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Suicide and Malpractice Liability: Assessing and Revising Policies, Procedures, and Practice in Outpatient Settings

Suicide and Malpractice Liability: Assessing and Revising Policies, Procedures, and Practice in Outpatient Settings

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Traditional society has always blamed death. Natural and accidental deaths were viewed as God's will, whereas suicide and murder have been considered human-caused (Litman 1988). If someone is responsible, they must be punished. In 18th-century society, suicide was punished by the desecration of the body, public indignity, or confiscation of property belonging to the family. Modern legal and cultural considerations have changed the perception of suicide. Suicide used to be a crime that could result in death. However, it is now seen as a consequence of mental disorders that require intervention and prevention (Berman & Jobes 1991). De facto, those who treat and care for patients with mental disorders have the responsibility of preventing their suicide. Mental health professionals have been increasingly blamed for suicide, as they fail to prevent suicides from their patients. 

Modern acts of retribution against mental health professionals include malpractice litigation for "wrongful death" (which can occur even after the termination of psychotherapy span> ). 

This suggests that some therapists might overtly or covertly want to avoid potentially troublesome clients. Bernstein, Feldberg, and Brown (1991) discovered that a large percentage (59%) of psychology training clinics do not offer services for suicidal patients and have exclusionary criteria. Although it may seem like a good idea to avoid these patients, they are clinically common and can often be treated with competent care. 

The Fundamental Issues 

Suicide malpractice claims usually involve the following: 

1. Failure to properly diagnose and protect. 

2. Failing to recognize suicidal tendencies in a patient and failing to take precautionary measures to protect him. 

3. Failing to take proper care. 

The fundamental issues of safe practice with suicidal patients, and protection against malpractice liability, are connected to the concepts "foreseeability", and "reasonable concern." Foreseeability is the ability to make a reasonable and complete assessment of risk. According to the suicidology literature, assessment is not synonymous with prediction. Clinicians are unable to accurately and reliably predict suicidal behavior without a prohibitive amount of false-positive identifications. However, clinicians can assess the risk level by evaluating mental state and diagnosing, as well as the presence of known risk factors. The clinical judgment can be correct or incorrect. But, a failure to evaluate risk and make judgments is egregious. 


The reader may be curious as to whether there is a difference between predicting suicide or evaluating the risk. This distinction has been well-received in clinical suicidology literature (Maris, Berman Maltsberger, and Yufit 1992). The essential distinction is not one about outcome prediction (i.e. suicide vs. non-suicide). The importance of risk assessment lies not in the relationship it has to treatment planning or the sequence of small decisions that assist the suicidal person (Pokorny 1983). A clinician might plan treatment to reduce the risk factors that could lead to self-injurious actions by evaluating a patient's suicide risk. A diagnosis of imminent or high risk requires immediate attention to questions such as monitoring the patient's self-control and the need for hospitalization. The primary purpose of risk assessment is to encourage competent clinical management, which in turn optimizes treatment (Bongar 1991 ). ). 

Reasonable care is the effective and efficient implementation of precautions or interventions based on the prior assessment of risk (i.e. foreseeability). Reasonable care refers to the creation of a treatment program, the consideration of medication or hospitalization, the need for referral, consultation, decisions about the patient's self-control and affects regulation, as well as close observation and the execution of any recommended treatment. Both the treatment plan as well as assessments must be consistent in all interventions and therapies. Documentation of the assessment, treatment, process, outcome, and outcomes must be kept contemporaneously. It is essential to follow all applicable laws and ethical standards. 

These are the key issues to consider when evaluating whether a clinician practiced within an acceptable standard of care. This is the legal yardstick that judges a clinician's professional conduct. The standard of care can be idiosyncratically determined by different experts on a case-to-case basis. The defense and plaintiff will each hire several experts who will testify about the therapist's conduct relative to the standard. The experts will then evaluate and define the standard of care in light of any opinions they have developed in the context of the case. It is not always the best, most reliable, or efficient way to determine clinical negligence and malpractice. Truth, fairness, and justice, especially as they are perceived by the beleaguered clinician, may not prevail. Sometimes a case will turn based on either of the more credible expert or the most effective lawyer. 

Plaintiffs (bereaved family members) can appeal to jurors' sympathy if a case is brought to trial by a jury. This is the reality in malpractice litigation. A clinician whose livelihood and professional reputation are at stake might be advised to make every effort to provide the best care possible for suicidal patients. Our patients' primary goal is to provide competent and effective care. However, due to the possibility of litigation, good treatment practices are the best protection against malpractice should there be a suicide (Bongar 1991 ). ). 

Effective clinical risk management is about recognizing and taking reasonable care of the central issues that affect foreseeability. Sound risk management must also include attention to specific administrative and clinical procedures. Clinicians must be aware of the relevant regulations and ethical standards to treat suicidal patients. They also need to be aware of laws relating to self-harm, malpractice, confidentiality, and informed consent. Clinicians should communicate with patients all aspects of their business and administrative practices. Competent care requires a thorough understanding of the available assessment tools and treatment options for high-risk patients. Professional consultation, proper record keeping, and knowledge of the limitations and terms of malpractice insurance are essential to provide competent and ethical care for suicidal patients.