FIDUCIARY LAW

1. FIDUCIARY LAW STATUS RELATIONSHIP DISPARITY OF POWER & NEED VOLUNTARY UNDERTAKING TRUST GIVEN BY ONE CARE PROMISED BY OTHER

2. ELEMENTS • Formation • Duration • Termination

3. DUTIES OWED • Utmost Good Faith • Loyalty • Confidentiality • Abstinence • Neutrality • Professional competence • Respect boundaries • No abandonment

4. COMPETENCEPROFESSIONAL STANDARD OF CARE ACT AS ORDINARY AND REASONABLE PRUDENT PSYCHIATRIST UNDER SAME OR SIMILAR CIRCUMSTANCES

5. BOUNDARIES • Interact verbally • Avoid personal relations & physical contact • Maintain stable fee policy • Use appropriate setting & defined session length • Respect autonomy of patient decision-making • Accept no material reward other than hourly fee • Avoid double agency - if present, fully disclose

6. MALPRACTICETORT OF ABANDONMENT • DUTY • BREACH • STANDARD OF CARE • UNREASONABLE RISK OF FORESEEABLE HARM • DAMAGES • CAUSATION • BUT FOR (SCIENTIFIC) • PROXIMATE (WITHIN THE RISK) • ABSENCE OF DEFENSES • STATUTE OF LIMITATIONS • OTHER

7. CHARTING • 6-O’CLOCK NEWS RULE • CHART LESSER INTERVENTION MORE THAN GREATER ONE • NOT CHARTED MEANS NOT DONE • COMMENT ON COMPETENCY/UNDERSTANDING • DATE/TIME YOUR NOTE

8. EMERGENCY PSYCHIATRY

9. STANDARD OF CARE • ALWAYS THE SAME STANDARD OF CARE • LAW RECOGNIZES URGENCY TO ACT • DIAGNOSTIC PRECISION NOT EXPECTED • ONLY REASONABLE EFFORTS REQUIRED • NEED TO ACT BEFORE ALL FACTS IN • A RISK ASSESSED REQUIRES A PLAN • A PLAN REQUIRES ACTION

10. DECISIONS • WHAT DO YOU NEED TO KNOW? • WHO KNOWS IT? • DOES PATIENT NEED HOSPITALIZATION? • IS INVOLUNTARY HOSPITALIZATION POSSIBLE? • IF NOT, IS PATIENT SAFE UNTIL FOLLOW-UP? • IS THERE A REPORTING DUTY?

11. INVOLUNTARY MEDICATION • In emergency a person detained may be treated over objection prior to capacity hearing with medication to treat the emergency.  It is not necessary for harm to take place or become unavoidable prior to intervention. • Emergency exists when medication immediately necessary for preservation of life or prevention of serious bodily harm to patient or others, and it is impracticable to first gain consent.

13. MEDICAL COMPETENCY

14. CONSENT PRESUMED IN EMERGENCY • ONLY IF NO READILY AVAILABLE SURROGATE • PRESUMPTION ENDS WHEN EMERGENCY ENDS. • LPS DOES NOT AUTHORIZE MEDICAL RX • A REFUSAL IS INCOMPETENT IF: • UNABLE TO RESPOND KNOWINGLY AND INTELLIGENTLY TO QUESTIONS ABOUT TREATMENT • UNABLE TO PARTICIPATE IN TREATMENT DECISIONS USING RATIONAL PROCESSES • UNABLE TO UNDERSTAND INFORMATION ABOUT THE RECOMMENDED TREATMENT

15. THE PSYCHIATRIC CONSULTATION • REFUSING PATIENT MUST BE TOLD ALL RISKS. • DO GOOD MSE. (SEE PROBATE SEC 811) • DETERMINE FOLLOWING: • DID PATIENT COMMUNICATE DECISION? • WAS DECISION BASED ON CONSENT INFORMATION? • IS THERE AN 811 MENTAL STATUS DEFECT? • DOES THE DEFECT EXPLAIN THE REFUSAL? • WRITE A NOTE SUFFICIENT FOR A PETITIION. • IF INCOMPETENT, BURDEN ON PCP TO ACT.

16. CLINICAL ETHICS • What are the possible treatments? • What are the pros & cons of each? • Is there preponderance supporting one decision? • If not, is there conflict over facts or ethical principles? • Substituted Judgment > Best Interests • Substituted Judgment • Power of attorney, probate conservator, surrogate • Best Interests • Reasonable patient standard • If still unclear, • Ask family. • If family in unclear, ask jusge.

17. SHC ETHICS POLICY GUIDELINES PATIENT LACKS CAPACITY • PATIENT HAS APPOINTED DECISION MAKER • DPHC • CONSERVATOR • PATIENT HAS NO APPOINTED DEICSION MAKER • LAST COMPETENT WISHES KNOWN • SURROGATE AVAILABLE • NO CONFLICT OF INTEREST • BEST INTERESTS STANDARD • PATIENT CAN DISQUALIFY • IF PATIENT DISAGREES WITH TREATMENT, REFER TO ETHICS COMMITTEE • IF PATIENT PROTESTS COMMITTEE DECISION, REFER TO RISK MANAGEMENT