CHAPTER 6
Clinical issues in Psychiatry and the Law
The legal principles applied to the practice of psychiatry do not differ from those applied to medicine in general. Nevertheless, the diagnosis, treatment, and management of patients with psychiatric disorders present unique concerns that may pit the psychiatrist's duty to the patient against the psychiatrist's duty to the community. For instance, the competence of psychiatric patients to make health care decisions is often an issue in psychiatric care, as well as the risks that patients pose to others and how best to reduce those risks. Issues such as informed consent, the duty of confidentiality, the right to treatment, the right to refuse treatment, and substitute decision making commonly confront clinicians when treating psychiatric patients.
The mental threshold for criminal prosecution may demand a psychiatric assessment of the defendant. To ensure fairness and accountability, regardless of whether defendants wish to accept a plea bargain and waive trial or proceed to trial, they must meet minimal standards for competence. The legal standard is functional and does not confuse diagnosis with legal competence. Defendants with psychiatric impairments may not meet the competency standard. Once the issue is raised, however, they may require pretrial evaluations of their mental capacity to ensure that they understand the charges brought against them and their ability to assist counsel in their own defense. Mental state or capacity is also central in deciding criminal responsibility and sentencing. The impact of a psychiatric disorder may be to reduce or avoid criminal responsibility for an act or to shape the length or the terms of confinement after conviction.
In the civil realm, psychiatrists, like all other professionals who render a service, are subject to damage claims by disgruntled clients. Specific areas of psychiatric practice are more vulnerable to psychiatric malpractice suits. Somatic therapies, patient suicides, assessment and management of violent patients, negligent diagnosis and treatment, sexual misconduct, boundary violations, premature discharge of potentially violent patients, and managed care settings all present heightened risk for liability claims against the psychiatric practitioner.
The decision to initiate a treatment or diagnostic procedure belongs to the patient, who has the right to determine what will be done to his or her body (Schloendorff v. Society of New York Hospital 1914). Concomitantly, a physician occupies a fiduciary role to assist in the patient's decision. The law seeks to make that decision meaningful by requiring a physician to inform the patient about the available choices, thereby enabling the patient to give an informed consent. Included among factors to be disclosed are the potential benefits, risks, alternatives, and consequences of the diagnostic or treatment procedure. The failure to satisfy this requirement of informed consent is a breach of the duty that the physician owes a patient and is actionable as a tort (Appelbaum et al. 1987).
The courts typically require that a decision be knowing, intelligent, and voluntary to satisfy the requirements of informed consent (Long v. Jaszczak 2004). As demonstrated in the following list, the use of "competency" instead of "intelligence," and "information" instead of "knowing," is more practical for clinical psychiatrists:
Despite altering the terminology, we do not intend to change the substantive requirements. (A Glossary of Legal Terms is provided in the Appendix to this chapter.)
Usually, clinicians provide the first level of screening in identifying patient competency and in deciding whether to accept a patient's treatment decision. The patient or a bona fide representative must be given an adequate description of the treatment. If the patient who refuses treatment appears to lack health care decision-making capacity, it does not mean that the patient cannot be treated. An appropriate substitute decision maker can provide (or withhold) consent. To be able to provide informed consent, the patient or substitute decision maker should be told about the risks, benefits, and prognosis both with and without treatment as well as alternative treatments and their risks and benefits. In addition, the competent patient must voluntarily consent to or refuse the proposed treatment or procedure.
The legal doctrine of informed consent is consistent with the provision of good clinical care. The informed consent doctrine allows patients to become partners in making treatment determinations that accord with their own needs and values. In the past, physicians operated under the "do no harm" principle. Today, psychiatrists are increasingly required to practice within the model of informed consent and patient autonomy. Most psychiatrists find increased patient autonomy desirable in fostering development of the therapeutic alliance that is so essential to treatment. Furthermore, patient autonomy is the goal of most psychiatric treatments (Beahrs and Gutheil 2001).
It is clinically useful to distinguish the terms incompetence and incapacity. Incompetence refers to a court adjudication, whereas incapacity indicates a functional inability as determined by a clinician (Mishkin 1989). Legally, only competent persons may give informed consent. An adult patient is presumed competent unless adjudicated incompetent or temporarily incapacitated because of a medical emergency. Incapacity does not prevent treatment; it merely requires the clinician to obtain substitute consent or an exception to the requirement of informed consent. Absent an emergency, treating an incompetent patient without substituted consent is not permitted.
Legal competence is typically thought to refer to cognitive capacity. The conception derives largely from the laws governing transactions. Important clinical concepts such as affective incompetence are not usually recognized by the law as dis- ; positive. For example, a patient with severe depression who is cognitively intact may be regarded as competent to refuse antidepressant medication. Patients with mania tend to emphasize the risks of medications while downplaying their benefits, whereas those with schizophrenia tend to be fearful that medication will cause them serious harm. These patients may be unable to make a balanced assessment that considers both the risks and the benefits of a proposed drug. One study, in which three instruments were used to assess competence to make treatment decisions, found that the schizophrenia and depression groups demonstrated poorer understanding of treatment disclosures, poorer reasoning in decision making regarding treatment, and a greater likelihood of failing to appreciate their illness or the potential treatment benefits (Grisso and Appelbaum 1995a). Denial of illness often interferes with insight and the ability to appreciate the significance of information provided to the patient. In In the Guardianship of John Roe (1992), the Massachusetts Supreme Judicial Court recognized that denial of illness can render a patient incompetent to make treatment decisions.
Competency is not a scientifically determinable state and is situation specific. The issue of competency arises in a number of civil, criminal, and family law contexts. Although there are no hard-and-fast definitions, the patient's ability to do the following is legally germane to determining competency:
A review of case law and scholarly literature revealed four standards for determining competency in decision making (Appelbaum et al. 1987). These standards, in order of increasing levels of mental capacity required, are listed in Table 6-1.
Patients with severe mental disorders frequently deny their illness. Although they may communicate a choice and understand the information provided, these patients may lack the insight or ability to appreciate the information provided (Grisso and Appelbaum 1995b). Rational decision making is impaired as well. For example, patients with schizophrenia tend to fear some idiosyncratic harm from the treatment while ignoring the actual risk of medication side effects.
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Table 6-1. Four standards for determining competency in decision making |
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Communication of choice Understanding of relevant information provided Appreciation of available options and consequences Rational decision making |
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Source. Appelbaum et al. 1987, pp. 84-87.
Most psychiatrists prefer a rational decision-making standard in determining incompetency. Most courts prefer the first two standards in the earlier bulleted list but often combine competency standards. A truly informed consent that considers the patient's autonomy, personal needs, and values occurs when rational decision making is applied by the patient to the risks and benefits of appropriate treatment options provided by the clinician.
Grisso and Appelbaum (1995a) found that the choice of standards determining competency affected the type and proportion of patients classified as impaired. When compound standards were used, the proportion of patients identified as impaired increased. These authors advised that clinicians be aware of the applicable standards in their jurisdictions.
A valid consent can be either expressed (orally or in writing) or implied from the patient's actions. The competency issue is particularly sensitive when dealing with minors or mentally disabled persons who lack the requisite cognitive capacity for health care decision making. In both cases, it is generally recognized in the law that an authorized representative or guardian may provide consent for the patient.
The standard for exercising a legally sufficient disclosure varies from state to state. Traditionally, the duty to disclose was measured by a professional standard: either what a reasonable physician would disclose under the circumstances or what the customary disclosure practices of physicians are in a particular community. In the landmark case Canterbury v. Spence, a patient-oriented standard was applied. This standard focused on the "material" information that a reasonable person in the patient's position would want to know to make an informed decision (Canterbury v. Spence 1972). An increasing number of courts have applied this standard, and some have expanded "material risks" to include information regarding the consequences of not consenting to the treatment or procedure (Truman v. Thomas 1980). Even in patient-oriented jurisdictions, there is no duty to disclose every possible risk. A material risk is defined as one in which a physician knows or should know what would be considered significant by a reasonable person in the patient's position.
For consent to be considered legally voluntary, it must be given freely by the patient and without coercion, fraud, or duress. In evaluating whether consent is truly voluntary, the courts typically examine all the relevant circumstances, including the psychiatrist's manner, the environmental conditions, and the patient's mental state.
Malcolm (1992) noted subtle differences in the concepts of persuasion and coercion. Persuasion is defined as the physician's aim "to utilize the patient's reasoning ability to arrive at a desired result" (p. 241). Coercion occurs "when the doctor aims to manipulate the patient by introducing extraneous elements which have the effect of undermining the patient's ability to reason" (p. 241).
There are two basic exceptions to the requirement of obtaining informed consent. The first is that when immediate treatment is necessary to save a life or prevent serious harm, and it is not possible to obtain either the patient's consent or that of someone authorized to provide consent for the patient, the law typically presumes that the consent would have been granted. Two considerations are relevant when applying this exception: 1) the emergency must be serious and "imminent," and 2) the patient's condition—and not the surrounding circumstances (e.g., adverse environmental conditions)—determines the existence of an emergency.
The second exception, therapeutic privilege, does not require informed consent if a psychiatrist determines that a complete disclosure of possible risks and alternatives might have a deleterious impact on the patient's health and welfare. Jurisdictions vary in their application of this exception. Absent specific case law or statutes outlining the factors relevant to such a decision, a doctor must substantiate a patient's inability psychologically to withstand being informed of the proposed treatment. Some courts have held that therapeutic privilege may be invoked only if informing the patient will worsen his or her condition or will so frighten the patient that rational decision making will be precluded (Canterbury v. Spence 1972; Natanson v. Kline 1960). Therapeutic privilege cannot be used as a means of circumventing the legal requirement for obtaining informed consent from the patient before initiating treatment.
A physician need not disclose risks of treatment when the patient has competently, knowingly, and voluntarily waived his or her right to be informed (e.g., when the patient does not want to be informed of drug risks). This is not an exception to the requirement of informed consent but rather a patient choice to decide with limited information.
Absent a waiver or an exception, treatment without adequate informed consent opens the door to a damage claim for an intentional tort if the treatment is initiated without consent or a negligence tort if treatment is initiated without adequate consent.
Confidentiality refers to the right of a patient, and the correlative duty of a professional, regarding nondisclosure of relational communications to outside parties without implied or expressed authorization. The duty of confidentiality limits the actions of the professional but does not limit the power of a judge to compel disclosure of relevant relational confidences. Privilege, or more accurately relational privilege, is a limitation on the power of the judge to compel disclosure of relational confidences. A psychiatrist-, psychotherapist-, or physician-patient privilege may be recognized by case law (Jaffee v. Redmond 1996) but is more typically a statute or rule of evidence that permits the holder of the privilege (e.g., the patient) to prevent the person to whom confidential information was given (e.g., the psychiatrist) from being compelled by a judge to disclose it in a judicial proceeding.
Although most laws relating to confidentiality of health information have been enacted at the state level, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) added a layer of federal law to protect patient health care information. If state and federal laws conflict, the more protective rule prevails. HIPAA limits disclosure of patient health information without patient authorization except as necessary for treatment, payment, and health care operations; however, the limitation is not absolute. For example, HIPAA permits disclosure in a judicial or administrative (e.g., workers' compensation or Social Security) proceeding when there is 1) the patient's written consent, 2) a subpoena, or 3) a court order signed by a judge. A separate consent is required to permit the disclosure of psychotherapy notes.
Clinical-legal foundation. Relational privileges require courts to compromise their search for truth by not availing themselves of relevant evidence. Thus, courts have typically been reluctant to recognize a privilege and quick to find an exception applicable (Shuman and Weiner 1987). Indeed, the common law did not recognize physician-patient or psychotherapist-patient privilege. When courts have done so, it has been because they have been convinced of its necessity to further a relationship of great utility to society. For example, in 1996 the U.S. Supreme Court ruled that confidential communications between psychotherapist and patient are privileged and, unless an exception applies, may not be compelled in federal trials (Jaffee v. Redmond 1996). In the majority of cases where a privilege is recognized by statute or rule of evidence, there is typically an acknowledgment of similar reasoning.
Breaching of confidentiality. Once the doctor-patient relationship has been created, the professional assumes a duty to safeguard a patient's disclosures. This duty is not absolute, and there are circumstances in which breaching confidentiality is both ethical and legal.
Patients also waive confidentiality in a variety of situations, especially in managed care settings. Medical records may be sent to potential employers or to insurance companies when benefits are requested. A limited waiver of confidentiality ordinarily exists when a patient participates in group therapy. Whether one group member can be compelled in court to disclose information shared by another group member during group therapy has not been settled legally (Slovenko 1998). Many state confidentiality statutes provide statutory exceptions to confidentiality between the psychiatrist and the patient in one or more situations (Brakel et al. 1985) (Table 6-2).
If a patient gives a psychiatrist good reason to believe that a warning should be issued to an endangered third party, the duty of confidentiality of the communication that gave rise to the warning may be limited. Psychiatrists who have issued warnings have been compelled to testify in criminal cases (Leong et al. 1992), although the obligation to breach confidentiality may not resolve the privilege issue at trial.
The patient, not the clinician, is the holder of the physician-, psychiatrist-, or psychotherapist-patient privilege and is entitled to determine whether to assert it. Relational privileges govern disclosures in the judicial setting (e.g., deposition, trial), whereas the duty of confidentiality governs disclosures in extrajudicial settings (e.g., cocktail parties, memoirs, visits by the police). Privilege statutes or case law recognition represents recognition by the state of the importance of protecting information provided by a patient to a psychotherapist. This recognition moves away from the essential purpose of the American system of justice (e.g., "truth finding") by insulating certain information from disclosure in court. This protection is justified on the basis that the special need for privacy in the psychotherapist-patient relationship outweighs the unbridled quest for an accurate outcome in court.
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Table 6-2. Testimonial privilege: common exceptions |
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Child abuse reporting Involuntary hospitalization and sexually violent predator commitments (civil commitment proceedings) Court-ordered evaluations Cases in which a patient places his or her mental state in question as a claim or defense (patient-litigant exception) Criminal proceedings Child custody disputes Child abuse proceedings |
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Source. Reprinted from Simon RI, Shuman DW (eds): Clinical Manual of Psychiatry and Law. Washington, DC, American Psychiatric Publishing, 2007, p. 47. Copyright 2007, American Psychiatric Publishing. Used with permission.
Privilege statutes usually are drafted with reference to one of the following four relationships, depending on the type of practitioner:
Privilege statutes also specify exceptions to testimonial privilege. Although exceptions vary, the most common are summarized in Table 6-2.
The patient-litigant exception commonly occurs in the insanity defense, will contests, workers' compensation cases, child custody disputes, personal injury actions, and medical malpractice actions.
An unauthorized or unwarranted breach of the duty of confidentiality can cause a patient emotional harm and result in a claim based on at least four theories:
Supported by constitutionally derived rights to privacy and freedom from cruel and unusual punishment, the common law tort of battery, and the doctrine of informed consent, persons with mental disorders have been afforded protection typically available for patients of nonpsychiatric physicians—the right to refuse treatment. This right often collides with clinical judgment (i.e., to treat and protect). As a result of this conflict, the courts vary considerably regarding the parameters of this right and the procedures to be followed if it is to be overridden.
Two landmark cases illustrate this point. In Rennie v. Klein (1978), the Third Circuit Court of Appeals recognized a patient's right to refuse treatment in the state of New Jersey. The court concluded, however, that this right could be overridden and antipsychotic drugs administered "whenever, in the exercise of professional judgment, such an action is deemed necessary to prevent the patient from endangering himself or others" (Rennie v. Klein 1978). In the second case, Rogers v. Commissioner of Department of Mental Health (1983), the Massachusetts high court decided that in the absence of an emergency (e.g., serious threat of extreme violence or personal injury);.-any person who has not been adjudicated incompetent has a right to refuse antipsychotic medication. Incompetent persons have a similar right, but it must be exercised through a "substituted judgment treatment plan" that has been reviewed and approved by the court.
These two decisions are often viewed as legal bookends to the issue of the right to refuse treatment. The cases suggest parameters for other courts attempting to define such a right. The Rennie case became the model for subsequent legal decisions that adopted a treatment-driven rationale for the right to refuse treatment. Rogers became the basis for rights-driven approaches taken by some courts in litigating the right to refuse treatment.
Numerous state and federal decisions have tackled aspects of this issue. Generally speaking, there is recognition of an involuntarily hospitalized patient's right to refuse medication absent an emergency or an adjudication of incompetence made in conjunction with the order of commitment. Case law criteria for emergencies range from a risk of "imminent" harm to self or others to a deterioration in the patient's mental condition if treatment is halted. Until either more states enact legislation or the U.S. Supreme Court squarely rules on this issue, jurisdictions will continue to vary regarding the substance of the right to refuse treatment and the procedures by which such a right can be implemented.
Another context in which this issue of right to refuse treatment arises is when the government wishes to medicate a nonconsenting pretrial detainee found incompetent to stand trial. In Sell v. United States (2003), the U.S. Supreme Court set forth the findings that the trial court is required to reach before the government may administer antipsychotic drugs to render a nonconsenting defendant competent to stand trial. The court acknowledged that its decisions in Riggins v. Nevada (1992) and Washington v. Harper (1990) had recognized a constitutionally protected liberty interest in avoiding unwanted antipsychotic drugs that might be overridden in limited circumstances. It concluded that these decisions permit the trial court to authorize the involuntary administration of drugs to restore the defendant's competency only when four requirements are met:
The ability to effectively exercise rights recognized by the law demands a minimal mental capacity or competency. One articulation of the meaning of competency is "having sufficient capacity, ability ... [or] possessing the requisite physical, mental, natural, or legal qualifications" (Black 1990, p. 285). This conceptualization is deliberately vague because competency is a broad concept encompassing many different legal issues and contexts. As a result, its requirements can vary widely depending on the circumstances in which it is being measured (e.g., making health care decisions, executing a will, or confessing to a crime).
Competency refers to a minimal mental, cognitive, or behavioral ability, trait, or capability required to perform a particular act (e.g., waive counsel) or to assume a particular role (e.g., practice dentistry). A determination of incompetency is ultimately a judicial determination. The term incapacity, which is often interchanged with incompetency, refers to an individual's functional inability to understand or to form an intention with regard to some act as determined by health care providers (Mishkin 1989).
The legal designation of "incompetent" is applied to an individual who fails one of the mental tests of capacity and is therefore considered by law to be not mentally capable of performing a particular act or assuming a particular role. The adjudication of incompetence by a court is now more commonly subject or issue specific. For example, the fact that a psychiatric patient is adjudicated incompetent to drive does not automatically render that patient incompetent to do other things, such as give consent to treatment, testify as a witness, marry, or enter into a contract.
Generally, the law only gives effect to decisions by a competent individual and seeks to protect incompetent individuals from the harmful effects of their acts. Adults (ages 18 years and older; U.S. Department of Health and Human Services 1981) are presumed to be competent (Meek v. City of Loveland 1929). This presumption, however, may be rebutted by evidence of incapacity (Scaria v. St. Paul Fire and Marine Ins. Co. 1975). For the psychiatric patient, perception, short-and long-term memory, judgment, language comprehension, verbal fluency, and reality orientation are mental functions that a court will scrutinize when the issues of capacity and competency have been raised.
As a matter of law, incompetency may not be presumed from either treatment for mental illness (Wilson v. Lehman 1964) or institutionalization (Rennie v. Klein 1978). Mental disability or illness does not necessarily render a person incompetent in any or in all areas of functioning. Instead, scrutiny is given to determine whether specific functional incapacities exist that render a person incapable of making a particular kind of decision or performing a particular type of task.
Respect for individual autonomy (Schloendorff v. Society of New York Hospital 1914) demands that individuals be allowed to make decisions of which they are capable, even if they are seriously mentally ill, developmentally arrested, or organically impaired. A judicial determination of incompetence must precede an abridgement of that decision-making authority. Physical and mental illness is but one factor to be weighed in determining competency.
The most common malpractice claim arising from psychiatric care is the failure to provide reasonable protection to patients from harming themselves. Categories of negligent failings that are frequently asserted include failures of diagnosis (i.e., failure to assess the potential for suicide), treatment (i.e., failure to use reasonable treatment interventions and precautions), and implementation (i.e., failure to carry out treatment properly and not negligently).
These categorical failings, each of which applies to both inpatient and outpatient settings, are simply different ways in which the practitioner's duty of care may have been breached by unreasonable conduct. Claims for conduct resulting in the death of a patient are governed by the same tort principles that apply when a living patient brings a malpractice claim. However, because tort claims at common law did not survive the death of a patient, most states have legislation permitting the survival of such actions by the former patient's estate under the banner of wrongful death. Although they apply traditional tort principles, most wrongful-death actions brought for patient suicides turn on the legal concepts of foreseeability, reasonableness, and causation. As a general rule, a psychiatrist who exercises reasonable care in compliance with accepted medical practice will not be held liable for any resulting injury. Thus, if the fact finder concludes that a patient's suicide was not reasonably foreseeable, that the precautions taken by the psychiatrist were reasonable, or, even if they were not, that the suicide was caused by an unforeseeable intervening factor, the claim will fail.
The evaluation of suicide risk is one of the most complex, difficult, and challenging clinical tasks in psychiatry (Simon 2004). Suicide is a rare event. A systematic assessment of a patient's suicide risk forms the basis of a sound clinical management plan. Using reasonable care in assessing suicide risk can preempt the problem of predicting the actual occurrence of suicide, for which professional standards do not exist. Standard approaches to the assessment of suicide risk and protective factors are described in the psychiatric literature (Simon and Hales 2006). Time attenuates suicide risk assessments, requiring that assessment be a process, not an event.
A review of case law shows that reasonable care requires that a patient who is either suspected of being or confirmed to be suicidal must be the subject of certain affirmative precautions. A failure either to reasonably assess a patient's suicide risk or to implement an appropriate precautionary plan after the suicide potential becomes foreseeable is likely to render a practitioner liable if the patient is harmed because of a suicide attempt. The law permits the fact finder to conclude that suicide is preventable if it is foreseeable. Foreseeability, however, should not be confused with prevent-ability. In hindsight, many suicides seem preventable that were clearly not foreseeable.
When suicide risk assessments are competently performed and recorded, the psychiatrist demonstrates careful and thorough management of the suicidal patient. Moreover, evidence of a reasonable suicide risk assessment also demonstrates that the psychiatrist adhered to the prevailing standard of care. Although psychiatrists cannot ensure favorable outcomes with suicidal patients, they can ensure that the process of suicide risk assessment was competently performed (Simon 2002).
Inpatients. Intervention in an inpatient setting usually requires the following:
Careful documentation of assessments and management interventions with changes responsive to the patient's clinical situation are evidence of clinically and legally sufficient psychiatric care. Assessing both suicide risk and protective factors is essential. Documenting the benefits of a psychiatric intervention (e.g., ward change, pass, discharge) against the risk of suicide permits an evenhanded approach to the clinical management of the patient.
Psychiatrists are more likely to be sued successfully when a psychiatric inpatient commits suicide. The law permits the fact finder to conclude that the opportunities to foresee (i.e., anticipate) and control (i.e., treat and manage) suicidal patients are greater in the hospital (Hofflander v. St. Catherine's Hospital 2003).
Outpatients. Psychiatrists are expected to reasonably assess the risk of suicide. The result of the assessment dictates the treatment and safety management options. Psychiatrists are not strictly liable whenever an outpatient commits suicide (Speer v. United States 1981). Instead, the reasonableness of the psychiatrist's efforts is determinative.
Suicide prevention contracts created between the clinician and the patient attempt to develop an expressed understanding that the patient will call for help rather than act out suicidal thoughts or impulses. These contracts have no legal authority. Although they may be helpful in solidifying the therapeutic alliance, contracts may falsely reassure the psychiatrist. Suicide prevention agreements between psychiatrists and patients must not be used in place of adequate suicide assessment (Simon 1999).
A psychiatrist's answer to a malpractice claim arising out of a patient suicide usually consists of a denial of allegations in the plaintiff's complaint. The fact finder might reject the allegation that the psychiatrist breached a duty that proximately caused the patient's suicide. In addition, the defendant's answer to the complaint might include affirmative defenses that have the legal effect of defeating the claim even if the defendant's negligence proximately caused the patient's suicide.
One approach to denying a crucial allegation of the plaintiff's case is to prove that the care and supervision provided were reasonable. One example of that denial of negligence is the best-judgment defense asserting that the patient was properly assessed and treated for suicide risk but committed suicide anyway (Robertson 1991). In some cases, the treatment may appear to contribute to the risk. This has proved to be controversial in the use of the "open door" policy, in which patients are allowed more freedom of movement for therapeutic purposes. In these cases, the individual facts and reasonableness of the staff's application of the open door policy are paramount. Nevertheless, courts have difficulty with abstract treatment notions such as personal growth when faced with a dead patient.
The plaintiff must persuade the fact finder that the psychiatrist's negligence more likely than not caused the patient's suicide. Thus, proof that the suicide was caused by an unforeseeable intervening cause negates a critical element of the claim. For example, a fact finder may find a psychiatrist not liable for the suicidal act of a patient with borderline personality disorder who experienced a traumatic loss of a romantic relationship between therapy sessions and then impulsively attempted suicide without trying to contact the psychiatrist.
Affirmative defenses, such as the statute of limitations, bar untimely claims regardless of their merits. Governmental or sovereign immunity, where it exists, bars claims regardless of the strength of the plaintiff's claim.
As a general rule, absent a special relationship, one person has no duty to control the conduct of a second person to prevent that person from harming a third person (Restatement [Second] of Torts 1965). Applying this rule to psychiatric care, psychiatrists traditionally have had only a limited duty owed to third persons to control their patients. Included in this limited class of duty to third persons for the acts of their patients are negligent discharge of a dangerous patient who harms a third person and failure to warn a patient about the risks of driving while taking certain medications, resulting in injury to others (Felthous 1990). After Tarasoff (Tarasoff v. Regents of the University of California 1976), the therapist's legal duty and potential liability significantly expanded in the outpatient setting in many, but not all, states (Thapar v. Zezulka 1999). In Tarasoff, the California Supreme Court reasoned that a duty to protect third parties was imposed when a special relationship existed between the individual whose conduct created the danger and the defendant. Finding this special relationship requirement met in this setting, the court concluded that "the single relationship of a doctor to his patient is sufficient to support the duty to exercise reasonable care to protect others [from the violent acts of patients]." Critical to recognizing a duty in this situation was the court's assumption about mental health professionals and the foreseeability of violence.
Psychiatrists do not have the ability to predict violence with any accuracy (Pokorny 1983). Violent behaviors are the result of the complex interplay among social, clinical, and personality factors that vary significantly across situations and time (Widiger and Trull 1994). Nonetheless, clinical methods for assessing the risk of violence exist that reflect the current standard of care (Baxter and Beck 1998; Monahan and Steadman 1994; Simon 1992a; Tardiff 2002).
Assessment of risk of violence is essentially a clinical judgment. The MacArthur Violence Risk Assessment Study was established to improve clinical risk assessment validity, enhance effective clinical risk management, and provide data on mental disorders and violence for informing mental health law and policy (Monahan et al. 2001). In this study, violence risk assessments were found to have a validity that was modestly better than chance. Until more studies are available, sound clinical practice requires that thorough violence risk assessments be routinely performed with potentially violent patients on the basis of current knowledge of violence risk factors. Although violence risk assessments need to be made at such critical points as the initiation of ward status changes, passes, and discharge, violence risk assessment is more of a continuing process than a solitary event. All such assessments should be duly recorded.
The index of suspicion for potential violence should be high for patients with a past history of violence who are currently making serious threats of harm toward specific individuals. The potential for violence is further heightened if the patient is acutely psychotic, substance abusing, angry, or fearful of being harmed, or is experiencing delusions of being controlled or influenced (Link and Stueve 1994).
Courts in other jurisdictions have interpreted the Tarasoff case variously. Some states have adopted the Tarasoff holding, whereas others have limited or extended its scope and reach. In most states, psychotherapists have a duty, established by case law or statute, to act affirmatively to protect an endangered third party from a patient's violent or dangerous acts. A few courts have declined to find a Tarasoff duty in a specific case, whereas some courts have simply rejected the Tarasoff duty (Evans v. United States 1995; Green v. Ross 1997). In Thapar v. Zezulka (1999), the Texas Supreme Court ruled that the state statute on confidentiality permits but does not require disclosures by therapists of threats of harm to endangered third parties by their patients (Thapar v. Zezulka 1999).
When courts have found a duty to protect, they have required an "imminent" threat of serious harm to a foreseeable victim. The term imminent, however, is a problematic construct for assessing violence (Simon 2006). Decisions have sought not only to narrow the time frame within which the violence that triggers the duty might arise but also to limit the persons who are at risk. Only a small minority of courts have held that a duty to protect exists for the population at large; most require an identifiable victim to be at risk. In some jurisdictions, courts have held that the need to safeguard the public well-being overrides all other considerations, including confidentiality. Despite the fact that the Tarasoff duty is still not law in some jurisdictions and is subject to different interpretations by individual courts, the duty to protect is, in effect, a national standard of practice.
Several states have enacted statutes that immunize the psychiatrist from legal liability arising from a patient's violent acts toward others when the psychiatrist facing this predicament takes certain action such as warning the endangered third party and/or notifying the authorities (Appelbaum et al. 1989). The duty-to-protect language stated in some statutes allows for a greater variety of clinical interventions than does warning alone.
An important evolving trend is the application of the Tarasoff duty to sexual abuse cases by an alleged pedophile. A psychiatrist and residency supervisor, Dr. Ingram, was denied dismissal of a claim against him—by a child patient who was abused by the psychiatrist's psychiatric resident/patient, Dr. DeMasi—for not reporting to the medical school that DeMasi was a pedophile (Garamelia v. New York Medical College 1998). DeMasi molested the child at a hospital crisis center. The court reasoned that Ingram's control over DeMasi was far greater than in the typical psychiatrist-patient relationship, leaving for trial whether the plaintiff "was within a foreseeable class of victims to whom Dr. Ingram might owe a duty of care arising from DeMasi's disclosure. The issue of foreseeability is a disputed one, properly reserved for the trier of fact" (pp. 174-175).
A Tarasoff duty was also found where a spouse had knowledge of her husband's sexually abusive behavior against children in the neighborhood (J.S. v. R.T. 1998; Touchette v. Ganal 1996). In another case, the court found that a Tarasoff duty could exist but declined to find the parents of a babysitter liable for his dangerous sexual behavior (People v. Rose 1998). The court determined that no evidence existed that the parents knew of their son's proclivity to commit sexual assault.
Under managed care, discharging violent or potentially violent inpatients presents unique challenges for treating psychiatrists (Simon 1998). The treatment of psychiatric inpatients has changed dramatically in the managed care era (Lazarus and Sharfstein 1994). Most psychiatric units, particularly in general hospitals, have become short-stay, acute-care psychiatric facilities. Generally, only suicidal, homicidal, or gravely disabled patients with major psychiatric disorders pass strict precertification review for hospitalization (Tischler 1990). Close scrutiny by utilization reviewers permits only short hospitalization for these patients (Wickizer et al. 1996). The purpose of hospitalization is crisis intervention and management to stabilize patients and ensure their safety. The treatment of patients is provided by a variety of mental health professionals. Nonetheless, the psychiatrist often must bear the ultimate burden of liability for treatments gone awry ("Why Are Liability Premiums Rising?" 1996). Limited opportunity usually exists during the hospital stay to develop a therapeutic alliance with patients. The ability to communicate with patients—the psychiatrist's stock-in-trade—is often severely curtailed. All of these factors contribute to a greatly increased risk of malpractice suits against psychiatrists that allege premature or negligent discharge of patients due to cost-containment policies.
There is more control over the patient in the hospital than is available in an outpatient setting. Courts closely evaluate decisions made by psychiatrists in treating inpatients that adversely affect the patients or a third party. Liability imposed on psychiatric facilities that had custody of patients who injured others outside the institution after escape or release is clearly distinguishable from the factual situation of Tarasoff. Duty-to-warn cases generally involve patients in outpatient treatment. Liability arises from the inaction of the therapist who fails to take affirmative measures to warn or protect endangered third parties. In negligent-release cases, liability may arise from the allegation that the institution's affirmative act in releasing the patient caused injury to the third party. Moreover, allegations may be made that a psychiatrist or other hospital personnel failed, prior to the patient's discharge, to warn individuals known to be at risk of harm from that patient. Lawsuits stemming from the release of foreseeably dangerous patients who subsequently injure or kill others are roughly five to six times more common than outpatient duty-to-warn lawsuits (Simon 1992b).
The psychiatrist's liability is determined by reference to professional standards. Consultation with other psychiatrists may provide additional protection when the discharge of a potentially violent patient appears problematic. Consulting with an attorney may help clarify legal obligations, but clinicians ultimately must exercise their professional judgment.
The patient's willingness to cooperate with the psychiatrist is critical to maintaining follow-up treatment. The psychiatrist's obligation focuses on structuring the follow-up visits in such a manner as to encourage compliance. A study of Department of Veterans Affairs (VA) inpatient referrals to a VA mental health outpatient clinic showed that of the 24% of inpatients who were referred, approximately one-half failed to keep their first appointment (Zeldow and Taub 1981). Nevertheless, limitations do exist on the extent of the psychiatrist's ability to ensure follow-up care. Most patients retain the right to refuse treatment. These limitations must be acknowledged by both the psychiatric and legal communities (Simon 1992a). The American Medical Association Council on Scientific Affairs has developed evidence-based discharge criteria for safe discharge from the hospital (American Medical Association 1996).
In either the outpatient or inpatient situation, psychiatrists are in compliance with the responsibility to warn and protect others from potentially violent patients if they reasonably assess the patients' risk for violence and make clinically appropriate interventions based on their findings. Professional standards do exist for assessment of the risk factors for violence (Simon 2001), but no standard of care exists for the prediction of violent behavior. The clinician should assess the risk of violence frequently, updating the risk assessment at significant clinical junctures (e.g., room and ward changes, passes, discharge). A risk-benefit assessment should be conducted and recorded before a pass or discharge is issued. Assessing the risk of violence is a "here and now" determination performed at the time of discharge. After the patient is discharged, the potential for violence against self or others depends on the nature and course of the mental illness, adequacy of future treatment, adherence to treatment recommendations, and exposure to unforeseeable stressful life events.
Involuntary hospitalization of persons with mental disorders is limited to statutorily defined criteria in all states. Based on the state's decision to exercise its constitutional authority, all states have authorized civil commitment of individuals who are mentally ill and dangerous to self or others, and some states also permit commitment of individuals who are mentally ill and unable to provide for their basic needs. Generally, each state spells out which criteria are required and what each criterion means. Terms such as mentally ill are often loosely described, thus placing the responsibility for appropriate diagnosis on the clinical judgment of the petitioner.
Some states have enacted legislation that permits involuntary hospitalization of three other distinct groups in addition to individuals with mental illness: persons with developmental disabilities, persons with substance addictions, and minors with mental disabilities. Special commitment provisions may exist that govern requirements for the admission and discharge of minors with mental disabilities as well as numerous due-process rights afforded these individuals (Parham v. J.R. 1979).
Involuntary hospitalization of psychiatric patients usually arises when violent behavior threatens to erupt toward self or others and when patients become unable to care for themselves. These patients frequently manifest mental disorders and conditions that meet the substantive criteria for involuntary hospitalization.
Courts, not clinicians, have the authority to commit patients. The psychiatrist initiates the process that brings the patient before the court, usually after a brief period of hospitalization for evaluation or after an evaluation of a prospective patient at the request of the court. The psychiatrist must be guided by the treatment needs of the patient in seeking involuntary hospitalization, within the constraints of commitment standards.
Commitment statutes do not require involuntary hospitalization but are permissive (Appelbaum et al. 1989). The statutes enable mental health professionals and others to seek involuntary hospitalization for persons who meet certain substantive criteria. The duty to seek involuntary hospitalization is a standard-of-care issue. Patients who are mentally ill and pose a serious threat to themselves or others may require involuntary hospitalization as a primary psychiatric intervention.
Because psychiatrists are often granted conditional immunity for their good-faith participation in involuntary hospitalization proceedings, it is not surprising that most malpractice claims involving involuntary hospitalization allege an absence of good faith in the psychiatrists' behavior. Often these lawsuits are brought under the theory of false imprisonment. Other areas of liability that may arise from wrongful commitment include assault and battery, malicious prosecution, abuse of authority, and intentional infliction of emotional distress (Simon 1992a).
The use of reasonable professional judgment is perhaps the best evidence that the psychiatrist's actions were taken in good faith (Mishkin 1989). Performing a careful examination of the patient, abiding by the requirements of the law, and ensuring that sound reasoning motivates the certification of the patient are good clinical practice and only secondarily good risk management. Evidence of willful, blatant, or gross failure to adhere to statutorily defined commitment procedures may expose a psychiatrist to a lawsuit.
Most states recognize the right of inpatients to refuse treatment. Even though a patient is involuntarily hospitalized, the order for hospitalization, without a more specific finding, does not negate a presumption of competence. In most states, patients involuntarily hospitalized who refuse medication are entitled to a separate court hearing for an adjudication of incompetence and the provision of substituted consent by the court. In a civil rights action by a state prisoner challenging involuntary treatment with antipsychotic drugs without a prior judicial hearing, the U.S. Supreme Court ruled, in Washington v. Harper (1990), that involuntary treatment of a prisoner was constitutionally permissible when the prisoner was found to be a serious danger to himself or others as the result of a mental illness and the treatment was in the prisoner's medical interest. The court found that in lieu of a judicial hearing, administrative procedures that included review by an administrative panel satisfied procedural due-process requirements.
Hospitalized patients possess other rights. Patients possess rights of visitation, although these rights can be temporarily suspended for proper cause relating to a patient's care and treatment. Free communications of hospitalized patients through mail, telephone, or visitors are considered a right, unless protection of the patients or others requires supervision of communications. The right to privacy includes allowing patients to have secure locker space, private toilet and shower facilities, and a minimum square footage of floor space. Protection of confidentiality is also included. Economic rights include the right to have and spend money and to handle one's own financial affairs responsibly. In most jurisdictions, involuntarily hospitalized patients do not lose their civil rights, such as the right to manage their own money. Hospitalized patients must be paid for their work unless it is truly therapeutic labor (i.e., intended to benefit the patient, not the hospital). "Patients' rights" are not absolute and often must be tempered by the clinical judgment of the mental health professional. Inevitably, disputes over perceived or real violations of patients' rights arise. In some jurisdictions, a civil rights officer or ombudsman is mandated by statute to mediate these disputes.
The legal regulation of seclusion and restraint has become increasingly more stringent. Legal challenges to the use of seclusion and restraints have been made on behalf of institutionalized persons with mental illness or mental retardation. Frequently, these lawsuits do not stand alone but are part of a challenge to a wide range of alleged abuses within a hospital (Recupero et al. 2011).
Generally, the courts have held that seclusion and restraints are an intrusion on a patient's constitutionally protected interests and may be implemented only when a patient presents a risk of harm to self or others and no less restrictive alternative is available. Some courts have also required the following:
In addition to these substantive limitations, some courts and state statutes articulate procedural due-process requirements that must precede implementation of a seclusion or restraint order. Typical due-process considerations include some form of notice, a hearing, and the involvement of an impartial decision maker. The process that is due is context dependent; thus, what may be called for in a 3 A.M. emergency will differ from what may be called for at 3 P.M.
The acceptability of seclusion or restraint for the purposes of training was recognized in the landmark case Youngberg v. Romeo (1982). Youngberg involved a challenge to the "treatment" practices at the Pennhurst State School and Hospital in Pennsylvania. The U.S. Supreme Court held that patients could not be restrained except to ensure their safety or, in certain undefined circumstances, "to provide needed training." Although it recognized that patients had a liberty interest in safety and freedom from bodily restraint, the court added that these interests were not absolute and were in conflict with the need to provide training. The court also held that decisions made by appropriate professionals regarding restraining the patient would presumptively be considered correct. The court recognized that professionals, rather than the courts, are best able to determine the needs of patients, including when restraint is appropriate.
Most states have enacted statutes regulating the use of restraints, normally specifying the circumstances in which restraints can be used. Most often, those circumstances occur only when a risk of harm to self or danger to others is "imminent." Statutory regulation of the use of seclusion is far less common. Most states with laws regarding seclusion and restraint require some type of documentation of their use.
The Center for Medicare Services, The Joint Commission (2006), and most states have developed requirements designed to minimize and avoid the use of seclusion and restraint (Simon and Hales 2006). Where they apply, federal requirements establish a floor but may be superseded by more restrictive state laws. The requirements define seclusion and restraint as follows: Seclusion is the involuntary confinement of a person alone in a room where the person is physically prevented from leaving or the separation of the patient from others in a safe, contained, controlled environment. Restraint is the direct application of physical force to an individual, with or without the individual's permission, to restrict his or her freedom of movement. Physical force may involve human touch, mechanical devices, or a combination thereof. Under the federal rules, the use of these interventions is regarded as presenting an inherent risk to the patient's physical safety and well-being and therefore may be used only when there is "imminent risk" that the patient may inflict harm to self or others. As do many state laws, federal law includes the use of drugs in the definition of restraint (Simon and Hales 2006). Federal law permits the use of seclusion and restraint only as a last resort to protect the patient's safety and dignity and never for the convenience of the staff.
Specifically, federal requirements permit qualified staff members to initiate seclusion or restraint for the safety and protection of the patient and staff only if they obtain an order from the licensed independent practitioner as soon as possible within 1 hour of initiation. Stringent requirements for face-to-face evaluation of the patient within 1 hour of initiation and for assessment, frequency of reassessment, monitoring, time-limited orders, notification of family members, discontinuation at the earliest possible opportunity, and debriefing with patient and staff members have been carefully defined by the Center for Medicare Services and The Joint Commission.
The treatment of psychiatric inpatients has changed in the managed care era. Most psychiatric units, particularly those in general hospitals, have become short-stay, acute-care psychiatric facilities. Generally, only suicidal, homicidal, and gravely disabled patients with major psychiatric disorders pass strict precertification review for hospitalization. Approximately half of these patients have comorbid substance-related disorders. The purpose of hospitalization is crisis intervention and management to stabilize patients and ensure their safety as quickly as possible (Simon and Hales 2006).
Because the clinical staff can become temporarily overwhelmed by the rapid admission of very sick patients, the psychiatric unit may need to briefly restrict or curtail new admissions. Patients should not be placed in seclusion or restraint for the convenience of the staff or because of insufficient staffing. The indications and safety precautions for seclusion and restraint should be thoroughly documented. Seclusion and restraint should be used only when all other treatment and safety measures have failed.
The indications and contraindications for seclusion and restraint are discussed elsewhere (American Psychiatric Association 1985). Seclusion and restraint may be necessary to prevent self-harm for the patient assessed at high risk for suicide. If the patient can be engaged by the staff shortly after admission, a nascent therapeutic alliance may develop. Appropriate medications given at therapeutic levels often stabilize the high-risk patient. If the suicidal patient is placed in seclusion and restraint, direct observation is required, according to regulatory and hospital policies. Seclusion rooms should have windows or audiovisual surveillance capability (Lieberman et al. 2004). Open-door seclusion is preferable when clinically appropriate.
Therapist-patient sex is usually preceded by progressive boundary violations in treatment (Simon 1989). As a consequence, patients are often psycho-. logically damaged by the precursor boundary violations as well as the eventual sexual misconduct of the therapist (Simon 1991). An excellent account of the gradual erosion of treatment boundaries leading to near loss of control with a client is given by Rutter (1989).
General boundary guidelines exist for conducting psychiatric treatment (Simon 1992c). Awareness of these guidelines and of their transgression may help alert the therapist to progressive boundary violations (Simon 1994). Sexual misconduct does not occur in isolation but usually involves a variety of negligent acts of omission and commission.
Three types of legal responses to sexual misconduct have been enacted: reporting, civil liability, and criminal prosecution. Reporting statutes require a therapist who learns of any past or current therapist-patient sex to disclose this information. Some states have enacted civil statutes that make it explicit that sexual misconduct is a violation of the standard of care and authorize a damage claim (Bisbing et al. 1995). Criminal statutes addressing sexual misconduct have also been enacted. They may be appropriate given the therapist's behavior and may be the only remedy for exploitative therapists who do not have malpractice insurance, therapists who are unlicensed, or therapists who do not belong to professional organizations.
Psychiatrists who sexually exploit their patients are subject to civil and criminal sanctions as well as ethical and professional licensure disciplinary proceedings. The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry, 2009 Edition Revised (American Psychiatric Association 2009) states that sex with a current or former patient is unethical (Section 2, Annotation 1). However, a malpractice claim is probably the most common legal response.
To prevail in a medical malpractice claim for sexual misconduct, the plaintiff has the burden of proving, by a preponderance of the evidence (i.e., "more likely than not"), among other things, that the exploitation took place. This burden can be met by corroborating evidence, such as letters, pictures, hotel receipts, and identification of incriminating body markings of the exploiter, as well as the testimony of other abused (former) patients. The plaintiff is also required to demonstrate that the misconduct caused harm such as a worsened psychiatric condition, suicide attempts, or the necessity for hospitalization. Expert psychiatric testimony is usually required to establish the type and extent of psychological damage as well as to establish whether a breach of the standard of care occurred.
Some states have enacted civil statutes proscribing sexual misconduct (Simon 1992a). Several states make therapist sexual misconduct a crime (Bisbing et al. 1995). Some states prosecute sexual exploitation suits under their sexual assault statutes. A number of states have enacted statutes that provide civil and criminal remedies to patients who were sexually abused by their therapists (Appelbaum 1990; Strasburger et al. 1991). For instance, Minnesota has enacted legislation that states the following:
A cause of action against a psychotherapist for sexual exploitation exists for a patient or former patient for injury caused by sexual contact with the psychotherapist, if the sexual contact occurred: (1) during the period the patient was receiving psychotherapy ... or (2) after the period the patient received psychotherapy ... if (a) the former patient was emotionally dependent on the psychotherapist; or (b) the sexual contact occurred by means of therapeutic deception. (Minnesota Statute § 604.201 2011)
A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:
(h) the actor is a psychotherapist and the complainant is a patient of the psychotherapist and the sexual penetration occurred: (i) during the psychotherapy session; or (ii) outside the psychotherapy session if an ongoing psychotherapist-patient relationship exists. Consent by the complainant is not a defense. (Minnesota Statute § 609.344 2011)
It is not a recognized defense to these common-law or statutory remedies that the patient was aware that sex was not a part of treatment, that the sex occurred outside the treatment setting, that treatment ended before the sexual relationship began, or that the patient consented to the sexual contact. Patients cannot consent to malpractice. In sexual misconduct cases, the issue is never patient consent but always breach of fiduciary trust by the therapist and the harm it caused.
There is no "respected minority" in the profession that claims sexual relations with patients is therapeutic. This position had a few adherents at one time but is no longer publicly advocated by credible mental health professionals.
Sexual exploitation of a patient may be classified as rape or sexual assault (Hoge et al. 1995). Many of the new statutes criminalizing therapist-patient sexual misconduct assume, as a matter of law, that a current patient is incapable of giving consent to sexual relations with his or her therapist and treat all sexual relations between therapist and patient as a criminal act committed by the therapist (Minnesota Statute § 609.344 2011). In states without such a provision, sex with a current patient may be criminally actionable under sexual assault statutes if the state can prove that the patient was coerced into engaging in the sexual act. Typically, this type of evidence is limited to the use of some form of substance (e.g., medication) either to induce compliance or to reduce resistance. Anesthesia, electroconvulsive therapy, hypnosis, drugs, force, and threat of harm have been used to coerce patients into sexual submission (Schoener et al. 1989). To date, claims of psychological coercion through the manipulation of transference phenomena have not been successful in establishing the coercion necessary for a criminal case. In cases involving minors and adult incompetent patients, the issue of consent or coercion is irrelevant because these individuals are considered unable to provide valid consent. Therefore, sex with a child or an incompetent person is automatically considered a criminal act.
For the purposes of adjudicating allegations of professional misconduct, licensing boards are typically granted certain regulatory and disciplinary authority by state statutes. As a result, state licensing organizations, unlike professional associations, may discipline an offending professional by suspending or revoking his or her license to practice. There is no cost to a patient to seek redress through this means, and licensure boards are not constrained by statutes of limitations. A review of published reports of sexual misconduct cases adjudicated before licensing boards revealed that in the vast majority of cases, the evidence was reasonably sufficient to substantiate a claim of exploitation, leading to revocation of the professional's license or suspension from practice for varying lengths of time, including permanently.
Patients can bring ethical charges against psychiatrists before the district branches of the American Psychiatric Association (APA) at any time. Ethical violators who are members may be reprimanded, suspended, or expelled from the APA. All national organizations of mental health professionals have ethically proscribed sexual relations between therapist and patient.
Key Clinical Points
† Professor Shuman passed away on April 26, 2011.
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Appendix: Glossary of Legal Terms |
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| Term | Definition | |
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Action |
See Civil action. |
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Adjudication |
The formal pronouncement of a judgment or decree in a cause of action. |
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Assault |
Any willful attempt or threat to inflict injury. |
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Battery |
An intentional and wrongful physical contact with an individual without consent that causes some injury or offensive touching. |
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Beyond a reasonable doubt |
The level of proof required to convict a person in a criminal trial. This is the highest level of proof required (90%-95% range of certainty). |
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Breach of contract |
A violation of or failure to perform any or all of the terms of an agreement. |
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Brief |
A written statement prepared by legal counsel arguing a case. |
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Burden of proof |
The legal obligation to prove affirmatively a disputed fact (or facts) related to an issue that is raised by the parties in a case. |
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Capacity |
The status or attributes necessary for a person so that his or her acts may be legally and responsibly acknowledged and recognized. |
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Case law |
The aggregate of reported cases as forming a body of law on a particular subject. |
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Cause in fact |
The requirement of fact that without the defendant's wrongful conduct, the harm to the plaintiff would not have occurred. |
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Cause of action |
The grounds of an action—that is, those facts that, if alleged and proved in a suit, would enable the plaintiff to attain a judgment. |
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Civil action |
A lawsuit brought by a private individual or group to recover money or property, to enforce or protect a civil right, or to prevent or redress a civil wrong. |
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Civil law |
As contrasted with criminal law, a system for enforcement of private rights arising from sources such as torts and contracts. |
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Clear and convincing |
A proof that results in reasonable certainty of the truth of an ultimate fact in controversy (75% range of certainty); for example, the minimum level of evidence necessary to involuntarily hospitalize a patient. |
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Common law |
A system of law based on customs, traditional usage, and prior case law rather than codified written laws (statutes). |
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Compensatory damages |
Damages awarded to a person as compensation, indemnity, or restitution for harm sustained. |
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Competency |
The mental capacity to understand the nature of an act. |
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Consent decree |
An agreement by a defendant to cease activities asserted as illegal by the government. |
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Consortium |
The right of a husband or wife to the care, affection, company, and cooperation of the other spouse in every aspect of the marital relationship. |
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Contract |
A legally enforceable agreement between two or more parties to do or not do a particular thing upon sufficient consideration. |
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Criminal law |
The branch of the law that defines crimes and provides for their punishment. Unlike civil law, penalties include imprisonment. |
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Damages |
A sum of money awarded to a person injured by the unlawful act or negligence of another. |
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Defendant |
A person or legal entity against whom a claim or charge is brought. |
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Due process (of law) |
The constitutional guarantee protecting individuals from arbitrary and unreasonable actions by the government that would deprive them of their basic rights to life, liberty, or property. |
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Duress |
Compulsion or constraint, as by force or threat, exercised to make a person do or say something against his or her will. |
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Duty |
The legal obligation that one person owes another. Whenever one person has a right, another person has a corresponding duty to preserve or not interfere with that right. |
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False imprisonment |
The unlawful restraint or detention of one person by another. |
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Fiduciary |
A person who acts for another in a capacity that involves a confidence or trust. |
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Forensic psychiatry |
A subspecialty of psychiatry in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, correctional, or legislative matters. |
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Fraud |
Any act of trickery, deceit, or misrepresentation designed to deprive someone of property or to do harm. |
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Guardianship |
A legal arrangement wherein one individual (the guardian) possesses the legal right and duty to care for another individual (the ward) and his or her property. |
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Hold harmless |
An agreement to protect a party from damages. |
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Immunity |
The freedom from duty or penalty. |
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Incompetency |
A lack of ability or fitness for some legal qualification necessary for the performance of an act (e.g., being a minor, lacking mental competency). |
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Informed consent |
A competent person's voluntary agreement to allow something to happen that is based on full disclosure of facts needed to make a knowing decision. |
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Intentional tort |
A tort in which the actor is expressly or implicitly judged to have possessed an intent or purpose to cause injury. |
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Judgment |
The final determination or adjudication by a court of the claims of parties in an action. |
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Jurisdiction |
The legal right by which courts or judicial officers exercise their authority. |
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Malpractice |
Any professional misconduct or unreasonable lack of skill in professional or fiduciary duties. |
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Miranda warning |
Refers to the Miranda v. Arizona decision that requires a four-part warning to be given prior to any custodial interrogation. |
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Negligence |
The failure to exercise the standard of care that would be expected of a normally reasonable and prudent person in a particular set of circumstances. |
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Nominal damages |
Generally, damages of a small monetary amount indicating a violation of a legal right without any important loss or damage to the plaintiff. |
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Parens patriae |
The authority of the state to exercise sovereignty and guardianship of a person with legal disability so as to act on his or her behalf in protecting health, comfort, and welfare interests. |
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Plaintiff |
The complaining party in an action; the person who brings a cause of action. |
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Police power |
The power of government to make and enforce all laws and regulations necessary for the welfare of the state and its citizens. |
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Power of attorney |
A document giving someone authority to act on behalf of the grantor. |
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Preponderance of evidence |
Superiority in the weight of evidence presented by one side over that of the other (51% range of certainty); the level of certainty required in order to prevail in civil trials. |
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Privileged communication |
Those statements made by certain persons within a protected relationship (e.g., doctor-patient) that the law protects from forced disclosure. |
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Proximate cause |
The direct, immediate cause to which an injury or loss can be attributed and without which the injury or loss would not have occurred. |
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Proxy |
A person empowered by another to represent, act, or vote for him or her. |
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Punitive damages |
Damages awarded over and above those to which the plaintiff is entitled, generally given to punish or make an example of the defendant. |
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Respondeat superior |
The doctrine whereby the master (i.e., employer) is strictly liable in certain cases for the wrongful acts of his or her servants (i.e., employees). |
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Right |
A power, privilege, demand, or claim possessed by a particular person by virtue of law. Every legal right that one person possesses imposes corresponding legal duties on other persons. |
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Sovereign immunity |
The immunity of a government from being sued in court except with its consent. |
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Standard of care (negligence law) |
In the law of negligence, that degree of care that a reasonably prudent person should exercise under the same or similar circumstances. |
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Stare decisis |
The duty to adhere to precedents and not to unsettle principles of law that are established. |
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Statute |
An act of the legislature declaring, commanding, or prohibiting something. |
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Subpoena |
A writ commanding a person to appear in court. |
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Subpoena ad testificandum |
A writ commanding a person to appear in court to give testimony. |
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Subpoena duces tecum |
A writ commanding a person to appear in court with particular documents or other evidence. |
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Tort |
Any private or civil wrong by act or omission, not including breach of contract. |
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United States Code (U.S.C.) |
The compilation of laws derived from federal legislation. |
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Vicarious liability |
See Respondeat superior. |
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