PhD/PsyD Physician-aid-in-dying evaluations

[R. Matey]

I've recently learned of psychologists offering to do fitness evaluations for people who have made the decision to terminate their lives in states where it's legal. My understanding is that it's not a requirement because doctors can simply sign off on it without input from a psychologist/psychiatrist, but some will refer because they want some assurance the person is "of sound mind," whatever that means.

I wanted to gauge SDN opinion on this. Anyone do these? Are they ethical? Let's discuss.

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[WisNeuro]

I'm more worried about my legal liability in these cases, regardless of my personal opinions of the procedure.

 

[cara susanna]

I don't get how we can be asked to do this given the general expectation around mental health and suicide prevention (which, as you all know, I am not a big fan of regardless). It seems like a weird double standard.

 

[R. Matey]

I'm more worried about my legal liability in these cases, regardless of my personal opinions of the procedure.

I'm curious what standing would be in a case like this. If a family member wants to sue you for your evaluation, you didn't prescribe the drugs, you simply found no evidence of cognitive/psychological impairment. I'm not for or against, I'm just exploring the issue for the sake of discussion.

 

[WisNeuro]

I'm curious what standing would be in a case like this. If a family member wants to sue you for your evaluation, you didn't prescribe the drugs, you simply found no evidence of cognitive/psychological impairment. I'm not for or against, I'm just exploring the issue for the sake of discussion.

Presumably, your evaluation is part of the consideration on whether or not the individual has the capacity/meets requirements to end their own life. You are definitely going o be named in a lawsuit along with the physician if this comes to litigation.

 

[R. Matey]

Presumably, your evaluation is part of the consideration on whether or not the individual has the capacity/meets requirements to end their own life. You are definitely going o be named in a lawsuit along with the physician if this comes to litigation.

Even if that were true, how did I violate the law in states where DwD is legal?

Here's the FAQ for the WA law.

Frequently Asked Questions About Death With Dignity

These questions and answers contain general information about the effect of Initiative 1000, the state's Death with Dignity Act. Refer to the official act for specific details under this law. Death with Dignity Act Requirements- Chapter 246-978 WAC Washington Death with Dignity Act- Chapter...

www.doh.wa.gov

 

[R. Matey]

I don't get how we can be asked to do this given the general expectation around mental health and suicide prevention (which, as you all know, I am not a big fan of regardless). It seems like a weird double standard.

Philosophically, it does feel like a double standard. Suicide prevention feels to me to be centered on the idea that a person is not thinking rationally about their circumstances. I remember reading Beck somewhere calling it a poor ability to problem solve. In contrast, DwD seems to hinge on the idea that a person is thinking rationally about their circumstances and chooses to avoid unavoidable pain. I'm still trying to decide how I think about it, but that's the best I got.

 

[WisNeuro]

Even if that were true, how did I violate the law in states where DwD is legal?

Here's the FAQ for the WA law.

Frequently Asked Questions About Death With Dignity

These questions and answers contain general information about the effect of Initiative 1000, the state's Death with Dignity Act. Refer to the official act for specific details under this law. Death with Dignity Act Requirements- Chapter 246-978 WAC Washington Death with Dignity Act- Chapter...

www.doh.wa.gov

People get sued all the time for things that are technically legal. For example, let's say that I did a medical decision making capacity eval, deemed no capacity, med team makes a decision, adverse reaction. Guess who will be named in the suit? All of us.

 

[R. Matey]

People get sued all the time for things that are technically legal. For example, let's say that I did a medical decision making capacity eval, deemed no capacity, med team makes a decision, adverse reaction. Guess who will be named in the suit? All of us.

Read the FAQ, there's a legal shield for civil suits.

 

[cara susanna]

Philosophically, it does feel like a double standard. Suicide prevention feels to me to be centered on the idea that a person is not thinking rationally about their circumstances. I remember reading Beck somewhere calling it a poor ability to problem solve. In contrast, DwD seems to hinge on the idea that a person is thinking rationally about their circumstances and chooses to avoid unavoidable pain. I'm still trying to decide how I think about it, but that's the best I got.

I guess I'm wondering why someone with, say, a terminal illness is given a chance to show that their decision is rational when someone with, say, chronic depression, is not. I feel like if we say some people should have the right to suicide, determining where and how to draw that line will get very messy. Suicide prevention is where I get my most Szasz-y though.

 

[WisNeuro]

Read the FAQ, there's a legal shield for civil suits.

There are good faith legal "shields" for many things, people can still challenge that someone acted outside of the accepted practices and other areas within these settings. I'd advise anyone thinking about this to talk with legal counsel of their malpractice insurance.

 

[R. Matey]

There are good faith legal "shields" for many things, people can still challenge that someone acted outside of the accepted practices and other areas within these settings. I'd advise anyone thinking about this to talk with legal counsel of their malpractice insurance.

Gosh, I hope you're not around when I'm choking on an almond. But, yes, check with your malpractice insurers and lawyers, folks.

I would agree that it is more legally risky as there isn't an established national precedent and I do wonder about the ethics of such a practice as cara is raising. That's more where I'm going with this. Is this really even an ethical practice for psychologist? My instinct is to say no, but given my background as a reactionary conservative way back when, I constantly have to check that.

 

[WisNeuro]

You could make the same argument about CPR, just saying.

As a layperson, or as a professional rendering care? Those are two very different scenarios, with two very different liabilities.

 

[R. Matey]

As a layperson, or as a professional rendering care? Those are two very different scenarios, with two very different liabilities.

Since neither of us are lawyers, it's probably pointless to keep arguing this. BUT since we're down this rabbit hole, think of mandated reporting laws. In my state, if I witness abuse of a child in my capacity as a layperson, I still need to report given my professional status. I think that distinction is more flimsy than you think.

 

[WisNeuro]

Since neither of us are lawyers, it's probably pointless to keep arguing this. BUT since we're down this rabbit hole, think of mandated reporting laws. In my state, if I witness abuse of a child in my capacity as a layperson, I still need to report given my professional status. I think that distinction is more flimsy than you think.

To go back to your CPR example, professionals have been sued, some successfully in giving CPR.

 

[R. Matey]

I guess I'm wondering why someone with, say, a terminal illness is given a chance to show that their decision is rational when someone with, say, chronic depression, is not. I feel like if we say some people should have the right to suicide, determining where and how to draw that line will get very messy. Suicide prevention is where I get my most Szasz-y though.

That's an excellent question, and not something I've thought of. Why is one pain (physical) worse than another?

 

[R. Matey]

To go back to your CPR example, professionals have been sued, some successfully in giving CPR.

I'm not saying anyone should be cavalier about it, and I can understand the concern. I suppose it depends on how much risk one wants to tolerate, how many of these you want to take on, and how you feel about it ethically.

 

[WisNeuro]

I'm not saying anyone should be cavalier about it, and I can understand the concern. I suppose it depends on how much risk one wants to tolerate, how many of these you want to take on, and how you feel about it ethically.

Indeed, I am just saying when what you are doing involves the death of someone else, your risk of liability increases quite a bit. Personally, as I understand it, the law does not require that someone has a psychological evaluation to proceed. In which case, why would you voluntarily take on that liability when it is not a necessary eval?

Edit: To put it more plainly, why would you voluntarily conduct an evaluation where the sole purpose of the eval was to make you a legal meat shield for the physician?

 

[cara susanna]

That's an excellent question, and not something I've thought of. Why is one pain (physical) worse than another?

Right, and I want to be clear that I'm not saying we shouldn't allow "death with dignity." I just think that this will create a lot of dissonance unless our field and, more broadly, political and legal policy make some changes about how we view and respond to suicidality in mental health.

 

[PsyDr]

I would assume that the issue is about capacity to make healthcare decisions (e.g., understanding, appreciation, reasoning, and choice). In the case of dementia, this is an easier call.

However, there was a case in the Netherlands where a person was approved to be euthanized because she suffered from a psychiatric condition, which is completely different ball game.

In the case of dementias, the call isn't really open to liability. You're saying that they understand that there is a choice, that they understand the potential options, that they have made a reasoned selection of those choice, and that understand the implications of their selection compared to other options.

In the case of a psychiatric condition, and I imagine pain would be drawn into this, the call has a ton of liability. The literature specifically uses psychiatric conditions as examples for why they do and do not count. The board would hate you. The media would be able to say that you didn't help someone that you should have known could be helped. The law would say that you exploited an impaired person. .... it would be bad.

 

[R. Matey]

Indeed, I am just saying when what you are doing involves the death of someone else, your risk of liability increases quite a bit. Personally, as I understand it, the law does not require that someone has a psychological evaluation to proceed. In which case, why would you voluntarily take on that liability when it is not a necessary eval?

Edit: To put it more plainly, why would you voluntarily conduct an evaluation where the sole purpose of the eval was to make you a legal meat shield for the physician?

That's a good question: If you don't have to be involved, why would you be? Especially considering the legal and ethical implications? Maybe there are better ways to make money

 

[futureapppsy2]

I don't get how we can be asked to do this given the general expectation around mental health and suicide prevention (which, as you all know, I am not a big fan of regardless). It seems like a weird double standard.

AFAIK, the idea is that people seeking physician-aid-in-dying (I think "death with dignity" is an inherently ableist name) aren't suicidal but simply want to avoid the final, most painful and drawn out stages of death due to their terminal illness, such as coma. A friend/colleague who is both in suicide prevention and a huge advocate of physician-aid-in-dying has written a bit about that idea, if you all are interested.

 

[futureapppsy2]

That's a good question: If you don't have to be involved, why would you be? Especially considering the legal and ethical implications? Maybe there are better ways to make money

Some people are very ardent advocates of physician-aid-in-dying and feel that the ethical/moral thing to do is to support patients who seek physician-aid-in-dying. I have some colleagues who take this stance, including writing on and advocating for PAID in more states.

 

[R. Matey]

In the case of a psychiatric condition, and I imagine pain would be drawn into this, the call has a ton of liability. The literature specifically uses psychiatric conditions as examples for why they do and do not count. The board would hate you. The media would be able to say that you didn't help someone that you should have known could be helped. The law would say that you exploited an impaired person. .... it would be bad.

I'm not convinced by people just saying "there will be liability." Wis is right that there could be if you didn't practice according to the standard and why risk it when the standard isn't clear? But, these are being done and people aren't suing. I live in such a state and follow local news pretty closely.

I like the part of this post that acknowledges the messiness of it.

 

[R. Matey]

AFAIK, the ideas is that people seeking physician-aid-in-dying (I think "death with dignity" is an inherently ableist name) aren't suicidal but simply want to avoid the final, most painful and drawing out stages of death due to their terminal illness, such as coma. A friend/colleague who is both in suicide prevention and a huge advocate of physician-aid-in-dying has written a bit about that idea, if you all are interested.

I changed the thread title, thanks for pointing that out.

Some people are very ardent advocates of physician-aid-in-dying and feel that the ethical/moral thing to do is to support patients who seek physician-aid-in-dying. I have some colleagues who take this stance, including writing on and advocating for PAID in more states.

Yes, I know. I'm curious about their thoughts. I'll take anything you're willing to send.

 

[futureapppsy2]

I changed the thread title, thanks for pointing that out.



Yes, I know. I'm curious about their thoughts. I'll take anything you're willing to send.

PM me your email?

 

[cara susanna]

AFAIK, the ideas is that people seeking physician-aid-in-dying (I think "death with dignity" is an inherently ableist name) aren't suicidal but simply want to avoid the final, most painful and drawn out stages of death due to their terminal illness, such as coma. A friend/colleague who is both in suicide prevention and a huge advocate of physician-aid-in-dying has written a bit about that idea, if you all are interested.

Okay, that makes more sense.

 

[PsyDr]

I'm not convinced by people just saying "there will be liability." Wis is right that there could be if you didn't practice according to the standard and why risk it when the standard isn't clear? But, these are being done and people aren't suing. I live in such a state and follow local news pretty closely.

I like the part of this post that acknowledges the messiness of it.

While I agree that you could win a technical argument about standard of care, I doubt attorneys would play fair. There are attorney rules of thumb about that tactic.

 

[R. Matey]

While I agree that you could win a technical argument about standard of care, I doubt attorneys would play fair. There are attorney rules of thumb about that tactic.

I guess I can agree that I don't want to pay to be right.

 

[futureapppsy2]

I guess I'm wondering why someone with, say, a terminal illness is given a chance to show that their decision is rational when someone with, say, chronic depression, is not. I feel like if we say some people should have the right to suicide, determining where and how to draw that line will get very messy. Suicide prevention is where I get my most Szasz-y though.

I think the difference, at least for the current laws, is the idea of terminal illness versus chronic but non-terminal illness. There are some people who believe that PAID should be able to be used by people with non-terminal chronic illnesses/severe injuries (spinal cord injury, etc) and some who believe that PAID should only be available to those with a terminal illness with less than six months life expectancy. There's overlap between those two groups, of course, but it's far from a single circle.

 

[borne_before]

How would that court case even go? The person would be dead so it’s not like the opposite party can reevaluate the person.

I have trouble seeing how this is different than a psychologist have a discussion about “good death” with a cystic fibrosis patient or recommending a hospice consult.

It’s not like the psych is pulling a trigger or anything. They are providing info to a team.

As always, I wonder what Frabkyl and Yalom would say.

 

[AcronymAllergy]

How would that court case even go? The person would be dead so it’s not like the opposite party can reevaluate the person.

I have trouble seeing how this is different than a psychologist have a discussion about “good death” with a cystic fibrosis patient or recommending a hospice consult.

It’s not like the psych is pulling a trigger or anything. They are providing info to a team.

As always, I wonder what Frabkyl and Yalom would say.

I suspect it would be akin to a psychological autopsy. This can happen in estate cases where, for example, a person with suspected or known cognitive impairment makes a last-minute change to a will that is later challenged by other parties due to the assertion the person did not have capacity to make that change at the time.

 

[WisNeuro]

How would that court case even go? The person would be dead so it’s not like the opposite party can reevaluate the person.

I have trouble seeing how this is different than a psychologist have a discussion about “good death” with a cystic fibrosis patient or recommending a hospice consult.

It’s not like the psych is pulling a trigger or anything. They are providing info to a team.

As always, I wonder what Frabkyl and Yalom would say.

As AA stated, being dead is not an obstacle for lawsuits. Families sue on the behalf of their family member all the time. And, in AA's example, I have done exactly that situation as an expert.

 

[PsyDr]

How would that court case even go? The person would be dead so it’s not like the opposite party can reevaluate the person.

I have trouble seeing how this is different than a psychologist have a discussion about “good death” with a cystic fibrosis patient or recommending a hospice consult.

It’s not like the psych is pulling a trigger or anything. They are providing info to a team.

A. There is a long history of the courts allowing people to testify about someone's ability, posthumously, starting in 1870. This is common in cases of "testamentary capacity", where someone contests the will. The courts are not going to change this practice, and reverse 150 years of precedent.

B. The difference is that hospice allows the underlying illness to cause death, while the physician assisted death is caused by another thing. Legally, the difference is like someone dying of cancer, and a terminal cancer patient being killed in an MVA.

C. If I had to guess, the case would go like this:

1) Psychologist says that this person does or does not have a mental illness.
2) Psychologist says that the person has the capacity to make healthcare decisions, using the 4 legal prongs.
3) Person is euthanized, like Freud.
4) Some random family member is angered by this, due to religious, moral, financial, or beneficiary reasons. I wonder how life insurance works in this case.
5) Family member files a board complaint, saying that the psychologist either failed to detect an underlying mental illness, or took advantage of a mentally ill person.
6) Board finds it easier to find merit to the complaint, fines the psychologist $1000, and tells them to get more CEs.
7) Family member then sues the psychologist for wrongful death, citing the professional complaint as evidence that the psychologist was negligent.
8) Plaintiff attorneys paints a picture of a poor, mentally ill person, who is suicidal, whom was harmed by the negligent and greedy psychologist. Throws in references to historical actions performed against the mentally ill for spice. Maybe leaks this to the media (e.g., what happened to a physician friend).
9) Plaintiff offers to settle for the upper limit of the malpractice insurance. Psychologist has to choose whether to spend the cash on a court battle, which would cost more out of pocket than taking the deal.

D. I don't get why you'd want physician assisted death. A bottle of helium is a lot more simple.

 

[R. Matey]

5) Family member files a board complaint, saying that the psychologist either failed to detect an underlying mental illness, or took advantage of a mentally ill person.

On what grounds is a board complaint warranted in states where PAID is legal? I feel like this thread is treating all boards equally. I understand being cautious, but why is always an important question otherwise it's just fear-mongering. Honestly, this read like an episode of Law and Order.

Alternate scenario:

1. Family initiates board complaint in PAID state for wrongful death (has to show the psychologist didn't meet the standard of care)
2. Board reviews evaluation and compares to other evaluations where a psychologist evaluated presence of capacity or mental illness
3. Board finds no substantive difference and dismisses the complaint
4. Family member attempts to sue
5. Attorneys don't take case because there isn't sufficient evidence to warrant their time and state statutes include protections for providers from civil suits.

OR

1. Psychologist evaluates person for capacity or mental illness. Doesn't find any
2. Person tells family.
3. Family is supportive.
*Scene*

Don't get me wrong: I'm not planning on starting a PAID evaluation practice anytime soon or ever, I have concerns about a defensible standard of care more than anything and the philosophy/ethics seem a bit murky to me (e.g.: what about long-term psychiatric conditions), but it seems like the only argument being made against these types of evaluations is that you could be sued if some aristocratic family hired a high-powered attorney to hunt you down and take all of your money, civil protections or no civil protections. I mean, yes, it could happen, and sure, it's more likely to happen in these types of cases and I suppose it's better to play it safe. But, as I said before, it seems to really just come down to risk tolerance and a cost/benefit analysis of the situation weighing care for the patient and risks to yourself and others.

 

[WisNeuro]

Don't get me wrong: I'm not planning on starting a PAID evaluation practice anytime soon or ever, I have concerns about a defensible standard of care more than anything and the philosophy/ethics seem a bit murky to me (e.g.: what about long-term psychiatric conditions), but it seems like the only argument being made against these types of evaluations is that you could be sued if some aristocratic family hired a high-powered attorney to hunt you down and take all of your money, civil protections or no civil protections. I mean, yes, it could happen, and sure, it's more likely to happen in these types of cases and I suppose it's better to play it safe. But, as I said before, it seems to really just come down to risk tolerance and a cost/benefit analysis of the situation weighing care for the patient and risks to yourself and others.

Take it from those of us who are paid experts in civil cases, it is not hard to find a lawyer to take the flimsiest of cases. Alleging brain injury from being brushed by an automatic door? Personal injury lawyers will line up to take that case. This is just one of many examples I can provide of real life cases, just within the past year. Also, these aren't rich people retaining the lawyers. The lawyers just want a quick settlement so they can take their cut. They don't actually want these things to go to trial.

 

[R. Matey]

Take it from those of us who are paid experts in civil cases, it is not hard to find a lawyer to take the flimsiest of cases. Alleging brain injury from being brushed by an automatic door? Personal injury lawyers will line up to take that case. This is just one of many examples I can provide of real life cases, just within the past year. Also, these aren't rich people retaining the lawyers. The lawyers just want a quick settlement so they can take their cut. They don't actually want these things to go to trial.

Fair enough. Maybe I'm underestimating the desperation of personal injury attorneys.

 

[WisNeuro]

Fair enough. Maybe I'm underestimating the desperation of personal injury attorneys.

It's not desperation, it's quick, easy money. Many insurers run the numbers and conclude that a settlement is a better deal than taking it to trial, even if they have the winning case, if the settlement figure is right. I mean, I shouldn't complain, keeps me in very high paid work. And, the reports and evals are easy to do when someone is alleging a ridiculous injury. So, easy money on my side as well.

 

[WisNeuro]

Also, I haven't been in the legal game very long and already have some ridiculous examples of lawsuits, I imagine @PsyDr has some real good ones from his time in the legal rat race. Though, hard to be too specific. Also, most people would be surprised at how many civil "TBI" cases involve someone getting hit at less than 10MPH and alleging 'catastrophic" TBI. Seriously, it's like 20% of my caseload this past year.

 

[R. Matey]

Attaching two articles for the sake of forwarding the discussion--these were publicly available from ResearchGate and APA.

 

[R. Matey]

Also, I haven't been in the legal game very long and already have some ridiculous examples of lawsuits, I imagine @PsyDr has some real good ones from his time in the legal rat race. Though, hard to be too specific. Also, most people would be surprised at how many civil "TBI" cases involve someone getting hit at less than 10MPH and alleging 'catastrophic" TBI. Seriously, it's like 20% of my caseload this past year.

This has contextualized things for me, thanks. I've only worked on the treatment side in the forensic world, but I could see how things could get out of hand when you put it that way. I supposed I'm looking at it as if the ideal scenario, where you are more thinking of the likely reality given your experience within the system. Having pursued the above papers, it looks like you're not alone.

 

[PsyDr]

Fair enough. Maybe I'm underestimating the desperation of personal injury attorneys.

It's not desperation, it's easy money.

1) Plaintiff attorneys usually get 30-40% of the take home
2) The incredible majority of cases settle before trial
3) Many malpractice insurers will offer to settle, because it is cheaper than going to trial
4) Some malpractice insurance policies will not cover you, if you do not follow their advice. This includes recommendations to settle.

In wrongful death cases, the plaintiff usually base damages on lost earnings, lost benefits, and other stuff like emotional damages. This makes wrongful death cases pretty attractive. All they need is some quack who says, "the dead guy could have lived another 10 years". Psychologist is then on the hook for 10x the dead guy's annual salary. Attorney adds in some emotional damages, maybe loss of a pension, maybe loss of spouse's health insurance, maybe some limited emotional damages. Call it $1MM. Files suit against the psychologist for that. Makes some noise to scare them, maybe leaks stuff to the media. Attorney then calls up the malpractice insurance and offers to settle for the cap on the psychologist's malpractice insurance. Threatens to have an expensive and drawn out trial, preferably in another state or federal courts. Says it will cost $500k in legal fees to complete a trial, and the jury could allow for damages of more than $1MM. Defendants are looking at $1.5MM in costs. Attorney offers to settle the case today, for the low price of $450K. It's a deal for everyone. Attorney takes $135k, kicks $25k to the expert, uses another $10k to cover expenses, and goes home with $100k in profit for less than a few weeks of work. If the insurance doesn't take the deal, the attorney refers the case to a national law firm, walks away from the case, and begs the expert to discount the fee.

 

[LadyDustyBlue]

AFAIK, the idea is that people seeking physician-aid-in-dying (I think "death with dignity" is an inherently ableist name) aren't suicidal but simply want to avoid the final, most painful and drawn out stages of death due to their terminal illness, such as coma. A friend/colleague who is both in suicide prevention and a huge advocate of physician-aid-in-dying has written a bit about that idea, if you all are interested.

Hey there, I’m interested in reading your friend’s thoughts.

 

[R. Matey]

It's not desperation, it's easy money.

1) Plaintiff attorneys usually get 30-40% of the take home
2) The incredible majority of cases settle before trial
3) Many malpractice insurers will offer to settle, because it is cheaper than going to trial
4) Some malpractice insurance policies will not cover you, if you do not follow their advice. This includes recommendations to settle.

In wrongful death cases, the plaintiff usually base damages on lost earnings, lost benefits, and other stuff like emotional damages. This makes wrongful death cases pretty attractive. All they need is some quack who says, "the dead guy could have lived another 10 years". Psychologist is then on the hook for 10x the dead guy's annual salary. Attorney adds in some emotional damages, maybe loss of a pension, maybe loss of spouse's health insurance, maybe some limited emotional damages. Call it $1MM. Files suit against the psychologist for that. Makes some noise to scare them, maybe leaks stuff to the media. Attorney then calls up the malpractice insurance and offers to settle for the cap on the psychologist's malpractice insurance. Threatens to have an expensive and drawn out trial, preferably in another state or federal courts. Says it will cost $500k in legal fees to complete a trial, and the jury could allow for damages of more than $1MM. Defendants are looking at $1.5MM in costs. Attorney offers to settle the case today, for the low price of $450K. It's a deal for everyone. Attorney takes $135k, kicks $25k to the expert, uses another $10k to cover expenses, and goes home with $100k in profit for less than a few weeks of work. If the insurance doesn't take the deal, the attorney refers the case to a national law firm, walks away from the case, and begs the expert to discount the fee.

Ok, I think I'll just own my ignorance here since you and Wis seem to know this area far better than I do. I guess I didn't consider how ugly it could really get should the right circumstances manifest themselves. When you put it that way, it does seem riskier than maybe I would've initially considered.

Here's a question though: In the case of someone asking for a PAID evaluation completed by two MDs and, let's say, a Ph.D. psychologist with a good track record, how plausible do you think it would be for one of these predatory personal injury attorneys to hire enough counter-experts to overturn of three professionals especially considering there are (at least in one state) some protections against civil liabilities? I mean it can't really be worth the trouble, right?

 

[WisNeuro]

Ok, I think I'll just own my ignorance here since you and Wis seem to know this area far better than I do. I guess I didn't consider how ugly it could really get should the right circumstances manifest themselves. When you put it that way, it does seem riskier than maybe I would've initially considered.

Here's a question though: In the case of someone asking for a PAID evaluation completed by two MDs and, let's say, a Ph.D. psychologist with a good track record, how plausible do you think it would be for one of these predatory personal injury attorneys to hire enough counter-experts to overturn of three professionals especially considering there are (at least in one state) some protections against civil liabilities? I mean it can't really be worth the trouble, right?

It is not hard for attorneys to find an expert who will say almost exactly what they want them to say. For example, in the mTBI realm, a few law firms will send their plaintiff clients roughly 400 miles away for a neuropsych eval, despite there being about 20 boarded folks in and around the metro who do plaintiff and defense work. Why do they send their clients here? Because they know his report will always say that they have catastrophic brain damage, and they are now at great risk of early dementia, and cannot work. No matter what the injury details are. Every single time. I also know of no less than a handful of experts in the metro who will do the same thing, just without the pedigree of the other individual, who can better withstand depo/cross issues. Bottom line, there is always an "expert" who can be hired to argue for opposing counsel. Always.

Now, there are always ways to limit your liability and chances of being sued. But those chances are never zero. And, the higher the stakes, the higher that liability is. And, I can't think of any kind of evaluation I would stay away from more, personally, than this one.

 

[R. Matey]

t is not hard for attorneys to find an expert who will say almost exactly what they want them to say. For example, in the mTBI realm, a few law firms will send their plaintiff clients roughly 400 miles away for a neuropsych eval, despite there being about 20 boarded folks in and around the metro who do plaintiff and defense work. Why do they send their clients here? Because they know his report will always say that they have catastrophic brain damage, and they are now at great risk of early dementia, and cannot work. No matter what the injury details are. Every single time. I also know of no less than a handful of experts in the metro who will do the same thing, just without the pedigree of the other individual, who can better withstand depo/cross issues. Bottom line, there is always an "expert" who can be hired to argue for opposing counsel. Always.

I guess this reminds me of some sloppier eval work I've seen done when past patients have presented psychiatric disability claims. The treatment team were all shocked at some of the decisions that came out from this particular person. The person liked to say that patients' symptoms weren't severe enough if they are able to complete any semblance of their ADLs despite very recent acuity. And that's a fairly low risk case where my own competence wasn't questioned at all (actually the opposite--because they were in treatment with me, they didn't need short-term disability).

Suffice to say that it seems like the philosophy/ethics of psychologist involvement in these cases takes a backseat to practicalities that s*** does indeed role downhill and if someone can find a way to make easy money, they will.

 

[Jeremy S]

I've recently learned of psychologists offering to do fitness evaluations for people who have made the decision to terminate their lives in states where it's legal. My understanding is that it's not a requirement because doctors can simply sign off on it without input from a psychologist/psychiatrist, but some will refer because they want some assurance the person is "of sound mind," whatever that means.

I wanted to gauge SDN opinion on this. Anyone do these? Are they ethical? Let's discuss.

I am a psychologist who is on the Board of Ohio End of Life Options, which is working toward Ohio's adoption of a medical aid in dying law similar to those in a number of other states. So, I have definitely thought about this issue.

I think psychologists could have a valuable role to play in providing dying individuals the freedom to exert some control over the manner of their death, rather than leaving them to unwanted pain and suffering until nature takes its course. Of course the answer to, "Could I be sued for this?" is always yes, for everything. With that universal proviso, I think we can do these evaluations safely. Obviously the question would arise only in states where medical aid in dying is legal, and most of the statutes have explicit protections for professionals participating in this process.

The solution to lawsuit anxiety is to practice squarely within the guidelines of professional ethics and competence. Here, that would mean we do NOT assess whether a patient should receive medical aid in dying, bec that involves medical criteria that are outside our area of expertise, but instead we assess whether a patient is of sound mind and able to think rationally about their best interests in this regard. We would need to rule out several factors that would invalidate a request for medical aid in dying, such as mental illness, disturbance of thinking and/or reality testing, impulsivity, symptoms of depression unrelated to the terminal medical condition such as extreme guilt or low self-esteem, or an extraneous consideration such as not wanting to be a burden, wanting inheritance money to go to heirs, and so forth.

Use of medical aid in dying is NOT suicide in the usual and valid sense of the term, because it is a given that the person will die within 6 months at the most, and the question is the manner of their death. The American Association of Suicidology has made this distinction clear; They do not oppose medical aid in dying. Here is a link to their position statement about the differences between suicide and medical aid in dying. https://suicidology.org/wp-content/...D-Statement-Approved-10.30.17-ed-10-30-17.pdf

I'm not saying it's an easy evaluation, but I don't think most of the evaluations we do are easy. If you understand what a long dying process can be like, I think you will recognize that this type of psych eval can help protect some patients from a form of severe suffering that some people simply do not want to go thru. Helping to prevent this kind of suffering seems to fit within our purpose as psychologists.

Jeremy Shapiro, Ph.D.

I've recently learned of psychologists offering to do fitness evaluations for people who have made the decision to terminate their lives in states where it's legal. My understanding is that it's not a requirement because doctors can simply sign off on it without input from a psychologist/psychiatrist, but some will refer because they want some assurance the person is "of sound mind," whatever that means.

I wanted to gauge SDN opinion on this. Anyone do these? Are they ethical? Let's discuss.

 

[R. Matey]

I think psychologists could have a valuable role to play in providing dying individuals the freedom to exert some control over the manner of their death, rather than leaving them to unwanted pain and suffering until nature takes its course. Of course the answer to, "Could I be sued for this?" is always yes, for everything. With that universal proviso, I think we can do these evaluations safely. Obviously the question would arise only in states where medical aid in dying is legal, and most of the statutes have explicit protections for professionals participating in this process.

The solution to lawsuit anxiety is to practice squarely within the guidelines of professional ethics and competence. Here, that would mean we do NOT assess whether a patient should receive medical aid in dying, bec that involves medical criteria that are outside our area of expertise, but instead we assess whether a patient is of sound mind and able to think rationally about their best interests in this regard. We would need to rule out several factors that would invalidate a request for medical aid in dying, such as mental illness, disturbance of thinking and/or reality testing, impulsivity, symptoms of depression unrelated to the terminal medical condition such as extreme guilt or low self-esteem, or an extraneous consideration such as not wanting to be a burden, wanting inheritance money to go to heirs, and so forth.

What an excellent post. Thanks for chiming in, Jeremy. I was hoping that someone who has some experience interacting with the issue either as an evaluator or a policy maker would interject. You've addressed many of the concerns raised in the thread, but I do have a follow up question. Do you think there is a clear standard of care to follow in cases like these given the diversity in clinical presentation? For instance, suppose someone doesn't want to live with vascular dementia or schizophrenia. I understand it's not our call to make ultimately, but I could imagine it gets a bit sticky when the condition involves the brain.

 

[Ollie123]

Agree with a lot of what has been said so far. I'm actually a strong advocate for aid-in-dying (obviously with many many caveats around when/how that is appropriate). I think psychologists "need" to be involved in that process. I think our distaste for it as a society stems more from religious beliefs than anything rational. That said, this is also an area of the field I want absolutely nothing at all to do with personally. Not because its wrong, not because I believe it is (or should be) illegal or unethical. Just because it is a legal quagmire and I don't have the time or the patience for it. That doesn't mean it can't be done. It just means the risk of getting dragged into court is much, much higher and quite simply - right or wrong I would find that experience cumbersome, annoying and unpleasant. Even if every legal case brought against me was dismissed outright, its going to be annoyance I don't want to deal with.

No one here would argue child custody evals are illegal, unethical, immoral, etc. It is also practically a running joke here that none of us want anything-the-hell to do with that world because of the legal risk. I view this very similarly. I'm not sure if the overall potential for malpractice suits is higher or lower than child custody evals - I'd "guess" higher on a per-case basis, but perhaps lower overall because I'm sure there just aren't that many of these evals being done. I could be wrong as perhaps most people doing this have family on board by the time they make it to you. Either way, certainly over the threshold of what I would consider worthwhile to me. And I say that without even knowing what one could charge for such an evaluation.

I'm incredibly glad people like Jeremy are doing work in this area. To me personally, the payoff isn't even close to worth the potential headaches.

 

[WisNeuro]

I'm incredibly glad people like Jeremy are doing work in this area. To me personally, the payoff isn't even close to worth the potential headaches.

Pretty much my sentiment, exactly. I also personally support aid-in-dying, and probably well beyond the current laws in certain states. But, professionally, these would have to pay well over what I currently charge for IME work, and I'm skeptical that they would come anywhere close, for me to consider adding these to my work flow.