Legal issues affect all areas of medicine, including psychiatry. The laws that govern medical practice address physician duty, negligence, and malpractice as well as patient competence, consent, and right to refuse treatment. Previous court decisions, or precedents, are used as the standard by which a given action (or inaction) is judged. Practitioners should be aware of the pertinent laws of the state in which they practice in order to comply adequately with standards of practice while respecting the rights and duties of their role. Reducing adverse events and legal claims in the health care system is known as risk management.
The legal definition of malpractice requires the presence of four elements: negligence, duty, direct causation, and damages. Negligence can be thought of as failure to perform some task with respect to the patient, falling short of the care that would be provided by the average practitioner (the standard of care). Duty reflects the law’s recognition of the obligation of the physician to provide proper care to his or her patients.
Direct causation requires that the negligence directly caused the alleged damages.
Finally, damages (e.g., physical or emotional harm) must in fact be shown to have occurred. In short, malpractice involves the negligence of a duty that directly causes damages. Malpractice claims in psychiatry principally involve suicides of patients in treatment, misdiagnosis, medication complications, false imprisonment (involuntary hospitalization or seclusion), and sexual relations with patients.
Informed consent has three components: information, competence, and consent. First, appropriate levels of information regarding a proposed treatment, including side effects, alternative treatments, and outcome without treatment, must be provided.
Second, the patient must be competent (i.e., have the capacity to understand, reason, and make reasonable decisions regarding the risks and benefits of treatment). Third, the patient must give consent voluntarily. True emergency situations are an exception to this rule; treatments necessary to stabilize a patient in an emergency can be given without informed consent.
Commitments are generally judicially supported actions that require persons to be hospitalized or treated against their will. Although laws vary from state to state commitment criteria usually require evidence that the patient is a danger to self, a danger to others or is unable to care for him- or herself Psychiatrists, in most localities, have the right to tem-porarily involuntarily commit a patient if any of these criteria are met and a diagnosis of a mental disorder is provided (in other words, both a mental disorder and danger must exist).
The duration of temporary commitment and the rights of the patient vary by jurisdiction. Patients who have been committed have a right to be treated, and unless they have been declared incompetent, they have the right to refuse treatment.
The Tarasoff Decisions: Duty to warn (or protect)
Tarasoff V The Board of Regents of the University of California (or simply, Tarasoff) was a landmark case that was heard twice in the California Supreme Court in 1976. Tarasoff I held that therapists have a duty to warn the potential victims of their patients.
Tarasoff II held that therapists have a duty to take reasonable steps to protect potential victims of their patients. In most localities, this means that the therapist should take reasonable action to protect a third party if a patient has specifically identified the third party and a risk of serious harm seems imminent.
M’Naghten Rule: The insanity defense
Named after a mentally ill man (M’Naghten) who attempted to assassinate the prime minister of England in 1843, this rule forms the basis of the insanity defense. According to the M’Naghten rule, a person is not held responsible for a criminal act if at the time of the act he or she suffered from mental illness or mental retardation and did not understand the nature of the act or realize that it was wrong.
In more recent history, the appropriate use of the insanity defense has been called into question. Some legal theorists argue for the designation “guilty but insane” to indicate culpability but at the same time recognize the presence of a mental illness (and presumably the need for treatment).
1. Malpractice consiSts of negligence, duty, direct causation, and damages.
2. The Tarasoff decision led to an expectation that therapists and doctors take reasonable action to
protect persons whom their patients have specifically threatened.
3. The M’Naghten rule is the basis of the insanity defense.
Revision date: June 21, 2011
Last revised: by David A. Scott, M.D.