Suicide Prevention Contracts Legal Issues.pdf

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The Suicide PreventionContract: Clinical Legal andRisk Management IssuesRobert I. Simon M

In the managed care era, mental health professionals increasingly rely uponsuicide prevention contracts in the management of patients at suicide risk. Al-though asking a patient if he or she is suicidal and obtaining a written or oralcontract against suicide can be useful, these measures by themselves are insuf-ficient. No harm contracts cannot take the place of formal suicide risk assess-ments. Obtaining a suicide prevention contract from the patient tends to be anevent whereas suicide risk assessment is a process. The suicide preventioncontract is not a legal document that will exculpate the clinician from malpracticeliability if the patient commits suicide. The contract against self-harm is only asgood as the underlying soundness of the therapeutic alliance. The risks andbenefits of suicide prevention contracts must be clearly understood.

In the managed care era, mental healthprofessionals increasingly rely upon sui-cide prevention contracts in the manage-ment of patients at suicide risk. In bothoutpatient and inpatient settings, patientsare being treated for shorter periods oftime. For example, in acute care psychi-atric units or hospitals, the average lengthof stay is usually less than six days. How-ever, only the sickest patients are hospital-i ~ e d . ~he purpose of hospitalization israpid stabilization of the patient and earlydischarge. Admission requirements for in-

Dr. Simon is Clinical Professor of Psychiatry and Di-rector Program in Psychiatry Georgetown UniversitySchool of Medicine Washington DC. Address corre-spondence to: Robert I. Simon MD 7921-D GlenbrookRd. Bethesda MD 20814-2441. E-mail: risimon@ ix.netcom.com

patient treatment often exceed substantivecriteria for involuntary commitment.Under these limitations, the therapeutic

alliance, which is the stock-in-trade of men-tal health practitioners, has little time todevelop. The treatment team, working inconjunction with the psychiatrist, has oftenbecome the primary care provider for inpa-tients. f the patient is capable of developinga therapeutic alliance, it is usually with theteam or possibly with the hospital itself. Inthe outpatient setting, the therapeutic alli-ance may be attenuated by fewer, briefervisits with an often increased reliance onmedications. The presence of a viable ther-apeutic alliance forms the basis for relianceupon a suicide prevention contract. How-ever, the therapeutic alliance is a dynamicinteraction that is in constant flux.

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Simonlinical Issues

The intended purpose of the suicideprevention contract is to provide safety inthe management of the patient at suiciderisk. The agreement provides explicit in-formation about the availability of thetreatment provider (e.g., answering ser-vice or beeper numbers). The agree-ment may simply state:

W e clinician and patient) agre e that you pa-tient) will call me if you find that you areworrying about harming yourself. If you feelyou need immediate help and canno t reach meat that moment, you will go directly to theemerge ncy room specifically designated). Ifyou need to be seen between appointments, Iwill be available to see you.The suicide prevention contract prom-

ises too much if it states that the clinicianwill be available at all times-an obviousimpossibility for outpatients. For inpa-tients, the suicide prevention contractshould emphasize the availability of clin-ical staff on the unit. Although some ther-apists require the patient to sign such astatement, the patient's signature is notcrucial. The therapist may obtain an oralcontract against suicide. However, the ex-istence and terms of an oral agreementshould be recorded in the patient's chart.

Suicide prevention contracts can beuseful in certain instances as part of theassessment of the therapeutic alliance, buttheir limitations should be clearly under-~ t o o d . ~ , ~he problem with the patientcontract against suicide is that it mayfalsely relieve the practitioner's concernand lower clinical vigilance without hav-ing any beneficial effect on the patient'ssuicidal intent. There may be little or nobasis to rely upon a suicide preventioncontract obtained from a new patient who

is at suicide risk. The psychiatrist may nothave had sufficient time to adequatelyassess the patient, especially the patient'scapacity to form a therapeutic alliance.Moreover, a patient who is determinedto commit suicide may sign such a con-tract to avoid the detection of suicidalintent. Forensic psychiatrists who havereviewed numerous suicide cases canconfirm that the road to suicide is strewnwith broken suicide prevention contractsand unkept promises against suicide bypatients. Relying upon no harm con-tracts may reflect the clinician's unrealis-tic attempt to control the inevitable anx-iety associated with treating patients atsuicide risk.

Some clinicians gauge the patient'ssuicidal intent by his or her willingness orunwillingness to formalize the alliance bya written ~ontract.~lthough some pa-tients will accept a suicide preventioncontract, some will state openly that theycannot be sure that if self-destructive im-pulses threaten, they can or will want tocall the therapist. Suicide prevention con-tracts that are declined by the patient of-ten provide the most credible informationabout the state of the therapeutic allianceand level of suicide risk. Patients whorefuse outright to commit to contractsagainst suicide may at least disabuse theclinician of a false sense of security. Al-though the refusal to agree to such a con-tract may not mean that the patient isimminently suicidal, the clinician is onnotice that the therapeutic alliance shouldbe reassessed.

An alternative approach to suicide pre-vention contracts, which has been pro-posed by ~ i l l e r , ~elies on the basic te-

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The Suicide Prevention Contractnets of informed consent. The process ofinforming patients at risk for suicideabout treatment and management is usedto assess their ability to develop andmaintain a therapeutic alliance.

Legal ssuesquestion often raised by clinicians

who use suicide prevention contracts is,What legal authority do these agree-

ments have, if any? Will a written or oralagreement with a patient not to commitsuicide immunize the therapist from alawsuit if the patient subsequently at-tempts or commits suicide? clinician'spresumed defense of breach of contractis not likely to be sustained for the fol-lowing clinicolegal reasons:

1. The parties to the contract must belegally competent parties. person musthave sufficient cognitive capacity-orability to understand the nature and con-sequences of a proposed transaction-tobe considered competent to make a con-tract.6 contract is voidable when theparty by reason of mental illness or de-fect. is unable to act in a reasonablemanner in relation to the transaction andthe other party has reason to know of this~ondition .~

legal presumption exists that alladults are competent. With the patientwho is mentally ill and suicidal, however,serious questions would likely arise re-garding the legal competency of the pa-tient to enter into an agreement, such as asuicide prevention contract, with the cli-nician. Medication effects and transfer-ence phenomena in an already mentallycompromised individual could undermineany conclusion that a patient was suffi-

ciently competent to se-verely depressed or agitated patient maybe functionally incompetent (affectivelyincompetent), thus lacking the mental ca-pacity to enter into any type of contract.

2. The agreement or contract must in-clude a valuable consideration-an in-ducement for each party to carry out hisor her part of the bargain. Money is avaluable consideration. The fee paid tothe practitioner is in exchange for thepromise to provide competent profes-sional services to the patient. In agreeingto a suicide prevention contract, no addi-tional consideration is provided by thepatient.

3. mutual obligation must be imposedon each party. In a suicide preventioncontract, the patient is the only party ac-tually agreeing to forbear or not do some-thing that he or she is under no legalobligation to give up. The patient con-tracts not to attempt suicide or to call theclinician if he or she feels suicidal. How-ever, the patient has no contractual obli-gation beyond payment for professionalservices received. The clinician's promiseto be available for the patient is an exten-sion of the legal duty of care that is al-ready owed the patient. Therefore, from alegal perspective, the clinician's dutystated in a suicide prevention agreementis superfluous. Further, the fiduciary na-ture of the clinician-patient relationship,where the clinician holds a significantpower advantage over the patient, wouldlikely nullify the legal validity of a sui-cide prevention contract between theparties.

4. The contract must not contravenepublic policy. 2 suicide prevention con-

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Simontract is a classic example of an exculpa-tory clause. p15 Persons may not en-force contract terms that would relievethem from liability for any harm causedby their negligence. Therefore, a suicideprevention contract with a patient wouldnot immunize a clinician from legal liabilityif the clinician's conduct was negligent andproximately caused the patient's death orinjury by suicide. Clinicians cannot contractto provide less care than what is normallyowed, regardless of whether a patient im-plicitly or explicitly agrees to the arrange-ment. To do so would violate public policy.Negligence is not something that can becontracted away.

Also, although suicide is no longer acrime in any state, suicide itself is againstpublic policy. 1 6 l 7 Therefore, a contractwritten to prevent an act that already hasbeen declared to be against public policyis a meaningless contract.

In Stepakoff v. an tar, the psychia-trist thought he had a solid pact with amanic-depressive patient to contact him ifthe patient felt suicidal. The patient didcontact the psychiatrist or his designatedreplacement on several occasions. After afavorable telephone assessment of the pa-tient's mental stability and the patient'sdefense mechanisms, the psychiatrist feltthat the patient was unlikely to commitsuicide. However, the patient did commitsuicide. The Massachusetts Supreme Judicial Court found for the psychiatrist byaffirming that the psychiatrist's legal ob-ligation to the patient was to treat himaccording to the standard of care and skillof the average psychiatrist. Having a sol-id pact with the patient against suicidefell within such a standard. However. the

Court did not express an opinion aboutsuicide prevention pacts.

Courts seem unlikely to give much cre-dence to a suicide prevention contract ifdeviation in the standard of care is presentand the patient attempts or commits sui-cide. In Stepak~fS,'~he psychiatrist wasable to demonstrate that he provided clin-ically appropriate care and proceduresthrough frequent contact and assessmentof the patient. In addition, the psychiatristdocumented his consideration of involun-tary hospitalization. He also used an ac-tive substitute therapist while he was onvacation.

Clinicians who defensively considerno harm contracts to be valid legal in-

struments that bind the patient not tocommit suicide make a twofold error.First, the belief that a legal documentcould prevent a patient from committingsuicide is naive and self-delusive. Clini-cians who are under considerable pres-sure in managing difficult suicidal pa-tients may regressively grasp at the beliefthat signing a document binds the patientnot to commit suicide. Thus. obtaining acontract against suicide from the patientcan become a magical ritual designed tofend off the clinician's anxieties. Second,producing a suicide prevention contract incourt signed by a deceased patient willnot immunize the clinician against legalliability. On the contrary, unless the cli-nician performed an adequate assessmentof suicide risk and made adequate risk-benefit assessments prior to his or herclinical decisions, the contract againstsuicide could indict the clinician who re-lies solely upon it to prevent a patient'ssuicide.19 The inappropriate reliance on

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The Suicide Prevention Contractcontracts for safety to the exclusion of

competent evaluation and suicide risk as-sessment by a qualified clinician possess-ing sufficient information to make theassessment creates a high risk of legalliability.

isk ManagementMerely asking patients whether they

are suicidal and obtaining no harm con-tracts are, by themselves, insufficientmeasures. layperson can just as easilyask these same questions. Formal suiciderisk assessment is the best risk manage-ment. The clinician must obtain an ade-quate psychiatric history and documentcompetent suicide risk assessments thatinform appropriate clinical interven-t i o n ~ . ~ ' nfortunately, the contractagainst suicide tends to be a specificevent. whereas suicide risk assessment isa continuing process. The therapeutic al-liance may seem firm during the sessionbut can fluctuate between sessions oreven dissipate. One way in which thecontract can become part of an effectiveassessment process is to review at appro-priate intervals the patient's willingnessand ability to call the clinician or to notifythe hospital staff if she or he is experi-encing suicidal thoughts.

The contract against suicide can be auseful clinical risk management strata-gem when it facilitates good clinical care.For example, some patients may be reas-sured by the clinician's stated interest andavailability. The therapeutic alliance maybe strengthened thereby and the suicidethreat lessened. Sound risk managementis always a derivative of good clinicalcare. The suicide prevention contract, by

itself, merely creates an illusion of safetywhen it is not combined with competenttreatment and management of the patient.

Suicide prevention contracts may beused to assess the competence of patientsto collaborate with treatment and man-agement decisions. The ability to reachout to another person for help in a time ofcrisis indicates the presence of a basiclevel of adaptive trust and competence.Patients with acute psychotic and affec-tive disorders may not possess the collab-orative capacity to enter into a behavioralcontract. Patients with personality disor-ders usually possess the mental capacityto collaborate with psychiatric treatment.However, because of maladaptive charac-ter structures and psychological defenses,the patient's ability to collaborate in asuicide prevention contract may be im-paired. ~ u t h e i l ~ ~ecommends that clini-cians should carefully evaluate their pa-tients' competence to participate inclinical decisions. Suicidal patients whoare not competent to cooperate with theclinician generally require more conser-vative management.

ConclusionThe suicide prevention contract may

provide a biopsy of the therapeutic al-liance. However, based on the nature andcourse of the patient's illness, the thera-peutic alliance can change rapidly. Thebiopsy is a single event that cannot sub-stitute for the continuing process of sui-cide risk assessment. In the managed caresetting, a high volume of patients and theshort lengths of treatment may furtherinhibit the development of the therapeuticalliance between therapist and patient that

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is so essential to good clinical care. The 9. Williamson v. Matthews, 379 So.2d 1245(Ala. 1980)suicide prevention Ontract not be 1 0 McPheters v. Hapk e, 497 P.2-J 1045 (Idah orelied upon to the exclusion of formal 1972)suicide risk assessment and thorough 11. ~ u r k t a j n I , Harding HP, Guthei l TG, Brod-sky A,: Beyond cognition: the role of disor-clinical evaluation of the patient. dered affective states in imuairinr compe-

ReferencesSimon RI: Discharging sicker, potentially vi-olent psychiatric inpatients in the managedcare era: standard of care and risk manage-ment. Psychiatr Ann 27:726-33, 1997Simon RI: Psychiatrists' duties in dischargin gsicker and potentially violent inpa tients in themanaged care era. Psychiatr Sem 49:62-7,1998Stanford EJ, Goetz RR, Bloom JD: The noharm contract in the emergency assessment ofsuicide risk. J Clin Psychiatry 55:344-8,1994Miller MC: Suicide prevention contracts: ad-vantages, disadvantages, and an alternativeapproach, in Guide to Suicide Assess ment andIntervention. Edited by Jacobs DG. San Fran-cisco: Jossey-Bas s, 1999 , pp 463- 8 1Simon RI: The suicide prevention pact: clin-ical and legal considerations, in AmericanPsychiatric Press Review of Clinical Psychi-atry and the Law (vol 2). Edited by Simon RI.Washington, DC: American Psychiatric Press,1992Cundick v. Broadbe nt, 383 F.2d 157 (10thCir. 1967) cert. denied 390 U.S. 9 48 (1968)Ortelere v. Teachers' Retirement Bd. 250N.E.2d 460 (N.Y. 1969)David J. Sharpe, Medication as a threat totestamentary capacity. 35 N.C. L Rev 380(1 957)

lence to consent to treatment. Bull Am AcadPsychiatry Law 1 9:383-8, 199112. Roy v. Hartogs, 366 N.Y.S. 2d 297, 301 (N.Y.Civ. Ct. 1975)13. Porubiansky v. Emory Univ., 275 S.E.2d 163(Ga. C t. App. 198 1)14. Meiman v. Rehabilitation Ctr.. 444 SE.2d 78(Ky. Ct. App. 1969)15. Olson v. M olzen, 55 8 S.W.3d 4 29 (Tenn.1977)16. Bouvia v. County, no. 15 978 0,8 MPDLR 377(Cal. App. Dept. Super. Ct., Dec 16, 1983)17. In Re Conro y, 486 A.2d 1209, 1222-3 (N.J.1985)18. Stepakoff v. Kantar, 473 N.E.2d 113 (Mass.1985)19. Simon RI: The suicidal patient, in The MentalHealth Practitioner and the Law: Compre-hensive Handbook. Edited by Lifson LE, Si-mon RI. Cambridge, MA: Harvard UniversityPress, 1998, pp 1 66- 8620. Bergstresser CD: The perspective of the plain-tiff's attorney, in The Mental Health Practi-tioner and the Law: A Comprehensive Hand-book. Edited by Lifson LE, Simon RI.Cambridge, MA: Haward University Press,1998, pp 329-4321. Simon RI: Psych iatrists awake -suicide riskassessments are all about a good night's sleep.Psychiatr Ann 28:479-85, 199822. Gutheil TG: Malpractice liability in suicide.Legal Aspec ts Psych iatr Pract 1:l-4, 1984

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