Overview | Clinical Scenarios | Additional Tips | References

By Susan Hatters Friedman, MD

OVERVIEW

Pregnancy intersects with mental health in myriad ways; these intersect with the law as well. Women who are pregnant and who seek termination face many barriers; additionally those who suffer mental illness or disability may require consideration of their decision-making capacity. Psychiatrists treating women of childbearing age worry about the risks of malpractice claims when they treat with medication; however, it is important that these vulnerable women require the treatment they need. Postpartum psychosis increases the risk of infanticide, and risk assessments in the postpartum for women suffering mental illness are important.

CLINICAL SCENARIOS

During pregnancy, multiple unique issues relevant to psychiatry and the law may arise.

Scenario #1: A physician is worried about risk of malpractice liability should they prescribe a psychiatric medication to a pregnant woman, so they avoid treating her.

Scenario #2: A hospitalized, pregnant, and psychotic woman appears to need treatment with psychotropic medications, which she is refusing.

Scenario #3: A pregnant woman with bipolar disorder requests an abortion.

How-To

An understanding of competency or capacity is particularly important in pregnancy, as is knowledge about the effects of medication in pregnancy.

Example 1: The physician is prudent to remember that lawsuits not only occur because of congenital malformations associated with psychiatric medications, but also because of suicide or infanticide due to lack of treatment of the underlying mental illness. Additionally, the physician should be aware that 2-3% of healthy pregnancies result in a birth defect separate from medication and the bulk of birth complications occur due to unknown causes.

• The risk-benefit analysis regarding a specific medication in pregnancy includes not only information about the risks of the medication but also information about the risks of the untreated mental illness, which may have effects both on the mother’s mental state as well as on the fetus. It is important to remember that there are valid reasons that we treat mental illness at various points in everyone’s life cycle, and pregnancy does not protect against the risk of suicide or homicide or poor self-care from mental illness.
• Potential risks of untreated mental illness in pregnancy include suicide, self-harm, infanticide or child abuse, poor prenatal care due to decreased ability to care for self, increased risk of illicit substance use as well as increased risk of negative outcomes from mental illness including low birth weight and prematurity, as well as effects on bonding with the infant.
• Potential concerns when treating pregnant women with psychiatric medication include the risk of miscarriage, malformations, preterm delivery, perinatal toxicity, or withdrawal (which is usually self-limited and related to either the sudden cessation of the medication in the fetal bloodstream at delivery or due to fetal toxicity. It usually leads to a several day stay in the neonatal intensive care unit [NICU] related to infant symptoms such as sleep difficulty, irritability, jitteriness.) Additional risks to consider include behavioral teratogenesis (which refers to later behavioral problems it the child), as well as whether the medication is compatible with lactation and whether bottle-feeding or breastfeeding is planned. In some cases, bottle-feeding may be recommended either due to the effects of the medication or due to the ability to share the nighttime feeds so that the mother can get more sleep and thereby decrease risk of postpartum relapse.
• It is important to make rational medication decisions in discussion with the pregnant woman (and her family where possible), to obtain appropriate informed consent after discussing the risks, benefits, side effects, and alternatives, and to do good documentation. The risk of untreated illness as well as the risk of medication should be discussed. Additionally, the plan should be reviewed with the obstetrician or family physician.

Example 2: If a pregnant patient is psychotic, in need of treatment, and refusing it, involuntary medication treatment may be considered. This analysis must include both the health of the mother and the fetus as well as the rights of the mother and the fetus.

• Again, capacity is critical. The psychiatrist should consider the patient’s capacity to make medical decisions, and their understanding of the risks, benefits, and alternatives.
• The psychiatrist should clearly identify the potential harms of no treatment as well as potential harms of treatment. Again, communication with other medical staff including obstetrics and pediatrics is critical.
• Depending on jurisdiction, legal procedures for applications for involuntary treatment orders (forced medications) will be different, as will the legal standard. (See also section about capacity.) In cases in which the patient who lacks capacity to consent to medication is also pregnant, in addition to knowledge about capacity, it is critical to understand the use of medications in pregnancy.

Example 3: There is a presumption of capacity in adults unless there is evidence to the contrary. The psychiatrist should assess capacity for consent to the procedure if requested. Just as with any other type of capacity, the psychiatrist should ensure that the pregnant patient understands the risks, benefits, and potential negative outcomes, as well as complications.

ADDITIONAL TIPS

In order to best protect against malpractice claims, documentation of medical decision-making in cases where pregnancy is involved is crucial. Rather than just ticking a box in the medical records about risks and benefits of medication being discussed, it behooves the psychiatrist to take the time to carefully describe in the medical record exactly what was discussed with the woman about medications, alternatives, and risks.

REFERENCES

1. Friedman SH, Hall RCW: Avoiding malpractice while treating depression in pregnant women. Current Psychiatry 2021;20(8), 30-36. Available at https://cdn.mdedge.com/files/s3fs-public/CP02008030.PDF
2. Friedman SH, Hall RCW, Sorrentino RM: Involuntary treatment of psychosis in pregnancy. Journal of the American Academy of Psychiatry and the Law 2018; 46(2), 217-223. Available at http://jaapl.org/content/46/2/217
3. Friedman SH, Kaempf A, Landess J, Kauffman S: Forensic Issues in Reproductive Psychiatry. APA Textbook of Women’s Reproductive Mental Health. Edited by Lauren Osborne, MD et al. American Psychiatric Association Press, 2021.