Responsibility for psychiatric negligence

The rules determining psychiatric negligence are no different from those relating to all medical practice. That is, assuming that there is a duty of care owed by the psychiatrist, there has to be a breach of that duty and resultant damage (see Chapter.!!.!). These rules clearly apply very personally to any doctor who is sued and, essentially, they define the limits of his or her legal liability. For the psychiatrist who offers evidence towards the liability of another psychiatrist, they provide the legal template for his or her evidence. Hence, within the terms of the Bolam test, referred to above (see also Chapter!!.!), he or she must advise whether the doctor's practice within the medical circumstance which is being litigated was within that of ' a responsible body of medical practitioners'. This requires a judgement which is broadly based and not personal (the independent expert must not ask the question 'Would I have done it that way?'), requiring clinical maturity and impartiality.

A doctor's responsibility within negligence may not always end with his or her patient. As is evident from Cha.p.teL,11.!.., the law in this area is both complex and variable between Western jurisdictions. However, certainly ethically, and probably legally, it would be unwise for any doctor to ignore the 'Tarassoff factor' (see ChaptĀ§L1.6). Clearly, the duty owed to third parties can be linked directly with the duty of confidentiality (dealt with above), since it will sometimes be the case that there cannot be a duty to protect a third party if there is no right to breach patient confidence. Also, there is a natural connection with the right to recommend civil detention for mental disorder in that the right to detain must arise at a lower level of disorder and danger than does the duty to protect either third parties or, indeed, the patient him- or herself. That is, there is a range of discretion within which the doctor can decide whether or not to protect both others and the patient.

In relation to either type of alleged negligence the crucial aspects of psychiatric expert evidence relate to reliability and validity. Clearly, if there are widely differing and responsibly held views of both liability and causation in relation to negligence, then this will tend to be reflected in varying expert opinions offered to the courts and, therefore, in court scepticism about any individual claim. However, even more important is the issue of validity. Hence, even where there is sufficient inter-rater reliability to be consistent with validity there still may not be validity. This is most obviously and controversially represented in risk assessment, in terms of harm to self or others. Here there is much to suggest restricted validity, and yet the courts may still, because of their need to 'find an answer', accept a particular line of expertise, which may not be valid or even reliable. Again, similar problems can arise in relation to determining the cause of any damage for which the defendant may thereby be held liable. This can be a difficult issue to address expertly where, for example, the question is asked: 'Would the plaintiff have harmed him/herself at some time in the future irrespective of the breach of duty of care by the defendant?' Again, similar problems can relate to any novus actus (subsequent causal factor) which may be unrelated to the breach but which may potentially have contributed to the plaintiff's actions. What are the likely boundaries of valid expert answers to questions posed in that type of arena?

Problems of reliability and validity are not, of course, restricted to civil actions in negligence, and it is important to be aware of their relevance in all the fields covered in the chapter. Indeed, they are highly relevant in the context of mental health law and detention for psychiatric treatment, albeit far less consciously addressed by mental health tribunals than by civil or criminal courts in other legal circumstances.

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