Mental harm, rescuers and the Civil Liability Act 2002 (NSW)

At common law, a duty of care may be owed to a claimant who suffers nervous shock or pure mental harm due to witnessing, or hearing about, physical injury caused to another due to a defendant’s negligence. “Pure mental harm” is the ‘impairment of a person’s mental condition’ that is not suffered as a consequence of any other kind of personal injury to them. However, as many accidents have the potential to create a wide circle of mental suffering to bystanders, family members or others not physically injured themselves, it has traditionally been ‘thought impolitic that everybody so affected should be able to recover damages from the tortfeasor.’ ‘To allow such extended recovery would stretch liability too far.’ Nevertheless, whilst adopting a restrictive approach to liability, the common law courts have recognised that a defendant might owe a duty in relation to the pure mental harm suffered by one who foreseeably attends an accident scene to rescue another from a situation created by the defendant’s negligence.

Duty of care for mental harm suffered by rescuers

In Wicks v State Rail Authority NSW; Sheehan v State Rail Authority NSW [2010] HCA 22 (16 June 2010) the duty of care owed to rescuers, who were police officers, at a train derailment, was considered in conjunction with the interpretation of the Civil Liability Act (NSW) 2002.

Legal duties following the discharge of mental health patients

In the recent decision of Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon, the High Court of Australia held that a hospital and its medical staff owed no common law duty of care to third parties claiming for mental harm, against the background of statutory powers to detain mentally ill patients. This conclusion was based in part on the statutory framework and in part on the inconsistency which would arise if such a duty was imposed. If such a duty was imposed in these circumstances, the consequence may be that doctors would generally detain rather than discharge mentally ill persons to avoid the foreseeable risk of harm to others. Such an approach would be inconsistent with the policy of the mental health legislation , which favours personal liberty and discharge rather than detention unless no other care of a less restrictive kind is appropriate and reasonably available.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Rwanda Crisis and Genocide in Case Law of Rwanda Tribunal

After the Second World War the public was shocked to learn about the horrors perpetrated. As a response to the Holocaust, the newly established United Nations adopted the Genocide Convention of 1948 to prevent future genocides and to punish the perpetrators. The Convention remained, however, almost dead letter until the present day. In 1994, the long-lasted tension between the major groups of Hutu and Tutsi in Rwanda erupted in mass scale violence towards the Tutsi ethnic group. The purpose was to eradicate the Tutsi population of Rwanda. The international community did not halt the genocide. It stood by idle, failing to follow the swearing-in of the past. The United Nations established the International Criminal Tribunal for Rwanda (the ICTR) to bring to justice persons responsible for the genocide. Ever since its creation the ICTR has delivered a wealth of judgements elucidating the legal ingredients of the crime of genocide. The case law on determining the membership of national, ethnic, racial or religious groups has gradually shifted from the objective to subjective position. The membership of a group is seen as a subjective rather than objective concept. However, a totally subjective approach is not accepted. Therefore, it is necessary to determine some objective existence of a group. The provision on the underlying offences is not so difficult to interpret compared to the corresponding one on the protected groups and the mental element of genocide. The case law examined, e.g., whether there is any difference between the words killing and meurtre, the nature of mental harm caused by the perpetrator and sexual violence in the conflict. The mental element of genocide or dolus specialis of genocide is not thoroughly examined in the case law of the ICTR. In this regard, reference in made, in addition, to the case law of the other ad hoc Tribunal. The ICTR has made a significant contribution to the law of genocide and international criminal justice in general. The corpus of procedural and substantive law constitutes a basis for subsequent trials in international and hybrid tribunals. For national jurisdictions the jurisprudence on substantive law is useful while prosecuting international crimes.

Nuclear disasters and health: lessons learned, challenges, and proposals

Past nuclear disasters, such as the atomic bombings in 1945 and major accidents at nuclear power plants, have highlighted similarities in potential public health effects of radiation in both circumstances, including health issues unrelated to radiation exposure. Although the rarity of nuclear disasters limits opportunities to undertake rigorous research of evidence-based interventions and strategies, identification of lessons learned and development of an effective plan to protect the public, minimise negative effects, and protect emergency workers from exposure to high-dose radiation is important. Additionally, research is needed to help decision makers to avoid premature deaths among patients already in hospitals and other vulnerable groups during evacuation. Since nuclear disasters can affect hundreds of thousands of people, a substantial number of people are at risk of physical and mental harm in each disaster. During the recovery period after a nuclear disaster, physicians might need to screen for psychological burdens and provide general physical and mental health care for many affected residents who might experience long-term displacement. Reliable communication of personalised risks has emerged as a challenge for health-care professionals beyond the need to explain radiation protection. To overcome difficulties of risk communication and provide decision aids to protect workers, vulnerable people, and residents after a nuclear disaster, physicians should receive training in nuclear disaster response. This training should include evidence-based interventions, support decisions to balance potential harms and benefits, and take account of scientific uncertainty in provision of community health care. An open and joint learning process is essential to prepare for, and minimise the effects of, future nuclear disasters.

Human Security in India. A Mixed Bag

With security being viewed as ensuring protection from physical and mental harm, freedom from want and fear, human security has moved to the centre stage of the global development agenda. This paper argues that even with low income, one can achieve higher human development like higher life expectancy, lower fertility and high literacy. Amartya Sen, Nobel Laureate of India, has characterised it as “development as freedom”. Lack of substantive freedom is inexorably linked to economic poverty and backwardness. Nearly all States in India have succeeded in reducing poverty, but those States with better human development have fared better. The trickle-down alone will not spread the benefits of reform. Measured State intervention and adequate provision of safety nets for the vulnerable sections of people are needed to make development more sustainable. Democracy and development go hand in hand. The democratic, accountable and transparent governance is the best insurance against poverty and marginalisation. The test of good governance must be premised on how the State and civil society negotiate differences via constitutional guarantees and political institutions. Good governance is the key to equitable growth.-----Con la visión de la seguridad como la garantía de protección contra daños físicos y mentales, de estar liberados de necesidades y temores, la seguridad humana ha pasado a ser la estrella central del programa del desarrollo global. En este trabajo se argumenta que, incluso con ingresos bajos, uno puede lograr un mayor desarrollo humano, como una esperanza de vida más larga, una menor fertilidad y una mejor educación. Amartya Sen, Premio Nobel de India, lo ha caracterizado como “el desarrollo como libertad”. La falta de libertad fundamental está vinculada inexorablemente a la pobreza económica y el retraso. Casi todos los Estados de la India han reducido la pobreza con éxito, pero aquellos que tienen un mejor desarrollo humano han salido mejor. Tan solo esta reducción paulatina no va a difundir los beneficios de la reforma. La intervención medida del Estado y su adecuado suministro de redes de seguridad para los sectores vulnerables de la población son necesarios para hacer más sostenible el desarrollo. La democracia y el desarrollo van de la mano. El gobierno democrático, responsable y transparente es el mejor seguro contra la pobreza y la marginalización. La prueba del buen gobierno debe tener como premisa la forma en que el Estado y la sociedad civil negocien las diferencias a través de garantías constitucionales e instituciones políticas. El buen gobierno es la clave para el crecimiento justo.

Speaking with different voices: the problems with English law and psychiatric injury

Private law courts in the UK have maintained the de minimis threshold as a condition precedent for a successful claim for the infliction of mental harm. This de minimis threshold necessitates the presence of a ‘recognised psychiatric illness’ as opposed to ‘mere emotion’. This standard has also been adopted by the criminal law courts when reading the Offences Against the Person Act 1861 to include non-physical injury. In determining the cut-off point between psychiatric injury and mere emotion, the courts have adopted a generally passive acceptance of expert testimony and the guidelines used by mental health professionals to make diagnoses. Yet these guidelines were developed for use in a clinical setting, not a legal one. This article examines the difficulty inherent in utilising the ‘dimensional’ diagnostic criteria used by mental health professionals to answer ‘categorical’ legal questions. This is of particular concern following publication of the new diagnostic manual, DSM-V in 2013, which will further exacerbate concerns about compatibility. It is argued that a new set of diagnostic guidelines, tailored specifically for use in a legal context, is now a necessity.

Do cyberbullies suffer too? Cyberbullies' perceptions of the harm they cause to others and to their own mental health

While it is recognised that there are serious correlates for students who are victims of cyberbullying including depression, anxiety, lower self-esteem and social difficulties, there has been little research attention paid to the mental health of students who cyberbully. It is known that students who traditionally bully report they feel indifferent to their victims, showing a lack of empathy and that they themselves are at increased risk for psychosocial adjustment. However, there is scant research on the mental health associations of students who cyberbully or their awareness of their impact on others. The current study sought to ascertain from Australian students who reported cyberbullying others in years 6 to 12 (10-19 years of age), their perceptions of their mental health and the harm they caused to and the impact their actions had, on their victims. Most students who cyberbullied did not think that their bullying was harsh or had an impact on their victims. They reported more social difficulties and higher scores on stress, depression and anxiety scales than those students who were not involved in any bullying. The implications of these findings for the mental health of the cyberbullies and for psychologists in schools who assist them, are dis-cussed.

Acute mental stress and hemostasis: When physiology becomes vascular harm

Stress-induced activation of the sympathoadrenal medullary system activates both the coagulation and fibrinolysis system resulting in net hypercoagulability. The evolutionary interpretation of this physiology is that stress-hypercoagulability protects a healthy organism from excess bleeding should injury occur in fight-or-flight situations. In turn, acute mental stress, negative emotions and psychological trauma also are triggering factors of atherothrombotic events and possibly of venous thromboembolism. Individuals with pre-existent atherosclerosis and impaired endothelial anticoagulant function are the most vulnerable to experience onset of acute coronary events within two hours of intense emotions. A range of sociodemographic and psychosocial factors (e.g., chronic stress and negative affect) might critically intensify and prolong stress-induced hypercoagulability. In contrast, several pharmacological compounds, dietary flavanoids, and positive affect mitigate the acute prothrombotic stress response. Studies are needed to investigate whether attenuation of stress-hypercoagulability through medications and biobehavioral interventions reduce the risk of thrombotic incidents in at-risk populations.

Current evidence on integrated treatment for serious mental disorder and substance misuse

Substance misuse in people with serious mental disorders is common and has a wideranging negative impact. The multiplicity of problems suggests that this comorbidity is better conceptualized as a type of complex disorder than by ‘dual diagnosis’. Problems with sequential and parallel treatments have led to the development of integrated approaches, with one practitioner or team addressing both the substance use and mental disorder. These treatments are typically characterized by motivation enhancement, minimizing treatment-related stress, emphasizing harm reduction as well as abstinence, and assertive outreach. A review of published randomized trials demonstrates that superior effects to controls are rarely consistent across treatment foci and over time. While motivational interventions assist engagement, more intervention is usually required for integrated treatment programs to improve long-term outcomes more than control conditions. More intensive case management does not consistently improve impact, but extended cognitive-behavioral therapies have promise. Suggestions for maximizing treatment effects and improving research evidence are provided.

Refugee Mental Health Interventions

There is great diversity in the type of interventions carried out under the rubric of “refugee mental health.” This is partly due to the holistic ecological and psychosocial approaches that have come to dominate research and humanitarian understandings of refugee mental health. The diverse application of psychosocial principles in refugee mental health is also extended by the many varied locations in which such interventions are carried out. Guidelines have been developed to aid would-be practitioners of mental health care amongst refugee communities. However, challenges remain in demonstrating the effectiveness of the approaches used. The maxim “do no harm” which must guide all interventions in this area has nonetheless been threatened at times by well-meaning, yet misguided actions. Despite these issues, there is much promise that together with refugees themselves, steps can be taken to promote well-being and relieve distress in communities of people displaced by conflict.

Developmental origins of psychological vulnerability factors for mental disorders

Premature birth and associated small body size are known to affect health over the life course. Moreover, compelling evidence suggests that birth size throughout its whole range of variation is inversely associated with risk for cardiovascular disease and type 2 diabetes in subsequent life. To explain these findings, the Developmental Origins of Health and Disease (DOHaD) model has been introduced. Within this framework, restricted physical growth is, to a large extent, considered either a product of harmful environmental influences, such as suboptimal nutrition and alterations in the foetal hormonal milieu, or an adaptive reaction to the environment. Whether inverse associations exist between body size at birth and psychological vulnerability factors for mental disorders is poorly known. Thus, the aim of this thesis was to study in three large prospective cohorts whether prenatal and postnatal physical growth, across the whole range of variation, is associated with subsequent temperament/personality traits and psychological symptoms that are considered vulnerability factors for mental disorders. Weight and length at birth in full term infants showed quadratic associations with the temperamental trait of harm avoidance (Study I). The highest scores were characteristic of the smallest individuals, followed by the heaviest/longest. Linear associations between birth size and psychological outcomes were found such that lower weight and thinness at birth predicted more pronounced trait anxiety in late adulthood (Study II); lower birth weight, placental size, and head circumference at 12 months predicted a more pronounced positive schitzotypal trait in women (Study III); and thinness and smaller head circumference at birth associated with symptoms of attention-deficit hyperactivity disorder (ADHD) in children who were born at term (Study IV). These associations occured across the whole variation in birth size and after adjusting for several confounders. With respect to growth after birth, individuals with high trait anxiety scores in late adulthood were lighter in weight and thinner in infancy, and gained weight more rapidly between 7 and 11 years of age, but weighed less and were shorter in late adulthood in relation to weight and height measured at 11 years of age (Study II). These results suggest that a suboptimal prenatal environment reflected in smaller birth size may affect a variety of psychological vulnerability factors for mental disorders, such as the temperamental trait of harm avoidance, trait anxiety, schizotypal traits, and symptoms of ADHD. The smaller the birth size across the whole range of variation, the more pronounced were these psychological vulnerability factors. Moreover, some of these outcomes, such as trait anxiety, were also predicted by patterns of growth after birth. The findings are concordant with the DOHaD model, and emphasise the importance of prenatal factors in the aetiology of not only mental disorders but also their psychological vulnerability factors.

Young love: Romantic concerns and associated mental health issues among adolescent help-seekers

Over 50% of young people have dated by age 15. While romantic relationship concerns are a major reason for adolescent help-seeking from counselling services, we have a limited understanding of what types of relationship issues are most strongly related to mental health issues and suicide risk. This paper used records of 4019 counselling sessions with adolescents (10–18 years) seeking help from a national youth counselling service for a romantic relationship concern to: (i) explore what types and stage (pre, during, post) of romantic concerns adolescents seek help for; (ii) how they are associated with mental health problems, self-harm and suicide risk; and (iii) whether these associations differ by age and gender. In line with developmental-contextual theory, results suggest that concerns about the initiation of relationships are common in early adolescence, while concerns about maintaining and repairing relationships increase with age. Relationship breakups were the most common concern for both male and female adolescents and for all age groups (early, mid, late adolescence). Data relating to a range of mental health issues were available for approximately half of the sample. Post-relationship concerns (including breakups) were also more likely than pre- or during-relationship concerns to be associated with concurrent mental health issues (36.8%), self-harm (22.6%) and suicide (9.9%). Results draw on a staged developmental theory of adolescent romantic relationships to provide a comprehensive assessment of relationship stressors, highlighting post-relationship as a particularly vulnerable time for all stages of adolescence. These findings contribute to the development of targeted intervention and support programs.