Psychiatric Ethics of Publishing Cases

Publication of psychiatric cases in the media can benefit the public, patients, and psychiatry in general. It can also benefit the author and the publisher, but such publication raises the question of whether, and how, we can ethically make patient treatment information public.

Do we as psychiatrists want prospective patients to wonder whether they might end up in the same positions as Dr. Spork and his patient Barbara?:



In the past week or so two psychiatrists appear to have described real cases in national media. In neither was there any indication that the author had made up the case; in neither was there indication that the psychiatrist obtained permission from the patient; and in neither was there any indication of the extent, if  any, to which the author might have disguised the case. In both the level of detail seemed sufficient that the patient might be identified:

Depression On The Rise In College Students
In fairness to the Dayton, Ohio psychiatrist, Jerald Kay, MD, who did not author the story, I can find only one sentence in which he seems to have supplied the information. Perhaps the author obtained the story elsewhere and Kay just added to it.

When Self-Knowledge Is Only the Beginning
New York psychiatrist Richard A. Friedman, MD authored this story.

In each of these articles:

• Does potential benefit to the public outweigh risk of damage to the patient?
• What constitutes adequate disguise?
• Can a psychiatrist ethically ask a patient to allow publication without damaging the treatment relationship?

An author can attempt to disguise patient information, but what constitutes adequate disguise? In a private communication a chair of the American Psychiatric Association ethics committee pointed me to the standard used by a professional journal. The sole criterion was whether the patient herself could recognize her case. But, in my opinion the most critical piece of information in determining whether a case describes oneself is the name of the treating psychiatrist who will generally be the author. Regardless of the criteria used, the author should make note of the fact that a case has been fictionalized or disguised.

When it seems likely that any reader can identify the patient from published information, and even perhaps when there seems to be little such danger, one might consider obtaining the patient's consent to publish their case. However, this raises the additional question of whether a patient can freely consent. In most situations where it is desirable to release patient information the patient benefits directly, and often the patient initiates the request. In this case however the author, publication, and perhaps the public -- not the patient -- stand to benefit. The physician asking for consent risks placing the patient in a difficult position where he might feel pressured to consent against his will, damaging the treatment relationship. If the patient did consent to publication, the author should state this fact in the article.

Relevant sections of the APA Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry:

Section 1.1 “A psychiatrist shall not gratify his or her own needs by exploiting the patient. The psychiatrist shall be ever vigilant about the impact that his or her conduct has upon the boundaries of the doctor-patient relationship, and thus upon the well-being of the patient.”

Section 4.11 “It is ethical to present a patient or former patient to … the news media only if the patient is fully informed of enduring loss of confidentiality, is competent, and consents in writing without coercion.”

From an APA Ethics Opinion:

Section 2-RR “Their consent, while ‘freely’ given, is likely to be heavily influenced by their transference feelings, the need to please you… suggests an exploitation of your patients for your personal gain that outweighs the potential benefit of public education.”

An Ethics Odyssey I

My series of posts addressing the APA Ethics Committee’s opinions documents problems with the national committee’s approach to ethics questions and complaints, but local, district branch and state association, ethics committees do much of the work of handling ethics complaints. Not only does this uncompensated work require substantial amounts of time, but it also involves liability exposure with only limited protection. I believe this story will demonstrate some of the basis for my opinion that APA should do more, if not all, of this work.

During the last months of 2006 I began to consider purchasing a license to provide a proprietary treatment for patients addicted to alcohol, cocaine, and methamphetamine. There was little or no proof that the treatment worked, but given the devastation associated with methamphetamine addiction in particular it seemed this novel protocol using flumazenil, hydroxyzine, and gabapentin (all off-label and off-patent) might be worth trying provided the patient understood that the protocol might not work.

Representatives of the company informed me that I could purchase a license to provide the protocol in my office, but before spending thousands of dollars to use this patented treatment regimen I wanted to make sure my professional liability (malpractice) carrier would cover me and that the financial arrangement would not be considered unethical as some sort of fee-splitting arrangement or kickback to the company. The representatives told me I would collect a fee of thousand of dollars from the patient. One representative wrote in an email January 25, 2007 email, “As the patient comes to your practice for the treatment, our site manager notifies our corporate office who will invoice you for the license fee and the aftercare money of $1500. If the patient stays in your Outpatient tx program, you will bill us for the visits up to $1500. If you refer the patient to an IOP, that group will bill [the company] for their services.” I would then pass along to the company “$7450 for stimulant patients and $6400 for alcohol dependent” patients. This sounded enough like fee-splitting or a kickback to me that I wanted my colleagues in my professional association, the American Psychiatric Association, to assure me that it would meet ethical muster.

Professional Liability

By January 24, 2007 I asked my professional liability carrier about coverage, and by March I had an answer, but first an insurance underwriter raised the question of informed consent in an email: “Informed consent is extremely important as this is an unproven treatment using medications for off-label use. It would be appreciated if you could please provide a copy of the informed consent that you plan to use in your practice. ”

At this stage I had no access to the informed consent form, and I knew that, at least until publication of the applications for US Patents on the protocol, details of the protocol, even the drugs administered, were not divulged to the public. I, too, felt that informed consent would be critical, especially that I should be free to tell the patient what drugs I administered to them or that APA would consider ethical any constraints on that freedom.

The malpractice carrier ultimately declined to cover my use of the protocol in my office, citing what they believed to be an unacceptable risk of seizures associated with intravenous administration of flumazenil, a benzodiazepine receptor antagonist, but told me I could purchase coverage for this activity in a hospital setting such as an outpatient surgery department for a 25% surcharge added to my existing premiums.

The hospital of whose medical staff I am a member declined to allow me to provide the treatment in their outpatient surgery department on the grounds that there was too little evidence of effectiveness, but I decided to pursue the ethics questions anyway, knowing that I could ask the hospital again later and hoping that the requisite evidence of effectiveness might be forthcoming.

Informal ethics question

During my 20 years of membership in the Washington State Psychiatric Association I had twice before submitted questions to the ethics committee. In both cases a few telephone discussions led to consideration of my question at a meeting or two, then I received a letter with a clear determination, and an expression of gratitude for posing an interesting question.

But complications in resolving this ethics questions surfaced early. I first posed the question to WSPA ethics committee chair, Richard Adler, MD, in an email dated January 9, 2007. He asked me to submit the question via the WSPA president, but I knew that the licensing company, a publicly owned for-profit corporation, appeared to want to license physicians all over the country. It occurred to me that while my local APA association (WSPA) might find the financial arrangement ethical, another state association or district branch might determine that it was unethical. I reasoned that if the American Psychiatric Association ethics committee should consider the question so every psychiatrist in the country would know whether there might be an ethics problem.

APA

I contacted the APA ethics committee with the question in an email dated January 10, 2007. The APA ethics committee said they would not consider the question until the next yearly meeting in May, 2007, with an opinion to follow as late as mid summer. I provided her with the names of four psychiatrists listed on the company Web site as providing the treatment in my state.

A January 17, 2007 email indicated the question had been forwarded to APA ethics chair Wade Myers, MD, but he asked me for more information and wrote in a January 20, 2007 email to WSPA ethics chair Richard Adler, MD asking him whether he might be able to “assign a couple members of your Committee to review his concerns and provide him with some written feedback, hopefully within a couple of weeks if possible. I think it is ideal to have local WPSA [sic] MDs review this situation as they will best understand the professional landscape in your state and how it interfaces with this issue.” APA Medical Director and CEO James Scully, MD agreed in a letter dated May 2, 2007.

Non-Disclosure Agreement

The secrecy surrounding this company’s proprietary protocol also presented a problem for an ethics determination. The company apparently and understandably wanted to prevent an unlicensed (by the company) provider from copying the protocol, competing with licensed providers for a much lower fee and depriving the company of profits on its investment in the patents. When I asked a representative for a look at the licensing agreement, he forwarded my request to the company. Another representative of the company, in an email dated January 18, 2008, indicated I would have to sign the company’s “Confidentiality and Non-Disclosure Agreement” (NDA) which I understood would restrain me from revealing the contents of the agreement to anyone else. I realized this would also present a problem for the ethics committee since they might need to examine the exact wording of the agreement to make an ethics determination. If I agreed to non-disclosure, I would not be able to reveal the licensing agreement to the ethics committee. It seemed that at least one member of the ethics committee would have to sign the NDA and read the licensing agreement before the committee would be able to pass judgment.

On January 30, 2007 Dr. Adler forwarded a copy of my earlier email to then WSPA President Jason MacLurg, MD. In this message I had described the financial arrangement and raised the question of ethics related to informed consent. Dr. Adler informed Dr. MacLurg “As is the protocol, you do the initial review on ethics complaints.” On February 1 Dr. Adler wrote that the committee would be “discussing the matter this evening at our Ethics Committee meeting.”

Adler to the Company

Dr. Adler initiated contact with the company. He wrote in a February 2 email to the company:
“We received a complaint alleging that the arrangements related to [the protocol]:
“(1) reflect fee-splitting in that the clinician is provided referrals and a fee is paid for each patient treated and,
“(2) the patient is not provided information on the exact nature of the medication(s) used prior to signing a contract, thus precluding true informed consent.
“To address this ethics complaint it would probably be helpful to have relevant documents provided for review--such as the contract with providers, informed consent form, NDA.  Should you require written assurances about the limitations on the use of the material, I would be happy to sign an appropriate agreement.”

Dr. Adler was right to ask to be allowed to see the agreement, but he had taken some liberty with my original question. I had not complained or “alleged” at all. I had raised some questions. This was to prove a harbinger of things to come. He wrote on February 23 that he “signed an agreement with [the company] and they are sending us ALL relevant materials for review.” He added, “I anticipate 7-10 calendar days would be a good time frame,” but did not say for what.

“Seven to ten calendar days” stretched into weeks. I received no response from Dr. Adler to my phone calls and email. The “lead investigator” assigned to the case, a Dr. William Richie, left a message for me, but I was not able to get through to him until a Saturday in March during the annual meeting of the WSPA, which I attended, but he did not. I had little to offer in the way of additional information, but he promised a determination by March 30.

On April 3, 2007 I wrote newly elected WSPA president Robert Williams, DO, to ask for an explanation for the delay. I attended a meeting of the WSPA Executive Committee where I expressed my dismay at the delay and lack of communication. On April 13 Dr. Adler copied me on an email to Dr. Richie indicating his intent to “make this inquiry and keep all parties informed of the status.”
Dr. Richie replied to Dr. Adler the same day: “Based on this data, (and my interpretation of In re: C. Robert Crow, M.D., and later affirmed by the Fifth District Circuit Court in, Crow v. Agency for Health Care Administration) my preliminary assessment is that the ethics committee may have basis to consider a full case investigation, as the arrangement is apparently not “limited solely to fees generated by the physician from his own professional services and those services provided by individuals under his own direct supervision without reliance on fees generated from ancillary services,”.  (Those ancillary services being the referral service of [the company].) ”

Adler responded the following day: “the situation appears to represent a breach of ethics and [the author] stated last evening that he is aware of specific WSPA members who operate under these conditions/agreements.” Not exactly. To this day I have no direct knowledge of the actual financial arrangement of any physician providing the protocol.

In a letter dated April 16, 2007 I listed the names of four psychiatrists whose names I found on the company Web site said to provide the protocol in Washington State. I asked the committee to investigate whether any of them might be involved in an unethical financial arrangement as part of any license agreement with the company. I received acknowledgement in a letter from the WSPA office dated May 16 which also indicated the office forwarded copies of my letter to Drs. Adler and Williams.

Then I waited.

Continued: An Ethics Odyssey II

Commentary on Opinions of APA Ethics Committee VIII

Continued from Commentary on Opinions of APA Ethics Committee VI with more miscellaneous items:

 G.1.b. (1977, 2001? page 31): Execution and assisted suicide
This opinion states, with regard to psychiatrist participation in execution: "... the physician-psychiatrist is a healer, not a killer..." But now at least two states allow "death with dignity" or assisted suicide in which a terminal patient might conceivably ask a psychiatrist to provide a prescription for a lethal dose of drug. Perhaps more likely the psychiatrist's "participation" might consist only of determining whether the terminal patient is competent to decide to end his or her life under such a statute.

When I asked the committee for an opinion the chairman responded thus (personal communication 10.26.2009):
"I read with interest about this relatively new statute (passed in November 2008) on line. As you know, the ethics surrounding a physician providing patient care in any given setting are unique. The physicians who participate in your death with dignity procedures are truly in a position to best comment on the ethics involved, given they have firsthand experience and can best judge the competing interests that weigh into the decision to participate or not for any given case. I would encourage them to write or otherwise communicate about the ethics of this area so we can all learn from their experiences. I have attached the AMA CEJA opinion on this area which you have probably seen, and I know that not all physicians agree with this view, one that has been greatly debated."

"Opinion 2.211 - Physician-Assisted Suicide
Physician-assisted suicide occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act (eg, the physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide).

"It is understandable, though tragic, that some patients in extreme duress--such as those suffering from a terminal, painful, debilitating illness--may come to decide that death is preferable to life. However, allowing physicians to participate in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.

"Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life. Patients should not be abandoned once it is determined that cure is impossible. Multidisciplinary interventions should be sought including specialty consultation, hospice care, pastoral support, family counseling, and other modalities. Patients near the end of life must continue to receive emotional support, comfort care, adequate pain control, respect for patient autonomy, and good communication. (I, IV)

"Report: Issued June 1994 based on the reports "Decisions Near the End of Life," adopted June 1991, and "Physician-Assisted Suicide," adopted December 1993 (JAMA. 1992; 267: 2229-33); Updated June 1996."

I believe this is a cop out. APA should decide now whether to rubber stamp the AMA position and issue an opinion as to whether psychiatrists can ethically participate in competence evaluations for assisted suicide. Member psychiatrists and their patients deserve no less. APA should also address the ethics of participation in such competence evaluations where the psychiatrist might allow personal beliefs to influence the determination.

N.6.b. (1985, page 69): Admission of a patient to the hospital where he or she is employed
The opinion correctly states that no ethical question arises, but fails to point out that the patient's wishes should weigh heavily in the decision.

N.6.c. (1988, page 69): Continuity of care from office to hospital
The psychiatrists at a local mental health center do not have or want privileges at the local hospital. The committee opines that for these psychiatrists to refuse to care for "their" patients at the hospital might constitute abandonment rather than an ethical question. Abandonment is very much an ethical matter, but even in 1988 psychiatrists in many communities restricted their practices to office work, and rightly so. Continuity of care may have advantages for the patient, but there are also many advantages for the patient in accepting care from a different psychiatrist in the hospital, not the least of which is a built in second opinion.

O.2.b. (1978, page 70): Who's in charge here anyway?
The committee answers a question about whether an ethical psychiatrist can list his or her practice in a "professional" directory correctly as yes, but then recommends taking up any question about what might be considered "adverstising" with the "local medical society." Another cop out. The committee should take responsibility for addressing questions like this without deferring to some other unnamed organization. Advertisement show themselves even when you do not want them to. You must know what you are looking for to find a practice in a directory. Directory listing clearly does not constitute advertising.

D.4.f. (1987, page 24): Ethics of "completing forms"
According to this opinion it is not only unethical to decline to complete an insurance form but, at least in the case of a so-called "simplified" insurance claim form (Dose anyone even know what that is?), it is also unethical to charge for the time. This opinion belongs on the scrap heap. Completing a form is really a euphemism for whatever purpose the form serves. Insurance claim forms related to a contract between patient and physician. The physician's only obligation should be to the patient and should be restricted to providing diagnosis and medical care. I would argue that for the physician to take responsibility for obtaining benefits for the patient might be UNethical. The physician should certainly make it known to the patient up front if her policy is to not assist with insurance claims or to charge a fee for completing them. The patient can decide whether to accept the psychiatrist's terms of treatment, so-called "local custom" notwithstanding.

Commentary on Opinions of APA Ethics Committee VII

Continued from Commentary on Opinions of APA Ethics Committee VI these next items do not easily fall together in a category:

E.2.d. (2001, page 27): Healing from reporting professional misconduct?
In this case a psychiatrist asks whether it would be ethical to report sexual misconduct of another psychiatrist to the licensing board over the objection of the patient. Not an easy question, the answer may depend on reporting statutes, but I object to the committee's opinion that the treating psychiatrist suggest that the patient report the misconduct "as part of a healing process." As in many of these cases the opinion appears to presume that the current treatment involves psychotherapy, but makes no mention of treatment modality. Even assuming a psychotherapy context it seems presumptuous to suggest that reporting might contribute to healing. Potential also exists for further harm. The opinion make no mention of diagnosis. Should the psychiatrist devote visit time to pushing this presumably separate issue? But what bothers me most is that while the psychiatrist should keep this patient's welfare foremost, reporting seems more likely to satisfy the psychiatris's own needs and possibly protect other patients in the future. I believe simply informing the patient of the option might constitute the most ethical course.

N.4.b. (1988, page 66):
In this case the psychiatrist want to know whether there might be an ethical problem with asking the phone company to intervene with an ex-patient who harasses with abusive calls. I agree with the committee that as a last resort the psychiatrist can ethically enlist the phone company's assistance, but with the proviso that the psychiatrist does not have to tell the phone company that the individual named was a patient. This opinion, however, begs for an update to the day of voice mail and stalking. New technologies may enable the victim of such harassment to block the calls, but the psychiatrist may want to consider other steps to ensure safety.

A.2.b. (1978, page 8): Investment advice from the psychiatrist
This psychiatrist wants to know whether an ethical problem exists with accepting a "finder's fee" after providing investment advice. The opinion correctly identifies an ethical problem with the implied exploitation, but incorrectly attributes this to giving advice, rather than the real exploitation: accepting a fee. The suggestion that this would be a "strange form of psychotherapy," however, is gratuitous. While we might characterize many methods of psychotherapy as strange, first, the question makes no mention of psychotherapy, and second, there is no suggestion that giving investment advice was part of the treatment at all. This question involves dual roles: that of treating physician and that of investment adviser. We can presume the goal of the latter would be to obtain money for the patient (not to mention the fee for the psychiatrist). The opinion here may conflict with other opinions where the committee has endorsed a similar role of obtaining money for the patient by "completing forms" or assisting in a disability or other claim. Of course the psychiatrist should not accept a "finder's fee" in connection with either of these roles, but I would argue that even without such a fee ethical problems exist. One can no more be treater and investment adviser than treater and lover.

N.4.e. (1993, page 67): Do records go to the patient after the psychiatrist dies?
The committee opines in this case that after the death of a psychiatrist executors should refuse to provide treatment records to a patient requesting them. This opinion may conflict with law, including HIPAA, which may require such release unless there is reason to believe the patient or someone else might be endangered as a result. Unfortunately the executors probably cannot make such a determination, and probably should not access the records anyway. To fully comply with the law may require that a professional review the records and the request, and/or attempt to convince the patient to agree to have the records forwarded to a new treating professional who might assist with such a determination.

N.6.a. (1978, page 68): Unethical to refuse Medicaid?
A retiring psychiatrist cannot find new providers to assume the care of patients covered only by Medicaid. The committee states, "Your colleagues might wish to consider their roles as ethical providers in assisting you and your patients in your time of need." This statement seems to imply that refusing to accept a patient covered by Medicaid might be unethical. This conflicts with Section 6 which indicates a physician shall be "free to choose whom to serve." If we took it upon ourselves to serve all those who cannot afford it we physicians would enter that group as well.

I.4.b. (1998, page 41): Insurer audit by "appropriate" clinician
This opinion addresses some of the ethical issues surrounding audit of patient charts by insurers (managed care companies). The opinion omits the fact that clinicians must allow such an audit only if they have contracted with the payer. Agreeing to certain terms of such contracts raises ethical issues as well. The opinion here states that the audit should take place in the psychiatrist's office and implies that the psychiatrist should insure that only "appropriate clinicians" see the records. This of course assumes that the insurer has not demanded that the psychiatrist send them a copy of the records in which case the psychiatrist will not be able to observe who sees the records. But suppose the audit does take place in the office. What constitutes an "appropriate clinician." Review of such records does not constitute clinical activity, and even if it did, how does the committee propose that a psychiatrist verify the credentials of the reviewer. The best way to avoid this predicament is to eschew contracts with insurers, but for those who choose to agree to their terms it is not within the capability of a practicing psychiatrist to verify the credentials of anyone who happens to work for an insurer.

C.6.a. (1990, page 20): How to determine competence of replacements
A psychiatrist leaving a hospital want to know whether it is ethical to turn over patients to a psychiatrist whose "competency" (I think they meant competence.) is unknown to her. I get the feeling another agenda might be hiding here. I suspect the hospital, right or wrong, may want this psychiatrist to leave, and the psychiatrist is trying to make a case against the hospital. The committee's easy answer is to advise the hospital to seek competent replacements. Is that it? And what choice does this psychiatrist have? Wait indefinitely until this competent replacement appears? And how does this psychiatrist determine this individual is competent? That job belongs to the medical staff or the hospital itself, not the departing psychiatrist.

D.2.b. (1993, page 22): Public perception counts.
The question and answer here count less than the justification. The committee invokes the importance of the "public's perception of psychiatry" in supporting the opinion. While this may not seem as relevant to ethics on the surface as, for example, sex with a patient, in my opinion it goes to the heart of professional ethics. For our patients to trust us to provide treatment they must perceive that we behave ethically.

Commentary on Opinions of APA Ethics Committee VIII

Commentary on Opinions of APA Ethics Committee V

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

Continued from Commentary on Opinions of APA Ethics Committee IV where I reviewed opinions related to uses or publication of psychiatric case information which seem to require the ethical psychiatrist to obtain patient authorization for release of information unless the information is disguised. The committee also asserts that "the problem of disguising cases is not always easily resolved" and that consent for release should be "freely" given, but that "there is no way to assure that the patient does not feel coerced into giving consent." This detour into a case I filed addresses these apparent contradictions.

In September of 2008 I submitted an ethics complaint related to three psychiatrists whose cases were described in an article published in the NY Times, to the New York District Branch of the American Psychiatric Association. In my letter I pointed out that the article included no indication that the cases were fiction or even disguised, and in fact the NY Times is known for carefully confirming the veracity of information contained in articles. Neither was there any indication that patients described had consented to publication of their cases.

After more than a year passed without a determination I asked about the status of the investigation. I received a letter from the District Branch Ethics Chair, Henry Weinstein, MD, dated November 10, 2009 indicating that the committee had deliberated and "acted accordingly" but could not tell me "either the processes or the substance" of the committee's work. However, the committee was more forthcoming with the NY Times. In an enclosed letter dated October 15, 2009 addressed to the Public Editor a Dr. Kevin Kelly wrote on behalf of the NYDB that the named psychiatrists "were scrupulous about either obtaining consent from their patients before publication or disguising the material in such a way that the patients could not be identified." The letter went on to express concern that lay readers might not understand that consent must have been obtained, and that this might lead them to "avoid needed treatment." The letter concluded that a psychiatrist should only allow such material to be published or to write an article including such material if a statement that the material was disguised or that the patient consented accompanies the article.

In spite of the above the Oct. 20, 2009 New York Times included an article by psychiatrist Richard Friedman, When Parents Are Too Toxic to Tolerate, describing two cases in which he struggled, apparently in his role as a psychotherapist, with how to handle the dilemma some of us face in deciding whether (or how much) to distance ourselves emotionally from troublesome parents. As in the former article this article contains no mention that the author disguised the cases or that the author obtained authorization for publication, freely or otherwise, from his patients or the several other individuals mentioned.

Did I expect the NY Times to, "Stop the presses!" to make sure the more recent article would conform to the NYDB letter's requests? Not really. The NY Times has no obligation to comply with ethical guidelines suggested by NYCDB, or even APA. Journalistic ethics no doubt apply. Although the letter to the Times was a nice gesture it was Dr. Friedman was responsible for compliance. Furthermore, the Time represents only one of thousands of publishing organizations who could potentially impact the problem.

The NYDB ethics committee disappointed me, though. Having served on the ethics committee of a state psychiatric association myself I have some familiarity with the procedures. For the committee to provide information about the determination to a public newspaper while withholding it from the complainant defies belief. Also, I have understood that Ethics complaint procedures require the local committee to indicate in the final letter that the complainant can appeal the determination to the APA committee. In this case the committee  informed me neither of a determination nor of the right to appeal. I wrote (December 11, 2009) both Dr. Weinstein and the APA ethics committee indicating I wanted to appeal the determination as expressed to the NY Times, pointing out that neither of the letters mentioned whether the committee considered the issue of whether it is possible to obtain freely given informed consent for such an endeavor (which is unlikely to benefit the patient at all) or attempted to address the question of what might constitute adequate disguise of such information.

Having never received even an acknowledgment of either letter from APA or NYCDB I contacted APA to inquire as to the status of the case. In an email communication from APA dated February 11, 2010 (two months after my letter) I was informed that APA had requested the case file for review by APA Ethics Committee. For a response to my question about adequate disguise I was referred to the British Journal of Psychiatry Instructions for Authors (viewed 2.16.2010):

"If an individual is described, his or her consent must be obtained and submitted with the manuscript. Our consent form can be downloaded here. The individual should read the report before submission. Where the individual is not able to give informed consent, it should be obtained from a legal representative or other authorised person. If it is not possible for informed consent to be obtained, the report can be published only if all details that would enable any reader (including the individual or anyone else) to identify the person are omitted. Merely altering some details, such as age and location, is not sufficient to ensure that a person's confidentiality is maintained."

I might wish the NY Times would adopt such a policy, but there are a number of problems with BMJ's approach, not the least of which is that by providing a copy of the consent the psychiatrist reveals the identity of the patient to the publisher. The suggestion that the patient read the report before submission raises further questions. Can the psychiatrist presume that the patient possesses the necessary skill, knowledge and judgment to assess the potential for damage? Will this task take away time from a psychotherapy session for which the patient must pay? Will the psychiatrist attribute some kind of therapeutic value to the exercise? Will the patient feel pressured to give consent to please her physician? The BMJ guideline suggests use of disguise only if "it is not possible for informed consent to be obtained." But this could include situations in which the patient refuses to consent. What then? The guideline does provide a standard for judging adequacy of disguise, but how can we apply this standard? I confess that I cannot offer a better solution.

As for my letter to the NYCDB, as yet I have received no acknowledgment.

For myself I lean toward the practice of fabricating all cases for publication and clearly stating that the cases are fabricated. Because I do not believe that patients possess the capacity to give truly informed consent or that consent can be freely given, to release information that will not benefit the patient in any way, I believe no patient should be burdened with a request for consent to publish.

In the next installment I address opinions related to role conflicts: Commentary on Opinions of APA Ethics Committee VI

Commentary on Opinions of APA Ethics Committee III

Continued from:  Commentary on Opinions of APA Ethics Committee II

With societies around the world grappling with questions of how to pay ever increasing costs of medical care and who should receive how much care for what without having to pay, the ethics of money and psychiatry continues to evolve. But APA too often neglects to address conflicting principles and sometimes gives non-ethical considerations excessive weight.

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

The new opinions document may not have addressed a case in point at all: Section 9 of the code states that, "A physician should support access to medical care for all people." Talk about a feel good principle. Who could possibly speak against such an ideal? Perhaps those who realize that someone must pay for that care. This principle smacks of politics. I wondered whether a psychiatrist who voted for a public official who opposes universal access to medical care might face charges of ethical misconduct: Democrats, ethical, Republicans, unethical.

When I submitted this question to the Ethics Committee the chairman suggested I ask the AMA. AMA (of which I am not a member) failed to respond. Perhaps we need a test case. Volunteers? I believe this "principle" has no relevance to practice of medicine, including psychiatry, and should be removed. I believe it would be unethical to discipline a physician based on a political view or party alignment.

If Section 9 does apply to the physician - patient relationship, does it imply that all physicians must treat all comers regardless of their ability, or intention, to pay? That might be a slippery slope. Would it apply to physician executives? to cosmetic surgeons?

So here comes the conflict: The ethics guideline document argues against professional courtesy,  the tradition of physicians providing treatment for other physicians or their families at low or no charge so that physicians will not try to treat themselves or members of their own families in order to save money. The guideline cites "give and take" as critical to the transaction, indicating that without payment the patient might harbor doubts as to whether the treatment provided measures up to that for paying patients. But any patient might harbor such doubts about low or no fee treatment. And what about the psychiatrist on salary to a clinic or health system or whose fee is paid by a friend or relative of the patient, an insurer or HMO, or an employee assistance program?

K.2.g. (page 46, 1981)
Now we move to the opposite extreme: the ethics of charging an "exorbitant" (but unspecified) fee. According to this answer from almost 30 years ago (before managed care) an ethical psychiatrist can charge a "reasonable" fee. What constitutes an unreasonable fee, and who might determine this? According to the answer such a person must be "knowledgeable as to current charges made by physicians." An unreasonable fee would leave such a person "with a definite and firm conviction that the fee is in excess of a reasonable fee" after considering factors such as "difficulty and uniqueness of services performed and the time, skill, and experience required," "customary" fees charged by other physicians for similar services, the amount (There's a surprise.), the "quality of performance,"  and the "experience, reputation, and ability" of the psychiatrist. So we need someone who knows the local fees, and her conviction must be firm AND definite. No soft or fuzzy convictions allowed. And how does this person judge these factors? Some of them overlap. The skill required, quality of performance, and ability of the physician might seem very similar. And how does one judge the quality of a medical management visit, let alone a psychotherapy session? How about shock therapy? How skillfully did she press that button or set the voltage?

This discussion ignores the matter of price fixing addressed by anti-trust statutes, which might even prohibit such a process of price determination by this mythical knowledgeable person. Today many physicians accept less than the actual fee anyway in order to contract with insurers or Medicare. But the most glaring omission in this discussion comes from basic economics. Supply and demand determine price. If patient and third party payer refuse to pay, the psychiatrist must lower the price or find another occupation. The opinion makes no mention of the patient's ability to pay. A destitute patient might not have $10 to spend on treatment, while for a wealthy patient might barely notice the financial impact of a $10,000 fee for the same service.

The determination of what consitutes a "reasonable" fee is in fact subjective. The committee should not pretend otherwise. For further, more recent, discussion of a related problem see my earlier post: The Best Treatment or Just the Most Expensive?
 
K.2.e. (page 45, 1978)
This one has stood the test of time. According to APA we can still ethically charge for missed appointments and raise our fees "in the middle of treatment" provided we inform the patient in advance. I suspect "treatment" here refers to psychotherapy rather than pharmacotherapy or ECT. Once more the opinion fails to specify this, probably because of the erroneous assumption that all psychiatrists practice psychotherapy. Again, recent changes in law may affect what we can do with fees, and third party payers generally consider a claim for a missed session as either fraudulent or not covered, depending on how we file the claim. Here the law may discourage professional courtesy. Government agencies may accuse us of fraudulent billing if we claim one fee on insurance forms, but charge a lower fee to other patients. I have been tempted at times to raise fees for new patients while keeping the fee constant for established patients, wishing to avoid imposing a hardship. But this implies that somehow the patient cannot make it without me, which may not be the best attitude with which to approach treatment of any kind. Few of us should consider ourselves indispensable. In fact I believe many patients can benefit from a fresh approach.

K.2.m. (page 48, 1986)
This psychiatrist allowed his patient to build a large balance. He sent the account to collection which succeeded, but only at a cost of one third of the total. When the insurance company did eventually pay, he wanted to keep the money to cover the collection agency fee. I agree with the committee that we cannot ethically do this. Avoid situations like this by requiring patients to keep accounts current. Don not trust insurance companies to pay you. By law they can demand that you repay them later if they decide they erred in paying you. If you allow your patient's account to build, the FTC considers you a "lender" and can subject you to identity theft rules. (See my earlier post: Need a Loan? See Your Doctor!)

L.5.a. (page 54, 1978)
Even more than 30 years later this still timely question stirs interest: Can we ethically use money provided by drug companies to pay for continuing education activities. The cowardly response and justification bother me: "Without advertising from drug companies our journals would be very expensive." Since when does a question of ethics hinge on the cost of publishing a journal?

N.1.5. (page 61, 1990)
Similar to the prior opinion, this one invokes realities of cost, perhaps with slightly more justification. The questioner wants to know whether she can ethically assume more responsibilities than salaried time allows her to complete effectively. The opinion states she can ethically do this because, "For us to declare otherwise might place an even greater burden upon our underfunded public institutions." I am glad the committee can allow reality to enter ethical discussions, but one could just as easily imagine declaring participation in executions ethical because to declare otherwise would result in overcrowded prisons.

I submitted the following two questions to the committee over the past few years. I wonder why the committee chose to omit them from the opinions document.

Question: What, if any, is my ethical responsibility to assist patients in obtaining insurance reimbursement for my services?  May I ethically charge a fee for such service?

Answer: "Our responsibility to patients (Section 8) and our need to maintain consideration for patients and their circumstances (Section 2, Annotation 6) suggest that such assistance, while not obligatory, is appropriate, and may be advisable. The contractual arrangement between patient and psychiatrist (Section 2, Annotation 5) should establish in advance whether a charge may be made for such service.  When this has been done, charging a fee is not inherently unethical.  However, when the time required is not unduly burdensome, the ethical psychiatrist may elect to waive a fee."

While I am glad the committee did not attempt to impose an ethical duty to an insurance company, possibly a commercial, for-profit organization, once more it seems they have subordinated ethical considerations to financial realities, potentially a slippery slope with role conflict implications.

Does this opinion not conflict with the earlier opinion included in the document: D.4.f. (page 24, 1990). Clearly predating my question, this opinion states that the ethical physician should "complete"  with no fee, a "simplified" claim form, but not necessarily multiple or complex forms to enable the patient to receive benefits. I believe it wrong to impose a duty on the physician to obtain money for a patient. I regularly see this lead to physician's attempting to meet patient expectations by stretching the truth to obtain disability funds, win custody disputes, or to prevail other legal disputes, often with little or no appreciation for the consequences. We should confine our activities to clinical duties.

The committee also seems to have employed this euphemism, completing the form, when they should have addressed the actual content or consequences of the form, considering whether the statements attested to are true or whether the physician can ethically opine on the issues presented in the form. The committee has also failed to address the possibility of role conflict where completing the form might imply duty to the insurance company.

Certain types of patients in my clinical practice demonstrate a propensity to obtain a prescription for a controlled substance then fail to continue in supervised treatment, leaving me liable for adverse outcomes, but with no control. I hoped to discourage this by having the patient pay in advance for the last visit ever, but I wanted the committee's opinion regarding ethical considerations.

Question: Is it ethical to require advance payment for the last or final visit at the start of treatment?

Answer: "I’ve spoken with [the chairman] and he’s indicated that this really isn’t an ethics issue. Section 6 of the Principles provides:  “A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.”

"I followed up with our Office of Healthcare [sic] Systems and Financing and they provided the following advice:

“This question seems to be a practice procedure question. Any procedures a psychiatrist utilizes in day-to-day operations should be communicated in advance to all patients. If the doctor wants to implement this policy I would recommend that he add this to his information he provides to new patients. It is probably best that the information be provided in writing so there is no confusion. I would also suggest that the psychiatrist make at least a note in the chart that the patient received the information, the psychiatrist asked for any questions and that they understand all the office policies. If this change will affect his current patients I would suggest providing them the new office policy, have a discussion as to understanding, questions and document the discussion.”

The committee copped out. They imply my proposed practice meets ethical muster, but they should have stated as much. Many of the questions addressed in the opinions document might be considered "practice management" questions. The committee remains responsible for considering the ethical implications and providing guidance to members when requested.

Commentary on Opinions of APA Ethics Committee IV

No, Dr. Moffic, That Is Not the... Answer!

In his article “To Drive or Not to Drive? That Is the…” (The Ethical Way, Clinical Psychiatry News, Volume 35, Issue 10, Page 41 (October, 2007), Dr. H. Steven Moffic has established a new duty of treating psychiatrists to evaluate the “fitness to drive” of each patient, and a new exception to physician patient privilege “…when you are reasonably sure of potential danger” arising from psychiatrically impaired ability to drive.

Dr. Moffic has paid scant attention to the damage such a conflict of role or interest might have on the treatment relationship. He also failed to reference any ethical precept, including the most relevant: “A psychiatrist who regularly practices outside his or her area of professional competence should be considered unethical.” (American Psychiatric Association, The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry, 2006 Edition http://psych.org/psych_pract/ethics/ppaethics.cfm; accessed November 5, 2007). Instead, he takes the position that the treating psychiatrist should perform even a questionably competent evaluation because “practically speaking, such information usually is difficult to obtain.” He described this difficulty in one case as arising only from the fact that the patient “lived alone.” Regardless of whether a patient lives alone, a forensic psychiatrist can answer questions about disability, competence or capacity, and fitness with little or no conflict of role or interest, leaving your relationship with your patient unharmed.

The duty of a clinical psychiatrist is to diagnose and treat mental illness. The only well-accepted exceptions are the Tarasoff duty to protect, the duty to report physician misconduct, and the duty to notify authorities of child abuse. There is no duty to “fill out forms.” There is no duty to ensure that a patient can obtain a license to drive a motor vehicle, to practice medicine or to fly an airplane. There is no duty to obtain insurance money for a patient. If a duty to protect the public from drivers impaired by their medications or mental disorders has been established, Dr. Moffic should cite applicable statutory or case law.

Treating psychiatrists are no more qualified to perform "clinical assessments" of fitness for driving than to determine whether their patients should or should not be permitted to own or use firearms, return to work, be considered disabled, be considered competent to make a will, or to stand trial. They are not qualified to determine whether a patient is fit to procreate, raise children, or ride a bicycle. All such assessments result in a conflict of role, if not a conflict of interest, which will probably interfere with the physician’s care of the patient.

Dr. Moffic recommends that we “Do receive informed consent” but fails to specify to what the patient must consent. The need to obtain authorization to release information is obvious. The clinician who follows this recommendation should also, however, advise the patient of the limitations of the psychiatrist’s ability to perform a “clinical assessment of the patient’s driving” and the potential adverse effect on the treatment relationship. He should also warn the patient before undertaking a psychiatric evaluation that he might determine that the patient is unfit to drive and that he might report this to “authorities” whether the patient wants him to or not.

As long as psychiatrists like Dr. Moffic find it more expedient to “just sign the form,” attorneys, insurers, bureaucrats, and a host of other third parties will exploit this free and easy alternative to forensic evaluation with no regard for the resulting damage to the doctor-patient relationship or for the quality of the assessment.

Dr. Moffic asks, “What is the clinician to do?” when your patient asks you to “fill out a form.” The answer: Focus on treating the patient to the best of your ability and to follow your instincts and the admonition of Nancy Reagan and, “Just say no.”