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UNESCO Chair in Bioethics


PSYCHIATRIC ETHICS AND THE
RIGHTS OF PERSONS WITH
MENTAL DISABILITIES IN

INSTITUTIONS AND
THE COMMUNITY

By

Prof. Michael L. Perlin

Prof. Harold Bursztajn

Kris Gledhill, Esq.

Prof. Eva Szeli
*

Contributing Editors

Lisa Cosgrove

Omar Sultan Haque

Robindra Paul

Beata Anna Zolovska

Page 2

COPYRIGHT © UNESCO Chair

UNESCO Chair in Bioethics Office


UNESCO Chair in Bioethics,
P.O.Box 6451, Haifa 31063, Israel

e-mail: [email protected]
Tel: 972 4 911 3281
Fax 972 4 821 1721




ISBN 965-7077-39-7

All rights reserved © 2008

No part of this publication may be reproduced, stored in a
retrieval system, or transmitted in any form or by any means,
electronic, mechanical photocopying recording or otherwise
without the prior written and signed permission of UNESCO
Chair in Bioethics. As a rule, permission will be given to the
review, abstraction, reproduction and translation of this
publication, in part or in whole, but not for sale nor for use in
conjunction with commercial purposes, subject to
acknowledgement of original publication by the UNESCO Chair
in Bioethics, the University of Haifa, Israel.

The views expressed in this document are solely the
responsibility of the authors and do not necessarily represent
the view of organizations with which they are associated.

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65Psychiatric Ethics and the Rights of Persons with Mental
Disabilities in Institutions and the Community

and when better may have no residual tendencies for violence.
Maintaining his trust and confidentiality now will allow him to
remain close to the medical care giving system in the chronic
phase of his illness, and thus further prevent any violent
manifestations from manifesting.

Discussion

Psychiatrists’ capacity for accurate intuitions about future
dangerousness is an essential feature of Tarasoff-like cases. H’s
case exemplifies these complexities and suggests approaches
to resolve problems of clinical assessment.

The assessment of violence includes an understanding of the
type of harm, seriousness of harm, imminence of harm, and
likelihood of harm. Risk factors for future violence include a
history of violence, impulsiveness, reaction to violence,
motivation to maintain self-control, and use of alcohol and
drugs, which should be adequately documented.

The Tarasoff decisions include “imminent danger to identifiable
persons” as a guideline of when a duty to warn obtains. In
contrast to the Tarasoff case and others like it, no explicit threats
are made in the present case, and H denies having thoughts of
wanting to harm his girlfriend. Making problematic any clear
“identifiable persons” standard, H’s violent poetry entails
graphic and disturbing imagery about killing an unidentified
woman with characteristics similar to his girlfriend but without
explicitly naming her. Neither can imminent danger be verified,
as H denies any intent, plans or outward signs of anger towards
his girlfriend. However, given these circumstances, his girlfriend
can be considered naturally and foreseeable in the patient’s
zone of danger, and therefore warning her was appropriate.
Fully accurate predictions of potential violence are not as
central to Tarasoff as much as a basic threshold notion of duty
to warn and public safety.

The professional judgment required in Tarasoff-like situations is
difficult to attain alone. Seeking consultation from colleagues
or forensic psychiatry specialists can only help provide clarity,

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66 Psychiatric Ethics and the Rights of Persons with Mental
Disabilities in Institutions and the Community

and was the best choice in Mr H’s case. It is helpful to avoid
categorical one-dimensional reasoning (for example, as Mr H’s
case demonstrates, making the utterance of the name of the
potential victim an exclusive criterion for intervention) and
approach the decision as a comprehensive multidimensional
assessment of patient risk and public vulnerability.

The psychiatrist must understand the risk profile of the potentially
dangerous patient and identify individual risk factors for
dangerousness, such as capacity for communication under
duress, which was diminished in Mr H. Similarly, it is critical to
identify social risk factors for a potential victim, such as the
capacity for avoidance of the patient upon release. Mr H’s ex-
girlfriend was conceivably able to avoid him, but they
maintained online access to each other and shared mutual
friends.

In the end, any potential intervention to warn or protect must
be done on a case-by-case basis, and with an appreciation of
the contingencies of each involved relationship. Situations of
high risk for violence should have a low threshold for
intervention, and vice-versa.

Case 11:
A, a 20-year-old single man, was admitted to the hospital 18 months
after stabbing a stranger in the neck. He had attempted assaults on
his mother and on numerous hospital staff members, demonstrating
a range of behaviours consistent with the DSM-IV diagnoses of
alcoholism and antisocial personality disorder. He often heard the
voice of his deceased father saying, “Kill, kill!” and “Die, die!”
Specifically, the voice commanded him to kill his mother. He refused
to allow his family to be contacted or involved in his treatment, but
he asked for help with the voices. He had no other sign of psychosis,
and antipsychotic medication brought him little detectable relief.
With the command hallucinations, staff became concerned about a
possible duty to third parties. The staff concluded that, in an “open
ward” setting, a duty to warn did exist; transfer to a closed unit was
rejected as too regressive. Staff proposed a draft of a letter that would
inform A’s mother of the danger to her while also serving to document

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139Psychiatric Ethics and the Rights of Persons with Mental
Disabilities in Institutions and the Community

Chapter 3. Informed Consent

A local hospital has been grappling with how best to obtain
informed consent for its treatments. One idea has been to
develop informed-consent forms. One form states: “I discussed
the benefits, risks, and alternatives of treatment with the
patient,” and the patient is asked to sign the form. However, a
member of the risk management staff found that simple
statement to be inadequate. They suggested that, once a
patient chooses a treatment, she should sign forms that would
list every potential side effect and adverse reaction. Doctors
and other healthcare providers wanted a less time-consuming
way to obtain informed consent. Patients did not understand
medical jargon and wanted more time to discuss the options
for treatment in detail so that they could feel that they made
an informed choice.

Question: Is there a conflict of interest in this case?

YES. Each party wants the patient to make an informed choice
when choosing among various treatment options. However,
the hospital is concerned that, when an adverse outcome
occurs, a lawsuit against the medical provider and hospital will
ensue. Risk-management staff believe that the best form of
protection is an exhaustive list of risks. Doctors under time-
pressure want a simple, easily understood form that will inform
the patients and protect the doctors against malpractice suits.

Discussion

The hospital’s position in this case is: “If you did not document it,
it did not occur.” This quote refers to situations in which doctors
claim that they discussed particular considerations with the
patient, but because they did not document this in the medical
record a jury will believe that the doctor did not warn the patient
of relevant adverse events. However, this is not categorically
true.

Informed consent is an ongoing process, not a “one-time event”

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140 Psychiatric Ethics and the Rights of Persons with Mental
Disabilities in Institutions and the Community

that involves simply signing a form (whether short or long).
Medical providers should discuss the benefits, risks, and
alternatives to treatment, including no treatment at all.
Furthermore, medical providers should engage the patient’s
family or others in her social support systems whenever possible
when making medical decisions. Medical providers should
document these discussions in as much detail as possible. Forms
should be used only when the patient has met with the medical
provider and has had options explained to them. Only after the
patient’s questions have been answered and the medical
provider is satisfied that the patient is able to provide informed
consent should a form be signed as adjunctive documentation
of the informed consent process.

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