Key Mental Health Care Liability Exposures, and How Providers Can Mitigate Their Risk

While changing consumer demands, technology and treatment options increase the liability risks mental health care providers face, there are resources they can use to continue delivering quality care. .

The pandemic put great stress on the health care system, and some of its effects still linger today. In particular, the mental and behavioral health space has seen an influx of patients, increasing liability exposures for practitioners who are already under stress themselves.

The pandemic has raised everyone’s stress levels. We know that more people will seek behavioral health care services, and as in all other fields, staffing is difficult to retain and recruit. Burnout is definitely an issue among mental health professionals, which increases the vulnerability of the system and the possibility that mistakes will be made. We see a lot of liability exposure related to suicide, abuse and neglect treatment in this space, said Valerie Beatrice, CPCU, product specialist, Philadelphia Insurance.

Beatrice breaks down the nuances of these exposures and what mental and behavioral health practitioners can do to reduce their risk.

Top Liability Risks in Mental Health Care

A major change driven by the pandemic is the shift to telemedicine. Although it gained popularity as a way to maintain social distancing, it has stuck around because of its convenience and effectiveness. In some cases, however, virtual visits can hinder the quality of care.

Knowing that a virtual service doesn’t provide the same sense of intimacy or connection as an in-person conversation can introduce a whole new set of challenges, says Beatrice.

When visits are not face-to-face, practitioners such as psychiatrists and psychologists may have more difficulty establishing the rapport critical to understanding and appropriately treating a patient. Since the same level of privacy is also not readily available in a virtual visit, patients may not feel free to speak freely. These factors can lead to inadequate or inappropriate treatment.

One of the most serious exposures related to telemedicine in the mental health space is the increased risk of suicide. Certainly, the treatment received by any suicide victim will be reviewed. If perhaps the patient is not prescribed the most effective drug or dosage, that oversight may invite medical malpractice claims.

Other forms of self-harm, abuse or any violent behavior may lead to questions about the adequacy of treatment or the appropriateness of the treatment setting.

Photo by Valerie Beatrice

Valerie Beatrice, CPCU, product specialist, Philadelphia Insurance

In areas of vulnerability, there is unfortunately an opportunity for abuse. This can be physical or sexual abuse between a practitioner and a client, or even between clients in a group setting, Beatrice says.

While this risk is not new, it may be more prevalent now that mindsets and behaviors are feeling the pinch in hiring and retention, as in most industries.

This exposure is now increasing due to pressure on staffing. There’s a risk that background checks can be rushed, or policies not followed for the sake of keeping a practice staffed, Beatrice said. This increases the likelihood that abusers with a documented history can slip through the cracks.

Finally, there are emerging risks associated with new therapies, such as ketamine or transcranial magnetic stimulation (TMS) an FDA-approved therapy for depression.

There are new treatments emerging that practitioners have had great success with, but they’re still new, Beatrice says. As carriers, we need to evaluate exposures carefully. One question is determining for whom these treatments are most appropriate and how any side effects are monitored and managed.

Risk Reduction Strategies

Even in the face of new trends, mental and behavioral health care providers often rely on tried-and-true strategies to reduce their liability exposure.

Regarding the risk of abuse, for example, incident prevention begins with strong leadership guidance and top-down enforcement of incident response policies.

It’s critical to drive a culture of abuse prevention and have written policies and procedures in place so the organization can take a position on what happens if there is an incident of abuse, Beatrice said.

Organizations can also rely on their carrier partners for risk management resources, such as training for practitioners about suicide and self-harm recognition and prevention.

At Philadelphia Insurance, we have a partnership with Abuse Prevention Systems, where our policyholders can access free online abuse training annually. We also partner with the Suicide Prevention Resource Center (SPRC). It has an initiative called the Zero Suicide Academy, which seeks zero suicides within an organization. It’s based on the belief that suicide is preventable, and it gives behavioral health professionals the knowledge to identify at-risk individuals and understand how to intervene, Beatrice said.

The SPRC includes an online library of resources including tools, fact sheets and reports to keep providers informed. Other available resources include the CDC’s suicide prevention site, which provides a section on support for teens and young adults, and the National Institute of Mental Healths (NIMH) website, which discusses signs and symptoms, risk factors and ongoing research.

When it comes to the field of virtual medicine, Beatrice said, there is no substitute for personal interactions, especially for an initial visit.

I think if the patient is properly assessed for their eligibility for virtual services, then it makes sense. But in terms of underwriting, we definitely prefer to have the in-person review first, followed by the virtual services, just because of the nuances of the treatment you’re almost doing, he said.

Providers can also use CMSs telehealth toolkit, which outlines appropriate uses for telehealth and provides tips on how to tailor virtual health services for the needs of different populations.

As the demand for mental health care services increases, providers can provide better care and protect themselves by being proactive and tapping into all of these available resources. and

Katie Dwyer is a freelance editor and writer based in Philadelphia. He can be reached at [email protected].

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