Resource Document Provides Guidance on Liability in Integrated Care

Integrated care has the potential to upend traditional forms of psychiatric practice—and with them traditional understandings about psychiatrists’ risk for liability.

There is not one lone model of integrated care, and the models are evolving. On top of that, a psychiatrist’s role in any model can differ depending on a host of factors.

Lori Raney, M.D.

This makes for a complex and evolving landscape for liability in integrated care—but not one that is impossible to navigate. The “Resource Document on Risk Management and Liability Issues in Integrated Care Models” offers guidance on the subject to psychiatrists working in integrated care networks. The document was written by Lori Raney, M.D., chair of the APA Work Group on Integrated Care; D. Anton Bland, M.D., a former member of the work group; and Kristen Lambert, J.D., M.S.W. Lambert is vice president of the Psychiatric and Professional Liability Risk Management Group, AWAC Services Company, a member company of Allied World.

“This resource document provides much-needed guidance for psychiatrists who want to provide informal or ‘curbside’ consultation for their primary care and other medical colleagues,” Raney told Psychiatric News. “As new models emerge in which psychiatric expertise is provided behind the scenes to deliver care to more people in need, it is important to be knowledgeable about legal risks, and this document is a trove of valuable information and guidance. There have been concerns voiced by psychiatrists who want to work in collaborative settings with liability around giving advice for patients they have not directly evaluated.”

The resource document is not APA policy and was not approved by the Board of Trustees. The document notes that the information in it is “provided as a risk management resource and should not be construed as legal, technical, or clinical advice.” The resource document adds, “Whether there is liability, formal practice depends upon specific circumstances surrounding each case, and each state has different laws, regulations, and case law. [C]onsulting an attorney or risk manager for guidance on specific issues is strongly encouraged.”

A crucial point underscored by the resource document is that in order for there to be a legal duty, there must first be an existence of a doctor-patient relationship—that is, before a psychiatrist may be found liable for an act of medical malpractice, it is essential that a doctor-patient relationship exist. This relationship may result from a number of situations, and it is not necessarily dependent upon the existence of a formal or express agreement. Generally, however, the psychiatrist must take some affirmative step, such as consenting to treat a patient, for the doctor-patient relationship to be established.

The document outlines the three broad roles that a psychiatrist may play in an integrated care network: supervisory, collaborative, or consultative.

• In a supervisory role—the highest risk for liability—the psychiatrist is responsible for the overall care of the patient, and decisions and actions are under the psychiatrist’s direction.

• In a collaborative role—considered the most complex with regard to potential liability—psychiatrists and primary care providers may work along with one another while managing both somatic and mental health concerns.

• A consultative role is regarded as carrying the least risk for liability. In this role, the patient’s treatment will be dictated by someone other than the psychiatrist. The psychiatrist offers advice on a “take it or leave it basis” and remains outside the decision-making chain of command.

The resource document offers the following general tips regarding liability in integrated care:

• A primary care provider is the primary provider in charge of patient care and will write prescriptions and arrange follow-up care. Any contract signed by a psychiatrist should incorporate language concerning the psychiatrist’s role and responsibilities regarding patient care.

• A psychiatrist’s role should be identified with the referring provider. Psychiatrists should know whether they are providing a true consultation or informal/curbside consultation. Also, they should understand state and federal laws and regulations pertaining to the formation of doctor-patient relationships and providing consultations. (Regulations and laws vary between states.)

• Clinicians should be cautious when an informal inquiry turns into patient diagnosis and treatment. This may change a psychiatrist’s role/duties to the patient.

• Clinicians should understand the supervisory relationship with other members of the team, including other behavioral health providers. Clear delineations of responsibility should be established between team members. Psychiatrists need to be aware of who is supervising whom and that they could potentially be liable for the acts of those who are under their supervision. Clinicians should know employment contractual obligations and whether the contract sets forth duties as a supervisor, administrator, or partner/shareholder.

• Members of an integrated care team should establish mechanisms of effective communication with the other team members. Is there a documentation process to communicate with the other team members or is it through verbal communication?

• Psychiatrists are advised to be aware of HIPAA/HITECH privacy rules as well as state rules and regulations regarding privacy. They should ensure that, when indicated, consent is obtained to exchange patient health information with other providers.

• Clinicians should always adhere to the clinician’s professional ethical guidelines.

• Integrated care team members are advised to be aware of the organization’s policy and procedures.

• Even if a psychiatrist provides an informal consultation, he or she may not necessarily be immune from being added as a defendant in a lawsuit. ■