It
has become common in the last few years for psychiatrists to look beyond
patient care for professional challenges that allow them to increase
their income by putting their expertise to new uses. What many don't
realize, however-at least until they are facing a crisis -is that a
different set of legal issues comes into play when they venture beyond
the boundaries of their traditional practice.
Representatives
of Professional Risk Management Services (PRMS), the company that manages
the APA-endorsed liability insurance program, provided psychiatrists
with some direction through the legal shoals of nontraditional practice
at APA's annual meeting in San Francisco in May.
Take
the practice of forensic psychiatry, for example, in which psychiatrists
must work within the framework that the people they routinely evaluate
are not patients.
Forensic
psychiatrists and evaluees do not have a doctor-patient relationship,
so psychiatrists must caution evaluees that there is no expectation
of confidentiality for their time together and not assume that they
understand this, emphasized Martin Tracy, J.D., president of PRMS. This
can be especially problematic in child-custody disputes, where one parent
may assume that the psychiatrist's questioning is in the service of
the parent or his or her child's therapy during the emotion laden experience.
Psychiatrists can avoid accusations of confidentiality breaches if they
make sure the evaluee understands that whatever he or she says during
the evaluation will go to a judge or other appropriate person, Tracy
said.
Jacqueline
Melonas, JD, vice president of risk management at PRMS, added that she
is beginning to hear a lot about problems with psychiatric expert witnesses
who testify in states other than the one in which they are licensed.
There have been no legal cases yet over this issue, "but it is
an area of concern," she said. To head off any licensure problems,
Melonas urged psychiatrists who testify in a jurisdiction or perform
forensic evaluations in a state where they aren't licensed to learn
the requirements and inquire whether a limited license might be needed.
Occupational
Consulting
Another professional area that has attracted psychiatrists of late is
occupational consulting, such as contracting with a police department
to evaluate job candidates or current employees.
A
psychiatrist in this professional role could be asked, for example,
to evaluate an officer whose actions lead superiors to suspect a drinking
problem. After finding that this is in fact true, the psychiatrist informs
appropriate parties of the finding, and they then order the officer
to get treatment for the alcohol problem. Months after completing the
program and returning to work, the officer asks the psychiatrist if
he can begin therapy with him or her.
Again,
legal risk to the psychiatrist can be significantly reduced, Tracy said,
if he or she "establishes boundaries early and maintains them after
the evaluation interview is over." Psychiatrists have to remember
that this arrangement prohibits them from later agreeing to treat an
officer evaluee as a patient, though he noted that "it isn't clear
just how long that ban should last." No matter how much time has
gone by, however, he advised being extremely wary of acting in two capacities
with a person -as evaluator and therapist.
Family-Business
Intervention
Business consulting has also become a career path for some psychiatrists
who want to diversify their careers.
Included here are such opportunities as acting as a consultant to family
businesses experiencing problems and conflicts. A psychiatrist may carve
out a role in helping the family members find solutions that end the
strife, Tracy noted.
As
with occupational consulting, this role is not the practice of medicine,
and he cautioned that related professional activities are unlikely to
be covered by malpractice insurance. If the psychiatrist does end up
being sued for damages, the damages would likely arise from contractual
or business- based claims, he said.
Another
business consulting opportunity that arose in the 1990s was helping
merging high-tech businesses minimize their consolidation problems.
"A few psychiatrists made a very good living" on advising
companies on how to blend their clashing corporate cultures and address
ensuing morale problems, Tracy pointed out. For psychiatrists who choose
this path, Tracy said, "You have a contractual obligation to the
board [of directors] who hired you," not to an employee or officer
who reveals a problem and expects that information to be held in confidence.
"You need to tell everyone you meet with up front that you are
not there for therapy," he stressed.
Attorney
David Cash, JD, a risk-management consultant to PRMS, suggested that
being certified in forensics or other subspecialty areas could reduce
liability risk for psychiatrists planning a career shift, since it would
provide evidence of expertise in that field.
Tracy
also had some risk-management advice for psychiatry residents. From
a legal standpoint, residents are employees of the institution where
they are doing their residency, and legally that program is responsible
for the resident, he said.
The
liability situation changes dramatically, however, when residents moonlight
elsewhere. The other facility, Tracy emphasized, is unlikely to provide
malpractice coverage. Residents often discover the cost of buying an
individual policy doesn't make the extra income worthwhile.
And
it is not just moonlighting at a different facility that can place residents
at risk if a malpractice suit is filed, he noted. A psychiatry resident
who works part time, for instance, in the emergency room of the hospital
where he or she is employed may not be covered by a malpractice insurance
policy.
Tracy's
advice: "Ask a lot of questions" before changing or expanding
your practice. And remember, "Lawyers are going to be part of your
life" no matter what the practice focus is. He strongly urged psychiatrists
to develop a relationship with a lawyer who knows the business aspects
of medicine and can review all contracts and insurance policies.
Copyright
(2003). the American Psychiatric Association; http://PN.psychiatryonline.org.
Reprinted by permission.
