Psychiatry and the Law I

Presented by Leonard William Mulbry, Jr., M.D.
South Carolina Forensic Psychiatry

Covering the topics of:

Informed Consent

Informed consent is an ethical concept that was made operational by American courts beginning in the 1960's.

Informed consent is the process through which the physician obtains permission from the patient or a substitute decision-maker to provide treatment to the patient.

The decision-maker must be:

Informed Consent

1. Information

The amount or type of information that must be given to the patient in order to meet the requirements of informed consent varies between jurisdictions. In South Carolina we have the: Professional Standard that is to disclose those risks that a reasonable medical practitioner of like training and in the same branch of medicine would disclose under the same or similar circumstances.

Informed Consent

2. Competency

The patient must have the physical and mental capacity to make informed treatment decisions.

The degree of capacity required depends upon the nature of the condition and the risks of the proposed treatment.

All adults are presumed to be competent to make their own treatment decisions unless adjudicated incompetent

A conclusion that the patient lacks the capacity to give informed consent requires the selection of an alternative decision-maker

Informed Consent

3. Voluntary

Competency can be global or task specific.


Informed Consent:

Evaluating Competency

Appelbaum and Grisso 1988

Consequences of Incapacity:


A Guardian is appointed for the Ward.

Guardianship of an estate is the function of a Conservator.

An Agent may be appointed to act through advance directive such as durable power of attorney or health care proxy.

Treatment Refusal

All competent people have the right to refuse treatment. This includes those civilly committed or mentally ill.

If there is suspicion that one does not have capacity, an alternative decision-maker should be sought.

Civil Commitment

Civil Commitment is confinement against one's will due to illness. Commitment laws and processes vary widely state to state.

Before a state can deprive someone of their rights they must have proper procedural protections (due process.)

In non-emergencies the patient is entitled to a full hearing before they can be confined.

Confidentiality and Privilege

Confidentiality refers to the right of a patient to have communications that are spoken or written in confidence not to be disclosed to outside parties wit out implied or expressed authorization.

Evidentiary or Testimonial Privilege is a statutory rule of evidence that permits the holder of the privilege the right to prevent the person to whom confidential information was given form disclosing it in a judicial proceeding.


This information is designed for general information only. The information presented at this site
should not be construed to be formal legal advice nor the formation of a doctor/client relationship.

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