Legal responsibility of clinicians

A direct link can be made between the legal concepts of capacity and responsibility specifically in relation to clinical psychiatric practice. If a patient is not vulnerable, on the basis of local mental health care law, to compulsory admission and/or treatment because the law utilizes an incapacity criterion which he or she does not satisfy, then no clinician can be held 'responsible' for that patient's actions in harming him- or herself or others. In contrast, if a country adopts a status test, for example, having 'a mental disorder of a nature or degree which makes it appropriate that the person be admitted to hospital for medical treatment ... and be detained' (Section 3 of the Mental Health Act 1983), then this both grants greater discretion to the clinician as to whether to detain the patient and determines greater potential for attracting blame and negligence actions. (See ChapterJJ.J., in relation to psychiatric liability for the actions of patients against themselves and others.) Similarly, adoption of judicial determination of detention and treatment (as has long been the case in Scotland), albeit on expert medical evidence, offers further protection to the clinician from blame or litigation. Put another way, the greater the degree of separation between expert psychiatric evidence relevant to detention and/or treatment and the decision to detain and/or treat perse, the less implicated is the psychiatrist in responsibility for patient and public protection. In the United Kingdsom, history since the extremely important Percy Commission Report in 1957,(3D which set the agenda for modern British mental health care law, has been written largely in terms of medical paternalism and decision-making, albeit modified somewhat within the 1983 Act following the liberalization of mental health care and the 'open-door' policy of the 1970s onwards, as well as subsequent to the publication of Gostin's A Human Conditioni3M§) and various decisions of the European Court of Human Rights. However, the more recent emphasis by government on doctors as a source of public protection seems likely to cause many doctors to wish to give up paternalism in favour of both greater separation of decision-making per se from expert evidence which informs that decision and adoption of incapacity as the relevant detention criterion/40 Both of these approaches clearly place greater emphasis on patients' responsibility for their actions.

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