9.1 Overview: Basic Principles

Four ethical principles underly most of the ethical and legal issues that arise in psychiatry, as in all of medicine. They are autonomy, beneficence, nonmaleficence, and justice [Reference Varkey1]. Many of the ethical considerations in psychiatry arise from the balance between two of these: the autonomy of the patient and the beneficence of the clinician.

The ethical principle of autonomy is the concept that individuals possess the right to self-determination, deciding what will happen to their bodies. Justice Benjamin Cardozo, who would later become a Supreme Court Justice, wrote in a legal opinion, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body” [Reference v.2]. Each individual is presumed to possess the ability to make their own medical decisions unless they are found to lack the capacity to do so. A unique consideration in psychiatry is that the patient’s decisions, driven by their thoughts and emotions, may be affected by the symptoms of their mental illness.

Beneficence is the physician’s obligation to work for the benefit of the patient. A physician has a fiduciary duty to their patient – to put the best interests of the patient above other interests, including the physician’s financial or other interests in the course of treatment. Of course, the actual preferences of the patient may differ from their best interests.

Nonmaleficence is the principle of doing no harm. This is perhaps most easily illustrated by the American Medical Association’s prohibition against physicians participating in executions and the American Psychiatric Association’s prohibition against psychiatrists participating in torture [3, 4]. While these examples are straightforward, this principle needs to be balanced against others in situations where pain/hurt is caused to a patient but in the service of a greater benefit (e.g., surgery to excise a malignant tumor, medication side effects from an antibiotic). The weighing of the benefits and harms can be challenging when considering treatments with significant side effects or relatively lower chances of success.

Justice is the principle of fairness and equity for all individuals. This is the foundation of making emergency and basic medical care available for all as well as how to allocate limited medical resources such as organ transplants. It is also a factor in instances such as triage, when limited resources are focused on those individuals with the greatest likelihood of benefit or those who would suffer most from a delay of care.

Besides the above four ethical principles, there are two other concepts that often come into play in emergency psychiatry: parens patriae and police power [Reference Hamm5]. Parens patriae is the concept that the government, as a “parent” of the people, has a responsibility to care for its vulnerable citizens who need protection. This underlying principle is used for hospitalizing an individual when they have a debilitating condition that could lead to grave harm if left untreated (e.g., an individual with florid psychotic symptoms with no concern for food, drink, or shelter from the elements). Such a hospitalization may occur against the individual’s wishes if they are found to lack capacity to recognize their situation and the potential consequences of such. Police power is the concept that the state has a responsibility for preventing an individual from harming another. Police power arises as a factor when an individual is deemed to be an imminent threat to a third party, perhaps through an expressed intent of violence or murder. Some jurisdictions mandate or permit a clinician to break confidentiality in order to warn or protect the third party, while other jurisdictions do not permit it.

9.2 Confidentiality

The confidentiality and security of personal health information are crucial in all of medicine due to its private and sensitive nature. In psychiatry, confidentiality takes on even greater importance; the nature of the information disclosed to psychiatrists may include personal secrets, traumas, feelings about others, fears, and so on. The patient takes the risk to share this sensitive information in case it can be helpful in their treatment, and they do so because they have a reasonable expectation that it will be kept confidential.

In some cases, a psychiatrist may be evaluating an individual for an administrative or legal purpose (e.g., work evaluation, different types of competency evaluations), in which case there may not be confidentiality. It is critical that the psychiatrist fully discloses the evaluation’s purpose and lack of confidentiality to the evaluee, and that the evaluee is able to give informed consent to proceed [6].

Due to the nature of the work, some unique nuances of confidentiality exist in psychiatry. Records pertaining to the diagnosis and treatment of substance use disorders enjoy an even greater level of protection than that already afforded to their personal health information in their medical records [Reference Gendel7]. When authorizing the release of their medical records, patients can decide whether or not to release substance use disorder–related information as distinct from other records. This helps combat the stigma and repercussions of such information becoming public, and to encourage individuals to seek help for such disorders. An exception exists, however: A clinician may have to report to licensing boards if they are treating a health care provider in whom an ongoing substance use disorder or other psychiatric condition is jeopardizing the safety of patients.

Exceptions to confidentiality also exist for the patient’s benefit, in that information can be released without express consent. These can include the release of protected health information to third-party payors for payment or to other clinicians for continuity of care. Other exceptions can also occur when an individual is incapacitated or in emergency circumstances [Reference Khan8].

Another exception to confidentiality can exist when a patient is deemed to be a threat to a third party. Different states vary widely in what may be required, permitted, or allowed in such a circumstance. Some states require a clinician to warn or protect a third party when their patient has expressed a credible threat against an identifiable person and possesses the ability to carry it out [Reference Knoll9]. These are sometimes referred to as “Tarasoff” laws based on the original landmark case from California that established a duty to warn, and later to protect, third parties. State laws may stipulate if this is accomplished by directly warning the identifiable person or notifying law enforcement. Alternatively, the psychiatrist may also discharge the duty by hospitalizing the patient (as a means of preventing the patient access to the third party). Hospitalization is probably the most frequent response to such instances, as it allows for maintenance of safety, an opportunity to treat any condition that could be resulting in the violent intent, and perhaps avoidance of the need to break confidentiality. There may no longer be a need to warn the third person or law enforcement if the hospitalization and treatment result in the cessation of the violent intent.

Other states have “permissive” statutes that do not require but do allow a clinician to warn others in instances of threats to third parties. This can be further complicated when a state permits the breaking of confidentiality in these situations but does not explicitly grant immunity from a civil action or complaint for doing so. In those jurisdictions, the clinician will have to make a decision to break confidentiality and warn or to maintain confidentiality and not disclose. If breaking confidentiality, their patient could still bring action against them for breach of confidentiality (if the state has not expressly grant immunity for breaking confidentiality). If confidentiality is maintained, a potential injured third party could also sue the clinician. Still other states have no established duty or permission to disclose, thereby placing the clinician at risk if they choose to do so. It is therefore critical that psychiatrists know the laws in their state, as that should guide their actions in such situations.

Confidentiality may also be broken to prevent a patient from harming themselves. This might take the form of informing police so that they can perform a check on an outpatient who has given an indication of suicidal intent or providing information when petitioning the courts for involuntary hospitalization or treatment [10].

As for all physicians, psychiatrists are mandated reporters of suspected child abuse/neglect as well as vulnerable adult abuse/neglect/exploitation. Information that leads to this suspicion may arise in a psychiatric history whereas it may not in a routine medical history. The patient may be the possible victim or perpetrator of the possible abuse, neglect, or exploitation. A report can potentially create tensions or ruptures in the patient–physician relationship, as well as tensions in the relationship between the physician and their patient’s caregivers (parents, adult children, siblings, etc.). While it is not entirely preventive of a therapeutic rupture, it can sometimes help to inform the affected individuals when a mandated report needs to be made, explaining that it must be done even if the clinician is not certain that abuse or neglect occurred [Reference Khan11]. This can at least avoid the additional anger that may occur if the affected individuals learn of the report later from other sources and come to believe that the clinician intentionally withheld the fact of the report from them.

9.3 Informed Consent and Decision-Making

Informed consent for treatment is critical in the process of caring for patients. Three critical components are necessary for an individual to give informed consent for care. The first is that the patient have available the necessary information about the current situation and options. The second is the capacity of the patient to give informed consent. The third is voluntariness [Reference Tampi, Young and Balachandran12].

To make a knowing, or intelligent, decision, a patient must have the necessary information about their medical situation and the options available, including the pertinent risks, benefits, and other consequences of each option. Two standards exist for what information needs to be provided to the patient [Reference Brendel and Schouten13]. The first is the “reasonable professional standard,” which is the information that would be provided by a reasonable professional under the same or similar circumstances. The second is the more patient-centered “reasonable patient standard,” which is the information a reasonable or average patient would need in a similar circumstance. A further extension of this patient-centered approach is also to provide any additional information that each particular patient would want to know in making a decision. For example, if a physician knows that their patient finds information about cardiac side effects to be highly important because they lost a parent to an arrhythmia, they will provide details about even very rare cardiac side effects of an intervention that they might not review with any other “reasonable patient.”

Once information has been provided, the patient must then possess the capacity to utilize the information and give informed consent. The criteria for assessing their ability to do so, elucidated by Appelbaum and Grisso, consists of four abilities: (1) an understanding of the situation and relevant information, (2) an appreciation of the situation and its consequences, (3) a rational decision-making process, and (4) communication of a choice [Reference Appelbaum and Grisso14].

The first two criteria flow directly from their ability to understand the information that has been provided by their clinicians (based on the reasonable professional or reasonable patient standard). The degree that an individual needs to understand the information may vary based on the benefit-to-risk ratio of the proposed intervention. A procedure with a high amount of benefit to possible risk (such as a simple blood draw for routine laboratories) usually does not require an extensive explanation or a highly sophisticated understanding of the process by the patient. Conversely, an intervention with a low ratio of benefit to possible risk (such as a research study from which the patient will not directly benefit, or an experimental chemotherapy drug with significant side effects) requires greater explanation and a higher degree of understanding from the patient.

The third criterion is the patient’s ability to use a rational decision-making process in their decision. This does not require flawless logic or judgment but instead allows for the wide variability of personal preferences, feelings, opinions, experience, and thoughts that individuals may bring to their health care decisions. Patients may have personal preferences and experiences that cause them to weigh options very differently than a physician might, but these do not make their decision-making process irrational. A rational decision-making process does not require the patient to use a decision-making process similar to the one the clinician would have used. Delusional or frankly illogical rationale, perhaps resulting from a condition such as psychosis or a neurocognitive disorder, is usually the threshold at which an individual is found to lack the capacity to give informed consent.

The final criteria of communication of the choice includes the consistent and reliable ability of the individual to express their decision. The classic example used to illustrate this last element would be a patient with locked-in syndrome; they can understand and reason logically but are unable to communicate their decision and therefore would lack the capacity to give informed consent.

An underlying factor to all these components is memory; one must possess adequate memory to be able retain the information about the situation, options, and consequences, to then use that information in forming a decision, and then communicate it consistently. An individual who is unable to remember information reliably may use rational processes in coming to a decision but utilize different information each time due to memory loss. They might provide a different decision each time they are asked to give informed consent. Such an individual would lack the capacity to give informed consent, and whatever decisions they gave could not be relied upon by the treating clinicians.

Finally, voluntariness is the ability to make a free choice without being subjected to coercion. Examples of coercion or lack of voluntariness include the recruitment of prisoners for research studies or overwhelming financial compensation for tissue or organ donation. It also means that the clinician providing the explanation of the proposed intervention may provide their opinion and recommendations, but they should refrain from attempting to sway decisions with personal appeals or threats of consequences if the “wrong” decision is made.

When an individual lacks the capacity to give informed consent, decisions need to be made by a surrogate decision-maker. Depending on the jurisdiction and circumstance, the surrogate decision-maker may be a family member, medical staff, or an administrative/judicial process. Also, they may use different approaches to making such decisions, based on the local laws. This can include using the substituted judgment standard (what the individual would have wanted if they possessed capacity, based on their expressed preferences) or the best interests standard (which option would likely lead to the greatest benefit when weighed against risks) [Reference Wong, Clare, Gunn and Holland15].

The balance of individual autonomy and clinician beneficence plays out most dramatically when a patient is experiencing a psychiatric emergency resulting in imminent danger (suicidality, homicidality, florid psychosis) and lacks capacity to give informed consent for hospitalization or treatment. At this point, the scale favors beneficence over patient autonomy, resulting in an involuntary admission to the hospital in order to protect the patient.

There can be a distinction between involuntary hospitalization (which usually provides safety in that it prevents physical harm to the patient but may not actually treat the precipitating condition) and involuntary treatment (which can be more invasive whether in the form of medications or therapy but is much more likely to improve the clinical status of the patient). Individuals who are involuntarily hospitalized (as well as voluntarily hospitalized) have a right to treatment so that they have the means to improve so that they can be released from the hospital [Reference Ostermeyer, Shoaib and Deshpande16]. Similarly, individuals who are involuntarily hospitalized may also have the right the refuse treatment. Depending on the jurisdiction, the process for involuntarily treating a patient may be a separate process than the one for involuntarily hospitalizing the patient.

Informed consent is one of the areas where psychiatry and the rest of medicine have some divergence. When an individual lacking capacity is treated in an emergency setting, both medicine and psychiatry have mechanisms for providing life-saving treatment. For emergency psychiatric conditions, involuntary hospitalization occurs as described above. For medical or surgical conditions, the life-saving procedure is initiated based on the assumption that the patient would have consented if they were able to.

In a non-emergency medical setting, individuals lacking capacity to give informed consent can have a surrogate decision-maker assigned to assist in making decisions (if one hasn’t been designated by the patient previously). The surrogate decision-maker is assigned based on the local laws, and it is often a relatively fast and smooth process (and may occur in the context of the clinical interaction). However, in the non-emergency psychiatric setting, there is often no clear or efficient process of assigning a surrogate decision-maker. Some jurisdictions allow for the individual themselves to name a legally authorized representative or to assign someone from a rank order list of usual interested parties (e.g., partners, parents, siblings, children). In many other states the only available routes might be a designated medical power of attorney or guardianship.

When an individual may have a condition that does not necessarily cause them to require emergency treatment, but instead prevents them from making decisions in their own interest, the balance between autonomy and beneficence again arises. Here, the local government will step in via a guardianship or similar process, by which another person is appointed to make decisions for the individual in their own best interests. This may apply to all decisions or only to personal (such as housing and marriage) or financial decisions.

The different approach between the two situations can be traced to abuses of the psychiatric field and patients. Individuals have been abused or exploited by their family members using psychiatric hospitalization and removal of decision-making power. Political dissidents have been labeled mentally ill and forcibly medicated to both invalidate their concerns and silence them. The First Amendment guarantee of freedom of speech has been interpreted as freedom of thought, as one cannot generate free speech without free thought. As such, society is cautious about imposing psychiatric treatment on an individual unless safety is involved, in order to avoid the slippery slope of treatment for nonconformist or unpopular beliefs.

Informed consent may not be required in certain situations. Besides emergency treatment, therapeutic waiver and therapeutic privilege are two other exceptions [Reference Brendel and Schouten17]. Therapeutic waiver is when a patient waives their right to informed consent and instead defers to the judgment of another individual, sometimes the physician. Therapeutic privilege is when the physician deems that the consent process (usually due to the information provided) would harm the patient or worsen their clinical situation. This is a very rarely used exception and should be approached cautiously and with consultation.

9.4 Dual Relationships

Psychiatrists, like all physicians, have a fiduciary duty to their patients in that they must put the interests of their patient above other interests in the clinical relationship. This reflects the profound power differential between patients and physicians as well as the trust that people need to be able to place in their health care providers. In the case of psychiatrists, this is especially true because the patient often discloses highly personal information that can make them vulnerable to anyone who has access to it. For this reason, dual relationships (where the patient and psychiatrist have another relationship in addition to the clinical relationship) are either highly discouraged or forbidden [18].

Some jurisdictions explicitly forbid sexual relationships between mental health clinicians and their patients or former patients, with serious penalties (including loss of license) as a consequence. Many of these jurisdictions also mandate that health care providers make a report if they have knowledge of a sexual relationship between a mental health clinician and a patient.

Nonsexual relationships such as business relationships or friendships are also highly discouraged. The one-sided power differential and intimate knowledge the psychiatrist may possess about their patient increase the risk of manipulation or coercion. A patient may also feel unable to disagree or break off the nontreatment relationship for fear of losing an essential treatment relationship. The patient may also have difficulty understanding that their psychiatrist’s obligation to act in their best interests only applies in their clinical relationship and not in their other interactions.