As American’s struggle in the wake of the heartbreaking massacre of 20 children and 6 teachers at Sandy Hook Elementary School in Connecticut last week to understand and find effective ways to prevent tragedies like those in Newtown, Connecticut, Aurora and Columbine Colorado, Virginia Tech and so many others, one area that definitely merits close attention is the role of mental illness and the opportunity to mitigate these risks through more effective mental health diagnosis and treatment of individuals with mental health conditions that raise the risk of this or other violent behavior.

The purpose of this discussion is not to demonize the mental health profession or system, but merely to highlight the need to look to the diagnostic and treatment capabilities and the availability and quality of mental health care as part of the solution to the challenge of preventing other similar tragedies.

While the circumstances that lead Adam Lanza to kill his mother and the 26 other victims in Newtown last week remain under investigation, acute mental health events or other mental health conditions often are credited with playing a significant driver behind these horrible episodes. In Newtown, Aurora, Columbine, Virginia Tech and so many other mass shootings, the shooters all exhibited some signs of emotional instability or mental illness prior to the shootings.  Often, reports about these shootings also reflect that the patient or his family sought psychiatric or other mental health care for the shooter before the shooting.  Indeed, defense attorneys for Aurora, Colorado shooter James Holmes have reported that Holes reportedly tried unsuccessfully to call his university psychiatrist nine minutes before he opened fire during the movie premiere of the Batman movie, “The Dark Knight Rises,” killing 12 people and injuring 58 others.  The silent and not so silent struggles of individuals suffering mental illness with explosive, antisocial or other violent manifestations and their famlies typically are littered with a lengthy timeline of these and other desperate cries for help.  Unfortunately, in these and all too many other tragic situations, this care has been unavailable or otherwise ineffective with too often tragic outcomes ranging from destroyed property, to attacks against an individual family member or other person, to more public mass acts of violence like the Newtown massacre last week.

The intractability of mental illness, limited dollars and a host of other reasons often undermine the effectiveness of mental health treatment.  In the case acute mental health episodes leading to violence, however, the inability of a mental health patient or his caregiver to self-stabilize or readily access care from a mental health professional with an established relationship with the patient can be critical. Unfortunately, while scheduled sessions have long been the backbone of treatment of patients suffering nonacute psychiatric conditions, like cardiac patients suffering heart attacks, mental health patients suffering acute episodes rarely enjoy the luxury of the ability to reschedule their nervous breakdown until their next scheduled or some other appointment time convenient for their existing psychiatrist, psychologist, counselor or other mental health professional. That is why the growing tendency of many (but not all) psychiatrists and other mental health professionals to practice their own version of “9-5” medicine is concerning when looking for interventions or other solutions that could effectively stabilize a mentally unstable individual with a potential for mass or other violence.

Although the likelihood that patients may experience acute periods of mental instability or crisis requiring immediate care is foreseeable for virtually all patients suffering any significant mental illness at some point, a distressing number of mental health professionals and practices do not adequately recognize or make themselves available to provide care in accordance with their professional responsibility for when a psychiatric patient experiences an acute episode or other psychiatric crisis outside their scheduled appointment time.  While mental health treatment historically has focused heavily on the periodic scheduling of patient visits largely around the appointment availability of the provider rather than the acuity of the patient’s condition, this trend has accelerated in recent decades. 

The trend is the profession increasingly is to limit or deny access to the provider outside scheduled appointment times, and in doing so, to force patients and their caregivers either to struggle to cope until the mental health professional makes themselves available or to seek emergency care from an emergency room or other health care provider unfamiliar to or with the patient and the patients needs.  Meanwhile, inpatient facilities and other acute care providers increasingly primarily provide only stabilization care or other relatively short term intensive treatment designed to stabilize the patient sufficiently to send the patient home to resume a series of outpatient periodic care.  Long term care for more intractable conditions has become extremely rare, and made more inaccessible for all except the most financially secure by the unavailability of any realistic level of adequate insurance or other source of payment.  The reimbursement system is not the only problem, however. A troubling change in the professional commitment of many mental health providers also plays a role.

While professional law and ethics do not require that a psychiatrist, psychologist, licensed professional counselor or other mental health provider to impose unlimited patient access, the practice increasingly accepted among mental health care providers of restricting patient’s ability to access care from the provider to hours convenient for the provider often runs crosswise with both the needs of the patient and the legal and professional responsibilities of the mental health provider.

As with other physicians or other medical professionals, when a psychiatrist, psychologist, licensed professional counselor or other licensed mental health professional has agreed to treat a patient, that agreement to treat creates a relationship with corresponding duties to and rights of the patient. See, e.g. Oja v. Kin (1998).   Once the psychiatrist agrees to treat the patient, a psychiatrist-patient relationship is formed with the duty to provide treatment as long as is necessary.  The courts and licensing bodies generally recognize that a psychiatrist or other mental health professional may breach his legal and professional responsibilities to an existing patient by failing appropriately to attend, monitor, observe or provide care to a patient.  Furthermore, when delay or inattention in providing care causes a patient injury, tort laws and professional licensing or other disciplining bodies generally stand ready to hold a mental health professional accountable for wrongful abandonment of the patient.  See, Mains (1985). For example, as early as 1928 in Bolles v. Kinton (1928)  stated that a physician may violate his professional obligations by simply not attending the patient without sufficient notice. Others courts have found abandonment when psychiatrists or other mental health professionals make themselves inaccessible to patients, particularly if a crisis is occurring or foreseeable.  Thus, for instance, courts have construed as negligent acts amounting to abandonment by a psychiatrist, psychologist or other licensed mental health professional the professional’s:

  • Failure to provide patients with a way to contact the psychiatrist between sessions;
  • Failure to maintain reasonable contact with a patient hospitalized or otherwise in known crisis; or
  • Failure to provide adequate clinical coverage when away from practice.

Shrinking mental health dollars, the desire to further the provider’s desire for a more controlled lifestyle, the desire to enhance practice profitability and other provider goals often leads many psychiatrists, psychologists or other mental health professionals to  mistakenly underestimate their responsibility to patients suffering acute or other mental health care emergencies when deciding to make themselves unavailable outside scheduled appointment times, not to provide emergency care, or to use “spit care” or other “consultative” treatment arrangements under existing law and ethical standards

Courts typically recognize that a psychiatrist or other mental health professional may be liable for abandonment he fails to respond when an emergency exists or under other circumstances when the provider fails to provide care when the patient still needs care without seeing the patient adequately through the crisis or making suitable arrangements to the attendance of another qualified medical professional with adequate skills and understanding of the patient’s needs. See, e.g. Grant v. Douglas Women’s Clinic P.C. (2003); Johnson v. Vaughn (1963).

Taking into account these traditional legal and ethical principles, the increasingly common practice of sending a patient requiring care to be treated at an emergency room, an acute psychiatric care facility unfamiliar with the patient or other care source may not necessarily fulfill the patient’s needs or the psychiatrists or other mental health professional’s professional responsibility.

Likewise, limited involvement by a psychiatrist or other caregiver by participating in a collaborative or split care arrangement with the acute care facility or other covering provider also may not be adequate to fulfill the provider’s responsibility to the patient.  When a patient is cared for in a collaborative relationship, responsibility for the patient’s care is shared according to the qualifications and limitations of each discipline so that the responsibilities of one discipline generally do not diminish those of the other discipline.  See, e.g., American Psychiatric Association (1980). Rather, when patient’s clinical illness cannot be easily placed into the domain of the other clinician or the other, psychiatrists, psychologists and other mental health professionals generally continue to bear responsibility to ensure adequate psychiatric care as well as to adequately coordinate and communicate with their nonphysician mental health colleagues and other health care providers caring for the patient.  As a consequence, physiatrists, psychologists and other mental health professionals relying upon collaborative or split relationships with other mental health providers or other health care professionals risk running afoul of their legal and professional responsibilities by among other things:

  • Failing to establish and observe clear and appropriate lines of communication and clinical responsibility when providing coverage for emergencies, hospitalizations, absences or other consultative, cover or split treatment relationships
  • Delegating care of their patient without adequate oversight or supervision when the other provider has insufficient clinical knowledge of the patient
  • Failing to obtain and maintain adequate knowledge of the patient and his condition necessary to provide for appropriate, professional consultation and management of care by the psychiatrist during periods of consultation or other split care;
  • Failure to provide careful monitoring of the patient’s clinical condition;
  • Failure to maintain ongoing communication with the nonmedical therapist regarding the patient’s treatment.

While the legal and professional rules concerning abandonment are not new, changes in reimbursement, changing attitudes within the profession, and other factors leading increasing numbers of mental health providers to cut corners in their availability and treatment of patients experiencing violent or other acute mental health conditions outside scheduled office hours.  While the intervention of a qualified, responsible psychiatrist or other mental health professional alone cannot guarantee that a patient won’t become violent, the ability of a patient or his family to timely access care or input from a mental health professional familiar with and committed to the treatment of the patient clearly is a key factor that may help head off or mitigate a crisis.  Consequently, Americans should look to the mental health system, the adequacy of its financial and other resources, and the professionalism and quality of its providers as a key part of the potential answer to the question all Americans are asking:  “What can we do to reduce the likelihood of another tragedy like Newtown, Conn?”  Meanwhile, as we pray for those suffering the loss of friends and family in Connecticut, let’s not forget the a family member is probably begging for help or treatment for the next shooter while we debate the causes and solutions.

Other Helpful Resources & Other Information

We hope that this information is useful to you.   If you found these updates of interest, you also be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here .  You also can access information about how you can arrange for training on “Building Your Family’s Health Care Toolkit,”  using the “PlayForLife” resources to organize low cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail by creating or updating your profile here. You can access other recent updates and other informative publications and resources.

Some examples of recent publications that may be of interest include:

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