The litigation rights of psychiatric patients

The fact that a person suffers from mental illness does not mean that he or she is deprived of all legal rights. There is discussion elsewhere in this work of the issue of legal capacity (such as the capacity of the mentally ill to enter into a contract or to make a will). We have seen above how the rights of the patient are protected by review arrangements and by certain restrictions placed on treatment. Another important dimension of the patient's rights is the right to litigate, which is the legal means by which the individual citizen normally protects his or her interests.

A patient in a psychiatric hospital has the same right as any other patient to pursue a claim for personal injury sustained in the course of medical treatment. Thus, a patient who is injured as a result of the negligence of the hospital or its employees may claim damages in a civil court in the normal manner. The duty of care owed by the hospital to its patients may extend to cover self-injury, including injury by suicidal patients who are not adequately supervised. The standard of care expected by the court in these circumstances will depend on the context in which the injury occurred. Clearly the constant monitoring of a patient for every minute of the day may be impossible, given limited resources and the needs of other patients, but hospitals are bound to provide a reasonably safe environment for those who are at risk of injuring themselves.

Provided that the detention of the patient is carried out in accordance with the legislative requirements, there can be no claim for deprivation of liberty. A patient may, however, be entitled to claim damages in respect of measures taken which are outside the scope of the detention, for example, in respect of the unwarranted use of force. A gratuitous assault by a nurse, for example, could be the subject of legal action. There are, however, important limitations to the patient's right of recourse to the courts. These are provided by Section 139 of the 1983 Act, which states that there will be no civil liability for anything done by a person in the course of carrying out duties under the Act provided that the act in question is not performed in bad faith or without reasonable care. This means that a doctor or nurse, for example, who acts in excess of power, will not be liable unless he or she has done so maliciously or mischievously. It is also necessary for a patient to obtain the consent of a judge of the High Court before bringing such an action; this is a significant requirement which has the effect of curtailing the threat of litigation which would make it impossible for hospital staff and others concerned in psychiatric services to carry out their duties without the constant threat of litigation.

Psychiatric patients are entitled to confidentiality in the same way as any other patients. By the very nature of psychiatric illness, such patients are more likely than other patients to pose a threat to the safety of others, and therefore there may be occasions in psychiatric practice in which a breach of confidence in the public interest is warranted. A doctor or nurse proposing to breach confidence should nonetheless bear in mind that this should not be done for trivial reasons and should always be limited to that information which is strictly necessary. In the major English case of this point, (29) a psychiatrist commissioned by a restricted patient's solicitor to provide a report on the patient's state of health, passed on this report to the Home Office, in the belief that this was necessary to ensure that the patient should not be prematurely released. Although this was eventually held to be a justified breach of confidence, it is significant that the arguments against such a breach were not dismissed out of hand by the court.

The matter of whether a psychiatrist might be liable to a third person for damage caused by a patient for whom he or she has clinical responsibility has not been determined by a British court. There is no duty to warn of danger presented by a particular patient, although the existence of such a duty has been confirmed by American courts, most notably in the controversial Californian case of Tarasoff v. The Regents of the University of California.(30) In this case it was held that a psychotherapist had a duty to inform a young woman of the danger which his patient posed for her. The implications of such decisions on the exercise of clinical judgment are significant, as are the implications for discharge policies. The imposition of civil liability on hospitals for damage caused by prematurely discharged patients could have the adverse effect of encouraging detention beyond what is required. This would be a clear set-back to the right to liberty of many patients.

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