Bryant Welch, JD, PhD
Athealth.com: What is the most important issue today in the area of risk management for the mental health professional?
Welcome to athealth.com's Professional Interview Series. Athealth.com is pleased to talk with Bryant Welch, JD, PhD, who answers questions about risk management and how mental health practitioners can protect themselves against professional liability exposure.
Dr. Welch: Managed care is the most important issue affecting risk management for mental health professionals.
Dr. Welch: Managed care is the over-arching issue in mental health treatment. It's both a quality of care issue and a bread and butter issue.
Athealth.com: How is managed care impacting quality of patient care?
Dr. Welch: Practitioners are now being asked to treat sicker patients in formats with fewer resources. For example, fifteen years ago a teenager with a severe affective disorder would have been treated in a residential facility. Now, in many instances that same adolescent is being treated as an outpatient with one session every other week for a limited number of sessions.
In other words, previously, that patient would have been treated in a safe surrounding. In today's managed care environment, it is difficult for the practitioner to launch effective treatment for the patient. Yet, the liability for the practitioner is the same as it was 15 years ago.
Athealth.com: How is managed care a bread and butter issue for practitioners, and how does this relate to risk management?
Dr. Welch: Mental health practitioners who buck the system risk their economic livelihood. Practitioners have an obligation to deliver quality patient care. If, in the practitioner's opinion, a patient needs additional treatment, it is up to the practitioner to advocate on behalf of the patient for managed care authorization of additional care. Practitioners who advocate too much risk being excluded from a managed care panel or losing referrals. In areas where there is only one significant MCO, this potential loss can be substantial. MCOs keep a profile of their providers. While provider profiling is not illegal, it certainly can have a chilling effect on how a therapist interacts with the managed care organization.
Also, if the practitioner is working in an environment where effective treatment is denied on a regular basis, the practitioner's morale is worn down. This demoralization adds to the risk.
Athealth.com: How can a practitioner minimize this risk?
Dr. Welch: First, the practitioner must make certain that a managed care company does not influence the therapist's integrity with the patient. If the managed care organization won't pay for the treatment, this is not the therapist's fault. However, if the therapist implies to the patient that he/she doesn't need the additional care - when in the therapist's opinion, the patient does - then the therapist is complicit and vulnerable to liability exposure.
To guard against allowing a managed care organization to affect clinical judgment, I would suggest that clinicians try to get into a peer supervision group where these matters can be discussed.
Athealth.com: Would the Internet be an appropriate vehicle to use for the formation of these kinds of groups?
Dr. Welch: Yes, that's an excellent idea. Keep in mind that therapists always need to make certain that patient confidentiality is protected.
Athealth.com: Is there anything else a therapist can do to protect against liability in this situation?
Dr. Welch: If the practitioner believes that a patient requires additional care, the therapist should tell the patient and document that the patient has been advised of this. The therapist is not required to treat the patient for free, although many therapists do at least some pro bono work. If treatment must be terminated with the therapist, the therapist will need to take appropriate steps to transfer the care of the patient to a public agency.
Athealth.com: Is any one discipline in the mental health field at greater risk for being sued for malpractice?
Dr. Welch: No. In my experience the competence of individuals transcends the disciplines. There are highly qualified people in all of the disciplines.
Athealth.com: Can you identify any other trends that have an impact on mental health treatment and risk management issues?
Dr. Welch: I don't think we can ignore the enormous importance that some of the newer medications have had on the treatment of serious mental illnesses. This is not to diminish the importance of psychotherapy. I think the research indicates that the use of medications and psychotherapy are more effective together.
However, what I am talking about here relates more to formularies and the fact that an MCO may require that a clinician use a different medication even though a patient has been stabilized or is doing well on another medication.
In addition, where clinical indicators are present, it is poor risk management not to refer a patient for a medication evaluation. This means that non-prescribing practitioners treating these kinds of patients need to know what the clinical indicators are and have some training in psychopharmacology.
Athealth.com: What kinds of cases carry the biggest risk?
Dr. Welch: Cases involving suicide or wrongful death generally result in larger damage awards. However, in terms of sheer volume the largest number of lawsuits are those involving contested family matters: child custody, divorce, and child abuse reporting cases.
An expert witness is vulnerable to suit in these kinds of cases, but the treating professional is even more vulnerable if the practitioner also serves as an expert witness in the case. For example, if the therapist does not know one of the parties, the practitioner will be rendering an opinion on less than all of the facts. If the therapist has been treating the family, one of the family members is likely to feel betrayed. In my view, it is unwise for a treating professional to act as an expert witness.
Athealth.com: What if the treating professional receives a subpoena to appear in court or produce records?
Dr. Welch: If the therapist is required to testify, the practitioner should serve as a fact witness rather than render an opinion on who or who is not a good parent. Upon receipt of a subpoena the therapist should notify the patient and all attorneys. The proper releases or court orders will need to be in place so that the therapist does not violate patient confidentiality.
Athealth.com: What is the difference between a licensing board complaint and a malpractice suit?
Dr. Welch: In a malpractice suit the plaintiff alleges that the therapist has deviated from the standard of care in some way that has injured the plaintiff. The plaintiff requests an award of monetary damages.
A licensing board complaint can be filed by anyone - the licensing board, a patient, another therapist, or a member of the public. The state licensing board is authorized to review the complaint, hold hearings, and issue sanctions that can range from none to severe, such as the loss of one's license to practice. In addition to legal defense fees the practitioner may be fined for the cost of the investigation and hearing. A record is made of the proceedings and reported to the national practitioner database. If a practitioner has received an unfavorable ruling, this information will be available to managed care companies and may have a negative impact on the practitioner's ability to generate future referrals.
Both situations are serious. Most practitioners carry professional liability insurance to cover the malpractice suit. However, their insurance policy may or may not cover the full cost of a legal defense against a licensing board complaint. Anyone can be accused of misconduct, whether the allegation is true or not. It is cheap protection to buy a sufficient rider to cover the cost of a legal defense of a licensing board complaint.
Athealth.com: What about Internet "therapy?" Are there special risks here?
Dr. Welch: This is part of the broader area of telemedicine. Video conferencing, where therapist and patient have the opportunity for true person-to-person interaction, has a lot of potential to give expanded access to highly trained professionals. On the other hand, it also opens the door to fringe attempts at "counseling." This is an area that is evolving and will have to be watched carefully.
Athealth.com: What about the issue of practicing across state lines?
Dr. Welch: I do think we have to recognize that we are in a global economy and that we need to find ways to modernize our licensing in a way that reflects this reality. By saying this I do not mean that we need to diminish standards. We will need to apply these standards in a different way.
Athealth.com: Any additional thoughts?
Dr. Welch: Suicide risk assessment is another area that should be looked at carefully. In many instances managed care organizations have developed a one-question test to determine whether or not a person is suicidal. These are contracts for safety where the patient signs a statement that the patient won't commit suicide and that if he/she has an impulse to do so, that he/she will contact someone. This is not an adequate test and should not be used as a substitute for a suicide risk assessment or as a substitute for treatment.
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