THE ISSUE OF LIABILITY
“If health care facilities can show evidence of efforts to keep the patient safe post discharge, liability is unlikely to attach to that facility…..”
Skip Simpson, Attorney
(Full statement regarding ED liability)
THE ISSUE OF LIABILITY
Skip Simpson, Attorney
(Full statement regarding ED liability)
Emergency department professionals must balance multiple, often life-threatening priorities during the course of each shift. The concerns most often presented regarding the role of emergency departments in suicide prevention are how to screen and identify patients who are at risk of suicide, provide appropriate and compassionate care to them while in the ED, and arrange life-supporting transitions of care post-discharge while protecting the needs of ED medical professionals and addressing concerns about liability.
Elements of proof against a mental health professional in a malpractice suit are the same as those in any medical malpractice action. In order to be found liable, four elements must be established:
In malpractice litigation, it is negligence that is the primary focus of liability and the reference to standard of care is of particular importance in the area of suicide. For many mental health clinicians, training in the area of suicide intervention and prevention is lacking and awareness of developments in the field limited. Employing the standard of care requires an active pursuit of up to date interventions and an understanding of accepted practice within the field.
Recommended Standard Care for People with Suicide Risk: Making Healthcare Suicide Safe: Published in 2018 by the National Action Alliance for Suicide Prevention (Action Alliance), this document outlines what experts in the field of suicide prevention agree are the essential elements of an effective system of care. Practices highlighted for use in both ED and Inpatient settings include:
For patients with elevated risk who will be discharged with support:
For patients with elevated risk following discharge:
These recommended standard care approaches were developed by experts, researchers, clinicians, and consumers based on both research and experience caring for suicidal patients in real-world health care settings.
For both parties, conversations about whether or not to exchange information become problematic when one or the other participating entity invokes questions or concerns related to the Health Information Portability and Accountability Act (HIPAA). In reviewing the regulations and related legal interpretations, HIPAA appears in no way to be an impediment to exchanging information that could, in effect, better ensure an individual’s personal safety. HIPAA Standard 164.512(j) states that:
A covered entity may, consistent with applicable law and ethical codes of conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure: (i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and (B) Is to a person or persons reasonably able to prevent or lessen the threat; or (ii) Is necessary for law enforcement authorities to identify or apprehend an individual….(OCR/HIPAA Privacy/Security Enforcement Regulation Text, 45 CFR 164.512(j))
It is important to note that follow up services to those at risk would follow a formal consent procedure with the individual served providing written permission to the ED and crisis center to share certain basic information that would be necessary to establish contact. The program would be voluntary further nullifying the reference to HIPAA as a barrier to service provision.
Identifying suicide risk is a critical component of suicide prevention. ED professionals have an essential role in preventing patient suicide deaths and attempts by
Research indicates that universal screening for suicide risk in the ED can double the identification of patients who are at risk of dying by suicide (Boudreaux et al., 2016). In addition, findings indicate
Secondary screening can help ED professionals make decisions about the care and discharge of patients with suicide risk. This could include deciding whether patients with low suicide risk should receive further mental health evaluation from a mental health specialist, or whether it may be appropriate to discharge the patient after brief interventions are provided during the ED visit.
Comprehensive suicide risk assessment should be included in mental health evaluations conducted during the ED visit. The purposes of the suicide risk assessment are to determine whether the patient is in immediate danger and to make decisions about treatment (ED Guide ref). Treatment options could range from discharge to involuntary psychiatric evaluation. Some patients with suicidal thoughts or behaviors may be managed by ED professionals and provided with brief interventions during their time in the ED, and then potentially be discharged to outpatient services.
For additional resources on screening and suicide risk assessment, including a Decision Support Tool, please consult the Suicide Prevention Resource Center (SPRC) publication Caring for Adult Patients with Suicide Risk: A Consensus Guide for Emergency Departments.
ED providers are in a unique position to improve outcomes and facilitate safer discharge for patients with suicide risk by providing them with brief interventions, onsite mental health consultations when appropriate, and linkages to sources of follow-up care.
Research suggests that ED-based interventions could reduce annual deaths from suicide by 20 percent (National Action Alliance for Suicide Prevention: Research Prioritization Task Force, 2014).
How Emergency Departments Can Help Prevent Suicide among At-Risk Patients: Five Brief Interventions
Recommended practice for all patients with suicidal ideation who are being discharged includes:
The following brief suicide prevention interventions are clinically useful, facilitate continuity of care, feasible in the ED, and patient-centered:
For complete descriptions of the ED-based interventions, including action steps, and other supportive information please consult the full guide: Caring for Adult Patients with Suicide Risk: A Consensus Guide for Emergency Departments. You can also access a brief guide here
For additional resources about ED-based interventions, please see the following SPRC materials:
One of the most vital interventions for individuals at risk of suicide who have presented in the ED is to co-create a collaborative safety plan with a trained ED staff member. Safety plans typically include the following elements:
Safety plans should be brief, easy-to-read, and use the patient’s own words. It’s also important to make sure that the rationale behind the plan has been explained to the patient, as well as when it should be used.
A safety plan is not a no-suicide contract.
For additional information regarding the utilization of safety plans, as well as some tools to get started, please review the following resources:
In addition to referrals for outpatient therapy, individuals being discharged from the emergency department can benefit from other types of referrals, as well.
Referrals to other types of emotional support, in addition to outpatient therapy, as well as those that address basic needs concerns, can do a great deal to strengthen a discharge plan. If your hospital is not equipped to provide these types of referrals, a brief discussion regarding these needs and referral to the patient’s local Information and Referral line can provide patients with the information they need to address these needs post-discharge.
To locate additional services, including peer-to-peer:
Appropriate discharge planning that addresses patient needs during the transition of care from the ED has shown to be protective during the high-risk time between discharge and engagement in outpatient care. Facilitating follow-up contact with the patient, whether through crisis center collaboration or other practice, has a number of benefits for the patient, including:
In addition to patient benefits, ED professionals at hospitals currently partnered with Lifeline network crisis centers for the purpose of follow-up have reported that offering follow-up:
One of the simplest ways for ED professionals to promote continuity of care and protect themselves from liability is to thoroughly document the provision of recommended ED-based suicide prevention practices. From a legal standpoint, if the record of care does not reflect recommended screening and identification of risk, appropriate ED-based intervention, and appropriate after-care planning, it is as if these actions never occurred.
Documentation of recommended ED-based suicide prevention practices should typically include the following:
For more information on resources, research, and data visit the Research & Data page. Using search terms “liability,” ” screening,” “interventions,” and “documentation” will show resources related to emergency department liability and recommended standards of care.