This week a Massachusetts jury found Carolyn Riley guilty of second degree murder for causing the death of her four year old daughter Rebecca by giving her an excessive dose of psychotropic medication.
But when jurors were interviewed after the trial they also expressed outrage at Dr. Kayoko Kifuji, the psychiatrist who prescribed the medication. One juror said Dr. Kifuji "should be sitting in the defendant's chair, too!" And she will in a year or so when the malpractice case brought against her by Rebecca's estate comes to trial.
Rebecca's death reflects two psychiatric tragedies.
First, Dr. Kifuji relied on "data" presented by Rebecca's mother in making her assessment. This is intrinsic to psychiatry. We don't have tests that demonstrate the presence or absence of a condition. We have to rely in significant part on what people tell us. The prosecutors alleged that Carolyn Riley and her husband Michael (who goes on trial next month) deliberately lied to Dr. Kifuji and others to elicit a psychiatric diagnosis that would allow them to collect disability benefits for their children.
We physicians cause harm when we're too skeptical, as when we misdiagnose the pain of a sickle cell crisis as duplicitous opiate-seeking, and when we're too trusting, as the prosecutors allege happened in dealing with the Rileys. Ideally we'd get the balance of trust and skepticism exactly right every time. But that's not possible.
In practice (and in life) I asked myself which mistake I'd rather make, and whenever possible explained my reasoning to the patient. Making a mistake isn't malpractice. Juries, and patients, will forgive an "honest mistake" if we've thought through a situation carefully, have been forthcoming about the rationale for what we're recommending, and treated the patient with respect and compassion.
The question at Dr. Kifuji's malpractice trial shouldn't be whether she made a mistake, but whether she acted with prudence and skill.
The second psychiatric tragedy is intrinsic to the field itself. It's hard for the field, and for individuals, to integrate the biological, psychological, and social components of what we are. We prefer simple explanations to acknowledging complexity and ambiguity.
When I did my training, the pendulum had swung way too far in the psychological direction, and I saw mothers being accused of causing schizophrenia and autism by being cold and rejecting. (I'm happy to be able to say that I never joined that bandwagon.) Now the pendulum is way too biological and we "accuse" children of being biologically off and needing medication when they're restless and bored in school or unhappy at home.
What's happening in psychiatry is a milder version of the polarization we're seeing in our political process. Conservatives blame feckless individuals for their problems. Liberals put the blame on uncaring society. For most issues, both are partly right, partly wrong. But threading our way towards an integrated perspective on complexity seems beyond our national capacity at present.
(For Patricia Wen's informative Boston Globe articles about the Riley trial see here and here.)
Saturday, February 13, 2010
Friday, February 12, 2010
Justice and Ethics Prevail in Texas Whistleblower Case
It only took the jury one hour and a single vote to to acquit nurse Anne Mitchell, against whom a vengeful sheriff and prosecutor had brought an absurd charge of "misuse of official information" for her having blown the whistle on a physician whose care she believed was dangerous. (See here for my post on the charges.)
The jury foreman, Harley D. Tyler, a high school custodian, not a civil rights activist, said that the jury simply saw "nothing wrong" in Ms. Mitchell's actions!
Ms. Mitchell's lawyer will now proceed with the countersuit against the sheriff, the prosecutor, the hospital administrator, and the physician in question. It's worth taking a look at the countersuit filing, which makes what I see as a slam dunk argument. I generally prefer negotiation to litigation, but the attack on a whistleblower is so eggregious that teaching a good solid "lesson" would seem to be a good outcome. Whistleblowing can be abused, but it's a crucial piece of an ethical health care system, and needs to be protected.
The jury foreman, Harley D. Tyler, a high school custodian, not a civil rights activist, said that the jury simply saw "nothing wrong" in Ms. Mitchell's actions!
Ms. Mitchell's lawyer will now proceed with the countersuit against the sheriff, the prosecutor, the hospital administrator, and the physician in question. It's worth taking a look at the countersuit filing, which makes what I see as a slam dunk argument. I generally prefer negotiation to litigation, but the attack on a whistleblower is so eggregious that teaching a good solid "lesson" would seem to be a good outcome. Whistleblowing can be abused, but it's a crucial piece of an ethical health care system, and needs to be protected.
Tuesday, February 9, 2010
Tiered Physician Networks - a Promising Development in Ethics and Economics
The most recent issue of the American Journal of Managed care features an interesting article on "Consumer Experience with a Tiered Physician Network" (here), by Anna Sinaiko and Meredith Rosenthal, at Harvard Medical School and School of Public Health, and an accompanying editorial by Peggy O'Kane, President of the National Committee for Quality Assurance (here).
The public thinks of "managed care" as a form of insurance. But on the ground care is managed by physicians and the institutions within which they practice. When insurers actually tried to manage care in the 1990s they succeeded in slowing the cost trend significantly, but they were blown out of the water by provider and patient backlash.
We in the U.S. have a very childlike understanding of health care and a very immature health system. This makes it relevant to consider how children morph into responsible, "well managed" adults.
Children learn through "soft power" - values, incentives, well-timed nudges, and peer influence. Insurance tiering is an effort to influence health care quality and cost by using the same kind of soft power. Here's what Peggy O'Kane says about pharmacy tiering in her editorial:
Sinaiko and Rosenthal's basic finding was that as of 2007, only half of the employees enrolled in tiered networks realized that tiering was part of their plan. Of concern for those who believe in tiering, 58% didn't trust the tiers to tell them which doctors were best. Only 20% would trust either their employer or their health plan to establish the tiers. The highest level of trust for tiering (49%) would go to a medical society.
There was, however, some evidence for use of tiering in ways that the GIC hoped to see. Of the 20% who knew the tier rating of at least one of their doctors, 50% learned about the tier rating before their first visit and reported that the information was important to their choice of who to see.
Patients may not yet be paying much attention to tiering, but physicians are intensely aware of the ratings they receive. The Massachusetts Medical Society has brought a suit against the GIC tiering program (here) - a court hearing on the merits of the suit is pending.
Most physicians who have thought deeply about how best to manage quality and cost believe we need to establish a budget for health care, with physicians responsible for providing the best possible care within that budget. This is the vision Grumbach and Bodenheimer argued for 20 years ago in their seminal Health Affairs article "Reins or Fences: A Physician's View of Cost Containment." In our current political climate, however, budgets are seen as part of "socialized medicine" and "government intrusion." Tiering of providers is a second best approach to the effort to improve value (quality per unit of cost) in health care. It's an ethically solid concept for which the key challenge is getting the tiering system right. The Sinaiko/Rosenthal study shows that we're just putting our national toe into the tiering waters. But it's an experiment well worth working on!
The public thinks of "managed care" as a form of insurance. But on the ground care is managed by physicians and the institutions within which they practice. When insurers actually tried to manage care in the 1990s they succeeded in slowing the cost trend significantly, but they were blown out of the water by provider and patient backlash.
We in the U.S. have a very childlike understanding of health care and a very immature health system. This makes it relevant to consider how children morph into responsible, "well managed" adults.
Children learn through "soft power" - values, incentives, well-timed nudges, and peer influence. Insurance tiering is an effort to influence health care quality and cost by using the same kind of soft power. Here's what Peggy O'Kane says about pharmacy tiering in her editorial:
Tiered pharmacy benefits are one of the few successful cost containment strategies in the past 2 decades. Evidence indicates success on 2 fronts: (1) a positive impact on pharmacy costs and (2) acceptance by members that their choices will affect their own out-of-pocket costs. Against the background of other health plan cost-containment strategies, some of which were subsequently thwarted by public policy and others of which suffered from poor execution and/or lack of provider and patient acceptance, drug tiering stands out as a singular success. It is both ethical and logical to structure choices so that costs are more transparent to consumers and to ask them to bear at least part of the differential cost for a comparable but more expensive product, as long as individuals are not forced to accept lower quality in the favored product. As Americans, we are used to the idea that if we choose a more expensive product, we pay more for it. Third-party payment interrupts the connection between purchasing choices and resultant costs to the individual, but the idea of reference pricing (the third-party payer pays for an equivalent choice at the lowest price, and if the individual chooses a more expensive version, he or she pays the difference) is familiar, and well accepted by customers, in scenarios like auto insurance.Sinaiko and Rosenthal surveyed consumers about their responses to tiered networks that were part of the insurance offered by the Massachusetts Group Insurance Commission (GIC), a state agency that provides health insurance and other benefits to 300,000 state employees and family members. Here's what GIC Executive Director Dolores Mitchell says about tiering in the 2009 Annual Report:
Throughout Fiscal Year 2009, the GIC was in the forefront of efforts to frame the debate on how best to control rising health care costs while improving quality. The GIC’s Clinical Performance Improvement (CPI) Initiative continued its ground-breaking work -- analyzing differences in provider efficiency and quality and giving members incentives through lower copays to see better performing providers. The program has helped spark debate in the health care community about the role providers must play in improving quality and cutting the overuse of resources...the GIC’s Clinical Performance Improvement (CPI) Initiative, now in its fifth year, seeks to:(Tiering is largely limited to the specialties for whom enough claims data is available, but some plans tier primary care physicians as well.)Share responsibility– providers, members, health plans, and the GIC - for reducing costs and improving quality Maintain comprehensive benefits and choice Emphasize health care quality and safety Adopt modest member share increases Educate members about provider performance Encourage healthy behavior
Under the CPI Initiative, the GIC requires our health plans to provide de-identified claims for their entire book of business to our consultants for aggregation and analysis for each provider’s efficiency and quality relative to his or her peers. After this process, the results of the analysis are given to the health plans who then use the information to develop tiered networks in which members are given modest co-pay incentives to use better performing doctors.
***Tier 1 (excellent) – lowest copay
**Tier 2 (good) – middle copay
*Tier 3 (standard) – highest copay
In general, approximately 20% of physicians earned a Tier 1 rating, 65% were in Tier 2 and 15% were in Tier 3.
Sinaiko and Rosenthal's basic finding was that as of 2007, only half of the employees enrolled in tiered networks realized that tiering was part of their plan. Of concern for those who believe in tiering, 58% didn't trust the tiers to tell them which doctors were best. Only 20% would trust either their employer or their health plan to establish the tiers. The highest level of trust for tiering (49%) would go to a medical society.
There was, however, some evidence for use of tiering in ways that the GIC hoped to see. Of the 20% who knew the tier rating of at least one of their doctors, 50% learned about the tier rating before their first visit and reported that the information was important to their choice of who to see.
Patients may not yet be paying much attention to tiering, but physicians are intensely aware of the ratings they receive. The Massachusetts Medical Society has brought a suit against the GIC tiering program (here) - a court hearing on the merits of the suit is pending.
Most physicians who have thought deeply about how best to manage quality and cost believe we need to establish a budget for health care, with physicians responsible for providing the best possible care within that budget. This is the vision Grumbach and Bodenheimer argued for 20 years ago in their seminal Health Affairs article "Reins or Fences: A Physician's View of Cost Containment." In our current political climate, however, budgets are seen as part of "socialized medicine" and "government intrusion." Tiering of providers is a second best approach to the effort to improve value (quality per unit of cost) in health care. It's an ethically solid concept for which the key challenge is getting the tiering system right. The Sinaiko/Rosenthal study shows that we're just putting our national toe into the tiering waters. But it's an experiment well worth working on!
Sunday, February 7, 2010
Texas Threatens Whistleblower Nurse with Jail
Tomorrow nurse Anne Mitchell, formerly compliance officer at Winkler County Memorial Hospital in West Texas, will go on trial for "misuse of official information" in reporting concerns about Dr. Rolando Arafiles to the Texas Medical Board.
The story, reported today in the New York Times, is fascinating and important on several counts. Whatever the truth of her allegations, the charge being brought against her itself appears to be tainted by conflict of interest:
From my reading of the New York Times article I interpret the story this way: Ms. Mitchell and her colleague Vickilyn Galle, the quality improvement officer, against whom charges have been dropped, were concerned about what they saw as a pattern of unsafe practice by Dr. Arafiles. They brought their concerns to the hospital administrator and medical staff but felt that the response was too slow. This led them to write, anonymously, to the Texas Medical Board. The administrator did not defend Dr. Arafiles, but complained that the nurses had acted in bad faith by going behind his back by to the Medical Board. Although between them the two nurses had worked at the hospital for 47 years, held responsible positions, and had never received a negative review, he fired them.
While it could be argued that the nurses should have informed the hospital of what they were intending to do, to give the hospital a final chance to deal with the concerns internally, any health professional with good faith concerns about (a) potentially serious lapses in quality of care that (b) the responsible local authorities are not addressing is (c) ethically obligated to go outside of the organization to (d) bring attention to bear on the situation.
This case does not belong in court. I was happy to learn that counsel for the nurses has brought a countersuit alleging vindictive prosecution and denial of the nurses’ First Amendment rights against the sheriff, the prosecutor, the hospital administrator, and the physician in question.
The filing of the countersuit makes fascinating reading. To me it reads like a slam dunk argument. Unless important new facts emerge that put the situation into a dramatically different light I hope the countersuit continues. It could send a powerful message to all those who contemplate attacking the whistleblowing messenger. The assault initiated by Dr. Arafiles and Sheriff Walker, the prosecutor's decision to initiate a criminal action against nurse Mitchell, and the hospital's decision to fire them, will come back to haunt them.
(For a seminal article about the ethics of medical professionalism by Matt Wynia and colleagues, see here)
The story, reported today in the New York Times, is fascinating and important on several counts. Whatever the truth of her allegations, the charge being brought against her itself appears to be tainted by conflict of interest:
"When the medical board notified Dr. Arafiles of the anonymous complaint, he protested to his friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter...Ms. Mitchell had reported quality of care concerns about Dr. Arafiles to the Medical Board, including a failed skin graft performed in the emergency room, without surgical privileges, and an unusual intervention - suturing a rubber tip to a patient's crushed finger for protection, for which he was later chastised.
Sheriff Roberts, who has held the post for 18 years, said the state would show that the complaint had been filed in vengeance. 'If it’s made to destroy somebody’s reputation or forcing them to leave town,' he said, 'then I don’t believe it is good faith.'
Sheriff Roberts called Dr. Arafiles 'the most sincerely caring person I have ever met.'"
From my reading of the New York Times article I interpret the story this way: Ms. Mitchell and her colleague Vickilyn Galle, the quality improvement officer, against whom charges have been dropped, were concerned about what they saw as a pattern of unsafe practice by Dr. Arafiles. They brought their concerns to the hospital administrator and medical staff but felt that the response was too slow. This led them to write, anonymously, to the Texas Medical Board. The administrator did not defend Dr. Arafiles, but complained that the nurses had acted in bad faith by going behind his back by to the Medical Board. Although between them the two nurses had worked at the hospital for 47 years, held responsible positions, and had never received a negative review, he fired them.
While it could be argued that the nurses should have informed the hospital of what they were intending to do, to give the hospital a final chance to deal with the concerns internally, any health professional with good faith concerns about (a) potentially serious lapses in quality of care that (b) the responsible local authorities are not addressing is (c) ethically obligated to go outside of the organization to (d) bring attention to bear on the situation.
This case does not belong in court. I was happy to learn that counsel for the nurses has brought a countersuit alleging vindictive prosecution and denial of the nurses’ First Amendment rights against the sheriff, the prosecutor, the hospital administrator, and the physician in question.
The filing of the countersuit makes fascinating reading. To me it reads like a slam dunk argument. Unless important new facts emerge that put the situation into a dramatically different light I hope the countersuit continues. It could send a powerful message to all those who contemplate attacking the whistleblowing messenger. The assault initiated by Dr. Arafiles and Sheriff Walker, the prosecutor's decision to initiate a criminal action against nurse Mitchell, and the hospital's decision to fire them, will come back to haunt them.
(For a seminal article about the ethics of medical professionalism by Matt Wynia and colleagues, see here)
Sunday, January 31, 2010
The Soon-to-Emerge Price War in Massachusetts Health Care
Massachusetts Attorney General Martha Coakley, fresh from her disastrous campaign for Ted Kennedy's senate seat, is back on the job. Last week her office released an important report - "Investigation of Health Care Cost Trends and Cost Drivers."
Federal health reform may be in hospice care, but Massachusetts reform is alive and kicking. Here are the key findings from the report:
- "Price variations are not correlated to (1) quality of care, (2) the sickness or complexity of the population being served, (3) the extent to which a provider is responsible for caring for a large portion of patients on Medicare or Medicaid, or (4) whether a provider is an academic teaching or research facility. Moreover, (5) price variations are not adequately explained by differences in hospital costs of delivering similar services at similar facilities.
- Price variations are correlated to market leverage as measured by the relative market position of the hospital or provider group compared with other hospitals or provider groups within a geographic region or within a group of academic medical centers.
- Price increases, not increases in utilization, caused most of the increases in health care costs during the past few years in Massachusetts.
- The commercial health care marketplace has been distorted by contracting practices that reinforce and perpetuate disparities in pricing."
- "Price variations are not correlated to (1) quality of care, (2) the sickness or complexity of the population being served, (3) the extent to which a provider is responsible for caring for a large portion of patients on Medicare or Medicaid, or (4) whether a provider is an academic teaching or research facility. Moreover, (5) price variations are not adequately explained by differences in hospital costs of delivering similar services at similar facilities.
The report is defined as a work in progress. But official acknowledgement that the prices insurers pay are not linked to outcomes is likely to rile up the legislature and perhaps the public as well.
The AG's findings should not be surprising. Ten years ago Tufts Health Plan went to the mat with Partners HealthCare (a system that includes the Brigham and Womens' and Massachusetts General Hospitals) in contract negotiations. Partners threatened to drop Tufts and the health plan capitulated. It had to. Without those prestigious hospitals in its network Tufts would not have been competitive.
Without naming names, the report refers to contracting practices that drive costs up, such as this one: "providers with market leverage are able to obtain contractual provisions that prohibit or inhibit insurers from creating limited network products and/or tiered products that might steer patients away from them." In other words, a health plan that wanted to give consumers a choice - pay more for access to "highly branded" providers or forgo that access - could not do so.
The AG's report is the opening salvo in what will be a widening conversation. A new round of hearings on health costs will begin in March. And the gubernatorial campaign will heat up soon after that.
Nothing in the report will be new to folks who are at all informed about health care and the health system. But what's needed to move the reform process is a more informed public, not more expertise among the wonk community. What has scuttled the federal effort at reform is the absence of a coherent public voice pressing for meaningful reform. The AG's report may help Massachusetts have a more reality-based political proces.
In particular, the AG's clear statement that the prices we pay through our insurance system are not linked to value - which is obvious to those who work in health care - may prod us (the Massachsetts public) to a deeper consideration of (a) what we value in health care, (b) how to assess it, and (c) how to make our payment system serve the values we care about. That consideration will stir a lot of conflict. But there's a chance that the conflict in Massachusetts will have more to do with the real issues than the "death panel" and "government takeover" nonsense that's swamped the federal effort.
Wednesday, January 27, 2010
Psychiatric Ethics in Boston
While reading yesterday's Boston Globe over coffee I encountered two stories about courtroom trials that raise central issues in psychiatric ethics along with the legal matters the trials are about. Two in one day!
The Globe reported that Dr. Kayoko Kifuji testified in trial of Carolyn Riley, who is charged with murder in the death of her four year old daughter Rebecca. The prosecution alleges that Carolyn and her husband Michael, who will be tried separately, overdosed Rebecca with psychiatric medications, causing her death.
The issue in psychiatric ethics isn't murder, but Dr, Kifuji's prescribing major tranquilizers for Rebecca starting at age 2. Based on statements by Rebecca's mother, Dr. Kifuji diagnosed Rebecca as having bipolar illness, and prescribed strong doses of three powerful medications.
All I know about the case is what I've read in the paper. That a psychiatrist can (a) diagnose bipolar disorder in a two year old, (b) based solely on the mother's reports of behavior, without (c) extended inquiry into what was happening in the family or (d) additional information from day care workers and others, is, alas, (e) symptomatic of the current state of U.S. psychiatry. Forty years ago, at the peak of psychoanalytic thinking, mothers were confidently diagnosed as "schizophrenogenic' - that is, as causing schizophrenia by their cold, rejecting attitudes. Now we diagnose two year olds in a comparably confident manner.
What's needed is much more humility and curiosity. Humility about the limits of our knowledge. When I was in training my teachers assumed the truth of psychoanalytic explanations. Now we tend to assume the truth of neurological explanations. The real truth is that our understanding of complex phenomena is still rudimentary. As a result we need to be more curious to delve more deeply into the lives of the people we deal with - their biology, their psychology, and the social contexts in which the concerns are arising.
The other story concerns a malpractice suit brought by Ken and Danielle Lambert against McLean hospital and members of its staff, alleging responsibility for "wrongful deaths" of their 5-year-old daughter, Kaleigh, and 4-year-old son, Shane who were killed when Danielle's twin sister carried the children into traffic on Interstate 495 in a state of psychosis. (See here for a post about the events.)
Once again, my only knowledge of this case comes entirely from the media. The ethical issue that stands out for me involves confidentiality. Here's a relevant quote from the Globe:
But over the years I've seen innumerable situations in which mental health clinicians let an overly rigid understanding of confidentiality regulations trump common sense and thoughtful ethics. If clinicians believe that patients are dangerous to themselves or others, there are all kinds of ways of conveying relevant information to family members.
The best, of course, is to explain to the patient why one wants to convey the information, to discuss how best to do it, and to get permission to go ahead. Asking for permission can be done wimpishly - "may I talk with your XYZ?," dropping the topic at the first whiff of a "no," or vigorously - "I really think we should talk with XYZ about ABC," persevering in an effort to persuade.
It's also possible to give information indirectly. A clinician who is concerned about possible risk could say to a family member - "it's difficult to predict, but in illnesses like this there can be a risk of dangers..."
And, it's always possible to do what one thinks is right even if doing so violates the letter of the law. Society, and juries, expect clinicians to be devoted to the well being of their patients and relevant others, not simply to be slaves to regulations. I recall a number of situations in which I (a) was not able to get a patient's permission to convey information to someone else, (b) felt that doing so was in the ultimate interest of the patient as well as the third party, (c) told the patient what I was going to do, and (d) carefully documented my rationale. In most of these situations my patient and I remained on good terms, able to continue to work together.
In ethics discussions, it's common for students and seasoned clinicians to ask first - "what's the law about this situation?" My response is - "our job is to decide what we think the right thing to do is. Once we know that we can ask the lawyers - "how can we to [the right thing] most consistently with the law."
Ethics first. Then law.
The Globe reported that Dr. Kayoko Kifuji testified in trial of Carolyn Riley, who is charged with murder in the death of her four year old daughter Rebecca. The prosecution alleges that Carolyn and her husband Michael, who will be tried separately, overdosed Rebecca with psychiatric medications, causing her death.
The issue in psychiatric ethics isn't murder, but Dr, Kifuji's prescribing major tranquilizers for Rebecca starting at age 2. Based on statements by Rebecca's mother, Dr. Kifuji diagnosed Rebecca as having bipolar illness, and prescribed strong doses of three powerful medications.
All I know about the case is what I've read in the paper. That a psychiatrist can (a) diagnose bipolar disorder in a two year old, (b) based solely on the mother's reports of behavior, without (c) extended inquiry into what was happening in the family or (d) additional information from day care workers and others, is, alas, (e) symptomatic of the current state of U.S. psychiatry. Forty years ago, at the peak of psychoanalytic thinking, mothers were confidently diagnosed as "schizophrenogenic' - that is, as causing schizophrenia by their cold, rejecting attitudes. Now we diagnose two year olds in a comparably confident manner.
What's needed is much more humility and curiosity. Humility about the limits of our knowledge. When I was in training my teachers assumed the truth of psychoanalytic explanations. Now we tend to assume the truth of neurological explanations. The real truth is that our understanding of complex phenomena is still rudimentary. As a result we need to be more curious to delve more deeply into the lives of the people we deal with - their biology, their psychology, and the social contexts in which the concerns are arising.
The other story concerns a malpractice suit brought by Ken and Danielle Lambert against McLean hospital and members of its staff, alleging responsibility for "wrongful deaths" of their 5-year-old daughter, Kaleigh, and 4-year-old son, Shane who were killed when Danielle's twin sister carried the children into traffic on Interstate 495 in a state of psychosis. (See here for a post about the events.)
Once again, my only knowledge of this case comes entirely from the media. The ethical issue that stands out for me involves confidentiality. Here's a relevant quote from the Globe:
The Lamberts told the Globe after the deaths that McLean psychiatrists had diagnosed Thibault with bipolar disorder in September 2007 and discharged her six days later after prescribing psychotropic drugs and recommending outpatient therapy. But, the couple said, doctors never told family members about the risk Thibault might pose to others or herself.Psychiatry is not good at predicting danger, especially given that the tragic incident took place four months after Danielle Lambert's sister was discharged from McLean. What "interfered" with the Lamberts receiving any warning may well have been that clinical evaluation gave no indication of risk. In that case, concerns about confidentiality played no role.
"Had they been warned of this potential," the Lamberts’ lawyer, Andrew C. Meyer Jr. of Boston, said yesterday, "they never would have allowed the children to be in her care that night."
...The Lamberts face significant obstacles in their suit, including confidentiality laws that limit what medical providers can disclose to third parties...
But over the years I've seen innumerable situations in which mental health clinicians let an overly rigid understanding of confidentiality regulations trump common sense and thoughtful ethics. If clinicians believe that patients are dangerous to themselves or others, there are all kinds of ways of conveying relevant information to family members.
The best, of course, is to explain to the patient why one wants to convey the information, to discuss how best to do it, and to get permission to go ahead. Asking for permission can be done wimpishly - "may I talk with your XYZ?," dropping the topic at the first whiff of a "no," or vigorously - "I really think we should talk with XYZ about ABC," persevering in an effort to persuade.
It's also possible to give information indirectly. A clinician who is concerned about possible risk could say to a family member - "it's difficult to predict, but in illnesses like this there can be a risk of dangers..."
And, it's always possible to do what one thinks is right even if doing so violates the letter of the law. Society, and juries, expect clinicians to be devoted to the well being of their patients and relevant others, not simply to be slaves to regulations. I recall a number of situations in which I (a) was not able to get a patient's permission to convey information to someone else, (b) felt that doing so was in the ultimate interest of the patient as well as the third party, (c) told the patient what I was going to do, and (d) carefully documented my rationale. In most of these situations my patient and I remained on good terms, able to continue to work together.
In ethics discussions, it's common for students and seasoned clinicians to ask first - "what's the law about this situation?" My response is - "our job is to decide what we think the right thing to do is. Once we know that we can ask the lawyers - "how can we to [the right thing] most consistently with the law."
Ethics first. Then law.
Tuesday, January 26, 2010
Facebook, Psychotherapy, and Professional Ethics
Melinda Lewis, who teaches Social Work at the University of Kansas, raised fascinating questions about social media and social work ethics on her excellent "Classroom to Capitol" blog yesterday. I've excerpted four from her post, with my responses in italics:
1. Every social media expert advises that success requires an infusion of ‘personality’ in order to connect with one’s followers. I get this–I see that I receive much more response to tweets or Facebook updates, for example, that include some personal tidbit–but it makes me wonder, when does this raise the risk of dual relationships? How much disclosure is too much disclosure? How do we engage with our targets without blurring those boundaries in potentially harmful ways? Should you ever ‘friend’ a client? Now that the opportunity exists, is it harmful to the professional relationship to decline?
By "dual relationships" Melinda presumably means situations in which a social worker or other mental health clinician betrays professional responsibilities by carrying out other agendas with the patient. (The extreme form of this in my own profession occurs when psychiatrists have entered into sexual relationships with their patients.) In principle it's easy to assess the ethical appropriateness of "disclosure" - does it serve the interests of the patient, and is it consistent with the norms of the profession? In practice it can be tough to figure out. Being too stiff and formal tends to undermine clinical trust and effectiveness. But "inappropriate" disclosure can distract from the goals of the treatment and, potentially, lead down a path to various forms of harm.
The best way to "engage...without blurring boundaries" is to be aware of the question and to consult with colleagues at moments of uncertainty. The problem I see with "friending" a client is that Facebook, unlike email, isn't 1:1. I felt entirely comfortable using email with my patients. But Facebook, by design, is a networked process. One isn't just communicating to one's patients or being communicated to in one's clinical role. I'm not in practice any more, but my current sense is that I'd be using email more and more with patients, but not Facebook.
A patient who proposes "friending" to a clinician might be hurt by a decline, or, at the other extreme, relieved. What would be harmful to the professional relationship would be not reflecting on what was wished for in the request and how the decline was interpreted.
2. What about confidentiality? While any ethical social worker would refrain from including personal details about clients in social media interactions, is it ethical to, for example, include some of the outline of a client interaction on a personal blog? Assuming that all identifying information is changed, does that make it okay? What about if the blog receives ad revenue that goes directly to the social worker?
I found the following a useful rule of thumb: if I drew on material from a particular patient, it should be disguised well enough so the patient's next door neighbor would not recognize who I was talking about, and if the patient read what I wrote he or she should feel respected. Advertising revenue is not different in principle from honoraria for talks or royalties for books, but advertising has the risk that the patient might not want to be associated with the advertiser.
3. Should social workers be allowed to blog or post or tweet about their organizational life, including frustrations with their practice setting? You see employees do this all the time, from “TGIF” Facebook updates on a Friday afternoon to generic “so sick of my boss” comments on different sites, but, given social workers’ obligation to our employers, are we forbidden from engaging in this kind of catharsis?
Writing about organizational life is fine if it's thoughtful reflection about professional issues. But we shouldn't kvetch about work conditions - that could undermine the confidence other patients have in the organization. If we're critical of our work sites our responsibility is to advocate for change, fix things, or, if it's not tolerable, get out.
4. Given the viral and unpredictable nature of social media use, how can we really ever receive informed consent from our clients for their participation? For example, a client gives permission for a photo to be posted on the agency’s blog, but then the blog gets tracked back by several other blogs, and someone tweets the post…and this is exactly what your organization wants, in terms of the response from the community, but now many more people have seen it, and in different contexts, and probably with adding their own commentary…and that’s not what you told the client when you asked permission.
These complexities mean that we should envision these possibilities with our patients - a series of "what if" questions. Years ago my practice group had a policy against using unsecured email with our patients. I didn't follow the policy. But when patients wanted to use email I made sure they understood that email could be hacked, and that my group advised against using it. If they understood the limitations of email security, and if I thought email advanced our clinical objectives, I went ahead and used it. But Melinda is right that the risks are harder to anticipate with social media.
1. Every social media expert advises that success requires an infusion of ‘personality’ in order to connect with one’s followers. I get this–I see that I receive much more response to tweets or Facebook updates, for example, that include some personal tidbit–but it makes me wonder, when does this raise the risk of dual relationships? How much disclosure is too much disclosure? How do we engage with our targets without blurring those boundaries in potentially harmful ways? Should you ever ‘friend’ a client? Now that the opportunity exists, is it harmful to the professional relationship to decline?
By "dual relationships" Melinda presumably means situations in which a social worker or other mental health clinician betrays professional responsibilities by carrying out other agendas with the patient. (The extreme form of this in my own profession occurs when psychiatrists have entered into sexual relationships with their patients.) In principle it's easy to assess the ethical appropriateness of "disclosure" - does it serve the interests of the patient, and is it consistent with the norms of the profession? In practice it can be tough to figure out. Being too stiff and formal tends to undermine clinical trust and effectiveness. But "inappropriate" disclosure can distract from the goals of the treatment and, potentially, lead down a path to various forms of harm.
The best way to "engage...without blurring boundaries" is to be aware of the question and to consult with colleagues at moments of uncertainty. The problem I see with "friending" a client is that Facebook, unlike email, isn't 1:1. I felt entirely comfortable using email with my patients. But Facebook, by design, is a networked process. One isn't just communicating to one's patients or being communicated to in one's clinical role. I'm not in practice any more, but my current sense is that I'd be using email more and more with patients, but not Facebook.
A patient who proposes "friending" to a clinician might be hurt by a decline, or, at the other extreme, relieved. What would be harmful to the professional relationship would be not reflecting on what was wished for in the request and how the decline was interpreted.
2. What about confidentiality? While any ethical social worker would refrain from including personal details about clients in social media interactions, is it ethical to, for example, include some of the outline of a client interaction on a personal blog? Assuming that all identifying information is changed, does that make it okay? What about if the blog receives ad revenue that goes directly to the social worker?
I found the following a useful rule of thumb: if I drew on material from a particular patient, it should be disguised well enough so the patient's next door neighbor would not recognize who I was talking about, and if the patient read what I wrote he or she should feel respected. Advertising revenue is not different in principle from honoraria for talks or royalties for books, but advertising has the risk that the patient might not want to be associated with the advertiser.
3. Should social workers be allowed to blog or post or tweet about their organizational life, including frustrations with their practice setting? You see employees do this all the time, from “TGIF” Facebook updates on a Friday afternoon to generic “so sick of my boss” comments on different sites, but, given social workers’ obligation to our employers, are we forbidden from engaging in this kind of catharsis?
Writing about organizational life is fine if it's thoughtful reflection about professional issues. But we shouldn't kvetch about work conditions - that could undermine the confidence other patients have in the organization. If we're critical of our work sites our responsibility is to advocate for change, fix things, or, if it's not tolerable, get out.
4. Given the viral and unpredictable nature of social media use, how can we really ever receive informed consent from our clients for their participation? For example, a client gives permission for a photo to be posted on the agency’s blog, but then the blog gets tracked back by several other blogs, and someone tweets the post…and this is exactly what your organization wants, in terms of the response from the community, but now many more people have seen it, and in different contexts, and probably with adding their own commentary…and that’s not what you told the client when you asked permission.
These complexities mean that we should envision these possibilities with our patients - a series of "what if" questions. Years ago my practice group had a policy against using unsecured email with our patients. I didn't follow the policy. But when patients wanted to use email I made sure they understood that email could be hacked, and that my group advised against using it. If they understood the limitations of email security, and if I thought email advanced our clinical objectives, I went ahead and used it. But Melinda is right that the risks are harder to anticipate with social media.
Monday, January 25, 2010
Where Are We Now in the Health Reform Process?
,In 1973, after Massachusetts was the only state not to vote for Richard Nixon's reelection, bumper stickers appeared all over the state: "Don't Blame Me - I'm From Massachusetts."
Now our bumpers should read - "Blame Me for Health Reform tanking - I'm From Massachusetts."
I've been reading the pundits and mulling over where we are in the effort to get a better grip on our out-of-control health system. Everyone who wants reform is in a regrouping mode. Here's some of my current thinking:
Now our bumpers should read - "Blame Me for Health Reform tanking - I'm From Massachusetts."
I've been reading the pundits and mulling over where we are in the effort to get a better grip on our out-of-control health system. Everyone who wants reform is in a regrouping mode. Here's some of my current thinking:
- I hope the legislature passes something. I don't know what kind of a "something" our political process will allow, but it's crucial to show that we the people, through our government, are not totally impotent with regard to managing the health system.
Experienced psychiatrists know that when we work with demoralized patients with chronic ailments who've given up hope that change is possible, an early success, however trivial, builds momentum for achieving more substantial goals. That's where we are with health reform. A baby step is better than no step. - It appears that the mandate for each individual to be insured has elicited an especially strong backlash. Here's what s 55 year old New Hampshire resident said about the mandate - “I won’t pay it! And I’ll shoot the first person that tries to make me go to jail because I will not buy health insurance.”
As I said last spring in "The Ethics of an Individual Mandate," there are only two ways to get to universal insurance coverage - tax that pays for everyone or a requirement that individuals get coverage (with financial support for those who need it). Now that the federal mandate is going down the tubes it's just a matter of time until a state creates its own single payer system. The California legislature has given CPR to a universal coverage bill that was tabled last year (see here). If a Democrat is elected governor in November a single payer plan for the state could have traction. I hope that happens somewhere - it will be a crucial experiment, just as Massachusetts is. - Small business owners have also been vociferous in opposing the expectation that they would provide health insurance for their employees. If I ran a small business I'd feel the same. The cost is ridiculous, and the services provided by the purchase don't feel worthwhile. It's hard to find a primary care doctor with time for new patients, visits feel rushed, and the system itself is best described as "high tech/low touch." Small business owners feel they're not getting value for money, and they're right!
I have the privilege of co-leading a "patient-doctor" seminar in a superb primary care residency (see here to learn about the program). We've just finished interviewing candidates for the 2010 - 2011 internship. The applicants were brilliant, accomplished and idealistic. But their passion for providing care was focused almost exclusively on underserved populations in the U.S. and abroad. Virtually none were contemplating a career in the mainstream U.S. system. I connect their lack of enthusiasm for the mainstream system with the small business owners' lack of enthusiasm for buying insurance. Paying huge premiums is bad enough. But if it feels as if the expenditure isn't providing comparable value, it's worse. - Even the tea party folks don't think things are hunky dory in the health system. But it's looking as if we're not prepared to allow the government to launch a large makeover. As the bills progressed through the Senate and the House, the scope of reform kept getting whittled down. "Health system reform," which is what we need, turned into "health insurance reform," which is just one piece. And now it looks as if even these whittled down efforts are too much for the populace to swallow.
In Massachusetts, where many of the elements of the Senate and House bills have been in force for three years, support for the reform process remains strong. It looks as if we're more prepared to trust our state governments than the federal government. Since scuttling the federal effort doesn't put out the health system fire, we should expect to see heightened reform activity at the level of states, self-insured employers, and organized medical groups.
For the foreseeable future I think the mantra for those, including myself, who believe our system requires radical reform, should be - "think globally, act locally."
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