Content Advisory: self-harm, suicide
Medical malpractice law in Ontario is a specialized area of personal injury law that includes psychiatric malpractice, which is an even further specialized area of medical malpractice law. It is only more recently that mental health issues have started gaining more widespread attention and understanding by the public, and as a consequence, psychiatric malpractice still remains somewhat obscure in the medical malpractice sphere. As the discourse around mental health begins to change and more people begin to become comfortable seeking the help of mental health practitioners, it is important to know what to do when psychiatric negligence occurs and causes harm.
What is a Psychiatrist and are they Regulated?
Differentiating between different mental health practitioners can be confusing. Notably, psychologists and psychiatrists perform similar functions in assessing patients and diagnosing mental health disorders. However, the most significant difference is that psychiatrists are medical doctors and can prescribe medications. Psychologists do not need to be medical doctors and they cannot prescribe medications. As psychiatrists are medical doctors, they are also regulated by the College of Physicians and Surgeons of Ontario (CPSO) and are required to be members of the College to practice medicine in Ontario.
How do you Prove Psychiatric Malpractice?
As with all medical malpractice cases, in order to succeed in a psychiatric negligence case a plaintiff must prove, on a balance of probabilities, that there was a breach in the standard of care and that such a breach caused harm (causation). The standard of care is defined by what a reasonable practitioner of the same specialty would have done in the same position and circumstances as a defendant alleged of malpractice. A unique aspect about psychiatric negligence is the highly subjective nature of the work. For example, a psychiatrist is not merely looking at an x-ray, for example, and interpreting whether a bone is broken or not. Rather, they use different tests and methods to assess, diagnose, and treat patients largely based on their subjective interactions with the patients as well as patients’ responses and behaviour. This can make it difficult for experts to opine on standard of care and whether there was a breach. Additionally, psychiatrists often rely on the Diagnostic and Statistical Manual of Mental Disorders (DSM) to help classify and diagnose mental health issues. It is to be noted that there are divergent views in the mental health community with respect to the usefulness and validity of the DSM which can further complicate the issue.
How can Malpractice Occur in Psychiatric Care?
There are a number of ways psychiatric negligence can occur. Interestingly, unlike in a typical medical malpractice case, psychiatrists can be held liable both for causing harm to their own patients, and for the harm caused to someone else by one of their patients. However, finding a psychiatrist liable for harm caused to their patients is difficult to prove and that is even more so the case with respect to harm caused to someone else by one of their patients.
For psychiatric patients, malpractice can occur in various ways, including prescribing the wrong medication and failure to diagnose a serious condition. For example, in Keith v Abraham, a male plaintiff was treated by the defendant psychiatrist with anti-depressant and anti-anxiety medications for unipolar depression for approximately 5 years. However, it was later determined that he actually suffered from bipolar disorder. In this case, the psychiatrist was not found to be liable as the standard of care was not breached and causation was not made out which, as noted, are difficulties in psychiatric malpractice cases. However, the trial judge still went on to find that, had liability been made out, the plaintiff would have been awarded $100,000 in 2011 (which, adjusted for inflation, is approximately $130,000 in 2022).
Psychiatrists can also be held liable for the wrongful death of their patients if they fail to take proper action to protect the patient from self-harm. However, in a case where a psychiatrist’s patient commits suicide it can be very difficult to prove causation, or that “but for” the psychiatrist’s act or omission, the suicide would not have occurred. This is due to the fact that there may be a number of other intervening causes in the patient’s life that could affect their mental health and attributing the harm caused to one psychiatrist may prove difficult.
With respect to liability of psychiatrists for harm caused to a third party by one of their patients, these cases are even more difficult to prove given the range of intervening factors that could be involved. However, in Ahmed v Stefaniu, the Ontario Court of Appeal upheld a finding that a psychiatrist was negligent with respect to her care of a patient which resulted in a homicide. The patient was admitted as an involuntary patient at a hospital for issues with psychosis and his status changed to voluntary approximately two months later based on an assessment and determination by the defendant psychiatrist. The patient left the hospital and, approximately two months later, murdered his sister in a “floridly psychotic, acutely delusional rage”. The victim’s family commenced the action, a jury found the psychiatrist to have been negligent, the Ontario Court of Appeal upheld the decision, and leave to appeal to the Supreme Court of Canada was denied.
It must also be noted that, as with all other medical malpractice cases and as shown in Ahmed, a psychiatrist can make an error and still meet the standard of care, thereby shielding them from liability if the error is something that is common or known to occur. As a result, such an error is not a breach of the standard of care. Similarly, a breach may occur and liability may still not be found if causation is not made out. Again, given these issues and the complexities noted above, psychiatric malpractice cases can be very difficult to prove, although they are not impossible to prove.
Litigating a psychiatric malpractice case is complex and it is vital to have lawyers on your side who are empathetic, knowledgeable, but above all, experienced. Bogoroch & Associates LLP has experience pursuing psychiatric malpractice cases and can help you or someone you know through the steps of the process with compassion and care.
It is ok to not feel ok. If you are struggling with mental health issues or want to learn more about how you can help those who are, please visit the following links:
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.
 2011 ONSC 2.
 2006 CarswellOnt 6390.