Recent developments in antitrust: Challenges to medical autonomy

Abstract

Once exemptions from antitrust scrutiny were removed, economic arguments have proved effective in dissolving the hegemony formerly held by psychiatrists over the provision of mental health services. A growing number of courts, legislatures, and insurance companies have been persuaded by psychologists that they can provide at least comparable services at lower costs than psychiatrists. The fact that psychotherapy is less obviously a "medical" procedure than surgery or other physical treatments has facilitated the establishment of the psychologists' position. After these gains, there are indications that other mental health providers will follow the paths established by psychologists. Cost-containment efforts in the mental health care industry, particularly through health maintenance organizations, have already led to increased utilization of nondoctoral providers for initial screening services, and psychiatrists have even filed countersuits alleging restraint of their trade through the exclusive use of lower-cost providers (State Medical Society of Wisconsin v. Schweiker et al., 1982). With the clear message from many courts and legislatures that profession will no longer serve to distinguish among mental health providers, it appears that the validity of psychiatrists' assertions that independent practice by nonmedical mental health professionals will result in lower quality of care for patients will be tested in the marketplace, with peer review and tort litigation serving as the barometer by which that quality will be measured. And, as other nonmedical professionals establish their credentials through licensure and recognition by consumers, we can expect that they will also seek recognition of their capacities to provide (and be reimbursed for) professional services through the courts. With this greater access to consumers of mental health care will also come, of course, greater public scrutiny and greater risk of malpractice liability.