Belegaled: mental health and the law in the United States, 1986

Kenneth Gray, an attorney as well as a psychiatrist, was the leader in the development of law and psychiatry in Canada prior to his death in 1970. He lived during the post WWII years which saw a phenomenal growth of psychiatry as well as the beginnings of the modern era of a renewed concern for human rights. This later concern has caused the belegalment of many areas of psychiatric practice. Kenneth Gray would have to learn a new set of rules for commitment, the use of ECT and informed consent. He would discover that a patient has a right to treatment that must be buttressed by an individual treatment plan. He would discover that a committed patient has a right to refuse treatment and that some courts in the United States have said that anti-psychotic medications are mind-altering and thus an invasion of the patients 1st amendment rights. He would see untreated refusing patients languishing in the hospital or the homeless mentally ill on the streets because of restrictive commitment laws. As an attorney he would also be concerned about the proposed solution to the homeless, outpatient commitment. He certainly would have been impressed with some of the recent decisions in the United States on our duty to warn or protect known and unknown victims. Seeing patients' advocates on the hospital wards would be a real surprise to him. These controls on the practice of psychiatry for the protection of our patients cut both ways. Dr. Gray's medical/legal education would be tested to its full.     

Law, science, and psychiatric malpractice: a response to Klerman's indictment of psychoanalytic psychiatry

The Osheroff litigation, which is central to Klerman's paper, ended in an out-of-court settlement. The author states that there is no legal precedent for the so-called right to effective treatment and that the case history was a much more complicated clinical scenario than Klerman reports. He concludes that there is neither in the law nor in the clinical facts a sound or certain basis for Klerman's conclusions or for the sweeping policy reforms and standardized clinical procedures he urges. Although they are directed against traditional psychoanalytic psychiatrists, Klerman's proposals could have serious consequences for the innovation, diversity, and independent thought essential to scientific progress in psychiatry.     

The impact of litigation and court decisions on clinical practice

Malpractice litigation has dramatically increased in recent years, posing a major challenge to psychiatrists and other clinicians. The author reviews the current legal situation and major court decisions, and then addresses five categories of litigation specifically affecting psychiatry: (1) patients' acts of violence; (2) patient suicides; (3) patient injuries that result from negligent treatment; (4) faulty initiation, process, or termination of treatment; and (5) liability arising from employer, supervisory, or consultative relationships. He concludes that a sensitive and effective relationship between treaters and patients remains the best safeguard against malpractice litigation.     

Legal issues in the treatment of adolescent psychiatric inpatients.

When planning a specialized adolescent treatment unit for a regional state mental hospital in North Carolina, staff of the child psychiatry training program explored several critical legal issues surrounding the admission, treatment, and discharge of minors, as well as issues of confidentiality. Through a question-and-answer format they conclude that, to help avoid conditions that could result in successful litigation against the hospital, parents, adolescents, and staff must have a documented, mutual agreement to and understanding of the techniques, procedures, and limitations of the treatment program. Such documentation could be provided through a signed treatment contract.     

Informed consent: special problems for psychiatry.

There is a growing demand for more patient autonomy in the doctor-patient relationship, and legal reformers believe that an expanded dodctrine of informed consent is the key to change. Informed consent is meant to force the doctor to give the patient the knowledge that will make his an equal bargaining partner. However, most evidence demonstrates that the majority of patients do not comprehend or retain medical information. Further, the legal doctrine of informed consent has never been coherently worked out. Informed consent in psychiatry is particularly complicated, because of the constitutional implications of right-to-refuse-treatment litigation and because patients may be incompetent to give informed consent as a result of their illness. One of the special problems for psychiatry is that complex consent requirements have been mandated by those who oppose certain somatic therapies. The author discusses the implications of these legal developments. He lists the kinds of informed-consent and refusal-to-consent situatons psychiatrists face and comments briefly on the most troublesome.     

The myth of advocacy.

In an era in which advocacy has become a buzzword, both psychiatry and the legal profession have climbed aboard the advocacy bandwagon. Yet the American Psychiatric Association's notion of advocacy--championing the medical needs of patients--is often in direct conflict with the lawyers' notion of advocacy--championing the legal rights of their clients. The author observes that psychiatry has proved to be a weak adversary for patients' legal advocates; the result has been a one-sided advocacy system that has advanced patients' rights at the expense of their needs. He believes that if the APA is to become an effective advocate for patients, it must hire lawyers and work with them to reverse the trend of turning rights into needs.     

Psychiatric aspects in Papua New Guinea

The author presents the historical, legal, administrative and clinical aspects of psychiatry in Papua New Guinea. He also outlines the traditional psychiatry of Baruya tribe (Eastern Highlands province). He concludes on the adaptation of psychiatry system concerning the characteristics of this country. Finally, the author sets the problem of psychiatric diagnosis and epidemiology for the countries engaged into an acculturation process.     

Unexpected death or suicide by a child or adolescent: improving responses and preparedness of child and adolescent psychiatry trainees

The death of a young patient is a difficult but universal experience in the field of medicine. It is less common in the field of child and adolescent psychiatry. However, when a child or adolescent patient commits suicide, a child and adolescent psychiatry trainee's response could include shock, denial, disbelief, sadness, sleep difficulties, rumination about patient's death, fears of litigation, social withdrawal, and a sense of failure. Trainees generally find themselves dealing with the academic, personal, administrative, and legal consequences of this unfortunate but unavoidable event. This article attempts to review the literature on the experience of patients' unexpected death, including suicide, on child and adolescent psychiatry trainees.     

Legal binding character of guidelines

Guidelines as recommendations by the medical associations concerning the diagnosis and treatment of certain diseases do not have the character of judicial norms. However, they may have an impact on decision-making in court. Within social security insurance law, and especially in medical malpractice litigation, the medical standard has become a legal term. As far as statements in guidelines render the actual standard as affirmed, the more binding is their character with respect to judicial questions. This article deals with this interplay between medical quality assurance and the legal demands on medical action. As a basis for discussion of this issue the relevant jurisdiction will be represented. Its impact on the guidelines for child and adolescent psychiatry will be pointed out as a concrete example.     

In loco parentis: the child model of psychiatry, a critique.

I have attempted to show that much of psychiatric treatment now and in the last two centuries has been conceptualized and practiced along the lines of a child model. In my discussion of what I consider the inappropriate use of this model I have suggested that it obscures certain fundamental legal, moral and ethical questions involved in the practice of psychiatry. Because psychiatry is still a relatively young science, and still very much involved in the process of determining its relation to the people it seeks to serve, we must be ever alert to the consequences, intended or unintended, of using a particular model. An we must do this in the contex of our professional and cultural history.     

About the necessity of neuropsychological assessment in the civil law

Giving expert opinions within legal psychiatry in civil cases requires more and more strict co-operation of expert psychiatrists with psychologists. Assessment of the cognitive functions with the help of neuropsychological methods is an important diagnostic element that leads to giving the right opinion. The most frequent reasons for appointing experts in psychiatry and psychology are disorders of cognitive functions as a result of various brain injuries. Dementia syndromes are particularly often subjects of doubts in preparing expert opinions as they must be distinguished from other organic dysfunctions and from the age--associated memory impairment. Considering the evidence value the most important thing is to assess all the objective data included in the medical records and subsequently to assess the testimony of the witnesses Usually people from legal circles and families of the people who make declarations of will overvalue the importance of additional examinations. Those examinations are important but they do not settle the patient's psychic state because the decisive factor is not the kind of somatic disease but the influence of that disease on the psychic state. The neuropsychologist's role in giving medical statements is going to increase together with the tendency to objectivization and qualitative assessment of intensification of respective disorders of cognitive functions when examining patients in order to give expert opinions.     

Planning for the future in psychiatric training: The place of the chronic care program

The challenge of chronic illness faced by the field of psychiatry presents the profession with an opportunity to grow and reformulate its perspectives. This challenge is at the interface of training, clinical care, and scientific investigation. It is at the level of the community based system that the needs of each sphere can be addressed. It is incumbent upon the profession to mold scientific rigor into our training programs. For the psychiatrist of tomorrow it will no longer be sufficient to be just a first rate clinician. He must also be a well educated person, broadly informed on social and cultural issues. He must have a serious respect for knowledge and the process by which it is achieved. He must be well read and conversant with the pertinent literature of the profession. The must be able to objectively assess patients, data and differential outcomes of treatment with an awareness of unresolved issues, an openness of mind and a willingness to experiment and to modify therapeutic approaches. Lastly, the resident should be able to enter the profession with an awareness that he is a link in a legacy of ever expanding horizons of knowledge, forming a continuity between past and future. His integrated skills as clinician and scientist are essential to the progressive understanding and treatment of psychiatric disorder.     

Why psychiatrists leave the public sector.

The flight of psychiatrists from public mental health facilities must be halted if the sickest psychiatric patients--the severely and chronically mentally ill--are to receive the best care and treatment possible. The author emphasizes the need for commitment by organized psychiatry, universities, and communities to support the public sector and those working in it. He examines the factors that influence psychiatrists to enter public service and those that eventually cause them to leave. He notes that the departure of public hospital psychiatrists for quasi-public settings has parallelled the transfer of patients to community settings, and that these psychiatrists may now be treating in such settings patients they once saw in the hospital.     

Are psychological skills necessary in treating all physical disorders?

OBJECTIVE: To explore both the wider issue of the need for psychological skills in the management of all physical disorders and that of the role of liaison psychiatry in providing care and in working with medical colleagues. METHOD: The author draws on the literature in general, and specifically on his extensive research and clinical experience of patients with acute and chronic physical symptoms and associated psychological symptoms, particularly accident victims and those with chest pain and diabetes. He also draws on his experience in establishing national and international organizations for consultation-liaison psychiatry. RESULTS: It is argued that psychological skills are fundamental in the management of all physical disorders. CONCLUSIONS: Liaison psychiatry must ensure that psychological skills are part of the treatment of all physical disorders.     

Legal pitfalls of psychiatric research

BACKGROUND: The increasing complexity of psychiatric research, including recent attempts to evaluate mental health legislation, suggests legal advice may be valuable in a wide range of research contexts. AIMS: We aim to illustrate both the legal pitfalls of research in psychiatry and the potential for solutions if the methods are carefully chosen. METHOD: Two examples of research are subject to legal analysis, one involving advance directives, the other the random discharge of compulsory out-patients. RESULTS: This analysis illustrates that participation in research may expose clinicians to additional forms of liability, but the legal risks can be minimised through changes in the methods or additional safeguards. CONCLUSIONS: Collaboration between academic law and psychiatry can enrich research agendas and avoid serious legal pitfalls. We argue that sound legal advice should be sought at the planning stage of research in psychiatry, but the fear of liability should not lead to overly defensive research practices. The aim should be to strike the right balance between avoiding unacceptable exposure to liability and stifling innovative research.     

Ethical and legal aspects of the suicide problem

The discussion on the freedom to commit suicide and on medical assistance to suicide is a challenge for psychiatry to consider critically the ethical aspects of suicide prophylaxis and of the present jurisdiction on suicide. Suicide research has shown that most acts of suicide are not carried out as free acts of will. The increase in clinic suicides and the high frequency of suicides after in-patient psychiatric treatment clearly show the limits of the therapy of suicidal patients and force us to reflect critically on new developments of psychiatry and special forms of therapy. The decision on the necessity and the duration of compulsory measures can always be made only for each individual case. The danger of renewed acts of suicide can never be excluded. Especially great demands are made on the doctor-patient relationship. Suicide prophylaxis is a humanitarian obligation of society and the medical profession, especially of psychiatry, an obligation which must not be jeopardised by one-sided propagations of the right to "voluntary death".     

Innocence,déni,aveu, culpabilité : conclusion de la journée

The author reviews the various papers presented during this meeting. He concludes that forensic psychiatric assessment has to become more scientific and forensic psychiatry must be necessarily taught to judges and psychiatrists.     

Grasping the nettle: forensic child psychiatry

Child psychiatry is becoming increasingly involved with the law. Other professionals have expertise in interpreting children's needs and behaviours to the courts, but child psychiatrists have unique skills and lawyers should be helped to understand what they have to offer. Difficulties in the dialogue between child psychiatry and the law are discussed. Training child psychiatrists to function efficiently in the legal system must be given priority by the newly established Faculty of Child Psychiatry.     

On mental illness: A review

The author reminisces about his training in the '40's, when “everything seemed to be in good order in the house of psychiatry,” and then turns to a philosophical consideration of confusions which have arisen because advancing knowledge inevitably complicates rather than simplifies our understanding of mental health and illness. He believes that psychiatry must retain and follow a medical model which includes psychological and sociological concepts and thus, by necessity, is multifactorial and dualistic.