“Psychiatry is not an exact science.”Hale LJ in R (B) v Ashworth Hospital Authority (2005)1
Last year a French psychiatrist was found guilty of involuntary homicide after failing to recognise the danger posed by a schizophrenic patient, who went on to kill the elderly partner of his grandmother. This judgment was the first of its kind in France and potentially sets a precedent for future cases.
The psychiatrist, Dr Daniele Canarelli, was sentenced to a one-year suspended sentence as the court found that she had committed the “grave error” of failing to recognise the public danger posed by her patient, Joel Gaillard.
Gaillard, 43, escaped from a hospital consultation with Dr Canarelli in February 2004 and 20 days later he carried out his killing. Gaillard was a paranoid schizophrenic, who had been seeing Dr Canarelli for four years; he had already been committed to a secure hospital on several occasions for a series of increasingly dangerous incidents.
The court found that Dr Canarelli should have requested that her patient be placed in a specialised medical unit or referred to another medical team, as one of her colleagues had suggested, and concluded that her refusal to do so equated to a form of “blindness”.
The SPEP, a union for French state psychiatrists, who backed Dr Canarelli during the trial, described the verdict as “worrying” as it risked scapegoating the profession over a complex case. They also argued that it could lead to the harsher treatment of patients as psychiatrists practise increasingly defensively.
The case of Daniele Canarelli raises serious questions as to how to balance the interests of patients, of psychiatrists, and the safety of the general public.
An imprecise science
The late Dr Patrick McGrath, for many years physician superintendent at Broadmoor Hospital, once said that half of his patients could be discharged, but the problem is knowing which half.
We cannot completely remove risk from psychiatry for it is not an exact science; risk is a fundamental component of psychiatry, as in all medicine. Unfortunately, there is no risk instrument that predicts homicidal behaviour. Incarcerating all risky patients would reduce risk and protect the public, but it would be wholly defensive and inhumane to do so.
We cannot completely remove risk from psychiatry for it is not an exact science
MPS regularly receives calls from psychiatrists seeking medicolegal advice about the decisions they are taking about patients and the risks they present. In Dr Canarelli’s case it has been proposed that she had not taken into account the views of her colleagues, and hadn’t fully considered the previous violent history.
Good practice involves taking therapeutic risks based on thorough risk assessments involving the whole multidisciplinary team (MDT). They back up these discussions with comprehensive notes, which are of course the cornerstone of your defence should your care be questioned.
Professor Keith Rix is a consultant forensic psychiatrist with more than 30 years’ experience working in the medicolegal field. He says that if psychiatrists practise competently they will not end up in the same situation as Dr Canarelli. “The fact that the court found Dr Canarelli responsible for a ‘grave error’ suggests that she was convicted of the equivalent of manslaughter on the grounds of ‘gross negligence’. Not every negligent act of a doctor that results in the death of a patient has the potential to lead to a conviction for manslaughter.”
Good practice involves taking therapeutic risks based on thorough risk assessments involving the whole multidisciplinary team
The degree of responsibility in medical negligence depends on the foreseeability and severity of the consequences of the breach of duty. If it is determined that the breach was serious enough to constitute gross negligence, a doctor could be charged with manslaughter. The seminal case here, R v Adomako, happened in the United Kingdom in 1994. An anaesthetist did not notice that a ventilator had been disconnected for six minutes; a result of which was that the patient suffered a cardiac arrest and died. The conduct of the defendant was regarded as so far below the standard of a reasonable practitioner that it amounted to a criminal act.2
In order to secure a conviction for manslaughter the conduct must have:
- Fallen far below the standard to be expected of a reasonable doctor
- Involved a risk of death
- Constituted a breach of duty so serious that it amounts to a crime.
The Rabone case
In 2005, in the UK, 24-year-old Melanie Rabone was admitted to hospital as an emergency following a suicide attempt. She was assessed as being at high risk of a further suicide attempt, but was not detained under the Mental Health Act 1983. She remained a voluntary or “informal” patient, so when she requested a brief period of home leave, her doctor agreed. The following day, while on leave, she killed herself.3
The Supreme Court held that the treating hospital had a duty to take reasonable steps to avert the risk to life in circumstances where they knew (or ought to have known) of a “real and immediate” threat to that individual. In the specific circumstances of the case, the court held that the hospital involved had violated the positive duty that it had, under Article 2 of the European Convention on Human Rights – the right to life – to protect a voluntary patient from the risk of suicide.
There are similar concerns that depressed patients who are at risk of suicide will be detained longer or not granted leave even when there is only a low likelihood of suicide
Professor Rix observed that this case has caused some anxiety amongst psychiatrists. He points out that the court defined a “real” risk as “a substantial or significant risk and not a remote or fanciful one”, which is a low threshold. The court defined “immediate” as meaning “present and continuing”. He says that there is an understandable concern that if a patient has an antisocial personality disorder and has a history of causing serious harm, a court will deem them as posing a “real and immediate” risk to the public, if allowed to be at large, and so psychiatrists will detain, or seek to detain, such patients longer, if not indefinitely.
Likewise he says that there are similar concerns that depressed patients who are at risk of suicide will be detained longer or not granted leave even when there is only a low likelihood of suicide. However, this duty should not persuade professionals to behave any more cautiously or defensively than they are already persuaded to do by the ordinary law of negligence.4
Balancing the risks
Professor Rix advocates using thorough risk assessments to balance risks. He says: “You need to assess the likelihood of something happening, using all information available to identify what might go wrong, and how serious the consequences would be. This information falls into two categories: historical and dynamic factors. A dynamic factor would be the mental state of the person at the time.
This information should then be used to work out possible scenarios, eg, who might be at risk, what harm might they suffer?”
When using such methods Professor Rix warns practitioners to be wary of tick-box risk assessments. “I have seen a suicide risk assessment instrument that involves putting a tick in a box if the patient is ‘unemployed’ on the basis that this is associated with an increased risk of suicide. But what about the person who has worked all their life, is still employed, but faces almost certain redundancy in the coming weeks or months? It is necessary to think outside the box in order to identify this person probably being at greater risk of suicide than someone who has been unemployed for years and has adjusted to this state.”
The emphasis needs to return to managing risk with clinical examinations, by systematic evaluations of signs and symptoms, thus returning to our enduring duties as doctors
Writing in the British Medical Journal, Dr John Morgan, who chairs a patient safety steering group, made an interesting point. He contended that we need to ensure that common psychiatric risks are not overshadowed by rare ones. He added that the emphasis needs to return to managing risk with clinical examinations, by systematic evaluations of signs and symptoms, thus returning to our enduring duties as doctors.5 Given that in psychiatry the therapeutic and prognostic implications of diagnoses are relatively weak, and the diagnoses themselves relatively unreliable, he has a point.6
Many calls to MPS’s advice line are from psychiatrists who are being pulled in two directions by their employers and their patients; on the one hand they are caught between what is in the patient’s best interests, and on the other, their employer’s needs, such as financial and organisational constraints.
Psychiatrists should always be mindful of what is in the best interests of their patients. Medical councils across the world advise that doctors have a duty to raise concerns where they believe that patient safety is being compromised by the practice of colleagues, or the systems, policies and procedures in the organisation in which they work.
This applies equally to psychiatrists, who may become aware that their employer is applying undue pressure to follow through with action that may put patient safety at risk, or compromise a patient’s care or dignity.
Steps to raise a concern:
Psychiatrists should always be mindful of what is in the best interests of their patients
- Follow the local procedures for reporting near misses and incidents
- Raise concerns with a manager or an appropriate officer, eg, team leader
- If patients are, or may be, at risk of death or serious harm, immediately report those concerns to the appropriate person or organisation
- Be clear, honest and objective about the reason for those concerns
- Keep a record of any steps that have been taken to deal with it.
A patient having a heart attack will not make the front pages, but a patient attacking a member of the public most certainly will. The challenge for psychiatrists is to avoid practising defensively, so as not to undermine the therapeutic privileges afforded to psychiatrists. The message from the Canarelli case is that it should not change psychiatric practice – psychiatrists should continue to practise competently and learn how to balance the risks in order to safeguard their practice for the future.
Professor Keith Rix is a consultant forensic psychiatrist, with more than 30 years’ medicolegal experience, including a Master of Laws in medical law and ethics. His current clinical responsibilities involve caring for particularly disturbed and potentially dangerous patients.
- Hale LJ in R (B) v Ashworth Hospital Authority (2005) 2 AC 278, para 31
- R v Adomako (1994) UKHL 6 (30 June 1994)
- Rabone and Another v Pennine Care NHS Foundation Trust (2012) UKSC 2
- Savage v South Essex Partnership NHS Foundation Trust (2009) AC 681
- Morgan J, Does the emphasis on risk in psychiatry serve the interests of patients or the public? BMJ 346:f902 (2013)
- Kendell RE, The Role of Diagnosis in Psychiatry, Blackwell Scientific Publications, Oxford (1975)