Lisa Maurer, MD, FACEP
Wisconsin is unique. We use the word "bubbler." We drink our Old Fashioneds with brandy. And our process for Emergency Detention psychiatric holds is unlike most you’ll find in most of the rest of the country. Yeah us!
A big headline you need to know about is the recent passage of new WI law that changes the liability environment around ED holds for physicians. We’ve enlisted help from an attorney to interpret this new law from the viewpoint of an emergency physician, so be sure to read his summary memo and FAQs. This new law clarifies that if you have concern that a patient should be on an ED hold and notify the proper authorities, you are not responsible for involuntarily treating the patient or preventing them from leaving the hospital if the patient is not placed on hold. What’s more, you are not liable for any harm done by the patient to him/herself or others thereafter.
One question that came up during our most recent WACEP board meeting was, "does this new statute mean that if we do not reach out to county officials for an ED hold that we are at increased liability risk for future harm done?" Our legal counsel says "no." As always, be sure to document your reasoning for why information available to you at the time of evaluation leads you to conclude there is not a substantial probability of harm.
Lastly, we asked for clarification of the language in this bill which protects physicians from liability in releasing personal health information (PHI) to third parties in good faith due to lessen a threat of future harm. For example, a physician would be protected from liability if he/she shared information to a third party about a patient is homicidal toward a particular individual. The question was whether this interpretation could be extended to cover liability for releasing PHI to friends or family members of a patient who accidentally overdoses on opioids, with the thinking that informing third parties may reduce risk of future self-harm by the patient. Legal counsel states there is a potential safe harbor in this law for doing so, but interpretation really hinges on whether you conclude that an accidental overdose translates to true risk of self-harm. Since the risk of self-harm is your judgement to make as a physician, use this information to help protect you if you believe a patient is at clear risk for future self-harm; be sure to properly document that risk to be in compliance with federal, and now state HIPAA law.
Also, here at WACEP, improving the process for caring for our patients in psychiatric crisis is one of our top priority goals. I’m so excited to let you know that we are actively working with the Wisconsin Psychiatric Association on removing barriers to shortening the length of stay for our patients in the ED on Chapter 51 holds. We’re even discussing if there could be a statewide common-sense standard for “medical clearance” before psychiatric admissions, based on physician assessment of medical risk rather than predetermined cookbook protocols. The sub-committee of physicians from both organizations working on this topic is looking to change your practice for the better, so please let us know if you have input.