Published: September 2020
The information in this article was correct at the time of publishing
Among physicians, the medical-legal risks of providing mental health care are shared across several physician groups. With ongoing scarcity of access to psychiatric care in many regions of Canada, non-psychiatrists often step in to assess and manage patients’ mental health needs.1
Complexities in mental health diagnoses
Establishing mental health diagnoses can be complex. Symptoms are predominantly self-reported during patient interviews, and objective measures and biomarkers of psychopathology remain underdeveloped.2The diagnosis can evolve or even change from assessment to reassessment, and issues pertaining to patient capacity can further complicate information-gathering.
In the CMPA review of files involving patients with mental health concerns, peer expert3 criticism underscored the importance of documenting thorough mental health histories and mental status examinations in the patient’s medical record, and of using known diagnostic criteria before arriving at a diagnosis. Patient complaints about diagnosis were often associated with clinical judgments affecting patient autonomy or employability (e.g. employer-directed independent medical examinations, involuntary hospital admissions or treatment, and fitness to drive assessments), and peer experts often noted the impact of cognitive biases on diagnoses. For example, diagnostic overshadowing was frequently observed, a bias that is active when physical symptoms are misattributed to mental illness.4
Case example: Misattribution of a worsening symptom delays care
A rural family physician follows a middle-aged man for three years, after hospitalization for acute respiratory distress secondary to pulmonary edema. In addition to managing the patient’s severe coronary artery disease and nephropathy, the physician monitors his treatments for anxiety and depression. A period of rapid weight gain and poor glycemic control then coincides with job loss, and appointments with the physician increasingly focus on discussions of his unemployment, ongoing stressors, and feelings of lethargy. The physician documents the patient’s increased weight, but does not perform a physical examination, attributing the weight gain to the patient’s decreased physical activity secondary to his depression. Soon after an appointment predominantly focused on the patient’s mental status, the patient is hospitalized due to acute heart failure and renal injury, with prominent, generalized edema. He later dies in the intensive care unit.
A complaint is made to the College, and the College is critical of the physician’s failure to broaden her differential diagnosis to include medical causes for the patient’s weight gain. The College directs the physician to undertake remedial education on the management of patients with multiple comorbidities.
Challenges with referrals and the importance of follow-up
Physicians can experience challenges accessing psychiatric consultations and referrals for their patients, a situation that impacts regular follow-up and monitoring. In one Canada-wide survey of 890 primary care doctors, 35% rated access to psychiatrists as poor,5 while a Vancouver-based survey of 230 psychiatrists found only 6 respondents reported that they were able to provide timely consultation for patients referred by family practitioners.6
Peer expert reviews of CMPA files involving inadequate follow-up and referral for patients with mental health concerns emphasized considerations such as:
- Physicians should apprise themselves of support resources available in the community, such as counselling services, mental health crisis lines and mobile crisis teams, detoxification centres, shelters, and addiction services. This information can be provided to the patient as part of a follow-up strategy.
- Consultations should be pursued as needed, even if psychiatric access poses a challenge. Peer experts expected physicians to attempt to secure these consultations and document their efforts.
- When referrals are delayed, appropriate reassessment and monitoring by the referring physician may be required during the interim period. Reassessment of a patient’s mental health history and mental status should be performed regularly.
When access to consultations is limited, alternatives such as teleconsultation or eConsultation may enable care. Physicians should evaluate such consultation services in advance, assessing whether information security safeguards are adequate and whether the services are appropriate for the specific patient.7
Case example: Appropriate social service follow-up for a suicidal patient
A student with complex mental health and substance use disorders is evicted from her residence for alcohol-related disturbances. She presents to the emergency department multiple times over the course of a week. On each occasion, she presents intoxicated, with suicidal ideation, and is prescribed diazepam, IV fluids, thiamine, and multivitamins for alcohol withdrawal. She is suicidal only when intoxicated, and expresses a desire to access support resources in order to stop binge drinking. At her last visit, the emergency physician notes the multiple emergency department visits, and refers her to psychiatry. She is assessed by a psychiatrist, who notes no suicidal plans or intentions and clearly documents the mental status exam. On reassessment the following morning, she reports no further thoughts of self-harm or suicide, and is discharged with a follow-up psychiatric appointment, acceptance to a shelter, and information about detoxification resources. She is found three days later, having died by suicide.
The patient’s family initiates a legal action, alleging that inadequate assessment and failure to admit the patient resulted in her death. Peer experts are supportive of the care received, noting that, unless there are extenuating circumstances, the default treatment for patients presenting to the emergency department with suicidal ideation is to avoid admitting them to an inpatient psychiatric ward, and to refer them to community psychosocial resources, lodging facilities, and substance use rehabilitation programs. The case is dismissed.
Managing patients at risk for suicide
In the CMPA review of medical-legal matters involving psychiatrists that closed between 2014 and 2018, 24% (37/157) of the legal actions and 11% (41/392) of the College complaints involved a patient’s death by suicide. Peer experts reviewing these matters emphasized the importance of conducting and documenting an appropriate assessment of suicide risk. They also highlighted the importance of collaboration with the patient in formulating a safety plan, particularly when physicians anticipate a change or transition in care, such as when planning to discharge a patient.
The bottom line
Coordinated care for patients with mental health concerns can be complicated, especially when access to psychiatric expertise is limited. Recommended practices for reducing medical-legal risk include conducting and documenting a thorough mental status assessment and following up with reassessments, familiarizing yourself with local social support services, and having an action plan when navigating consultation delays.
- Kurdyak P, Stukel TA, Goldbloom D, et al. Universal coverage without universal access: a study of psychiatrist supply and practice patterns in Ontario. Open Med [Internet]. 2014 Jul 15;8(3)e87
- Krystal JH, State MW. Psychiatric disorders: Diagnosis to therapy. Cell [Internet]. 2014 Mar 27;157(1):201-214
- Peer experts refer to physicians retained by the parties in a legal action to interpret and provide their opinion on clinical, scientific, or technical issues surrounding the care provided. They are typically of similar training and experience as the physicians whose care they are reviewing.
- Shefer G, Henderson C, Howard LM, et al. Diagnostic overshadowing and other challenges involved in the diagnostic process of patients with mental illness who present in emergency departments with physical symptoms – A qualitative study. PLoS ONE [Internet]. 2014;9(11):e111682
- National Physician Survey: 2010 national results by FP/GP or other specialist, sex, age, and all physicians - Section D: Patient access to care. Mississauga(CA): The College of Family Physicians of Canada
- Goldner EM, Jones W, Fang ML. Access to and waiting time for psychiatrist services in a Canadian urban area: a study in real time. Can J Psychiatry. 2011 Aug;56(8):474-480
- Canadian Medical Protective Association [Internet]. Ottawa(CA):CMPA; 2017 Sep. Is that eConsultation or eReferral service right for your medical practice?