Legal issues in psychiatric treatment

This paper has presented a discussion of the three overlapping phases in the regulation of psychiatric treatment: consent, patients' rights, and physicians' duties. The concepts of consent are relatively well defined. Still, the courts sometimes utilize the rubric of consent to decide difficult cases (e.g., Clites). One can predict that litigation attempting to further define the specific aspects of consent for high-risk therapies will continue. Because of the court's decision in Youngberg, one can also predict that there will be more litigation as to the constituents of constitutionally-adequate treatment. Given the court's dicta in that case, about deferring to professional judgment, it is impossible to know how these cases will fare if and when they are reviewed by the Supreme Court. Given the court's decisions in Mills and Rennie, it is unlikely that the Supreme Court will be ruling on a broad constitutionally-based right to refuse treatment for some time. The most active interface of psychiatry and law is that detailing physicians' duties. In terms of dangerousness, the majority of cases require that psychiatrists attempt to protect victims, or classes of victims, when they believe that dangerous conduct is apt to occur. Still unclear is the extent to which the courts will inquire specifically into the clinical decision-making process to determine whether the physician "reasonably should have known" that the patient was dangerous. Also unclear is the extent to which the courts will find that physicians owe a duty to an ill-defined class. Still, a reasonable guess would be that other courts will find Lipari persuasive. Finally, with regard to specific treatment modalities, it is evident that physicians are being required to practice with an extra measure of care and caution when prescribing neuroleptics, ECT, or psychosurgery. One final note: Too often, physicians have been leery of the political process. Since many decisions with great impact on patients and practitioners are political, this author would urge physicians to engage in that process to secure more reasonable and more equitable medical regulation.