Danuta Mendelson

Malingering pain in the medicolegal context

Malingering—the willful, deliberate, and fraudulent feigning or exaggeration of illness—was originally described as a means of avoiding military service. In present-day clinical practice, malingering may occur in circumstances where the person wishes to avoid legal responsibility or in situations where compensation or some other benefit might be obtained. In law, the term malingering is used in relation to persons to whom military regulations apply; in other situations, malingering is regarded as fraud and may lead to charges of perjury or criminal fraud. Assertions that an individual is malingering are particularly common in clinical settings where the complaint is of a subjective nature and is not accompanied by objectively demonstrable organic abnormalities. This may occur in relation to complaints of pain in situations where the person is entitled to receive pain-contingent compensation or is suing for damages. In this article, we will review the literature on pain and malingering and discuss attempts that have been made to develop methods and guidelines for the detection of malingered pain. There are, however, no valid clinical methods of assessment of possible malingering of pain. In our view, the ultimate issue of the veracity of the plaintiff is for the Court to decide, and epithets such as “malingerer” have no place in reports prepared for legal purposes by health care professionals.

A Comparative Study of the Law of Palliative Care and End‐of‐Life Treatment

This article examines the law of palliative care and end-of-life treatment in three common law countries, the United Kingdom, Australia, and Canada; and in five civil law countries, Poland, France, Germany, Japan and the Netherlands.

Clinical, ethical and legal considerations in the treatment of newborns with non-ketotic hyperglycinaemia.

Non-ketotic hyperglycinaemia (NKH) is a devastating neurometabolic disorder leading, in its classical form, to early death or severe disability and poor quality of life in survivors. Affected neonates may need ventilatory support during a short period of respiratory depression. The transient dependence on ventilation dictates urgency in decision-making regarding withdrawal of therapy. The occurrence of patients with apparent transient forms of the disease, albeit rare, adds uncertainty to the prediction of clinical outcome and dictates that the current practice of withholding or withdrawing therapy in these neonates be reviewed. Both bioethics and law take the view that treatment decisions should be based on the best interests of the patient. The medical-ethics approach is based on the principles of non-maleficence, beneficence, autonomy and justice. The law relating to withholding or withdrawing life-sustaining treatment is complex and varies between jurisdictions. Physicians treating newborns with NKH need to provide families with accurate and complete information regarding the disease and the relative probability of possible outcomes of the neonatal presentation and to explore the extent to which family members are willing to take part in the decision making process. Cultural and religious attitudes, which may potentially clash with bioethical and juridical principles, need to be considered.

Historical evolution and modern implications of concepts of consent to, and refusal of, medical treatment in the law of trespass.

Many mischiefs arise on the change of a maxim and rule of the Common Law, which those who altered it could not see when they made the change.

Tarasoff down under : the psychiatrist's duty to warn in Australia

The authors discuss the differences between the U.S. and Australia in legal approach and in the codes of medical ethics to the issues of medical confidentiality and disclosure as represented by the Tarasoff case. It is argued that in Australia, a psychotherapist would not be justified in breaching his duty of confidentiality towards a patient. The ethical codes that govern clinical practice in Australia, and the common law, focus primarily upon the therapeutic relationship between the doctor and the patient, virtually excluding any considerations extraneous to that relationship.

English Medical Experts and the Claims for Shock Occasioned by Railway Collisions in the 1860s Issues of Law, Ethics, and Medicine

This article examines social and medicolegal developments, which have contributed to the evolution of medical and forensic culture in the mid-19th-century England, whereby the ideal of a nonpartisan expert witness would often be honoured more in the breach than in practice. There has been considerable body of literature relating to medical witnesses who appeared in criminal cases. This article, however, analyses legal and medical responses to the dramatic upsurge in civil compensation claims for personal injuries occasioned through railway accidents. It looks back to a time before psychiatry became recognised as a discrete branch of medicine, and surgeons as well as physicians treated patients whose condition would today be diagnosed as a severe psychiatric reaction to a traumatic event.

The Interface of the Civil and Criminal Law of Suicide at Common Law (1194-1845)

Nowadays, suicide is considered essentially a private act, although what constitutes suicide for epidemiological and even clinical purposes in not wholly resolved. Historically, however, at common law, the act of self-killing was a felony with significant religious and legal consequences that impacted upon the deceased person as well as upon his or her whole family. This article identifies the influence of Christian theology, legal theory, and social and medical developments upon attitudes to the felony of self-murder and its definition. It focuses upon the start of more psychologically informed attitudes manifested in landmark court judgments involving exclusion clauses in English mid-nineteenth century insurance contracts. The article illustrates that the law in respect of socially controversial matters does not necessarily develops in a linear progression, nor does it accurately reflect public sentiments. More specifically, the article describes an ongoing definitional conundrum with suicide--whether it should be designated as committed by persons of significantly impaired mental state. The authors observe that in spite of reform to the criminal law of suicide, the civil law relating to suicide has continued to be characterised by ambivalence, ambiguity and significant vestiges of counter-therapeutic moralising.

Assisted Suicide Through the Prism of the Right to Life

Part of the reason for the ongoing confusion regarding the status of assisted suicide is the cluttered moral and legal matrix that is normally invoked to evaluate the practice. It results in a calculus that is impossible to coherently unravel, allowing commentators to tenably assert any position. The authors attempt to inject clarity into the debate by focusing on the issue through the lens of the most important interest at stake: the right to life. It is arguable that while there are well-established exceptions to the right to life, they only apply where the right to life is itself at stake (such as self-defence). There is no sound argument for suggesting that the circumstances underpinning suicide constitute another exception to the right to life. Thus, suicide and assisted suicide are unjustifiable. An analysis of the empirical data in jurisdictions where assisted suicide has been legalised suggests that legalisation leads to an increase in assisted suicides. The adverse indirect consequences of the often ostensibly compassionate act of assisted suicide outweigh any supposed benefits from the practice. It follows that assisted suicide should lead to criminal sanctions. At the same time, it is important to acknowledge that, paradoxically, the right to life arguments against assisted suicide mandate greater community measures to eliminate or reduce the causes of suicide.

Statutory regimes relating to third party consent by patients with Alzheimer’s type dementia

Clinical trials on human subjects in Australia have to be conducted in accordance with written protocols which have been submitted for approval to a relevant Institutional Ethics Committee (IEQ whose main function is to act as a guardian of the interests of human subjects of research guided by the principle that the rights of the research subjects should take priority over the advancement of knowledge. The ethical and legal questions posed by clinical trials on patients suffering from Dementia include: the ability of potential participants suffering from early stages of Dementia to grant valid consent; the ability of the IECs to monitor the progress of cognitive impairment in those participants who have previously granted consent; the ability of the IECs to scrutinise the validity of consent to participation in clinical trials granted by third parties on behalf of severely demented patients. The article discusses ethical concerns and legal problems associated with granting a “third party consent” on behal...

Current and Future Evidence in Personal Damage Evaluation

The most widely used methods of impairment rating at the present time are the Guides to the Evaluation of Permanent Impairment issued by the American Medical Association, developed from a series of articles in the Journal of the American Medical Association during the period February 1958 to August 1970. This chapter will discuss concerns related to the evaluation of impairment associated with pain and with ‘mental and behavioral disorders’. However, before doing so the most important concerns related to the basic concepts and terminology used in this field of clinical medicine are discussed, namely the usage and meaning of terms such as “impairment”, “disability” and “handicap”. The chapter on the evaluation of impairment associated with “mental and behavioral disorders” in the 6th edition of the AMA Guides requires the use of three instruments, namely: (1) the Brief Psychiatric Rating Scale for the rating of symptoms; (2) the Global Assessment of Functioning Scale (GAF) from DSM-IV for the rating of ‘psychological, social, and occupational functioning’—it should be noted that the GAF has been “dropped from DSM-5 for among others, its conceptual lack of clarity and questionable psychometrics in routine practice”;—and (3) the mis-named Psychiatric Impairment Rating Scale, which incorrectly includes “Travel” and ‘Employability’ as ratings of psychiatric impairment. The chapter will provide an overview of the Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC), developed in Victoria, Australia, which in our view is the only currently published instrument that rates psychiatric impairment without allowing the rating to be contaminated by what the WHO would consider as aspects of disability and/or handicap using the definitions set out in the ICIDH.