Keep Documentation of Assessments and Treatment Plans

Juries may consider suicide and/or violent acts to be among the worst possible outcomes and the documentation of your risk assessments will be scrutinized by plaintiff and defense attorneys alike. Documentation is one of the easiest risk reduction strategies to accomplish but is perhaps the most commonly missing piece of evidence in malpractice claims. The old adage holds true. Juries tend to presume that, “If it wasn’t documented, it wasn’t done.”

Besides documenting the actual risk assessment itself, documenting your rationale regarding underlying treatment decisions, including actions taken and actions considered but disregarded, is also essential to building a complete medical record. Consultations/referrals requested should be included as they may support treatment decisions made for the patient. Any instructions given or questions asked pertaining to weapons ownership/access should also be documented, as well as any additional communications with other providers, family and friends.

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Confidentiality and Duty to Warn

With respect to patient confidentiality and communications with others, confidentiality must be maintained in accordance with federal and state laws. However, the right to confidentiality is not absolute and the provider should understand circumstances permitting disclosure in their jurisdiction, such as harm to self/others. It is a good idea to develop a policy regarding disclosure and discuss it with the patient at the outset of treatment.  

Each assessment should also address whether hospitalization is required and include documentation regarding the provider’s thought process for seeking hospitalization or the rationale why the patient may not require hospitalization. Documentation should include indications, when applicable, that the provider recommended hospitalization, discussions with the patient and family members/significant others when appropriate, and also evidence that the provider considered the possibility of a less restrictive measure for preventing harm to self/others.

Although predicting suicide and violence toward others is difficult, by thoroughly assessing the risk, building a carefully documented medical record, understanding state/federal confidentiality laws and state duty to warn reporting obligations, behavioral health providers can mitigate their liability exposures when treating these patients.

Moira Wertheimer, JD, RN, CPHRM is Assistant Vice President of Healthcare Risk Management at AWAC (Allied World Assurance Company) Services Company in Farmington, Connecticut, where she provides consulting and client services to insured psychiatrists helping them assess and manage the risks that they encounter. She also has a background in psychiatric nursing.