may differ. Ethicists can do the following:

  • help clinicians assess if a particular case may be, or must be, reported,
  • refer clinicians to the appropriate resource, such as security, and
  • de-escalate conflicts between a patient’s family and the clinical team.

Recent amendments to HIPAA give new allowance for clinicians to report patients with mental health issues to the National Instant Criminal Background Check System. However, these shouldn’t be misinterpreted.

“The amendments to the HIPAA rules do not create a duty to report — they only give permission to report,” says Thaddeus Mason Pope, JD, PhD, director of the Health Law Institute and professor of law at Mitchell Hamline School of Law in Saint Paul, MN.

Clinicians must still comply with state law, which may not permit such reporting. “Therefore, clinicians should consult with their legal counsel before making reports,” says Pope.

Does a clinician know of a patient who poses an imminent and serious risk to an innocent third party and fail to report it? In this scenario, Pope says the main ethical risk is that serious and probable harm is not avoided or mitigated. “Reporting might permit implementation of risk avoidance or protective measures,” he explains.

Pope sees two main ethical risks involving over-reporting. “First, patient confidentiality is breached without sufficient justification. Second, the patient’s liberty may be limited without sufficient warrant,” he says.

Pope says that the clinician’s legal duties are strongly weighted in favor of reporting. “There is normally little risk from over-reporting, but there is risk from under-reporting,” he explains. “Ethics consultants and ethics committees can help clinicians assess whether a particular case may be or must be reported.”

Unlike other mandatory reporting duties, such as with child abuse or elder abuse, the trigger for breaching confidentiality and reporting mental health threats is usually higher than “mere suspicion.” “Consequently, the risk of unnecessarily disrupting a patient’s liberty and privacy is lower,” says Pope.

The obligation to report is often known as “Tarasoff” duties, referring to the California case that originally articulated the duty to report.

“Other states have articulated the duty in different ways and through different cases and statutes,” says Pope. “Bioethicists should be sure to know the rule in their own state.”

Not Domain Of Ethics

Mathew David Pauley, JD, MA, MDR, regional ethicist at Kaiser Permanente Northern California in Oakland, has seen ethics consults called because clinicians were alarmed at a patient’s documented history of violence. Other times, ethicists were called when a patient or family member became violent in the hospital setting. “There is a loss of control when someone you love is sick or injured,” says Pauley. “Sometimes, people respond aggressively.”

In Pauley’s experience, ethicists have gotten involved with incidents involving violent or threatening family members more often than for out-of-control patients. Sometimes, the decision-maker is making a decision that another family member finds alarming.

“A lot of people have very poor coping mechanisms, especially when they’re experiencing life-changing events like the loss of a loved one,” Pauley says.

Ethicists are often called because of an escalating conflict between family and clinicians. For instance, a family member may reject the physician’s assertion that their loved one is brain-dead.

“Often, when there is threatening behavior, we bring somebody in to say, ‘We can’t tolerate this behavior,’” says Pauley.

Meeting with the ethicist one-on-one allows that person to be heard. “By diminishing their frustrations, with concerns put on the table, that hopefully will de-escalate the conflict,” Pauley says.

Ethicists set ground rules before any sort of conversation occurs. “That sets the tone for the entire conversation,” says Pauley. For instance, people agree not to raise their voices or interrupt others.

“If things are getting loud, we can stop the conversation and say, ‘You agreed to not raise your voice.’ When you put the limits on beforehand, it can sometimes prevent abuses,” says Pauley.

At times, ethicists are called for issues that aren’t under the purview of ethics. “We tend to get calls for everything. We’ve gotten numerous consults for sexual harassment, which is not clinical ethics,” says Pauley.

Neither is a violent patient or family member. “What we struggle with is that everything can be framed as an ethics issue,” Pauley says. “If a family member is threatening someone, is it bioethics? No, it’s a security issue.”

When clinicians see a conflict, their first reaction is call a person that they know addresses conflict in their everyday duties — an ethicist. “This raises the issue that the ethicist needs to know when to delegate something, or defer someone to the appropriate resource,” says Pauley. This might be security, the manager of the unit, or the on-call administrator.

“The role for the ethicist would be more at the 10,000-foot level — that is, how do we as an institution work with people who are historically and repetitively violent?” says Pauley. The following are some ethical concerns:

  • avoiding stigmatizing individuals with a history of violence,
  • ensuring that patients’ individual rights are maintained, and
  • asking the question, ‘Why is this person being violent?’” It could be that patients or family are left feeling unheard and powerless.

“It could be that the healthcare system is driving them crazy,” says Pauley. “If we are somewhat complicit in it, we should recognize that.”

SOURCES

  • Mathew David Pauley, JD, MA, MDR, Regional Ethicist, Kaiser Permanente Northern California, Oakland. Phone: (510) 987-4608. Email: mathew.d.pauley@kp.org.
  • Thaddeus Mason Pope, JD, PhD, Director, Health Law Institute/Professor of Law, Mitchell Hamline School of Law, Saint Paul, MN. Phone: (651) 695-7661. Fax: (901) 202-7549. Email: thaddeus.pope@mitchellhamline.edu. Web: www.thaddeuspope.com.