Wednesday, December 30, 2009

Commentary on Opinions of APA Ethics Committee

The American Psychiatric Association recently published a long overdue compilation of opinions on the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (2009 edition). While some opinions may reflect some needed reality testing and updating the committee has regrettably retained many archaic opinions (some more than 30 years old), and has omitted at least a few that might have added to the document.

The Opinions of the Ethics Committee on The Principles of Medical Ethics

Getting off on the wrong foot, the Forward explains that the document includes responses to questions about the seven Principles where I count nine "sections." I think we might do well to jettison the last two anyway. More on that later.

The ethics committee seems to have missed two facts about psychiatry and psychotherapy: First, many psychiatrists no longer do psychotherapy. Second, many of those who do psychotherapy do not claim to do psychoanalytic psychotherapy or to believe in psychoanalytic theory (Oh, sacrilege). This makes references to psychoanalytic terms like "counter-transference" and "transference" (I counted 6) quaint but archaic and inappropriate. These concepts serve no purpose in medication management, magnetic stimulation, or even CBT, becoming little more than euphemisms. Any attempt to impose an ethical principle based on these unproven constructs upon a psychiatrist outside the context of analytic/dynamic psychotherapy would itself be unethical and must be avoided. Psychiatrists should only be subjected to ethical principles relating to psychiatric practice in general.

Let me attempt to translate some of these references to transference. Take the answer to A.1.a. (page 5) for example: "procedures do not activate transference distortions that preclude effective treatment" appears in a 1989 opinion about whether a psychiatrist can ethically perform vaginal exams or "lead" his (We were all men back then.) patients into sexual fantasies. I would like to advance the theory that transference distortions will not likely make olanzapine or paroxetine any less effective. But could it be that by "treatment" the committee really meant psychotherapy? And I must admit I would not know a transference distortion if one bit me in the superego.

Can we not address this question without invoking mythical concepts like transference? A psychiatrist who routinely attends to the general medical needs of her patients can ethically, with the patient's consent, perform any aspect of a physical examination indicated. However, regardless of whether treatment includes psychotherapy and regardless of the type of psychotherapy, if the psychiatrist uses genital examination for his or her own sexual gratification, we should consider it unethical. We need not refer to or even believe in the existence of "transference distortions."

On page 6 we see a question about the ethical implications of a psychiatrist dating a former patient. The opinion refers to the possibility the patient has developed a "positive transference" in arguing such a relationship would not be ethical. "Positive transference" here, I believe, means not just that the patient likes the psychiatrist, but also that the "liking" is just an illusion, an artifact of treatment, that it is not real. Once again, we need not invoke psychoanalytic hokus pokus. It behooves us as a profession for our patients to know they are entitled to expect that we will provide treatment we believe to be in their best interest, free of any concern that we may want something other than money from them in return.

On page 8  the question is whether the role of the psychiatrist (really as psychotherapist -- no question of medication here) can ethically switch from that of treater to that of psychotherapy supervisor. Once again the initial opinion (circa 1988) "probably not" is spot on, but then from the fog of psychoanalytic theory emerges a possible exception: "unless there is consultation for both you and the social worker that indicates no transference-countertransference issues that might harm the patient or lead you to misuse the supervisory role." I see one analyst passing a consultation form to another. At the top it reads, "Rule out transference-counter... etc". How would one do this? How many months on the couch(es)? But aside from the "issues" issue this opinion raises the question of the extent to which the problem might be specific to the particular method of psychotherapy provided. If the treatment had involved CBT or systemic psychotherapy, might the answer be different? Does the committee really expect that the psychiatrist and social worker might consult a psychoanalyst on such a matter when the treatment and supervision involve family systems psychotherapy?

A.2.e. (page 11):
I am doubly interested in this question since it also touches on media use of patient information by the psychiatrist as author. The answer seems to contain a contradiction: "Their consent while "freely" given is likely to be heavily influenced by their transference feelings, the need to please you." How can consent be "freely" given when it is also "heavily influenced?" This case may not even involve psychotherapy, much less psychoanalytically oriented psychotherapy. How can the committee invoke "transference" in formulating the response? Fortunately, even in 1989, someone got to the real point which is that the whole project smacks of exploitation of patient by psychiatrist for the personal gain of the psychiatrist and is therefor probably unethical.

K.2.h. (page 49):
A quarter century ago, analytic theory, misapplied, obfuscates a straight forward problem. The financially challenged patient pays only part of the fee; unbeknownst to her, Mom pays the rest. According to the Principles, "A physician shall deal honestly with patients...", but this will only be considered dishonest from a psychoanalytic perspective if a "consultation" reveals that the associated "transference distortions [are] significant enough."

R.2.a. (page 78)
22 years ago the committee invoked psychoanalytic concepts to probe the ethical depths when a male resident accepted a ride from a female patient. Not just any patient, mind you, but one with "an eroticized transference toward him." Perhaps there would be no need to question the ethics here but for that nasty transference problem. The recommendation might have been (but was not): If a patient offers you a ride, only accept if you have previously determined the transference (assuming there is one) is not eroticized. Once again it is not clear whether the psychiatrist was providing  psychoanalytic treatment.

We could debate whether evidence supports use of any psychotherapy based on psychoanalytic theory for treatment of any mental disorder, but my point here is that we should no longer consider psychoanalytic theory to be at the core of psychiatry. It is only one of many treatment modalities that psychiatrists and other professionals may elect to provide. Despite their age the opinions cited above remain instructive and deserve inclusion in the document, but the ethics committee should have either removed references to peculiarly psychoanalytic concepts or added an explanation with an updated basis or translation into non-analytic terminology. Furthermore, and perhaps of greatest concern, inclusion of analytic concepts raises suspicion that some committee members might be unable to fairly consider ethics questions or complaints where the case involves no psychoanalytic treatment. The committee should no longer assume that all treatment involves psychotherapy of any kind. Opinions should not contain obscure and often ambiguous jargon, like "transference distortion," unless accompanied by a definition. When we refer to a patient's feelings as transference we also imply, at least to some degree, as noted in at least one example above, that the feelings are an unreal artifact of treatment. Even in the context of psychoanalytic treatment this notion risks conflict with Section 1 of the Principles to the extent that it fails to provide for "respect for human dignity" in the patient-physician relationship.

Commentary on Opinions of APA Ethics Committee II

Saturday, December 19, 2009

Determining Competence to Suicide When Facing Imminently Terminal Illness

Recently the State of Washington enacted a "death with dignity" statute (Chapter 70.245 RCW: The Washington death with dignity act) closely modeled on the Oregon statute (Death with Dignity ORS Chapter 127) passed years ago. This euphemism for assisted suicide probably evolved not only from the stigma associated with suicide but also, for example, from the importance of preventing denial of insurance benefits to survivors. (“Actions taken in accordance with this chapter do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law.”)

I do find it interesting that we tend to strongly associate suicide with mental illness in spite of the fact the fact that so many (if not most) suicides, such as those we reported in the media are associated with terrorism, and if you look at the Behavenet suicide page, you will see a long list of films, and a few books, in which reference to suicide rarely relates to mental illness.

My interest in this topic lies in the question of how qualified mental health professionals might wish to respond if asked to evaluate a terminally ill patient who wants to die, in order to determine "compliance" with requirements of the law, particularly because this kind of evaluation seems to demand the clinician assume a new role unlike that of treatment provider or forensic examiner.

I hasten to point out that I pretend to have no expertise in this area, have not followed evolution of policy or law in this area closely, and hold no strong opinions for or against assisted suicide in principal. I am aware that many physicians believe that it is a rare case today in which a patient cannot “die with dignity” with previously available palliative care. Also, I approach this discussion in complete ignorance of how the practice has played out in Oregon. I have not even attempted to discover how psychiatrists or psychologists have conducted such evaluations in that state, choosing instead to approach the subject afresh.

The statute stipulates a procedure that starts with diagnosis of an imminently terminal illness. If the patient initiates the process two physicians must give a prognosis of death within six months. Only if one of the physicians questions whether the patient’s wish to die might result from a mental disorder must she request assessment by a psychiatrist or psychologist. After meeting all requirements the physician orders a lethal dose of a barbiturate such as sodium pentothal. After procuring the drug the patient has the option to use it at her discretion. Completion requires active conduct on the part of the patient. The decision to move forward is necessary, not sufficient. Even barring interference the patient or some other actor must take active steps or only nature may take its course. (A problem may arise in cases where the patient loses the physical capacity to self-administer life-ending medication. This is clearly beyond the scope of a test of competence or impaired judgment.)

Counseling Referral
The wording of the statutes differs slightly from that on the forms, but I suspect we will ultimately consider the forms definitive: A “licensed psychiatrist,” or a licensed psychologist, acting as a "consultant" must perform an evaluation to determine a) whether the patient suffers from a mental disorder or b) depression, and whether "impaired judgment" has resulted from either. RCW 70.245.060 requires a “counseling referral.” Maybe the author of the statute erroneously equated "counseling" with any of that mysterious stuff psychiatrists and psychologists do, but while such a professional might choose to counsel the patient about almost anything the statute seems to require evaluation rather than counseling. Counseling implies treatment service provided to the patient. In this setting the professional might also attempt to influence the patient. Was that intended?

Problems arise from ambiguity and questionable use of terminology. (I may have missed a few.):

States do license psychologists, but there is no "licensed psychiatrist" in Washington state, nor likely in Oregon. While statutes spell out the definition of a psychologist, nothing prevents any physician from claiming to be a psychiatrist. The state licenses physicians (or “physicians and surgeons”) but not psychiatrists. Neither the forms nor the statutes relating to assisted suicide provides for a definition of psychiatrist. Neither mentions completion of a psychiatric residency, board certification, or even the mythical "board eligibility."

Both states' forms (OR Form; WA Form) and statutes require evaluation for "psychiatric or psychological disorder or depression." This would seem to imply that mood depression -- the symptom rather than the disorder -- might produce sufficient impaired judgment to disallow assisted suicide. This might include sub-syndromal depression. But would it not be just as likely that some other sub-syndromal disorder might produce the same degree of impaired judgment? The inclusion of both terms psychiatric and psychological would seem to imply that the two categories might differ in some way. More likely, I think, the author intended to use language that might not depend on a particular system of classification, just in case we abandon the official diagnostic manual of the American Psychiatric Association, or perhaps to assure against omission of any such condition.

Furthermore, as Washington attorney Margaret Dore points out, the evaluation occurs relatively early in the process. The evaluation might find a patient competent before proceeding, but with no guarantee that her mental state will not deteriorate before the time comes to take the life-ending drug. However, the down side risk might be minimal. At worst the patient might, for example, because of impaired judgment at the time, fail to take the drug in a lethal manner. This might result in further injury, a compression syndrome or further brain injury for example. This could happen if the patient were to lose consciousness before ingesting the entire lethal dose.

Choice of Evaluator
The law does not stipulate who chooses the evaluator, but likely both physician and patient would participate. If a psychiatrist or psychologist has treated the patient before would his prior familiarity with the patient put him in a better position to make such a determination because of greater knowledge? Emotional connection with the patient might make it more difficult to maintain objectivity, especially if the professional holds a strong opinion about assisted suicide. Perhaps he should suggest that a new professional conduct the examination. Patient and physician will likely choose a "counselor" believed unlikely to oppose to accept the practice of assisted suicide. Perhaps the physician requesting the examination should ask whether the potential examiner holds any strong bias for or against.

Compensation of Evaluator
Who pays the examiner? I believe the patient should compensate the examiner. Third party payers might or might not provide reimbursement. This could conceivably hinge on whether the evaluation leads to treatment of a psychiatric disorder. This raises the question of whether an examiner should ever take on continuing treatment or refer to a new professional.

The space provided on the evaluation form allows for very little documentation. This may reflect ignorance of the typical length of such an evaluation. It might betray the fact that the author did not intend the professional to conduct a comprehensive diagnostic examination. Or the author may have assumed that the professional would attach a complete document.

To whom does the evaluator owe a duty? the terminal patient? the attending physician?

Patient's Perspective
We should also consider assisted suicide from the patient’s point of view: "I have to convince this psychiatrist/psychologist my desire to die this way is not because I'm depressed or crazy." That is, the evaluator may be perceived as an adversary, a fact the examiner must keep in mind. The patient will have an incentive to "fake well." On the other hand the patient might fail to cooperate with evaluation. In this case the professional would probably not declare the patient competent, and the process might be halted. In the face of an adverse determination for any reason, either the patient or the attending physician might challenge the finding and request a second examination. If two evaluations disagree, a tie breaker could be ordered, but the statute seems to require only one permissive opinion to allow the process to go forward.

Administration of Lethal Medication
For the suicide to proceed to successful completion requires more from the patient than mental competence to choose death. Self administration of a lethal dose of the chosen barbiturate requires the patient to find, prepare and consume a large number of capsules or tablets over a short period of time. Some patients might require assistance at the time because of the physical demands aside from the mental demands.

Criteria for Competence
Under the Washington definition the patient must be found competent, but we can only guess that this might mean competent to want to die or competent to decide to die. The definition adds another criterion: absence of “impaired judgment,” a term that covers a lot of territory. Neither the forms nor the statutes stipulate the degree to which judgment must remain intact in order to allow assisted suicide. Some examiners might consider a wish to die as evidence of impaired judgment. What criteria should be used? Does this compare to a forensic competence assessment like testamentary capacity or competence to stand trial?

Should the examiner presume competence or incompetence? This could depend on whether the examiner has a bias against, or in favor of, assisted suicide. But it seems unlikely that evaluators opposed to assisted suicide would participate. Judging from the brevity of the form and the lack of attention to qualifications of the examiner, might we assume the authors of the law intended a presumption of competence?

I favor modeling the competence or impaired judgment test on other tests of capacity or competence. The examiner should focus the evaluation on the judgments directly related to the act of assisted suicide. For example, the patient might provide an inappropriate answer to the frequently used questions about what one should do when she discovers fire while in a crowded theater or what to do with an addressed, stamped envelope found on the street. The fact the patient meets criteria for any particular mental disorder should  not in itself be assumed to render them incompetent. However history might be relevant, particularly if the patient has attempted suicide in the past, particularly if the suicide appeared related to a mental disorder.

In making this determination the examiner should elicit evidence of the degree to which the patient

1) appreciates the diagnosed illness, its effects, and the natural process of death from the illness
2) appreciates the available alternatives to assisted suicide, including palliative care
3) appreciates the irreversible nature of assisted suicide, including the process of death from the life-ending medication
4) appreciates how to administer life-ending medication to achieve the desired effect, including the ability to discriminate among life-ending medication, other medication, food, and drink.

Should we include assessment of appreciation of the impact of assisted suicide on individuals or organizations? Should there be evidence that the patient wants to die to avoid the loss of dignity associated with the terminal illness rather than to avoid psychic "pain" associated with a mental disorder. The examiner should not attempt to influence the patient, or should he?

Psychologists, who lack medical training, may not be qualified to adequately assess elements of the examination requiring knowledge of terminal physical illness and treatment, especially palliative measures. Few of these elements is straightforward or simple. Each involves judgment of the degree of understanding, taking into account the patient’s cultural and educational background.

According to the Washington statute, "A professional organization or association, or health care provider, may not subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating or refusing to participate in good faith compliance with this chapter." This seems to provide a degree of immunity, but only related to whether one participates or refuses. It would be safest to assume that one must still comply with all other aspects of law and meet the profession's standard of care. Furthermore, it is not clear that the State of Washington for example has authority over the American Psychiatric Association with regard to ethics questions. If APA censured a member for participation what legal recourse would the State have?

Those psychiatrists or psychologists who embark on these evaluations will enter uncharted territory. I hope this will at least help them ask the necessary questions about how to proceed. It will be important for the pioneers to share their experience with those who follow.

Wednesday, December 9, 2009

DEA Suboxone Audit Update VI

Continued from: DEA Suboxone Audit Update V 

Today I learned that DEA field offices in FL, MA, and NY sent letters, some in October, to OBOT physicians alerting them to unscheduled audits. At least some of the letters (I have not yet seen a copy) apparently included language that suggested physicians who were issued special credentials for prescribing buprenorphine, but who do not currently prescribe the drug, could avoid the hassle of the audits by relinquishing their credentials. This apparently alarmed some physicians, but a second letter from some or all of the field offices attempted to clarify and reassure physicians.

I also obtained confirmation by telephone that the NW field office did not send letters, which of course explains why I did not receive one. It is not clear whether that office will send a letter eventually, but at least one physician in the area reported that he was audited.

DEA Suboxone Audit: Worst Experience of My Career as a Physician

Saturday, December 5, 2009

DEA Suboxone Audit Form

I have obtained and hereby make available for review and comment DEA Form 82: Notice of Inspection of Controlled Premises. I understand, but cannot be sure, that DEA agents will require OBOT physicians to sign a copy of this agreement before initiating audit of records. OBOT physicians may want to ask an attorney to review the form now so as to be prepared when audited.

I was glad to see the form includes a statement of rights. I notice, too, that the form includes no reference whatsoever to questioning or interrogation. There is a stipulation that the agent will be allowed to inventory stock of controlled substances.

DEA should make a copy of this form available on the agency Web site. Until it does you can make do with this copy.

Thursday, December 3, 2009

DEA Suboxone Audit Update V

Continued from: DEA Suboxone Audit Update IV

The Government Relations Department of the American Psychiatric Association has issued a helpful document providing more details regarding the OBOT audits. My local DEA office still has not provided me with a copy of the “Notice of Inspection” (DEA form 82?) I was promised. Not surprisingly they also refused my offer of an appointment for my audit. In fact there was no response to my letter at all.

The document states that DEA sent each physician to be audited a letter. I do not recall receiving such a letter, but according to APA this may yet come from the local office, but audits have already started in my area.

According to the document agents will "verify" that the physician treats no more than the 30/100 limit. It would seem that agents cannot verify this without some independent source, such as pharmacy records. They must simply take the physician's word.

The only suggestion APA could offer as to why the audits cannot be scheduled is that this is standard practice. Well, that does sound like the federal government: standard practice prevails even if it involves waste.

DEA Suboxone Audit Update VI

Tuesday, December 1, 2009

Telepsychiatry and Liability

These actual questions posed to me when I asked my professional liability (malpractice) carrier to cover me for conducting medication management sessions via audio/video connection using the Web, serve to illustrate some of the misconceptions about telemedicine and the extent to which state law and the courts irrationally interfere with progress, in some cases likely increasing risk.

·        [In] Which states will you practice telemedicine? If multiple states, do you have licenses to practice in each state?

Most states apparently regulate medical activity where the patient is rather than where the physician is or where either resides. If my patient travels there, California law may govern treatment I provide from my home state. Unless I am licensed in CA I risk running afoul of the law there. Patients and physicians should not have to worry about care provided during travel by either party or both. A national license could solve this problem, but don't hold your breath.

For now I plan to only treat patients who normally reside in my state. If I or the patient travel to other states, I plan to contact the licensing board of the other state before (temporarily) managing the patient's care there. I already do this before contacts using the telephone only.

·        Number of Patients/hours per week devoted to telemedicine?

The word "hours" in this context implies psychotherapy to me. I plan to do neither psychotherapy nor initial evaluation via telemedicine. I intend to examine every patient at least once in the office before considering telemedicine visits.

I want to use this technology for as many patients as want to use it.

·        Ages & types of conditions/treatment for telemedicine?

I only treat adults and have opted out of Medicare, but I see no justification for discriminating on the basis of age. I treat patients with most psychiatric diagnoses. I see no reason why diagnosis should determine whether to apply this technology. I hope someone will comment on whether there might be certain types of cases that should not be managed via Skype.

·        Previous telemedicine experience?

Lots of experience on the phone, which emphasizes the fact that insurers, and maybe the courts, see this as a limiting technology when in fact it is less limiting than the telephone if only because you can see the patient. The differences of course are not addressed in the question: I have never charged a fee for telephone contacts, and telemedicine contacts would replace at least some in person contacts.

·        Equipment used?   Who supplies the telemedicine equipment?

Another vague question. Both physician and patient need a computer, a video camera, and an Internet connection. Funny that they never ask this question if you propose telephone contact. Who supplies that cell phone? Who supplies that battery? Who supplies those telephone poles? Let me propose an office visit: Wait, who supplies the car? the furniture? the roof? the light bulbs?

·        Is informed consent signed?

How does one sign consent? OK, this refers to yet another form. Actually, I am putting together an agreement which will include informed consent. But should I not have a separate consent form or agreement for telephone contact or office visit as well?

Phone: "I understand that doctor and patient may not be able to see each other when talking on the phone and that this leads to risk of misidentification or that each party may be unable to see the other party making rude gestures during conversation."

"I understand that if I talk to my psychiatrist on the telephone she may not be able to see holding a knife to my wrist."

Office: "I understand that meeting the physician in the office entails risk of unwanted touching that cannot happen via telephone or Skype. I understand that by traveling to the doctor's office I expose myself to risk of traffic accident, being mugged or murdered, or having my boss, who is also a patient there, see me walking into the waiting room."

  Can patients decline treatment?

No! Absolutely not! All patients must submit to treatment on penalty of death!

Seriously, maybe they mean to ask whether the patient can choose to conduct visits in person. Of course they can. By telephone? Not with me.

·        Will a psychiatrist or mental health professional be available if immediate attention is needed by the patient?

This is my favorite. Where do I start?

I try to picture a patient in my office for an appointment scheduled two weeks ago needing "immediate attention." I'm a doctor. It is not my job to give people attention. I diagnose and treat mental disorders. What are they talking about here? I would be available. If a patient seems at risk of suicide or some emergent medical problem we call 911 or send them to an emergency room. Doesn't matter whether the patient is in my office, at home, or on vacation in San Francisco.

This question seems to suggest that this mythical patient with this mythical need for immediate attention should have a psychiatrist or "mental health professional" (whatever that is) assigned to be present with the patient when the telemedicine contact is initiated. Why? And what exactly is this person supposed to do? Emergency psychotherapy? Hand them a tissue? Most patients probably wait weeks for an appointment with a psychiatrist. One local ER here has probably not enjoyed a visit from an on-call psychiatrist in 20 years. And if the patient is at risk of violence they need immediate attention from a SWAT team, not a mental health professional.

·        Will you be obtaining the patients medical history?

What perplexes me about this question is that it could refer to almost any element in the initial evaluation, assuming that is what they refer to here. Why not ask about the psychiatric history, family history, developmental history?

If so, how will you obtain the medical history?

I like to start with general anesthesia. Then I make a 3 inch incision over the right supra-numerary fossa and dissect through the soft tissue to the hard tissue. If it's even there.

Seriously -- but not very seriously -- I ask.

·        Is there a backup plan in the event of an equipment failure?

Absolutely. If the furnace goes out, I put on warm clothes. If the car breaks down, they take a cab. Or reschedule for later in the week. Hay, that just happened today. With no telemedicine involved. If the cell phone battery goes dead, we recharge it.

Oh, you mean if the computer, or the video cam, or the Internet connection fails. This really is not rocket science. You use a different computer, make do with the telephone, reschedule, or play Neanderthal and schedule an office visit. Does this really need a plan? (Maybe if you left your common sense under the pillow.)

That's all for the underwriter's questions, but here are a few more thoughts.

Using telemedicine a patient cannot physically assault a physician, office staff or another patient. Neither can they transmit infectious diseases to other patients over the Web, like they can in a waiting room.

Telemedicine markedly increases privacy for obvious reasons, some of which I hint at above. Vulnerability to hacking is a real risk, but we must weigh it against risks associated with office visits.

Skype is arguably superior to telephone but does not require waiting for business hours or availability of an office. It can also increase continuity since better-than-telephone contacts can occur when either or both parties are traveling or unable to reach the office due to illness, disaster, transportation or weather problems.

True, I will not be able to smell alcohol on the breath of an intoxicated patient, but neither will that patient kill someone while driving to my office under the influence.

Nothing in medicine is perfect, but, used sensibly, this technology offers clear advantages and deserves a place in the armamentarium of some if not all physicians, that is despite one undeniable disadvantage: My patients won't be able to enjoy petting my dog, which is why I think most pay to see me anyway.