Forensic Corner; Gag Orders
Lee H. Haller, M.D.
A psychiatrist had her license suspended by the state
medical board pending payment of a $10,000 fine and
agreement to perform 100 hours of community service.
The censure resulted from the doctor's conduct in the
course of a child custody dispute. The mother hired
the psychiatrist to be an expert witness in the case
which involved allegations of sexual abuse by the father.
There was a court order barring any media publicity.
Nevertheless, the psychiatrist leaked to the press part
of a hospital report which recommended unsupervised
visitation with the father. The psychiatrist also called
a press conference. She claimed she did this due to
a moral duty to the child, who would be placed in danger
by unsupervised visitation with the father.
The Board found the doctor guilty of knowingly disregarding
the gag order, of undercutting the administration of
justice, and failing to obey the court's finding that
further publicity was detrimental to the best interest
of the child. In reaching its decision, the Board relied
on the Ethical Guidelines for the Practice of Forensic
Psychiatry, from the American Academy of Psychiatry
and Law as well as the American Psychiatric Association's
Principles of Medical Ethics.
The psychiatrist's appeal of the Board's decision eventually
reached the state supreme court, which upheld the action
of the Board. The court found that the Board had acted
within its authority and was not excessively punitive.
The court explained that the doctor knew, or should
have known, that by releasing confidential information,
she was deviating from the standards of her profession.
There are two reasons for bringing this case to your
attention. The first is that it represents a problematic
outcome to a common concern in custody cases, i.e: What
does the evaluating psychiatrist do upon reaching the
conclusion that the child involved is at risk? Although
going public, as this psychiatrist did, is not the appropriate
solution to the problem, several options do exist whereby
a psychiatrist can appropriately divulge his or her
concern. The possibilities are: the attorney for the
parent who hired the psychiatrist, the attorney for
the child, the guardian adlitem for the child, the court
that has jurisdiction over the case, or child protective
services. An elaboration of which of these options is
allowable is beyond the scope of this column. However,
a psychiatrist can always hire his or her own attorney
to provide advice in these matters. The point is that
this case should not dissuade people from making some
effort on behalf of the child. Rather it should highlight
for the practitioner that it is important to choose
an action that is appropriate to the situation.
The second point is that this case resulted from a
doctor violating a "gag order." In the past, doctors
have not often been subjected to "gag orders." Recently,
however, some managed health care contracts have contained
gag clauses which forbid participating physicians from
divulging certain information to patients. Psychiatrists
should not let this case sway their judgment vis-ˆ-vis
what to do when con fronted by the managed care reviewer
who refuses to authorize needed treatment and also insists
that the psychiatrist not tell the patient about such
treatment recommendation, citing the gag clause in the
contract. Violation of the gag clause by the psychiatrist
is not at all likely to result in the physician being
brought in front of the disciplinary arm of the state
medical board, provided that the doctor's violation
consists of telling the patient (or parent, if patient
is a minor) what the recommended course of treatment
is and that the insurance company will not authorize
that therapy. Such action may lead to the doctor being
dismissed from the company's panel, but that is as it
should be since doctors should not sign agreements to
withhold this type of information from patients. It
is far more likely that the physician risks legal consequences
by not divulging such information, and providing less
than optimal care, than he or she will by discussing
treatment options with the adult patient (or parents
of minor).
Dr. Haller is in the private practice of forensic psychiatry
in Potomac, Maryland
AACAP
News/March-April 1998
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