Recovery

Question 1

civil liability as a framework for clinical decision making Carroll et al AP 2008

Answer 1

Carson and Bain9 have pointed out: “although the law
requires reasonable professional conduct, it actually
supports risk-takers”. There is therapeutic logic in this: a
paternalistic approach by psychiatrists whenever
choices become potentially risky stunts the capacity for
personal growth.

For
example, in Victoria, a person is not negligent in this
regard unless the risk was “foreseeable”, “not insignificant”
and “a reasonable person” would have taken precautions
against a risk of harm.10 s48(1)
In determining what a reasonable person would have
done, the court considers, amongst “other relevant
things”, “the probability that the harm would occur”;
“the likely seriousness of the harm”; “the burden of taking
precautions to avoid the risk of harm”; and “the
social utility of the activity that creates the risk of
harm”.10 s 48(2) Social utility requires balancing the risk of
harm against the end to be achieved.11

Most commonly, the
“burden of taking precautions” entails the possibility of
storing up future problems if a more cautious risk-averse
approach is taken. Such future problems commonly
include reduced therapeutic trust and a slowing of clinical
recovery, due to the overriding of the autonomy and
preferences of the patient. Both of these consequences
potentially exacerbate risk in the longer term although
the short-term risk may be mitigated. A strong, trusting
long-term therapeutic alliance is the most effective risk
management tool that there is in psychiatry.

Risk management dilemmas in psychiatry generally
involve a choice between:
•• activities with a preventive focus that, in the
short term at least, are intended to reduce the risk
of harm; and
•• activities with a promotional focus that are
intended to promote longer-term recovery but, in
the short term at least, may increase the risk of
harm.

The social utility of a decision can most usefully be
judged through a societal lens. Shifts in how society
views and manages those diagnosed with mental illness
influence how the courts judge the risk management
endeavours of psychiatric services. It is therefore important
that the tenets of recovery and rights have now
been transferred from service user/professional discourse
into public policy documents, legislation and guidelines
from professional bodies.25 This allows – arguably even
mandates – psychiatrists to assertively argue for the
social utility of potentially risky promotional-focussed
activities that empower patients.

In and
of itself, a risk that can be foreseen, even of a serious
nature, is not sufficient to grant powers to a clinician to
compulsorily hospitalise to prevent such risk – other
criteria
must also be met.

In practice, a recovery and rights approach
encourages psychiatrists to adopt a default position of
favouring management alternatives with a promotional
focus. However, this ought not encourage neglect of the
professional responsibility to adopt preventive strategies
where indicated

Question 2

three-step process for psychiatrists
faced with the need to negotiate the narrow way between
dereliction of duty and negation of patients’ rights

Answer 2

1. Collaborate:
   collaboration with the patient/carers/MDT/relevant support persons
2. Clarify:
   to distil, summarise and make
   sense of the information, then proceed in a way that
   seeks both to support the patient’s goals and to minimise
   risk.

3.. Communicate:
to the patient/carers/co-workers
thinking out loud for the record

In outlining how justifications for treatment decisions
may be made, it is useful to consider the framework
derived from civil liability law which emphasises notions
of foreseeability, likely seriousness and probability of
risks; the burden of taking precautions to avoid the risk;
the social utility of the activity that creates the risk of
harm; and “other relevant things”.