LEGAL RESPONSIBILITIES AND ETHICAL DILEMMAS IN REPORTING A HEALTH

PROFESSIONAL

Dr James HundertmarkPrivate Psychiatrist

Independent Medical Examiner

WITH THANKS TOBrad Williams

Manager Notifications

AHPRA SA

Vignette One

Anaesthetist practitioner found to be injecting himself in ante room prior to surgery by operating surgeon

Report to AHPRA Practitioner cancels lists and group

anaesthetic practice becomes aware Practitioner’s partner ends relationship, Home purchase jeoparized

Vignette One

Group practice ejects practitioner Consequently following notification

the practitioner losesRelationship with partnerRelationship with peersEmployment with group practiceIncomeHome

Complaints about psychiatrists

“What to do if you have concerns about a psychiatrist's behaviour or performance” How to make a complaint1. Complain first to the psychiatrist2. Make a notification to AHPRA3. Contact the national health Practitioner

Ombudsman

From RANZCP website

Ethical Guideline 8 : Guide to Ethical Principles in the Responsibility to Report Impairment of a Medical Practitioner Psychiatrists have an ethical, legal and professional responsibility to notify the Medical Board or Registering Authority if they believe a mental or physical condition of the medical practitioner concerned may affect that practitioner's capacity to treat patients, or prevent him or her performing the functions necessary for his or her work as a medical practitioner, provided the practitioner has not already notified the Medical Board or Registering Authority personally.

1. Respect for autonomy: respecting the decision-making capacities of doctors and enabling individuals to make reasoned informed choices;

2. Beneficence: considering the balance of benefits of notification against the risks and costs so as to act in a way that benefits the public;

3. Non-maleficence: considering avoiding causing harm to the doctor, or at least harm disproportionate to the benefits of notification;

4. Justice: distributing benefits, risks and costs fairly and treating individuals in similar positions in a similar manner.

Foucault argued that we have to create ourselves as “works of art”, arguing “couldn’t everyone’s life become a work of art? Why should the lamp or the house be an art object, but not our life?”

Foucault contended that ethics is the practice:“In which the individual delimits that part of himself that will form the object of his moral practice, defines his position relative to the precept he will follow, and decides on a certain mode of being that will serve as his moral goal. And this requires him to act upon himself, to monitor, test, improve, and transform himself ”.

An Overview of Psychiatric Ethics, Dr Michael Robertson produced on behalf of the Health Education and Training Institute

Obligations

All registered health practitioners have a professional and ethical obligation to protect and promote public health and safe healthcare.

Under the National Law, health practitioners, employers and education providers also have some mandatory reporting responsibilities.

The National Law requires…..

The National Law requires practitioners to advise AHPRA or a National Board of ‘notifiable conduct’ by another practitioner

in the case of a student who is undertaking clinical training, an impairment that may place the public at substantial risk of harm

Goals for AHPRA

1. Protect the public

2. Maintain trust in the medical profession (and the other professions)

3. Protect the profession

Views conduct and capacity issues along two separate pathwaysHealth PathwayConduct Pathway

Francesco de Goya y Lucientes “Saturn devouring one of his children” 1819 - 1823

Mandatory Notification The threshold to require mandatory

reporting is high. Registered health practitioners and

employers have a legal obligation to make a mandatory notification if they have formed a reasonable belief* that a health practitioner has behaved in a way that constitutes notifiable conduct in relation to the practice of their profession.

*a belief based on reasonable grounds.

Mandatory Notification 2

Western Australia has no mandatory reporting of health concerns but doctors continue to have a professional and ethical obligation to protect and promote public health and safety.

The National Law protects practitioners who make notifications in good faith under the National Law. ‘Good faith’ has its ordinary meaning of being well- intentioned or without malice.

GENERAL MEDICAL COUNCIL

A Health Professional's Guide - How to Refer a Doctor to the GMC

This page advises individual doctors, medical directors and clinical governance managers what action to take when they have concerns about a doctor.

If you have concerns about a doctor but are unsure of how to proceed, you can call our helpline to discuss the matter on 0161 923 6402 or by e-mailing us at practise@gmc-uk.org

Vignette Two

Your registrar is doing outpatient work in a public hospital

During his clinic, a semi-undressed young woman bursts out of his office into a packed waiting area

The outpatient clerks leave a hysterical message with your secretary

Do you report him to AHPRA?

Notifiable Conduct

Notifiable conduct by registered health practitioners is defined as: practicing while intoxicated by alcohol or drugs sexual misconduct in the practice of the

profession placing the public at risk of substantial harm

because of an impairment (health issue), or placing the public at risk because of a

significant departure in conduct from accepted professional standards.

Notifiable Conduct 2

Sexual misconduct and intoxication issues can be viewed as “absolute” with regard to the need for reporting

Issues of health and conduct are “relative” in that there are differing thresholds for reporting

An insightful, well controlled and compliant doctor with a health issue may not need to be reported

Notifiable Conduct 3 Police charges Particularly offences

relating to a health practitioner’s work/professional practice

Patient outcome A patient has died unexpectedly or a routine operation has had severe adverse outcomes

Drugs Notified by a practitioner, or an independent body. Includes accusations of self-administering and inappropriate prescribing of illicit or prescription drugs

Alcohol

Allegations of presenting to work under the influence, hair test

Notifiable Conduct 4 Sexual behaviour Inappropriate touching

or professional/sexual boundary violation

Theft Stealing drugs from the workplace Health serious (e.g. involuntary admission to

hospital under the Mental Health Act) or concerns re memory/behaviour

Breach of conditions

A practitioner has conditions on their registration and the conduct described

may breach registration conditions

NotificationLodgement

Assessment

HCE Notification

Health Assessment

Immediate Action

Tribunal Hearings

InvestigationPerformance Assessment

Panel Hearings

There are a number of possible stages in the notifications process and they do not need to be completed in a linear sequence. Importantly, not every notification goes through all the possible stages.

Francesco de Goya y Lucientes “Half submerged dog” 1819-1823

The Mauro Case 1

In 2005 the Coroner found treatment from Dr Mauro was seriously inadequate

Found that the doctor was to blame for the death of a patient discharged from ED for gastroenteritis who collapsed and died of a bowel obstruction 16 hours later

Doctor smoked ten cones of THC a day and was dismissed for stealing diazepam

The Mauro Case 2

The Medical Board of South Australia had not investigated despite a complaint about Dr Mauro in 2000 and a letter from his psychiatrist in 2002 concerning his drug use

The Minister for Health requested an urgent report form the Board

Dr Mauro was later deregistered

The Mauro Case 3

Criticisms that Boards are slow to act on complaints, few doctors are struck off the register and that medical boards are “soft on doctors”

Legal argument that investigative and judicial powers should be separate

The Mauro Case 4

Pam Moore (Health Consumers' Alliance of SA): It's definitely an old boys club. Their attitude is an insular, protective attitude that's not in the public interest.

Erik Sorensen (dead woman’s son): I want there to be a total revamp of the Medical Board so that it is about protecting the public in South Australia.

Approach to rehabilitation Previously a pastoral approach where

practitioners were closely assisted in treatment in a benevolent system

Now a rehabilitative approach where practitioners are assisted in finding the appropriate care with quarterly reporting to the Board in order to facilitate a return to practicing

Vignette Three

Experienced psychiatrist in solo psychotherapy practice

Long term psychotherapy treatment of well dressed attractive professional woman with relationship issues

Some borderline features evident in therapy, “you are the only one who really understands me”, “you seem a little stressed today – are you OK doctor?”

Vignette Three

Patient states she feels good about the sessions, can they be more frequent?

Doctor admits he looks forward to the sessions

Doctor admits feelings for the patient Patient makes notification to AHPRA

Sigmund Freud

Sent patients postcards, lent them books, gave them gifts, provided them with extensive financial support in some cases and gave patients meals

Confessed in a letter to Jung re: sexual involvement with patients “I have come very close to it a number of times and had a narrow escape”

Carl Jung

Is alleged to have had an affair with his first psychotherapy patient, Sabina Spielrein

Sandor Ferenczi analysed his mistress and then analysed and fell in love with her daughter; then all three lived together

Francesco de Goya y Lucientes “Two old people eating” 1819-1823

Exploitation Index

Epstein, R.S. and Simon, R.I. “The Exploitation Index: An Early Warning

Indicator of Boundary Violations in Psychotherapy”

Do you do any of the following for your family members or social acquaintances: prescribing medication, making diagnoses, offering psychodynamic explanation for their behaviors?

Exploitation Index

Do you feel a sense of excitement or longing when you think of a patient or anticipate their visit?

Do you disclose sensational aspects of your patient’s life to others? (even when you are protecting the patient’s identity)

Do you find yourself talking about your own personal problems with a patient and expecting them to be sympathetic to you?

Boundary Violations

Gabbard believes strongly all sexual boundary violations begin as smaller breeches of the rules that are not sexual in nature, the “slippery slope”.

To Gabbard, non-sexual boundary violations including gifts or services, prolonging consultations, reducing or waiving fees and self-disclosure are minor transgressions which may summate into larger, more egregious ones

Gabbard G, Nadelson C. Professional Boundaries in the Physician-Patient Relationship. Journal of the American Medical Association.1995;273:1445-1449

Boundary Violations

“Dilemmas concerning the boundaries of the therapist-patient relationship arise commonly and well intentioned clinicians at all levels of training and experience struggle with them daily”

“Preventing boundary violations in clinical practice” Gutheil and Brodsky 2008

Vulnerabilities of age and status

Age and status bring special vulnerabilities, a therapist dealing with illness, divorce, sexual dysfunction, unfilled ambitions, retirement and mortality may feel driven to cross previously sacrosanct lines

No one is so eminent they cannot benefit from learning reflection, supervision, consultation and documentation

Medical student internet use In a US study of medical school deans (78),

60% reported incidents of students posting unprofessional content online

13% reported students violating patient confidentiality online within the previous year.

Deans also gave examples of medical students who sought out inappropriate friendships with patients on Facebook, posted online content suggesting intoxication or illicit substance use and used disparaging language about a course, professor, or classmate online.

Chretien  KC;  Greysen  SR;  Chretien  JP  et al:  Online posting of unprofessional content by medical students.  JAMA 2009; 302:1309—1315

Guidelines for maintaining professional boundaries online Do not assume anything posted anonymously on the

internet will remain anonymous, e.g. psychiatrists on on internet dating sites can cause intense reactions in their patients

Activate all privacy settings on social networking sites if you use them

Conduct regular searches to identify material or photographs of concern

Do not including any of the following on blogs or networking sites Patient information or other confidential material Disparaging comments about patients or colleagues Any comments on legal disputes or administrative actions Photographs that may be perceived as unprofessional

Guidelines for maintaining professional boundaries online Looking up patients on the internet can lead to

complex clinical situations, some patients may feel this is a boundary violation

Avoid dual relationships with patients on the internet i.e. Facebook Friends, can use separate internet identities for professional and social if you wish

Psychotherapy training should include consideration of clinical dilemmas caused by social networking, blogging and search engines as well as boundary violations

Training intuitions should develop policies for breeches of ethics or professionalism through internet activity Professional Boundaries in the Era of the Internet. Glen O. Gabbard, Kristin A.

Kassaw; Gonzalo Perez-Garcia. Academic Psychiatry 2011;35:168-174.

The RANZCP Ethical Guideline #8 states that sexual relationships between psychiatrists and their current and former patients are always unethical.

On that basis, a zero tolerance policy on proven sexual boundary violations was approved by General Council, the RANZCP’s governing body, in August 2008. This policy was applied to the RANZCP Reinstatement Regulations on 21 February 2009 and to the Continuing Professional Development program on 28 August 2010.

Vignette Four

Doctor completes therapy with daughter of woman, woman then seeks therapy

Therapy ends with woman Woman presents for therapy after

unexpectedly arriving in waiting room Doctor expressed feelings for woman Sex occurs in therapy room

Vignette Four

Doctor and patient meet outside room Doctor’s wife discovers doctor is

meeting patient outside room and asks him to leave the family home

Doctor abandons practice and travels interstate

Doctor seeks treatment interstate

Rehabilitation for accused clinicians1. Meditation – sessions with a trained mediator may be of

value if the patient consents

2. Personal psychotherapy – expect strong counter transference and testing of treatment boundaries

3. Assignment of a rehabilitation coordinator – in charge of rehabilitation and reports to the Board, not the same person as the psychotherapist

4. Practice limitations – hospital treatment, avoidance of various diagnoses

5. Supervision – weekly review of clinicians schedule

6. Continuing education – supervised readings and workshops

Chapter 8, Boundary Violations, Glen O Gabbard in Psychiatric Ethics by Bloch, Chodoff and Green 1999

Francesco de Goya y Lucientes “Asmodea” 1819-1823

Discussion and Questions