FIDUCIARY LAW

STATUS RELATIONSHIPSTATUS RELATIONSHIP DISPARITY DISPARITY OF POWER & POWER & NEEDNEED VOLUNTARY UNDERTAKINGVOLUNTARY UNDERTAKING TRUST GIVEN BY ONE TRUST GIVEN BY ONE CARE PROMISED BY OTHERCARE PROMISED BY OTHER

FormationFormation

DurationDuration

TerminationTermination

ELEMENTSELEMENTS

DUTIES OWED Utmost Good FaithUtmost Good Faith

LoyaltyLoyalty ConfidentialityConfidentiality Abstinence Abstinence NeutralityNeutrality

Professional competence Professional competence Respect boundariesRespect boundaries No abandonmentNo abandonment

COMPETENCE

PROFESSIONAL STANDARD OF CARE

ACT AS ORDINARY AND ACT AS ORDINARY AND REASONABLE PRUDENT REASONABLE PRUDENT

PSYCHIATRIST UNDER SAME OR PSYCHIATRIST UNDER SAME OR SIMILAR CIRCUMSTANCES SIMILAR CIRCUMSTANCES

BOUNDARIESBOUNDARIES

Interact verballyInteract verbally Avoid personal relations & physical contactAvoid personal relations & physical contact Maintain stable fee policyMaintain stable fee policy Use appropriate setting & defined session lengthUse appropriate setting & defined session length Respect autonomy of patient decision-makingRespect autonomy of patient decision-making Accept no material reward other than hourly fee Accept no material reward other than hourly fee Avoid double agency - if present, fully discloseAvoid double agency - if present, fully disclose

MALPRACTICETORT OF ABANDONMENT

DUTYDUTY BREACHBREACH

STANDARD OF CARESTANDARD OF CARE UNREASONABLE RISK OF FORESEEABLE HARMUNREASONABLE RISK OF FORESEEABLE HARM

DAMAGESDAMAGES CAUSATIONCAUSATION

BUT FOR (SCIENTIFIC)BUT FOR (SCIENTIFIC) PROXIMATE (WITHIN THE RISK)PROXIMATE (WITHIN THE RISK)

ABSENCE OF DEFENSESABSENCE OF DEFENSES STATUTE OF LIMITATIONSSTATUTE OF LIMITATIONS OTHEROTHER

CHARTINGCHARTING 6-O’CLOCK NEWS RULE6-O’CLOCK NEWS RULE CHART LESSER INTERVENTION MORE CHART LESSER INTERVENTION MORE

THAN GREATER ONETHAN GREATER ONE NOT CHARTED MEANS NOT DONENOT CHARTED MEANS NOT DONE COMMENT ON COMMENT ON

COMPETENCY/UNDERSTANDING COMPETENCY/UNDERSTANDING DATE/TIME YOUR NOTEDATE/TIME YOUR NOTE

EMERGENCY PSYCHIATRY

ALWAYS THE SAME STANDARD OF CAREALWAYS THE SAME STANDARD OF CARE LAW RECOGNIZES URGENCY TO ACTLAW RECOGNIZES URGENCY TO ACT

DIAGNOSTIC PRECISION NOT EXPECTEDDIAGNOSTIC PRECISION NOT EXPECTED ONLY REASONABLE EFFORTS REQUIRED ONLY REASONABLE EFFORTS REQUIRED NEED TO ACT BEFORE ALL FACTS INNEED TO ACT BEFORE ALL FACTS IN

A RISK ASSESSED REQUIRES A PLAN A RISK ASSESSED REQUIRES A PLAN A PLAN REQUIRES ACTIONA PLAN REQUIRES ACTION

STANDARD OF CARE

WHAT DO YOU NEED TO KNOW?WHAT DO YOU NEED TO KNOW? WHO KNOWS IT?WHO KNOWS IT? DOES PATIENT NEED DOES PATIENT NEED

HOSPITALIZATION?HOSPITALIZATION? IS INVOLUNTARY HOSPITALIZATION POSSIBLE?IS INVOLUNTARY HOSPITALIZATION POSSIBLE? IF NOT, IS IF NOT, IS PATIENT SAFE UNTIL FOLLOW-PATIENT SAFE UNTIL FOLLOW-

UP?UP? IS THERE A REPORTING DUTY?IS THERE A REPORTING DUTY?

DECISIONS

INVOLUNTARY MEDICATION In emergency a person detained may be treated In emergency a person detained may be treated

over objection prior to capacity hearing with over objection prior to capacity hearing with medication to treat the emergency.  It is not medication to treat the emergency.  It is not necessary for harm to take place or become necessary for harm to take place or become unavoidable prior to intervention.unavoidable prior to intervention.

Emergency exists when medication immediately Emergency exists when medication immediately

necessary for preservation of life or prevention of necessary for preservation of life or prevention of serious bodily harm to patient or others, and it is serious bodily harm to patient or others, and it is impracticable to first gain consent. impracticable to first gain consent.

MEDICAL COMPETENCYMEDICAL COMPETENCY

CONSENT PRESUMED IN EMERGENCYCONSENT PRESUMED IN EMERGENCY ONLY IF NO READILY AVAILABLE SURROGATEONLY IF NO READILY AVAILABLE SURROGATE PRESUMPTION ENDS WHEN EMERGENCY ENDS.PRESUMPTION ENDS WHEN EMERGENCY ENDS.

LPS DOES NOT AUTHORIZE MEDICAL RXLPS DOES NOT AUTHORIZE MEDICAL RX A REFUSAL IS INCOMPETENT IF:A REFUSAL IS INCOMPETENT IF:

UNABLE TO RESPOND KNOWINGLY AND UNABLE TO RESPOND KNOWINGLY AND INTELLIGENTLY TO QUESTIONS ABOUT INTELLIGENTLY TO QUESTIONS ABOUT TREATMENTTREATMENT

UNABLE TO PARTICIPATE IN TREATMENT UNABLE TO PARTICIPATE IN TREATMENT DECISIONS USING RATIONAL PROCESSESDECISIONS USING RATIONAL PROCESSES

UNABLE TO UNDERSTAND INFORMATION ABOUT UNABLE TO UNDERSTAND INFORMATION ABOUT THE RECOMMENDED TREATMENTTHE RECOMMENDED TREATMENT

THE PSYCHIATRIC CONSULTATIONTHE PSYCHIATRIC CONSULTATION

REFUSING PATIENT MUST BE TOLD ALL RISKS.REFUSING PATIENT MUST BE TOLD ALL RISKS. DO GOOD MSE. (SEE PROBATE SEC 811)DO GOOD MSE. (SEE PROBATE SEC 811) DETERMINE FOLLOWING:DETERMINE FOLLOWING:

DID PATIENT COMMUNICATE DECISION?DID PATIENT COMMUNICATE DECISION? WAS DECISION BASED ON CONSENT INFORMATION?WAS DECISION BASED ON CONSENT INFORMATION? IS THERE AN 811 MENTAL STATUS DEFECT?IS THERE AN 811 MENTAL STATUS DEFECT? DOES THE DEFECT EXPLAIN THE REFUSAL?DOES THE DEFECT EXPLAIN THE REFUSAL?

WRITE A NOTE SUFFICIENT FOR A PETITIION.WRITE A NOTE SUFFICIENT FOR A PETITIION. IF INCOMPETENT, BURDEN ON PCP TO ACT.IF INCOMPETENT, BURDEN ON PCP TO ACT.

CLINICAL ETHICSCLINICAL ETHICS

What are the possible treatments?What are the possible treatments? What are the pros & cons of each?What are the pros & cons of each? Is there preponderance supporting one decision?Is there preponderance supporting one decision? If not, is there conflict over facts or ethical If not, is there conflict over facts or ethical

principles?principles? Substituted Judgment > Best Interests Substituted Judgment > Best Interests

Substituted JudgmentSubstituted Judgment Power of attorney, probate conservator, surrogatePower of attorney, probate conservator, surrogate

Best InterestsBest Interests Reasonable patient standardReasonable patient standard

If still unclear, If still unclear, Ask family. Ask family. If family in unclear, ask jusge. If family in unclear, ask jusge.

SHC ETHICS POLICY SHC ETHICS POLICY GUIDELINESGUIDELINES

PATIENT HAS APPOINTED DECISION MAKERPATIENT HAS APPOINTED DECISION MAKER DPHCDPHC CONSERVATORCONSERVATOR

PATIENT HAS NO APPOINTED DEICSION MAKERPATIENT HAS NO APPOINTED DEICSION MAKER LAST COMPETENT WISHES KNOWN LAST COMPETENT WISHES KNOWN SURROGATE AVAILABLESURROGATE AVAILABLE

NO CONFLICT OF INTERESTNO CONFLICT OF INTEREST BEST INTERESTS STANDARDBEST INTERESTS STANDARD PATIENT CAN DISQUALIFYPATIENT CAN DISQUALIFY

IF PATIENT DISAGREES WITH TREATMENT, REFER TO ETHICS COMMITTEEIF PATIENT DISAGREES WITH TREATMENT, REFER TO ETHICS COMMITTEE IF PATIENT PROTESTS COMMITTEE DECISION, REFER TO RISK MANAGEMENTIF PATIENT PROTESTS COMMITTEE DECISION, REFER TO RISK MANAGEMENT

PATIENT LACKS CAPACITYPATIENT LACKS CAPACITY