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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)

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.

Liability Concerns

Professional Negligence

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:

  1.  Duty: that a duty of care was owed by the professional to the patient
  2. Negligence: that the professional violated the applicable standard of care (breach of duty)
  3. Harm: that the plaintiff suffered a compensable injury
  4. Causation: causation, that the plaintiff’s injury was caused in fact and proximately caused by the defendant’s substandard conduct

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.

Information Exchange

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.

Recommended Practices and Patient Safety

Assessment & Identification of Risk ED Interventions Safety Planning Referral Provision Care Transitions Documentation

Identifying suicide risk is a critical component of suicide prevention. ED professionals have an essential role in preventing patient suicide deaths and attempts by

  • identifying suicide risk through screening
  • evaluating positive screens through comprehensive suicide risk assessment, and
  • providing brief ED-based interventions.

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

  • 44% of ED patients with suicide ideation had a previous suicide attempt (Allen, 2013)
  • 2/3 of people who attempted suicide in the past year were seen in the ED that same year (Han, 2014)
  • 22% of people who died by suicide visited an ED in the 4 weeks prior to their death (Ahmedani et al., 2014)
  • Among ED patients who die by suicide (Ahmedani et al., 2014):
    • The primary reason for visiting the ED is often unrelated to suicide.
    • It is more likely that they visited the ED for non-psychiatric reasons.

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:

  • Providing at least one of the five following brief suicide prevention interventions
    prior to discharge
  • Include crisis center/hotline information with every brief intervention provided
  • Involve significant other(s) in the intervention if present

The following brief suicide prevention interventions are clinically useful, facilitate continuity of care, feasible in the ED, and patient-centered:

  1. Brief Patient Education
  2. Safety Planning
  3. Lethal Means Counseling
  4. Rapid Referral
  5. Caring Contacts

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:

  • Identification of triggers
  • Recognition of warning signs
  • Use of the patient’s own coping strategies to manage/decrease symptoms
  • Socializing with others who may offer offer support as well as distraction from the crisis
  • Contacting family members, friends, or other trusted social supports who might be able to help resolve the crisis
  • Contacting mental health professionals and agencies, medical providers, and other support services, such as crisis hotlines like the Lifeline and peer-support resources

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.

  • For some individuals, referrals to peer-based services can be an important part of the recovery process. This includes peer-to-peer support groups, warm-lines, and peer-sourced online supports
  • It is common for individuals to experience other stressors in conjunction with their emotional crises; often, these other concerns can exacerbate the crisis. Frequently, these concerns are related to basic needs, common examples being:
    • financial – loss of or difficulty with employment, difficulty paying bills, managing debt
    • assistance with securing affordable housing
    • food
    • transportation
    • childcare

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:

  • Caring and supportive contact with a trained crisis care professional
  • The opportunity to review and revise safety plans
  • The evaluation of barriers and the opportunity to collaboratively problem-solve
  • The provision of referrals to address other stressors and basic needs
  • Warm-transfers or facilitation of services such as community mobile crisis teams and emergency intervention, when needed

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:

  • Strengthens discharge plans
  • Increases their confidence when discharging patients with suicide risk who do not meet criteria for admittance, and
  • Provides a more approachable option for patients who are resistant to more intensive services

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:

  • Presenting issue, whether medical, psychiatric, or both
  • The results of evidence-based/recommended risk and safety assessments
  • The use of interventions such as safety planning, along with the content of the safety plan
  • Referrals that have been provided
  • Coordination of follow-up care, including consent to participate in follow-up, any warm hand-offs that occur to the follow-up provider, and transmission of relevant paperwork to the next provider
  • Information regarding any outpatient appointments that have been scheduled for the patient post-discharge, including details related to provider, time, day, and date

 

Liability Resources, Research, & Data

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.