Resistance to alternatives to hospitalization

Hospitalization has endured as the predominant form of psychiatric treatment for serious mental illness, despite accumulated evidence that outpatient treatment, ranging from halfway houses to day programs to traditional clinics, is equal or superior to inpatient treatment. Reasons for the apparent reluctance to use alternatives to the hospital include social prejudice against community treatment, economic disincentives, administrative chaos, training, professional sociology, and the countertransference meanings of hospitalization. The foregoing is not an argument against hospitalization, but rather an argument for being very clear about policy objectives and treatment goals. If these objectives and goals are made explicit, proposals can be evaluated for their efficacy. If community tenure, the assumption of responsibility for him or herself, and relinquishment of the patient role are goals, then hospitalization must be examined more skeptically. For society, this means the assumption of more responsibility for the establishment of a system of mental health care, for enunciating national policy goals and implementing them consistently, and for committing the necessary funds and manpower to this endeavor. For the clinician, it means examining the clinical efficacy of his or her treatment recommendations and distinguishing between responsibility for the patient's treatment and responsibility for the patient's life. The abdication of social responsibility for the patient and the assumption of omnipotent clinical responsibility for him or her lead inexorably to more institutional and more restrictive treatment, even in the absence of evidence that such measures are therapeutically effective.     

Competency to Consent to Treatment

Competency to consent to treatment is an especially critical determination to make in the field of psychiatry. Psychiatric patients are often capable, despite their illness, of self-advocacy. Careful assessments are required to differentiate competent patients from incompetent patients. Moreover, the character of their illness, from psychosis to organic brain disease, has been found to correlate with a lack of competency. The presence of auditory hallucinations or delusions, however, are not pathognomonic of incompetency. Currently, there exists no standardized method to establish competency, either in psychiatric or in medical patients. This is a review of the several instruments developed by various researchers attempting to create one. It finds promise in several questionnaires that have good inter-rater reliability and validity.     

Duty to Avoid Injury to Oneself and Thereby Psychiatric Injury to Others

Tortious liability for causing foreseeable mental harm to others is a complex category of tort law. It continues to evolve as plaintiffs devise novel arguments to test the parameters of what used to be known as pure psychiatric injury law. In Homsi v Homsi [2016] VSC 354, J Forrest J was called upon to rule on whether a mother could sue her deceased son for driving negligently and causing his own death and thereby causing her mental harm. Forrest J declined to permit recovery but in the course of his judgement helpfully analysed the current state of mental harm law in Australia, reviewed the circumstances in which relatives are able to sue one another for mental harm caused by self-injury, and articulated a range of policy considerations in relation to indeterminate liability for defendants. His judgement provides an important opportunity to reflect on the directions in which mental harm law should evolve to arrive at a rapprochement between plaintiffs’ reasonable aspirations for recovery and ensuring that the liability of defendants is not unreasonably wide.