‘Recognisable Psychiatric Injury’ and Tortious Compensability for Pure Mental Harm Claims in NegligenceSaadati v Moorhead [2017] 1 SCR 543(McLachlin CJ and Abella,Moldaver, Karakatsanis,Wagner, Gascon,Côté, Brown and Rowe JJ)

Since at least 1970, one of the constraints upon compensability for pure mental harm at common law has been that a plaintiff must have suffered not just adverse psychological consequences from negligence but a ‘recognisable psychiatric illness’. In a powerful unanimous decision, the Supreme Court of Canada in Saadati v Moorhead [2017] 1 SCR 543 has controversially removed this requirement. This paper reviews the reasoning in the decision and considers its ramifications, concluding that while it is likely to extend the liability of defendants, this will occur only in a small cross-section of cases where a plaintiff exhibits significant symptomatology of a mental disorder albeit falling short of sufficient for an unequivocal diagnosis within the meaning DSM-5 or ICD-10. It notes that in the post-Ipp reforms in Australia, a ‘recognised psychiatric illness’ has been statutorily enshrined as a prerequisite to recovery by plaintiffs, so statutory law reform would be required to implement the Saadati decision. While it welcomes the contribution of the Saadati approach to reducing the law’s discrimination against mental (as opposed to physical) injuries, it calls for close scrutiny of the actual effects of the Saadati decision.     

Mental Capacity as a Concept in Negligence: Against an Insanity Defence

A defendant's ‘insanity’ will not excuse his or her negligence. According to corrective justice theory, if A injures B, then A should compensate B – that A's actions may be attributable to a mental illness is therefore immaterial. Some tort scholars argue the law should excuse insane defendants from liability because they lack the mental capacity to commit negligence. ‘Capacity’ therefore lies at the core of the case for insanity defence. This article argues that ‘capacity’ fails as a framework concept for the insanity defence. It is poorly defined, fails to map onto the structural features of negligence and poses significant evidential challenges. It also has a spurious relationship with insanity. This paper prefers the status quo and concludes that the case for excusing the insane from negligence liability is conceptually flawed and normatively unconvincing.     

Wicks and Sheehan v State Rail Authority: Yet Another Public Policy Dilemma

In Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22, the Australian High Court grappled with provisions of New South Wales legislation limiting claims for damages for mental harm. The Civil Liability Act 2002 (NSW) limits claims by plaintiffs for damages for pure mental harm, resulting from harm to another person, which in turn was caused by the defendant. The creation of this restriction was one of a number of tort reforms passed by parliaments around Australia. The High Court's consideration of the case highlights the difficult policy questions involved in determining liability for psychiatric injury. The decision also demonstrates that Australia does not have a coherent national approach to claims for damages for pure mental harm resulting from negligence.     

A Psychiatrist's Duties in Relation to the Risks of Patient Suicide Smith v Pennington [2015] NSWSC 1168 (Garling J)

In November 2008, after making a serious attempt to commit suicide by hanging, a 25-year-old single man was made subject to an involuntary treatment order pursuant to the Mental Health Act 2007 (NSW). After a six-day admission to a mental health unit, he was granted four nights of leave from a hospital mental health unit to his parents' home. He attempted suicide by hanging again and sustained catastrophic injuries. He took legal action, claiming that either the grant of leave or the manner of the grant of leave was negligent and that had he remained in the hospital mental health unit, he would not have attempted to harm himself. In a lengthy judgment, Smith v Pennington [2015] NSWSC 1168, Garling J considered the issues of breach of duty of care and the higher threshold of the duty of care pursuant to the special statutory powers of section 43 of the Civil Liability Act 2002 (NSW) as well as foreseeability, reasonableness of precautions and causation. In a judgment that should be cautionary to plaintiffs in ‘failure to warn’ claims against psychiatrists and hospitals, Garling J held that the plaintiff had not proved that any negligence had caused his injuries, dismissed the action and ordered the plaintiff to pay the defendants' costs.     

The effects of the justice system on mental health

Anyone involved in legal proceedings will warn you that a long-drawn-out legal battle will drain your mental health. This study aimed to assess the psychological effects of being processed by the justice system. The sample consisted of 360 subjects, residents in Spain. Were administered a questionnaire on the experience of contact with the justice system, a temporal perspective inventory, locus of control, psychological reactance, coping strategies, health self-efficacy, and psychosomatic symptomology. Results revealed significant differences between plaintiffs and defendants, although it was also confirmed that both parties showed greater pessimism about the future. So, the former were more pessimistic about the future, used poor strategies for protecting their health, and had less empathy. In contrast, coincidentally in some variables, defendants had a more negative outlook on life, and in general more psychosomatic symptomology. The health of the group with the longest exposure to legal proceedings was the most deteriorated.Key words: defendants, family law, justice system, legal psychology, litigation, mental health, plaintiffs     

To Detain or Not to Detain: A Question of Public Duty?

This article examines case law and legislation in order to address the question as to whether psychiatrists owe a duty of care to members of the public to detain individuals with mental illnesses and who are at risk of harming others. It explores a hypothetical scenario in which a victim, or his or her estate or family, wishes to sue a psychiatrist for negligent failure to detain an individual with a mental illness who has harmed that victim in some way. The article suggests that current law indicates that a duty of care does not exist to unidentifiable third parties and, further, there are sound policy reasons why the law should take a cautious approach to imposing a duty to detain on psychiatrists in such circumstances.     

Compensability for Psychological Injuries Arising From Breach of Contract,Deceit and Contravention of the Trade Practices Act 1974 (Cth) and Fair Trading Acts: The Need for Rationalisation and Consistency in the Law: Aldersea v Public Transport Corporation [2001] 3 VR 499; [2001] VSC 169

The circumstances in which psychological injuries are compensable in Australia are unclear. By and large tort and contract law do not permit recovery by plaintiffs other than for psychiatric injuries, namely for well recognised mental illnesses. In addition, in tort “nervous shock” and the plaintiff being of “ordinary fortitude”, unless the tortfeasor knows otherwise of the plaintiff, are prerequisites to recovery. However, where the action is for breach of a statutory duty or for deceit, the criteria for recovery appear to be more liberal; to a lesser degree this is also so for actions framed in contract. This article examines the ramifications of the statement of the law by Ashley J in Aldersea v Public Transport Corporation [2001] 3 VR 499; [2001] VSC 169 in the context of the disuniformity and absence of rationality highlighted by modern Australian jurisprudence on the compensability of psychological and psychiatric injuries.     

Damages for psychiatric injury: Setting the limits

The author analyses the judgments of the New South Wales Court of Appeal in Morgan v Tame [2000] NSWCA 121 in an effort to identify the likely direction of superior court judgments in relation to liability for negligent infliction of psychiatric injury. He argues that the case helpfully isolates three important controversies in relation to the entitlements of plaintiffs with particular vulnerabilities to psychiatric injury: (1) whether the law is justified in distinguishing between the negligent infliction of physical as distinct from psychiatric injury; (2) whether the law should demand as preconditions of compensability that “shock” be occasioned and that the “shock” cause psychiatric injury; and (3) whether the irrationality of a plaintiffs psychiatric response to negligence should be a criterion for excluding a finding of liability.     

The hidden effects of Montana's “abolition” of the insanity defense

Montana abolished the affirmative insanity defense in 1979. In this article we examine the effect of this change by focusing on all defendants who raised mental health in his/her defense from 1976 to 1985. We found that while post-reform insanity acquittals did dramatically decline, there was a corresponding rise in findings of incompetent to stand trial with charges dismissed, perhaps negating the desired impact. We also compared the defendants and the legal process, finding no significant differences pre to post reform.     

Law & psychiatry: SSRIs, suicide, and liability for failure to warn of medication risks

When can pharmaceutical companies be held liable for failure to disclose medication risks--such as the link between selective serotonin reuptake inhibitors and suicidality of young people? The companies have claimed that Food and Drug Administration approval of labeling information, required by federal law, should preempt liability in state courts. Thus injured patients would either be left without recourse or be compelled to sue the clinicians who prescribed the medication. A recent U.S. Supreme Court decision, however, rejected the preemption defense and opened the door to patients' suits that seek compensation. This column explores the application of this new approach and its implications for the mental health professions.     

L’intime conviction des magistrats : subjectivation pénale et conflit subjectif dans un cas d’inceste

In the French law tradition, jurors and judges have to use their intimate conviction to judge not only the reality of the act, but also the intention of the author and his/her spirit. This article builds upon the logic and confrontation of elements of prosecution and defense; deriving along with other motifs from the necessary personnal implication of the magistrate in the construction of his or her judgement and continued support of it. However, adressing the process of intimate conviction from a psychoanalytic perspective exposes third level of conflict: one between mental cognitions; one between trust and distrust regarding one's own representations, and another regarding one's own affective tendencies, which have to keep away. Our objective is to study how the judges, subjectively, appropriate or not the conflict induced by legal texts on intimate conviction. Drawing on an analysis of interviews with judges about a rape case that occurred within a family, with no other element of proof than the weight of the testimony and the avowal of the victim, we extrapolate how the subjectivation of the criminal act is dependent upon the relationship judge had with his or her own capacity to withstand the psychic conflict it induces.     

Abuse by marriage: the exploitation of mentally ill older people

OBJECTIVES: (i) To raise awareness about the vulnerability of mentally ill older persons to abuse by others seeking to gain by marriage; (ii) to outline key legal cases from common law countries; and (iii) to provide guidelines for health care professionals who encounter this issue in practice. METHOD: We present two cases: the first case involved an 87-year-old widower who married his carer--50 years his junior--in a religious ceremony while hypomanic. The second case involved an 82-year-old widow with moderate dementia who married her boarder, the marriage subsequently being found void in the Family Court of Australia on the basis that her consent was not real because she was incapable of understanding the nature and effect of the marriage ceremony. RESULTS: Abuse by marriage may be of a psychological, sexual, social or financial nature.Older people with impaired judgement and inability to appraise others due to mental illness may be persuaded to execute legal documents such as marriage certificates. CONCLUSION: Health care professionals may have a role in the identification and management of this kind of abuse. There are legal means to address this problem ranging from guardianship and financial management to family law court applications to seek a decree of nullity/invalidity of the marriage. Copyright (c) 2008 John Wiley & Sons, Ltd.     

Regarding the child's right to information about his/her natural parents and regarding the parents' right to information about the actual maternity or paternity

It is true that the Federal Constitutional Court has explicitly affirmed the child's right to know his/her own descent; the parents' right to information regarding their natural paternity can be derived from the Constitution of the Federal Republic of Germany as well. This, however, does not determine who is entitled and at what point one may request information on the actual descent of a person. Neither does the right lay down from whom information may be requested or who could be sued for what kind of information. Further it leaves unanswered who would be in the position to enforce the judgement eventually. The adoption law is the only one containing legal provisions. The judicial decisions are unclear and inconsistent. It is still possible that there is a permanent difference between the legal and the actual paternity. In Germany, there is currently no room for determining genetic maternity that would differ from the legal maternity. Only older, grown-up children and men whose legal paternity has been eliminated in previous court proceedings are entitled to sue for information regarding their biological descent. Linked to this is the prohibition of secret paternity tests. In the question who is entitled to information regarding the actual descent (and whether there is such a right), financial, fiscal, health and purely moral interests of both, the parties involved and the public authorities must be balanced. In connection with a heterologous insemination, information regarding the genetic descent must not only be provided by the mother and the (legal) father but also by public authorities and other third parties, particularly physicians. Insufficient documentation on the part of the physician involves the risk regarding the liability for damages vis-à-vis the child who is entitled to receive information.     

Employers' Duties for Reasonably Foreseeable Psychiatric Injuries

Psychiatric injury, or mental harm, is readily foreseeable in some circumstances for emergency services personnel who are regularly exposed to traumatic incidents. However, it is far from straightforward to identify what appellate decisions have specified is a sufficient response for such emergency services and other employers to protect themselves against civil liability. This article explores the ramifications of the Queensland Court of Appeal decision in Hegarty v Queensland Ambulance Service [2007] QCA 366 and endeavours to identify from decided authorities when employers will be exposed to liability for failure to exercise due care for their employees, or, alternatively, to provide them with a safe workplace.     

Dangerosité psychiatrique et responsabilité pénale atténuée : à propos de la condamnation à la réclusion à perpétuité d’un schizophrène auteur d’un homicide sexuel sadique

The second paragraph of article 122-1 of the French Criminal Code provides for a reduced penalty in criminal matters (Court of Assizes) when the offender is suffering at the time the act is committed from a mental disorder that reduces his liability. This legal provision is not always respected, as shown by the sentencing to life imprisonment of a chronic psychotic patient who committed a sexual homicide (sadistic rape). The Court of Assizes found that the great dangerousness of this schizophrenic, with a multiple criminal record and who had refused his treatment, justified his conviction, while the psychiatric expertise concluded that he should benefit from a reduction on his criminal liability. The sentence was passed without the level of severity of his mental state having been verified by a new expert. The author therefore questions the “ethical” nature of this court decision which, albeit legal, is contrary to the spirit of the law. There was no appeal against the sentence.     

Learning to collaborate: the teaching legacy of Howard Zonana in forensic psychiatry

The teaching legacy of Howard Zonana in forensic psychiatry has been in educating psychiatric fellows and law students to collaborate in advocacy on behalf of individuals whose problems exist at the intersection of the law and mental health. The author describes more than three decades of collaborative teaching with Dr. Zonana in Yale Law School legal clinics serving mental hospital patients, prisoners, children, and immigrants. In those clinics, law students and forensic psychiatry fellows have worked collaboratively in representing clinic clients and advocating for their legal and medical rights. The article reports three examples of this interdisciplinary collaboration: a project conducted at a state hospital shortly after the Supreme Court's decision in O'Connor v. Donaldson; a class action on behalf of individuals with developmental disabilities inappropriately subjected to long-term confinement in a state hospital; and an asylum case on behalf of a severely traumatized African woman fleeing persecution in her home country. The author concludes that Dr. Zonana's legacy reflects not only his contributions to medical and legal education, but also his profound commitment to effective and humane medical practice and to justice.     

Law & psychiatry: Responsibility for torts: should the courts continue to ignore mental illness?

Although courts routinely consider whether a criminal defendant's mental illness makes punishment unfair, the rules are very different for civil liability. When people with mental illness harm others, courts refuse to consider their mental states in determining civil liability. The justifications offered for this rule range from the difficulty of assessing the impact of mental illness on behavior to the desire to place the burden of loss on the person who caused the injury. Undeniably, though, mental disabilities are treated differently from physical impairments, and the law's resistance to change seems largely based on misunderstanding and prejudice against mental illness.     

Children's rights: for or against treatment.

The authors discuss legal issues which bear on the provision of mental health services for children; in particular, the dilemma of balancing the child's right to protection and autonomy with his/her right to competent, compassionate treatment. The role of the mental health professional in court and the role of the law in children's mental health facilities are examined. The authors suggest that the growing dialogue between lawyers and mental health professionals has already helped to clarify important legal and service issues.     

Psychoses occurring in a father and his two daughters

Summary Elmira was subjected to the dominance of her grandmother who allowed her very little liberty and restricted her social life. A very strong mutual attachment developed between Elmira and her father. The mental illness of her sister, Dorothy, apparently precipitated Elmira's mental upset. She had a residence in Kings Park State Hospital, admitted there her attachment for her father and dramatized her conflict regarding it by means of his photograph which she carried with her and shich she could not decide whether to keep or to destroy. She recovered from her upset, was discharged and then married very suddenly, because as she stated herself her home life was unsatisfactory. Apparently marriage to her, as to her sister, Dorothy, was the means of escape. The presence of typical manic symptoms, elation, flight of ideas, distractibility, overactivity with recovery and the history of a previous attack with recovery of a manic episode indicate the diagnosis of manic-depressive psychosis; manic type. Nevertheless some schizophrenic features were present in addition as evidenced in the ideation. The prognosis seems more uncertain than in the case of Dorothy.     

"A fool for a client": print portrayals of 49 pro se criminal defendants.

In the United States, an accused person has a constitutionally protected right to serve as his or her own lawyer, even if this means he or she has "a fool for a client." In the current study, information from more than 2,700 articles in the LEXIS "U.S. New, Combined" database was used to produce what the authors believe is the psychiatric literature's first characterization of a group of pro se criminal defendants. The sample's 49 defendants had a broad age range (18-75 years) and a broad range of educational backgrounds (9 to >20 years of formal schooling). Men, attorneys, persons with other advanced degrees, and unemployed persons formed disproportionately large fractions of the sample, compared with the general population. The defendants faced a broad variety of charges; homicide was the most common one. Many had reasonable motives for representing themselves, such as dissatisfaction with their lawyers or believing that they could do as well without attorney representation. Defendants' apparent reasons for representing themselves fell into one of three categories: eccentric (16 defendants), ideological (4 defendants), and personal (19 defendants). These categories offer courts and evaluators three possible conceptualizations of a pro se defendant's behavior, outlook, and motivation.