Psychiatric injury law

There is another branch of civil law which also relates directly to mental health but which is not concerned with effecting or regulating care. The body of law addressing 'psychiatric injury' is concerned with determining legal responsibility and liability in negligence where there has been alleged incapacitation which can give rise to restorative damages. In circumstances where there has been solely psychiatric injury, policy determining psycho-legal incongruity is particularly glaringly evident in England and Wales. As already described, there is fear of a 'floodgate' effect of any loosening of the legal definition and rules relating to 'nervous shock' (see Chapter,11.1) and this has determined restrictive rules which pull the law far away from the reality of psychological notions of injury and causation. This was recognized by the Law Commission in its recent review of the law relating to psychiatric injury.(22)

The latter field relates quite naturally to another and very different sort of psychological injury, i.e. injury by way of the 'secondary victimization' arising in the families of homicide victims of psychiatric patients.(23) Indeed, psychological injury in this context can even apply to 'tertiary victims', i.e. the staff who cared for any patient who committed a homicide and who are then themselves traumatized by way of the process of a homicide inquiry. Such inquiries are currently mandatory in England and Wales.(24) Although inquiries are not 'courts', they are usually legally chaired and forensically pursued. A legal and policy analysis of mandatory homicide inquiries, or indeed of any other sorts of inquiries, is clearly beyond the scope of this chapter. However, we might at least ask whether, by using a non-formal legal method of inquiry, inquiries can wholly avoid the Teubner problem, or whether a situation occurs which is the reverse of that observed in mental health review tribunals (12) in that legal process 'takes over' from an arguably more appropriate approach of clinical or service inquiry and audit. (25 Such inquiries are, by their nature, 'legally tinged', some would perhaps say 'legally tainted'. Yet, paradoxically, the only proper and adequate alternative is represented by resorting to the legal standard embodied within the negligence 'Bolam test'.(26) The latter itself represents an unusual legal turning away partially from its own usual autopoietic self by virtue of overt adoption of a clinical-profession-based standard of negligence, reflecting also the approach of statutorily backed professional self-regulation as embodied, for example, in the British General Medical Council. Hence the law of negligence and the process of inquiries imply substantially different ways of setting the balance between welfare and justice, and the differences have major implications for those who are adjudged by the various tribunals, as well as for the functioning of those who either offer expert evidence to them or who are tribunal members.

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