case study for justice and fairness patient

Case Studies: Justice / Fairness

Mr. Paul is a 67-year-old client with your home health care organization who suffers from moderate dementia. After providing the required personal health services to him, the attendant is asked by his substitute decision-maker (who just happens to be there that day) to walk Mr. Paul’s dog. It is a very cold and icy day and Mr. Paul does not feel comfortable going outside with his wheelchair. In the past, out of compassion and wanting to do a good deed, the attendant did walk Mr. Paul’s dog and engage in other activities that were outside of Mr. Paul’s care plan, and that put the attendant a little bit behind in their schedule. For example, the attendant cleaned the fridge and dishes and cooked a meal or two. Furthermore, Mr. Paul has heard about other clients receiving similar help with their pets and other special unusual requests. Today however the attendant feels uncomfortable to satisfy his request because they are concerned with slipping on the ice and frostbite. In addition, they are running late for their next client.

What are some of the ethical issues in this case?

What is the impact of the attendant’s past behavior on service delivery and expectations for this and all clients?
Should the attendant meet Mr. Paul’s / the SDM’s expectation to continue fulfilling special requests?
Is it the attendant’s responsibility to tell the client “no”?
Are there exceptions or exceptional circumstances to provide services outside the standard of care or scope of practice?

You have recently been speaking to your nursing colleagues about Mr. Goodwin, a patient from the community to comes to hospital once per week to receive a nurse-administered medication. You have been wondering whether it is appropriate to keep treating Mr. Goodwin in hospital, given that he would be eligible for community care support to have his medication administered in the home. The reason that he has continued to come to hospital to receive this medication is that it is not covered by any Ministry of Health program, and the hospital absorbs the cost for Mr. Goodwin at each treatment. You are not sure whether this is an appropriate use of resources since there are significant wait times for other procedures, and cost savings initiatives are being pursued in all other departments.

Why was the decision made to treat Mr. Goodwin in hospital in the first place?
Can the hospital cover the cost of similar medications for other patients, or are there concerns of justice/fairness?
How are decisions regarding prioritization made organizationally? Are there agreed upon frameworks or ethical principles that are used?

78-year-old patient airlifted from his small first nations community to the closest trauma center after involvement in motor vehicle accident, where he sustained multiple fractures and traumatic brain injury. Luckily, impairment of cognitive and psychosocial functions was only temporary, and the patient returned to near-baseline after several months of intensive care. While a good deal of his physical health was able to be restored, the team diagnosed CHF, diabetes, dementia, and masses that were suspected to be malignant. In addition, upon discharge the patient will likely be required to use a walker, and pursue intense physiotherapy due to the severity of fractures to his hip and legs.

While being treated at the trauma center awaiting discharge, the patient suffered an acute mental health event, and was transferred to the Mental Health Centre 10 minutes from the current hospital for further assessment and treatment.

Upon admission, the team at the Mental Health Centre had difficulty obtaining informed consent from this patient; partially due to English being the patient’s second language, but also because of the patient’s differing perception of mental health and well-being. In addition, the patient’s capacity to consent to treatment was questioned due to a recently diagnosed dementia. Fortunately, a translator from the same community was available to facilitate this process. The patient was successfully treated and discharge was planned. Placement in long-term care (LTC) was suggested along with follow-up with local mental health resources.

While planning discharge, it was discovered that the patient was unsure how he would get home. He was airlifted to the trauma center (300kms from his community), did not have the ability to drive, and lacked funds for a bus or other transportation ticket. Furthermore, no family existed to assist. In addition, the Social Worker planning discharge discovered that no permanent mental health resources exist in the patient’s home community. Instead, two nurses, and two crisis workers are deployed on 6-day rotations from the closest city. As well, the nearest LTC home is 220km away, and the patient refuses to leave his home community. If discharged back to his home community, you know that there is a high likelihood that he will not receive the mental health support he needs, and that there is additional physical risk to him now that he requires a walker.

Lack of access to adequate services/continuum of care when patient resides in rural areas – Does distributive justice require that all citizens have access to acute mental health services? (Equality) Does distributive justice require that all citizens have access to acute mental health services, to address their specific needs, in their communities? (Equity)
Is there shared accountability between those who are responsible for providing health care services (Federal Government/First Nations Communities), to ensure the above?
Does the patient have the right to refuse long-term care and remain in his home community to live at risk? Is this an entirely voluntary choice?

The situation:

Current occupancy at an acute care hospital is 125%. Specifically, volume includes:

18 “Unfunded beds” that have been opened, including some located in hallways,
15 admitted patients who are currently residing in the emergency department (in rooms and hallways),
5 surgical patients waiting for OR,
1 patient with hip fracture that has been waiting for a bed for 2 days,
3 patients who are due to return from another hospital since care needs have decreased,
34 ALC patients (22 confirmed waiting for long-term care, and 4 others pending)

Anticipated capacity includes:

2 discharges from the medicine unit
1 discharge from surgery
2 CCU beds if the organization can transfer 2 elsewhere

Compounding issues:

Some of the overcapacity is additional hallway spaces on the inpatient units
1 medical patient on surgical floor approached and advised will be moving to a hallway space to make room for another patient with higher needs, however, she has indicated she will sign herself out Against Medical Advice. Her bloodwork demonstrates critical issues.
Staff shortages abound, and many patients are arriving to emergency with failure to cope / failure to thrive.
There are no crisis beds available to divert avoidable admissions for non-acute care reasons, and patients/families are refusing retirement homes and remaining in hospital to wait for LTC.
There has been a reduction in CCAC services and increase in wait listing.
There are some available beds at two hospitals within 40 minutes of this particular organization, but patients are reluctant to consent to be transferred/admitted there.

What are some of the potential ethical issues in this scenario?

Limited access to limited inpatient resources: Who decides who will receive the resource, and how is this determined? Is it fair?
Do patients have a right to refuse transfer within the hospital? For example, can they refuse to be moved into a hallway?
Patients signing out AMA when still needing care: is this a failure to provide due care, or simply the right of a capable patient to do so?
ALC Management: How can patients who do not require acute care be transferred to an appropriate care setting, or more appropriately managed, when waitlists exist?

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When thinking about population level healthcare priority setting decisions, such as those made by the National Institute for Health and Care Excellence, good medical ethics requires attention to three main principles of health justice: (1) cost-effectiveness, an aspect of beneficence, (2) non-discrimination, and (3) priority to the worse off in terms of both current severity of illness and lifetime health. Applying these principles requires consideration of the identified patients who benefit from decisions and the unidentified patients who bear the opportunity costs.

Allocation of Health Care Resources
Distributive Justice
Health Care Economics

https://doi.org/10.1136/medethics-2014-102386

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Introduction

What is it to do good medical ethics? An uncharitable reader of the philosophical medical ethics literature might be forgiven for answering, ‘come up with an absurdly unrealistic example, and use it to argue for an absurdly counter-intuitive conclusion.’

This flippant remark is, of course, grossly unfair. Yet replace ‘absurdly' with ‘appropriately', and it describes two important virtues of ethical thinking. Unrealistic examples can help clarify our thinking by placing the essential features of an ethical problem into sharp focus. And common sense intuitions can lead us astray. Our moral psychology was shaped by evolution during millions of years of human prehistory living in small hunter-gatherer tribes. The resulting intuitions may sometimes lead us astray in today's much larger and more technologically advanced societies. Rather than resting content with ‘fast thinking' intuitions, therefore, it behoves us to engage in some ‘slow thinking' to arrive at more considered ethical judgements. 1 , 2

The medical ethics literature pays close attention to technological advances in medicine and how they raise new ethical challenges. However, it pays less attention to another important difference between hunter-gatherer and modern societies: size. Hunter-gather tribes rarely contained more than around 150 people—the ‘Dunbar number', above which humans and primates find it hard to handle social relationships 3 —and everyone knew each other. By contrast, modern societies are vast and impersonal. National governments routinely make decisions that influence thousands, millions and in some cases even hundreds of millions of fellow citizens who do not know each other.

Medical ethicists spend a lot of time discussing hypothetical examples involving a small number of identified patients. In this essay, I want to focus on population level decisions involving a large number of unidentified patients. My focus is not on clinical decisions about particular patients, but on policy decisions by healthcare managers and policymakers about the institutional, regulatory and financial environment within which such clinical decisions are made.

A paradigmatic example is the National Institute for Health and Care Excellence (NICE). NICE produces guidance on the use of healthcare technologies within the single payer, universal and comprehensive National Health Service (NHS) in England and Wales. However, NICE has no control over the size of the tax-funded NHS budget or how local NHS organisations manage their budgets. When NICE recommends the use of a cost-increasing healthcare technology for one particular group of patients, therefore, it is implicitly recommending the displacement of expenditure on unknown alternative uses of NHS money for unknown other patients.

What principles of justice should govern such decisions about the allocation of scarce healthcare resources? I will sketch out the ‘NICE approach' to this question—or, rather, my own interpretation of it—and argue that it embodies ‘good' rather than ‘bad' medical ethics.

The starting point for NICE is the procedural justice framework that bioethicist Norman Daniels has dubbed ‘accountability for reasonableness', with its four requirements of: (i) publicly accessible decisions and the rationales for them, (ii) reasonableness of rationales in the sense both of giving reasons and applying relevant principles, (iii) the possibility of challenge through appeal and of revision of decisions and (iv) the presence of mechanisms to ensure that the foregoing requirements are met. 4 Within this framework, NICE focuses on three substantive principles of justice: (1) cost-effectiveness, (2) non-discrimination and (3) priority to the worse off. 5 I will start with cost-effectiveness.

Cost-effectiveness

Should opportunity costs for large numbers of unidentified people be taken into account in healthcare priority setting decisions? NICE thinks the answer is an unequivocal ‘yes'. It accounts for opportunity costs to unknown patients in exactly the same way that it accounts for benefits to the known patients who use the healthcare technology under consideration. It values these opportunity costs in terms of the expected impact on the length and quality of people's lives using the ‘quality adjusted life year' (QALY). One QALY represents 1 year of life in full health, half a QALY represents a year of life in 50% health and so on. NICE currently estimates that a reduction of £20 000 pounds of NHS expenditure on unknown NHS activities benefiting unknown patients will typically have an opportunity cost of one QALY. This is not far off the current best estimate of this ‘cost per QALY threshold value' of £18 000, based on real data on variation in NHS expenditure and outcomes between subnational administrative areas (formerly known as ‘Primary Care Trusts' when the data were collected in 2008, and now ‘Clinical Commissioning Groups'). 6 By using this estimate to value opportunity costs, NICE is making the value judgement that each QALY lost by unknown NHS patients has the same value as each QALY gained by the known group of patients who use the healthcare technology under consideration.

This value judgement is a straightforward corollary of the principle of cost-effectiveness that healthcare resources should be used to improve population health. Stewards of the public purse have a duty of ‘beneficence' towards all the citizens they serve, to do as much good as possible with scarce public resources. In the context of healthcare, it seems reasonable to interpret this as a duty to improve population health. This seems to be the UK government's interpretation since it charges both NICE and the NHS with the objective of improving population health.

How should ‘population health' be measured? The value judgement made by NICE is that units of health should simply be added up across different citizens, on the basis that ‘a QALY is a QALY is a QALY’. It is thus assumed that a year or a day or indeed an hour of life in full health has the same value, no matter who lives it. A QALY thus the same value no matter whether it is lived by a known or an unknown group of citizens, no matter whether it is seen as a gain or a loss from the reference point of the current situation, and no matter how many healthy years are gained or lost in total compared with the current situation.

That value judgement is illustrated in figure 1 . The horizontal x-axis shows the health opportunity cost in terms of the total number of QALYs lost by unknown patients. The vertical y-axis shows the total value of those health opportunity costs, according to NICE. It is a 45° straight line, reflecting the NICE value judgement that each QALY is worth the same.

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National Institute for Health and Care Excellence's valuation of health opportunity costs.

Psychic numbing

The NICE approach contrasts sharply with the common sense intuitions embedded in our moral psychology. Drawing on evidence from psychological experiments, as well as the observations of social commentators and our own everyday experience, Paul Slovic 7 has described the phenomenon of ‘psychophysical numbing' and its more extreme cousin of ‘psychic numbing'. The psychology evidence typically focuses on health losses framed in terms of numbers of deaths; but the same idea can be applied to any numerical unit of health loss, including QALYs.

Psychophysical numbing involves diminishing marginal concern for health losses. In that case, we care a lot about a single unit of health loss, but then a bit less about the next one, a bit less still about the next one and so on. This implies that our concern for an opportunity cost of 1000 QALYs is not much greater than our concern for an opportunity cost of 1 QALY, and nowhere near 1000 times greater as the NICE approach implies. Psychic numbing is more extreme, and involves diminishing total concern for health losses, as illustrated in figure 2 . In that case, we care more about a health loss of 1 QALY to a single identified person than about a health loss of 1 QALY each to 1000 unidentified people.

Public concern for health opportunity costs under psychic numbing.

Figure 3 compares the NICE approach with common sense ethical intuitions. When thinking about health opportunity costs to large numbers of unknown people, our common sense intuitions result in what we might call a ‘compassion deficit'. We are capable of feeling a high degree of compassion about a health loss to a single identified person, but we are not capable of feeling thousands of times more compassion about health losses to thousands of unidentified people. Indeed, because our instincts evolved to feel compassion towards identifiable individuals, we tend to feel more compassion for a single known individual than thousands of unidentified individuals.

Compassion deficit—National Institute for Health and Care Excellence (NICE) valuation versus public concern under psychic numbing.

Crude utilitarianism?

Does the NICE approach imply a crude utilitarianism that favours inhumane acts, for example, the callous neglect of severely ill patients who fail the cost-effectiveness test? Or ‘Brave New World' style happiness pills for all, coupled with ‘Logan's Run' style involuntary euthanasia for the over 30s? Of course not! For one thing, QALYs measure health and longevity, not happiness. Happiness pills do not necessarily increase health and longevity—for that, you need health and longevity pills—and involuntary euthanasia would reduce longevity. So the NICE approach is not ‘utilitarian', at least not in the classical Benthamite sense of maximising the sum total of all the happy experiences in the universe.

The NICE approach is not crude, either. NICE is pluralistic about principles of justice and does not endorse the value judgement that sum total health impact is the only relevant ethical consideration. Cost-effectiveness is just one important consideration that NICE takes into account when reaching its decisions—not the only one. NICE does not set a rigid cost-effectiveness cut-off point for recommending healthcare technologies; it merely sets a cost-effectiveness range beyond which a positive recommendation requires particularly strong and careful justification through wider considerations. In line with the ‘accountability for reasonableness' framework described above, NICE formulates its recommendations through a deliberative process which involves diverse stakeholders and takes into account a wide range of considerations.

Non-discrimination

The principle of non-discrimination acts as an ethical constraint on the principle of cost-effectiveness. Discussions about cost-effectiveness and discrimination in the medical ethics literature often focus on clinical decisions about particular individual patients. This is potentially misleading because in practice cost-effectiveness calculations based on QALYs are only ever used to inform population level decisions involving large numbers of unidentified patients. So here I want to consider a hypothetical example of potential disability discrimination that is more akin to the kinds of population level decisions made by NICE. Imagine NICE is faced with a new life extending treatment for stomach cancer that is borderline cost-effective in the full patient population. Further, imagine that the treatment has the same probability in all patents of a good biomedical response in terms of shrinking the tumour and restoring patients to their previous level of health and expected longevity. But now imagine it is not cost-effective for a subpopulation of severely disabled individuals, because their previous level of health and expected longevity are lower than average. The principle of cost-effectiveness thus suggests recommending that the treatment should be funded for most patients, but not for severely disabled patients. However, that would be an act of invidious discrimination against the disabled; it would generate political outrage; and it might also be contrary to European legislation on human rights. So NICE would not do it. Indeed, I doubt NICE advisory committees ever find themselves having to consider a cost-effectiveness argument for discriminating against the disabled, since subgroup analyses of cost-effectiveness based on severe disability are rarely if ever performed. NICE often undertakes subgroup analysis on suitable patient and treatment characteristics in pursuit of cost-effective ways of funding a particular healthcare technology, but it does not strive officiously to find opportunities for disability discrimination.

Priority to the worse off

Priority to the worse off in terms of severity of illness is a principle of justice that reflects policy concern to distribute healthcare according to need, insofar as severity of illness is an important component of need. In pursuit of accountability, NICE has recently proposed two ways of measuring the severity or ‘burden' of illness. First, the absolute shortfall from normal healthy life expectancy. This is the difference between the years of life in full health that the average person would expect, given their age and sex, and what the patient can expect given the severity of their disease. Second, the relative shortfall. This is the absolute shortfall expressed as a percentage of normal healthy life expectancy. Absolute shortfall tends to be larger in younger patients who have longer left to live and so will tend to suffer a larger absolute shortfall from any given disease in terms of years of healthy life lost.

Importantly, NICE recognises that NHS patients who bear the health opportunity costs of its decisions may also be severely ill. So it compares severity of illness not against healthy individuals with ‘zero' severity of illness but against a benchmark severity of illness for the typical NHS patient. However, NICE has not gone so far as to specify a formula for giving greater weight to QALY gains for patients with more severe illnesses. This may be wise, given the complexity of judgements about justice and structural differences between principles of beneficence versus priority to the worse off. 8 Instead, NICE will continue to make these nuanced judgements on a case by case basis, through a deliberative process.

A quite different way of defining the ‘worse off' is in terms of lifetime health, rather than current severity of illness. Priority to the worse off in terms of lifetime health is a principle of justice that reflects policy concern to reduce social inequalities in longevity and health. 9 In a healthcare context, however, the principle of non-discrimination often acts as an ethical constraint against this principle. For example, the NHS might be able slightly to reduce social inequality in health by funding a treatment only for the poor. Yet this might seem like invidious discrimination against the rich. In my view, therefore, the principle of priority to those with poor lifetime health is typically more relevant in relation to healthcare decisions about improving access to and uptake of preventive healthcare, rather than decisions about whether to fund particular treatments. For example, this principle may be relevant in decisions about whether to locate smoking cessation clinics near affluent or deprived neighbourhoods, or whether to make special additional marketing and outreach efforts to encourage people from socially disadvantaged backgrounds to attend a cancer screening programme.

Conclusions

I have argued that, when thinking about population level healthcare decisions, opportunity costs for unidentified fellow citizens are an essential feature of the ethical landscape. Justice concerns the distribution of burdens as well as benefits. So in order to take appropriate account of justice, good medical ethics requires careful consideration of the opportunity costs of healthcare decisions and who will bear them. We need to consider the total size of those opportunity costs in order to apply the ethical principle of beneficence or cost-effectiveness. We also need to consider who will bear those opportunity costs in order to apply the ethical principle of priority to the worse off.

Cookson R ,
Culyer AJ , et al
Claxton K ,
Soares M , et al
Norheim OF , et al

Funding RC is funded by a Senior Research Fellowship award from the National Institute for Health Research.

Competing interests None.

Disclaimer The views expressed in this publication are those of the author and not necessarily those of NICE, the NHS, the National Institute for Health Research or the Department of Health.

Provenance and peer review Commissioned; internally peer reviewed.

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Justice is one of the four pillars of ethics – but what exactly does it mean? And how might this come up in your Medical School interview ?

What is Justice?

Justice – in the context of medical ethics – is the principle that when weighing up if something is ethical or not, we have to think about whether it’s compatible with the law, the patient’s rights, and if it’s fair and balanced.

It also means that we must ensure no one is unfairly disadvantaged when it comes to access to healthcare. Justice is one reason why the NHS has certain entitlements, such as free prescriptions for lower-income individuals.

Justice Example

One of the easiest ways to understand justice is with an example.

Patients suspected of having cancer are prioritised within the NHS, with the maximum waiting time for referral being two weeks (as opposed to 18 weeks for non-urgent referrals). Patients diagnosed with cancer are entitled to a range of treatments including radio- and chemotherapy. These treatments are expensive and treat a small, but significant proportion of patients.

This raises a couple of dilemmas for justice, and it’s important you can think of arguments on both sides of the issue. For example:

It could be argued that prioritising cancer patients means you’re limiting the ability of other patients to access healthcare
A counter-argument might be that by referring these patients to specialist oncology centres, you’re actually freeing up other services
It could also be argued that spending public money on radio- and chemotherapy on a smaller group of people is taking budget away from less expensive treatments that would benefit a greater number of people – for example, an increase in statins for those at risk of cardiovascular disease
A counter-argument would be that early treatment increases survival rates and actually reduces the cost of cancer treatment

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Discussing Justice At Interview

Justice is a factor you need to consider when you’re talking about ethics in your interview. You should think about:

Is this action legal?
Does this action unfairly contradict someone’s human rights?
Does this action prioritise one group over another?
If it does prioritise one group over another, can that prioritisation be justified in terms of overall net benefit to society or does it agree with moral conventions?

Justice Questions

Some questions where you need to consider justice include:

Does euthanasia have a place in modern medicine?
Discuss the ethical issues involved if a patient discloses that they haven’t told their partner that they have HIV
Do you think the NHS should fund treatment for smokers?

Find out how to answer these questions – and see more ethics questions here .

Make sure you’re aware of hot topics where justice applies. These include:

Health inequalities suffered by the BAME community
Public health measures
Medicinal cannabis

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Justice and Fairness

Markkula Center for Applied Ethics
Ethics Resources
Ethical Decision Making

Many public policy arguments focus on fairness. Is affirmative action fair? Are congressional districts drawn to be fair? Is our tax policy fair? Is our method for funding schools fair?

Arguments about justice or fairness have a long tradition in Western civilization. In fact, no idea in Western civilization has been more consistently linked to ethics and morality than the idea of justice. From the Republic, written by the ancient Greek philosopher Plato, to A Theory of Justice, written by the late Harvard philosopher John Rawls, every major work on ethics has held that justice is part of the central core of morality.

Justice means giving each person what he or she deserves or, in more traditional terms, giving each person his or her due. Justice and fairness are closely related terms that are often today used interchangeably. There have, however, also been more distinct understandings of the two terms. While justice usually has been used with reference to a standard of rightness, fairness often has been used with regard to an ability to judge without reference to one's feelings or interests; fairness has also been used to refer to the ability to make judgments that are not overly general but that are concrete and specific to a particular case. In any case, a notion of being treated as one deserves is crucial to both justice and fairness.

When people differ over what they believe should be given, or when decisions have to be made about how benefits and burdens should be distributed among a group of people, questions of justice or fairness inevitably arise. In fact, most ethicists today hold the view that there would be no point of talking about justice or fairness if it were not for the conflicts of interest that are created when goods and services are scarce and people differ over who should get what. When such conflicts arise in our society, we need principles of justice that we can all accept as reasonable and fair standards for determining what people deserve.

But saying that justice is giving each person what he or she deserves does not take us very far. How do we determine what people deserve? What criteria and what principles should we use to determine what is due to this or that person?

Principles of Justice The most fundamental principle of justice—one that has been widely accepted since it was first defined by Aristotle more than two thousand years ago—is the principle that "equals should be treated equally and unequals unequally." In its contemporary form, this principle is sometimes expressed as follows: "Individuals should be treated the same, unless they differ in ways that are relevant to the situation in which they are involved." For example, if Jack and Jill both do the same work, and there are no relevant differences between them or the work they are doing, then in justice they should be paid the same wages. And if Jack is paid more than Jill simply because he is a man, or because he is white, then we have an injustice—a form of discrimination—because race and sex are not relevant to normal work situations.

There are, however, many differences that we deem as justifiable criteria for treating people differently. For example, we think it is fair and just when a parent gives his own children more attention and care in his private affairs than he gives the children of others; we think it is fair when the person who is first in a line at a theater is given first choice of theater tickets; we think it is just when the government gives benefits to the needy that it does not provide to more affluent citizens; we think it is just when some who have done wrong are given punishments that are not meted out to others who have done nothing wrong; and we think it is fair when those who exert more efforts or who make a greater contribution to a project receive more benefits from the project than others. These criteria—need, desert, contribution, and effort—we acknowledge as justifying differential treatment, then, are numerous.

On the other hand, there are also criteria that we believe are not justifiable grounds for giving people different treatment. In the world of work, for example, we generally hold that it is unjust to give individuals special treatment on the basis of age, sex, race, or their religious preferences. If the judge's nephew receives a suspended sentence for armed robbery when another offender unrelated to the judge goes to jail for the same crime, or the brother of the Director of Public Works gets the million dollar contract to install sprinklers on the municipal golf course despite lower bids from other contractors, we say that it's unfair. We also believe it isn't fair when a person is punished for something over which he or she had no control, or isn't compensated for a harm he or she suffered.

Different Kinds of Justice There are different kinds of justice. Distributive justice refers to the extent to which society's institutions ensure that benefits and burdens are distributed among society's members in ways that are fair and just. When the institutions of a society distribute benefits or burdens in unjust ways, there is a strong presumption that those institutions should be changed. For example, the American institution of slavery in the pre-civil war South was condemned as unjust because it was a glaring case of treating people differently on the basis of race.

A second important kind of justice is retributive or corrective justice. Retributive justice refers to the extent to which punishments are fair and just. In general, punishments are held to be just to the extent that they take into account relevant criteria such as the seriousness of the crime and the intent of the criminal, and discount irrelevant criteria such as race. It would be barbarously unjust, for example, to chop off a person's hand for stealing a dime, or to impose the death penalty on a person who by accident and without negligence injured another party. Studies have frequently shown that when blacks murder whites, they are much more likely to receive death sentences than when whites murder whites or blacks murder blacks. These studies suggest that injustice still exists in the criminal justice system in the United States.

Yet a third important kind of justice is compensatory justice. Compensatory justice refers to the extent to which people are fairly compensated for their injuries by those who have injured them; just compensation is proportional to the loss inflicted on a person. This is precisely the kind of justice that is at stake in debates over damage to workers' health in coal mines. Some argue that mine owners should compensate the workers whose health has been ruined. Others argue that workers voluntarily took on this risk when they chose employment in the mines.

The foundations of justice can be traced to the notions of social stability, interdependence, and equal dignity. As the ethicist John Rawls has pointed out, the stability of a society—or any group, for that matter—depends upon the extent to which the members of that society feel that they are being treated justly. When some of society's members come to feel that they are subject to unequal treatment, the foundations have been laid for social unrest, disturbances, and strife. The members of a community, Rawls holds, depend on each other, and they will retain their social unity only to the extent that their institutions are just. Moreover, as the philosopher Immanuel Kant and others have pointed out, human beings are all equal in this respect: they all have the same dignity, and in virtue of this dignity they deserve to be treated as equals. Whenever individuals are treated unequally on the basis of characteristics that are arbitrary and irrelevant, their fundamental human dignity is violated.

Justice, then, is a central part of ethics and should be given due consideration in our moral lives. In evaluating any moral decision, we must ask whether our actions treat all persons equally. If not, we must determine whether the difference in treatment is justified: are the criteria we are using relevant to the situation at hand? But justice is not the only principle to consider in making ethical decisions. Sometimes principles of justice may need to be overridden in favor of other kinds of moral claims such as rights or society's welfare. Nevertheless, justice is an expression of our mutual recognition of each other's basic dignity, and an acknowledgement that if we are to live together in an interdependent community we must treat each other as equals.

This article appeared originally in Issues in Ethics V3 N2 (Spring 1990). It was updated in August 2018. The views expressed do not necessarily represent the position of the Markkula Center for Applied Ethics at Santa Clara University. We welcome your comments, suggestions, or alternative points of view.

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A case-based approach to ethical decision-making Adapted from AR Jonsen, M Siegler, W Winslade, Clinical Ethics , 7th edition. McGraw-Hill, 2010.

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Introduction, ethics, morality, and professional standards, bioethics and clinical (medical) ethics, the fundamental principles of ethics, conflicts between principles, illustrative cases, conflict of interest statement, principles of clinical ethics and their application to practice.

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Basil Varkey; Principles of Clinical Ethics and Their Application to Practice. Med Princ Pract 17 February 2021; 30 (1): 17–28. https://doi.org/10.1159/000509119

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An overview of ethics and clinical ethics is presented in this review. The 4 main ethical principles, that is beneficence, nonmaleficence, autonomy, and justice, are defined and explained. Informed consent, truth-telling, and confidentiality spring from the principle of autonomy, and each of them is discussed. In patient care situations, not infrequently, there are conflicts between ethical principles (especially between beneficence and autonomy). A four-pronged systematic approach to ethical problem-solving and several illustrative cases of conflicts are presented. Comments following the cases highlight the ethical principles involved and clarify the resolution of these conflicts. A model for patient care, with caring as its central element, that integrates ethical aspects (intertwined with professionalism) with clinical and technical expertise desired of a physician is illustrated.

Main principles of ethics, that is beneficence, nonmaleficence, autonomy, and justice, are discussed.

Autonomy is the basis for informed consent, truth-telling, and confidentiality.

A model to resolve conflicts when ethical principles collide is presented.

Cases that highlight ethical issues and their resolution are presented.

A patient care model that integrates ethics, professionalism, and cognitive and technical expertise is shown.

A defining responsibility of a practicing physician is to make decisions on patient care in different settings. These decisions involve more than selecting the appropriate treatment or intervention.

Ethics is an inherent and inseparable part of clinical medicine [ 1 ] as the physician has an ethical obligation (i) to benefit the patient, (ii) to avoid or minimize harm, and to (iii) respect the values and preferences of the patient. Are physicians equipped to fulfill this ethical obligation and can their ethical skills be improved? A goal-oriented educational program [ 2 ] (Table 1 ) has been shown to improve learner awareness, attitudes, knowledge, moral reasoning, and confidence [ 3, 4 ].

Goals of ethics education

Ethics is a broad term that covers the study of the nature of morals and the specific moral choices to be made. Normative ethics attempts to answer the question, “Which general moral norms for the guidance and evaluation of conduct should we accept, and why?” [ 5 ]. Some moral norms for right conduct are common to human kind as they transcend cultures, regions, religions, and other group identities and constitute common morality (e.g., not to kill, or harm, or cause suffering to others, not to steal, not to punish the innocent, to be truthful, to obey the law, to nurture the young and dependent, to help the suffering, and rescue those in danger). Particular morality refers to norms that bind groups because of their culture, religion, profession and include responsibilities, ideals, professional standards, and so on. A pertinent example of particular morality is the physician’s “accepted role” to provide competent and trustworthy service to their patients. To reduce the vagueness of “accepted role,” physician organizations (local, state, and national) have codified their standards. However, complying with these standards, it should be understood, may not always fulfill the moral norms as the codes have “often appeared to protect the profession’s interests more than to offer a broad and impartial moral viewpoint or to address issues of importance to patients and society” [ 6 ].

A number of deplorable abuses of human subjects in research, medical interventions without informed consent, experimentation in concentration camps in World War II, along with salutary advances in medicine and medical technology and societal changes, led to the rapid evolution of bioethics from one concerned about professional conduct and codes to its present status with an extensive scope that includes research ethics, public health ethics, organizational ethics, and clinical ethics.

Hereafter, the abbreviated term, ethics, will be used as I discuss the principles of clinical ethics and their application to clinical practice.

Beneficence, nonmaleficence, autonomy, and justice constitute the 4 principles of ethics. The first 2 can be traced back to the time of Hippocrates “to help and do no harm,” while the latter 2 evolved later. Thus, in Percival’s book on ethics in early 1800s, the importance of keeping the patient’s best interest as a goal is stressed, while autonomy and justice were not discussed. However, with the passage of time, both autonomy and justice gained acceptance as important principles of ethics. In modern times, Beauchamp and Childress’ book on Principles of Biomedical Ethics is a classic for its exposition of these 4 principles [ 5 ] and their application, while also discussing alternative approaches.

Beneficence

The principle of beneficence is the obligation of physician to act for the benefit of the patient and supports a number of moral rules to protect and defend the right of others, prevent harm, remove conditions that will cause harm, help persons with disabilities, and rescue persons in danger. It is worth emphasizing that, in distinction to nonmaleficence, the language here is one of positive requirements. The principle calls for not just avoiding harm, but also to benefit patients and to promote their welfare. While physicians’ beneficence conforms to moral rules, and is altruistic, it is also true that in many instances it can be considered a payback for the debt to society for education (often subsidized by governments), ranks and privileges, and to the patients themselves (learning and research).

Nonmaleficence

Nonmaleficence is the obligation of a physician not to harm the patient. This simply stated principle supports several moral rules – do not kill, do not cause pain or suffering, do not incapacitate, do not cause offense, and do not deprive others of the goods of life. The practical application of nonmaleficence is for the physician to weigh the benefits against burdens of all interventions and treatments, to eschew those that are inappropriately burdensome, and to choose the best course of action for the patient. This is particularly important and pertinent in difficult end-of-life care decisions on withholding and withdrawing life-sustaining treatment, medically administered nutrition and hydration, and in pain and other symptom control. A physician’s obligation and intention to relieve the suffering (e.g., refractory pain or dyspnea) of a patient by the use of appropriate drugs including opioids override the foreseen but unintended harmful effects or outcome (doctrine of double effect) [ 7, 8 ].

The philosophical underpinning for autonomy, as interpreted by philosophers Immanuel Kant (1724–1804) and John Stuart Mill (1806–1873), and accepted as an ethical principle, is that all persons have intrinsic and unconditional worth, and therefore, should have the power to make rational decisions and moral choices, and each should be allowed to exercise his or her capacity for self-determination [ 9 ]. This ethical principle was affirmed in a court decision by Justice Cardozo in 1914 with the epigrammatic dictum, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body” [ 10 ].

Autonomy, as is true for all 4 principles, needs to be weighed against competing moral principles, and in some instances may be overridden; an obvious example would be if the autonomous action of a patient causes harm to another person(s). The principle of autonomy does not extend to persons who lack the capacity (competence) to act autonomously; examples include infants and children and incompetence due to developmental, mental or physical disorder. Health-care institutions and state governments in the US have policies and procedures to assess incompetence. However, a rigid distinction between incapacity to make health-care decisions (assessed by health professionals) and incompetence (determined by court of law) is not of practical use, as a clinician’s determination of a patient’s lack of decision-making capacity based on physical or mental disorder has the same practical consequences as a legal determination of incompetence [ 11 ].

Detractors of the principle of autonomy question the focus on the individual and propose a broader concept of relational autonomy (shaped by social relationships and complex determinants such as gender, ethnicity and culture) [ 12 ]. Even in an advanced western country such as United States, the culture being inhomogeneous, some minority populations hold views different from that of the majority white population in need for full disclosure, and in decisions about life support (preferring a family-centered approach) [ 13 ].

Resistance to the principle of patient autonomy and its derivatives (informed consent, truth-telling) in non-western cultures is not unexpected. In countries with ancient civilizations, rooted beliefs and traditions, the practice of paternalism ( this term will be used in this article, as it is well-entrenched in ethics literature, although parentalism is the proper term ) by physicians emanates mostly from beneficence. However, culture (a composite of the customary beliefs, social forms, and material traits of a racial, religious or social group) is not static and autonomous, and changes with other trends over passing years. It is presumptuous to assume that the patterns and roles in physician-patient relationships that have been in place for a half a century and more still hold true. Therefore, a critical examination of paternalistic medical practice is needed for reasons that include technological and economic progress, improved educational and socioeconomic status of the populace, globalization, and societal movement towards emphasis on the patient as an individual, than as a member of a group. This needed examination can be accomplished by research that includes well-structured surveys on demographics, patient preferences on informed consent, truth-telling, and role in decision-making.

Respecting the principle of autonomy obliges the physician to disclose medical information and treatment options that are necessary for the patient to exercise self-determination and supports informed consent, truth-telling, and confidentiality.

Informed Consent

The requirements of an informed consent for a medical or surgical procedure, or for research, are that the patient or subject (i) must be competent to understand and decide, (ii) receives a full disclosure, (iii) comprehends the disclosure, (iv) acts voluntarily, and (v) consents to the proposed action.

The universal applicability of these requirements, rooted and developed in western culture, has met with some resistance and a suggestion to craft a set of requirements that accommodate the cultural mores of other countries [ 14 ]. In response and in vigorous defense of the 5 requirements of informed consent, Angell wrote, “There must be a core of human rights that we would wish to see honored universally, despite variations in their superficial aspects …The forces of local custom or local law cannot justify abuses of certain fundamental rights, and the right of self-determination on which the doctrine of informed consent is based, is one of them” [ 15 ].

As competence is the first of the requirements for informed consent, one should know how to detect incompetence. Standards (used singly or in combination) that are generally accepted for determining incompetence are based on the patient’s inability to state a preference or choice, inability to understand one’s situation and its consequences, and inability to reason through a consequential life decision [ 16 ].

In a previously autonomous, but presently incompetent patient, his/her previously expressed preferences (i.e., prior autonomous judgments) are to be respected [ 17 ]. Incompetent (non-autonomous) patients and previously competent (autonomous), but presently incompetent patients would need a surrogate decision-maker. In a non-autonomous patient, the surrogate can use either a substituted judgment standard (i.e., what the patient would wish in this circumstance and not what the surrogate would wish), or a best interests standard (i.e., what would bring the highest net benefit to the patient by weighing risks and benefits). Snyder and Sulmasy [ 18 ], in their thoughtful article, provide a practical and useful option when the surrogate is uncertain of the patient’s preference(s), or when patient’s preferences have not kept abreast of scientific advances. They suggest the surrogate use “substituted interests,” that is, the patient’s authentic values and interests, to base the decision.

Truth-Telling

Truth-telling is a vital component in a physician-patient relationship; without this component, the physician loses the trust of the patient. An autonomous patient has not only the right to know (disclosure) of his/her diagnosis and prognosis, but also has the option to forgo this disclosure. However, the physician must know which of these 2 options the patient prefers.

In the United States, full disclosure to the patient, however grave the disease is, is the norm now, but was not so in the past. Significant resistance to full disclosure was highly prevalent in the US, but a marked shift has occurred in physicians’ attitudes on this. In 1961, 88% of physicians surveyed indicated their preference to avoid disclosing a diagnosis [ 19 ]; in 1979, however, 98% of surveyed physicians favored it [ 20 ]. This marked shift is attributable to many factors that include – with no order of importance implied – educational and socioeconomic progress, increased accountability to society, and awareness of previous clinical and research transgressions by the profession.

Importantly, surveys in the US show that patients with cancer and other diseases wish to have been fully informed of their diagnoses and prognoses. Providing full information, with tact and sensitivity, to patients who want to know should be the standard. The sad consequences of not telling the truth regarding a cancer include depriving the patient of an opportunity for completion of important life-tasks: giving advice to, and taking leave of loved ones, putting financial affairs in order, including division of assets, reconciling with estranged family members and friends, attaining spiritual order by reflection, prayer, rituals, and religious sacraments [ 21, 22 ].

In contrast to the US, full disclosure to the patient is highly variable in other countries [ 23 ]. A continuing pattern in non-western societies is for the physician to disclose the information to the family and not to the patient. The likely reasons for resistance of physicians to convey bad news are concern that it may cause anxiety and loss of hope, some uncertainty on the outcome, or belief that the patient would not be able to understand the information or may not want to know. However, this does not have to be a binary choice, as careful understanding of the principle of autonomy reveals that autonomous choice is a right of a patient, and the patient, in exercising this right, may authorize a family member or members to make decisions for him/her.

Confidentiality

Physicians are obligated not to disclose confidential information given by a patient to another party without the patient’s authorization. An obvious exception (with implied patient authorization) is the sharing necessary of medical information for the care of the patient from the primary physician to consultants and other health-care teams. In the present-day modern hospitals with multiple points of tests and consultants, and the use of electronic medical records, there has been an erosion of confidentiality. However, individual physicians must exercise discipline in not discussing patient specifics with their family members or in social gatherings [ 24 ] and social media. There are some noteworthy exceptions to patient confidentiality. These include, among others, legally required reporting of gunshot wounds and sexually transmitted diseases and exceptional situations that may cause major harm to another (e.g., epidemics of infectious diseases, partner notification in HIV disease, relative notification of certain genetic risks, etc.).

Justice is generally interpreted as fair, equitable, and appropriate treatment of persons. Of the several categories of justice, the one that is most pertinent to clinical ethics is distributive justice . Distributive justice refers to the fair, equitable, and appropriate distribution of health-care resources determined by justified norms that structure the terms of social cooperation [ 25 ]. How can this be accomplished? There are different valid principles of distributive justice. These are distribution to each person (i) an equal share, (ii) according to need, (iii) according to effort, (iv) according to contribution, (v) according to merit, and (vi) according to free-market exchanges. Each principle is not exclusive, and can be, and are often combined in application. It is easy to see the difficulty in choosing, balancing, and refining these principles to form a coherent and workable solution to distribute medical resources.

Although this weighty health-care policy discussion exceeds the scope of this review, a few examples on issues of distributive justice encountered in hospital and office practice need to be mentioned. These include allotment of scarce resources (equipment, tests, medications, organ transplants), care of uninsured patients, and allotment of time for outpatient visits (equal time for every patient? based on need or complexity? based on social and or economic status?). Difficult as it may be, and despite the many constraining forces, physicians must accept the requirement of fairness contained in this principle [ 26 ]. Fairness to the patient assumes a role of primary importance when there are conflicts of interests. A flagrant example of violation of this principle would be when a particular option of treatment is chosen over others, or an expensive drug is chosen over an equally effective but less expensive one because it benefits the physician, financially, or otherwise.

Each one of the 4 principles of ethics is to be taken as a prima facie obligation that must be fulfilled, unless it conflicts, in a specific instance, with another principle. When faced with such a conflict, the physician has to determine the actual obligation to the patient by examining the respective weights of the competing prima facie obligations based on both content and context. Consider an example of a conflict that has an easy resolution: a patient in shock treated with urgent fluid-resuscitation and the placement of an indwelling intravenous catheter caused pain and swelling. Here the principle of beneficence overrides that of nonmaleficence. Many of the conflicts that physicians face, however, are much more complex and difficult. Consider a competent patient’s refusal of a potentially life-saving intervention (e.g., instituting mechanical ventilation) or request for a potentially life-ending action (e.g., withdrawing mechanical ventilation). Nowhere in the arena of ethical decision-making is conflict as pronounced as when the principles of beneficence and autonomy collide.

Beneficence has enjoyed a historical role in the traditional practice of medicine. However, giving it primacy over patient autonomy is paternalism that makes a physician-patient relationship analogous to that of a father/mother to a child. A father/mother may refuse a child’s wishes, may influence a child by a variety of ways – nondisclosure, manipulation, deception, coercion etc., consistent with his/her thinking of what is best for the child. Paternalism can be further divided into soft and hard .

In soft paternalism, the physician acts on grounds of beneficence (and, at times, nonmaleficence) when the patient is nonautonomous or substantially nonautonomous (e.g., cognitive dysfunction due to severe illness, depression, or drug addiction) [ 27 ]. Soft paternalism is complicated because of the difficulty in determining whether the patient was nonautonomous at the time of decision-making but is ethically defensible as long as the action is in concordance with what the physician believes to be the patient’s values. Hard paternalism is action by a physician, intended to benefit a patient, but contrary to the voluntary decision of an autonomous patient who is fully informed and competent, and is ethically indefensible.

On the other end of the scale of hard paternalism is consumerism, a rare and extreme form of patient autonomy, that holds the view that the physician’s role is limited to providing all the medical information and the available choices for interventions and treatments while the fully informed patient selects from the available choices. In this model, the physician’s role is constrained, and does not permit the full use of his/her knowledge and skills to benefit the patient, and is tantamount to a form of patient abandonment and therefore is ethically indefensible.

Faced with the contrasting paradigms of beneficence and respect for autonomy and the need to reconcile these to find a common ground, Pellegrino and Thomasma [ 28 ] argue that beneficence can be inclusive of patient autonomy as “the best interests of the patients are intimately linked with their preferences” from which “are derived our primary duties to them.”

One of the basic and not infrequent reasons for disagreement between physician and patient on treatment issues is their divergent views on goals of treatment. As goals change in the course of disease (e.g., a chronic neurologic condition worsens to the point of needing ventilator support, or a cancer that has become refractory to treatment), it is imperative that the physician communicates with the patient in clear and straightforward language, without the use of medical jargon, and with the aim of defining the goal(s) of treatment under the changed circumstance. In doing so, the physician should be cognizant of patient factors that compromise decisional capacity, such as anxiety, fear, pain, lack of trust, and different beliefs and values that impair effective communication [ 29 ].

The foregoing theoretical discussion on principles of ethics has practical application in clinical practice in all settings. In the resource book for clinicians, Jonsen et al. [ 30 ] have elucidated a logical and well accepted model (Table 2 ), along the lines of the systematic format that practicing physicians have been taught and have practiced for a long time (Chief Complaint, History of Present Illness, Past History, pertinent Family and Social History, Review of Systems, Physical Examination and Laboratory and Imaging studies). This practical approach to problem-solving in ethics involves:

Application of principles of ethics in patient care

Clinical assessment (identifying medical problems, treatment options, goals of care)

Patient (finding and clarifying patient preferences on treatment options and goals of care)

Quality of life (QOL) (effects of medical problems, interventions and treatments on patient’s QOL with awareness of individual biases on what constitutes an acceptable QOL)

Context (many factors that include family, cultural, spiritual, religious, economic and legal).

Using this model, the physician can identify the principles that are in conflict, ascertain by weighing and balancing what should prevail, and when in doubt, turn to ethics literature and expert opinion.

There is a wide gamut of clinical patient encounters with ethical issues, and some, especially those involving end-of-life care decisions, are complex. A few cases (Case 1 is modified from resource book [ 30 ]) are presented below as they highlight the importance of understanding and weighing the ethical principles involved to arrive at an ethically right solution. Case 6 was added during the revision phase of this article as it coincided with the outbreak of Coronavirus Infectious Disease-2019 (COVID-19) that became a pandemic rendering a discussion of its ethical challenges necessary and important.

A 20-year old college student living in the college hostel is brought by a friend to the Emergency Department (ED) because of unrelenting headache and fever. He appeared drowsy but was responsive and had fever (40°C), and neck rigidity on examination. Lumbar puncture was done, and spinal fluid appeared cloudy and showed increased white cells; Gram stain showed Gram-positive diplococci. Based on the diagnosis of bacterial meningitis, appropriate antibiotics were begun, and hospitalization was instituted. Although initial consent for diagnosis was implicit, and consent for lumbar puncture was explicit, at this point, the patient refuses treatment without giving any reason, and insists to return to his hostel. Even after explanation by the physician as to the seriousness of his diagnosis, and the absolute need for prompt treatment (i.e., danger to life without treatment), the patient is adamant in his refusal.

Comment . Because of this refusal, the medical indications and patient preferences (see Table 2 ) are at odds. Is it ethically right to treat against his will a patient who is making a choice that has dire consequences (disability, death) who gives no reason for this decision, and in whom a clear determination of mental incapacity cannot be made (although altered mental status may be presumed)? Here the principle of beneficence and principle of autonomy are in conflict. The weighing of factors: (1) patient may not be making a reasoned decision in his best interest because of temporary mental incapacity; and (2) the severity of life-threatening illness and the urgency to treat to save his life supports the decision in favor of beneficence (i.e., to treat).

A 56-year old male lawyer and current cigarette smoker with a pack-a-day habit for more than 30 years, is found to have a solitary right upper lobe pulmonary mass 5 cm in size on a chest radiograph done as part of an insurance application. The mass has no calcification, and there are no other pulmonary abnormalities. He has no symptoms, and his examination is normal. Tuberculosis skin test is negative, and he has no history of travel to an endemic area of fungal infection. As lung cancer is the most probable and significant diagnosis to consider, and early surgical resection provides the best prospects for cure, the physician, in consultation with the thoracic surgeon, recommends bronchoscopic biopsy and subsequent resection. The patient understands the treatment plan, and the significance of not delaying the treatment. However, he refuses, and states that he does not think he has cancer; and is fearful that the surgery would kill him. Even after further explanations on the low mortality of surgery and the importance of removing the mass before it spreads, he continues to refuse treatment.

Comment . Even though the physician’s prescribed treatment, that is, removal of the mass that is probably cancer, affords the best chance of cure, and delay in its removal increases its chance of metastases and reaching an incurable stage – the choice by this well informed and mentally competent patient should be respected. Here, autonomy prevails over beneficence. The physician, however, may not abandon the patient and is obligated to offer continued outpatient visits with advice against making decision based on fear, examinations, periodic tests, and encouragement to seek a second opinion.

A 71-year-old man with very severe chronic obstructive pulmonary disease (COPD) is admitted to the intensive care unit (ICU) with pneumonia, sepsis, and respiratory failure. He is intubated and mechanically ventilated. For the past 2 years, he has been on continuous oxygen treatment and was short of breath on minimal exertion. In the past 1 year, he had 2 admissions to the ICU; on both occasions he required intubation and mechanical ventilation. Presently, even with multiple antibiotics, intravenous fluid hydration, and vasopressors, his systolic blood pressure remains below 60 mm Hg, and with high flow oxygen supplementation, his oxygen saturation stays below 80%; his arterial blood pH is 7.0. His liver enzymes are elevated. He is anuric, and over next 8 h his creatinine has risen to 5 mg/dL and continues to rise. He has drifted into a comatose state. The intensivist suggests discontinuation of vasopressors and mechanical ventilation as their continued use is futile. The patient has no advance care directives or a designated health-care proxy.

Comment . The term “futility” is open to different definitions [ 31 ] and is often controversial, and therefore, some experts suggest the alternate term, “clinically non-beneficial interventions” [ 32 ]. However, in this case the term futility is appropriate to indicate that there is evidence of physiological futility (multisystem organ failure in the setting of preexisting end stage COPD, and medical interventions would not reverse the decline). It is appropriate then to discuss the patient’s condition with his family with the goal of discontinuing life-sustaining interventions. These discussions should be done with sensitivity, compassion and empathy. Palliative care should be provided to alleviate his symptoms and to support the family until his death and beyond in their bereavement.

A 67-year old widow, an immigrant from southern India, is living with her son and his family in Wisconsin, USA. She was experiencing nausea, lack of appetite and weight loss for a few months. During the past week, she also had dark yellow urine, and yellow coloration of her skin. She has basic knowledge of English. She was brought to a multi-specialty teaching hospital by her son, who informed the doctor that his mother has “jaundice,” and instructed that, if any serious life-threatening disease was found, not to inform her. He asked that all information should come to him, and if there is any cancer not to treat it, since she is older and frail. Investigations in the hospital reveals that she has pancreatic cancer, and chemotherapy, while not likely to cure, would prolong her life.

Comment . In some ancient cultures, authority is given to members of the family (especially senior men) to make decisions that involve other members on marriage, job, and health care. The woman in this case is a dependent of her son, and given this cultural perspective, the son can rightfully claim to have the authority to make health-care decisions for her. Thus, the physician is faced with multiple tasks that may not be consonant. To respect cultural values [ 33 ], to directly learn the patient’s preferences, to comply with the American norm of full disclosure to the patient, and to refuse the son’s demands.

The principle of autonomy provides the patient the option to delegate decision-making authority to another person. Therefore, the appropriate course would be to take the tactful approach of directly informing the patient (with a translator if needed), that the diagnosed disease would require decisions for appropriate treatment. The physician should ascertain whether she would prefer to make these decisions herself, or whether she would prefer all information to be given to her son, and all decisions to be made by him.

A 45-year-old woman had laparotomy and cholecystectomy for abdominal pain and multiple gall stones. Three weeks after discharge from the hospital, she returned with fever, abdominal pain, and tenderness. She was given antibiotics, and as her fever continued, laparotomy and exploration were undertaken; a sponge left behind during the recent cholecystectomy was found. It was removed, the area cleansed, and incision closed. Antibiotics were continued, and she recovered without further incident and was discharged. Should the surgeon inform the patient of his error?

Comment . Truth-telling, a part of patient autonomy is very much applicable in this situation and disclosure to patient is required [ 34-36 ]. The mistake caused harm to the patient (morbidity and readmission, and a second surgery and monetary loss). Although the end result remedied the harm, the surgeon is obligated to inform the patient of the error and its consequences and offer an apology. Such errors are always reported to the Operating Room Committees and Surgical Quality Improvement Committees of US Hospitals. Hospital-based risk reduction mechanisms (e.g., Risk Management Department) present in most US hospitals would investigate the incident and come up with specific recommendations to mitigate the error and eliminate them in the future. Many institutions usually make financial settlements to obviate liability litigation (fees and hospital charges waived, and/or monetary compensation made to the patient). Elsewhere, if such mechanisms do not exist, it should be reported to the hospital. Acknowledgment from the hospital, apologies from the institution and compensation for the patient are called for. Whether in US or elsewhere, a malpractice suit is very possible in this situation, but a climate of honesty substantially reduces the threat of legal claims as most patients trust their physicians and are not vindictive.

The following scenario is at a city hospital during the peak of the COVID-19 pandemic: A 74-year-old woman, residing in an assisted living facility, is brought to the ED with shortness of breath and malaise. Over the past 4 days she had been experiencing dry cough, lack of appetite, and tiredness; 2 days earlier, she stopped eating and started having a low-grade fever. A test for COVID-19 undertaken by the assisted living facility was returned positive on the morning of the ED visit.

She, a retired nurse, is a widow; both of her grown children live out-of-state. She has had hypertension for many years, controlled with daily medications. Following 2 strokes, she was moved to an assisted living facility 3 years ago. She recovered most of her functions after the strokes and required help only for bathing and dressing. She is able to answer questions appropriately but haltingly, because of respiratory distress. She has tachypnea (34/min), tachycardia (120/min), temperature of 101°F, BP 100/60 and 90% O 2 saturation (on supplemental O 2 of 4 L/min). She has dry mouth and tongue and rhonchi on lung auscultation. Her respiratory rate is increasing on observation and she is visibly tiring.

Another patient is now brought in by ambulance; this is a 22-year-old man living in an apartment and has had symptoms of “flu” for a week. Because of the pandemic, he was observing the recommended self-distancing, and had no known exposure to coronavirus. He used saline gargles, acetaminophen, and cough syrup to alleviate his sore throat, cough, and fever. In the past 2 days, his symptoms worsened, and he drove himself to a virus testing station and got tested for COVID-19; he was told that he would be notified of the results. He returned to his apartment and after a sleepless night with fever, sweats, and persistent cough, he woke up and felt drained of all strength. The test result confirmed COVID-19. He then called for an ambulance.

He has been previously healthy. He is a non-smoker and uses alcohol rarely. He is a second-year medical student. He is single, and his parents and sibling live hundreds of miles away.

On examination, he has marked tachypnea (>40/min), shallow breathing, heart rate of 128/min, temperature of 103°F and O 2 saturation of 88 on pulse oximetry. He appears drowsy and is slow to respond to questions. He is propped up to a sitting position as it is uncomfortable for him to be supine. Accessory muscles of neck and intercostals are contracting with each breath, and on auscultation, he has basilar crackles and scattered rhonchi. His O 2 saturation drops to 85 and he is in respiratory distress despite nebulized bronchodilator treatment.

Both of these patients are in respiratory failure, clinically and confirmed by arterial blood gases, and are in urgent need of intubation and mechanical ventilation. However, only one ventilator is available; who gets it?

Comment . The decision to allocate a scarce and potentially life-saving equipment (ventilator) is very difficult as it directly addresses the question “Who shall live when not everyone can live? [ 5 ]. This decision cannot be emotion-driven or arbitrary; nor should it be based on a person’s wealth or social standing. Priorities need to be established ethically and must be applied consistently in the same institution and ideally throughout the state and the country. The general social norm to treat all equally or to treat on a first come, first saved basis is not the appropriate choice here. There is a consensus among clinical ethics scholars, that in this situation, maximizing benefits is the dominant value in making a decision [ 37 ]. Maximizing benefits can be viewed in 2 different ways; in lives saved or in life-years saved; they differ in that the first is non-utilitarian while the second is utilitarian. A subordinate consideration is giving priority to patients who have a better chance of survival and a reasonable life expectancy. The other 2 considerations are promoting and rewarding instrumental value (benefit to others) and the acuity of illness. Health-care workers (physicians, nurses, therapists etc.) and research participants have instrumental value as their work benefits others; among them those actively contributing are of more value than those who have made their contributions. The need to prioritize the sickest and the youngest is also a recognized value when these are aligned with the dominant value of maximizing benefits. In the context of COVID-19 pandemic, Emanuel et al. [ 37 ] weighed and analyzed these values and offered some recommendations. Some ethics scholars opine that in times of a pandemic, the burden of making a decision as to who gets a ventilator and who does not (often a life or death choice) should not be on the front-line physicians, as it may cause a severe and life-long emotional toll on them [ 35, 36 ]. The toll can be severe for nurses and other front-line health-care providers as well. As a safeguard, they propose that the decision should rest on a select committee that excludes doctors, nurses and others who are caring for the patient(s) under consideration [ 38 ].

Both patients described in the case summaries have comparable acuity of illness and both are in need of mechanical ventilator support. However, in the dominant value of maximizing benefits the two patients differ; in terms of life-years saved, the second patient (22-year-old man) is ahead as his life expectancy is longer. Additionally, he is more likely than the older woman, to survive mechanical ventilation, infection, and possible complications. Another supporting factor in favor of the second patient is his potential instrumental value (benefit to others) as a future physician.

Unlike the other illustrative cases, the scenario of these 2 cases, does not lend itself to a peaceful and fully satisfactory resolution. The fairness of allocating a scarce and potentially life-saving resource based on maximizing benefits and preference to instrumental value (benefit to others) is open to question. The American College of Physicians has stated that allocation decisions during resource scarcity should be made “based on patient need, prognosis (determined by objective scientific measure and informed clinical judgment) and effectiveness (i.e., likelihood that the therapy will help the patient to recover), … to maximize the number of patients who will recover” [ 39 ].

This review has covered basics of ethics founded on morality and ethical principles with illustrative examples. In the following segment, professionalism is defined, its alignment with ethics depicted, and virtues desired of a physician (inclusive term for medical doctor regardless of type of practice) are elucidated. It concludes with my vision of an integrated model for patient care.

The core of professionalism is a therapeutic relationship built on competent and compassionate care by a physician that meets the expectation and benefits a patient. In this relationship, which is rooted in the ethical principles of beneficence and nonmaleficence, the physician fulfills the elements shown in Table 3 . Professionalism “demands placing the interest of patients above those of the physician, setting and maintaining standards of competence and integrity, and providing expert advice to society on matters of health” [ 26, 40 ].

Physicians obligations

Drawing on several decades of experience in teaching and mentoring, I envisage physicians with qualities of both “heart” and “head.” Ethical and humanistic values shape the former, while knowledge (e.g., by study, research, practice) and technical skills (e.g., medical and surgical procedures) form the latter. Figure 1 is a representation of this model. Morality that forms the base of the model and ethical principles that rest on it were previously explained. Virtues are linked, some more tightly than others, to the principles of ethics. Compassion, a prelude to caring, presupposes sympathy, is expressed in beneficence. Discernment is especially valuable in decision-making when principles of ethics collide. Trustworthiness leads to trust, and is a needed virtue when patients, at their most vulnerable time, place themselves in the hands of physicians. Integrity involves the coherent integration of emotions, knowledge and aspirations while maintaining moral values. Physicians need both professional integrity and personal integrity, as the former may not cover all scenarios (e.g., prescribing ineffective drugs or expensive drugs when effective inexpensive drugs are available, performing invasive treatments or experimental research modalities without fully informed consent, any situation where personal monetary gain is placed over patient’s welfare). Conscientiousness is required to determine what is right by critical reflection on good versus bad, better versus good, logical versus emotional, and right versus wrong.

Integrated model of patient care.

In my conceptualized model of patient care (Fig. 1 ), medical knowledge, skills to apply that knowledge, technical skills, practice-based learning, and communication skills are partnered with ethical principles and professional virtues. The virtues of compassion, discernment, trustworthiness, integrity, and conscientiousness are the necessary building blocks for the virtue of caring. Caring is the defining virtue for all health-care professions. In all interactions with patients, besides the technical expertise of a physician, the human element of caring (one human to another) is needed. In different situations, caring can be expressed verbally and non-verbally (e.g., the manner of communication with both physician and patient closely seated, and with unhurried, softly spoken words); a gentle touch especially when conveying “bad news”; a firmer touch or grip to convey reassurance to a patient facing a difficult treatment choice; to hold the hand of a patient dying alone). Thus, “caring” is in the center of the depicted integrated model, and as Peabody succinctly expressed it nearly a hundred years ago, “The secret of the care of the patient is caring for the patient” [ 41 ].

The author declares that he has no conflicts of interest.

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Study protocol
Open access
Published: 13 May 2020

Perceptions of procedural justice and coercion among forensic psychiatric patients: a study protocol for a prospective, mixed-methods investigation

Alexander I. F. Simpson ORCID: orcid.org/0000-0003-0478-2583 1 , 2 ,
Irene Boldt 1 , 3 ,
Stephanie Penney 1 , 2 ,
Roland Jones 1 ,
Sean Kidd 1 , 2 ,
Arash Nakhost 4 , 2 &
Treena Wilkie 1 , 2

BMC Psychiatry volume 20 , Article number: 230 ( 2020 ) Cite this article

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The risk and recovery paradigms are the dominant frameworks informing forensic mental health services and have been the focus of increasing research interest. Despite this, there are significant gaps in our understanding of the nature of mental health recovery in forensic settings (i.e., ‘secure recovery’), and specifically, the key elements of recovery as perceived by forensic patients and their treatment providers. Importantly, we know little about how patients perceive the forensic mental health system, to what extent they see it as fair and legitimate, and how these perceptions impact upon treatment engagement, risk for adversity, and progress in recovery.

In this prospective, mixed-methods study, we investigate patient perceptions of procedural justice and coercion within the context of the forensic mental health system in Ontario, Canada (final N = 120 forensic patients and their primary care providers). We elicit patient self-assessments of risk and progress in recovery, and assess the degree of concordance with clinician-rated estimates of these constructs. Both qualitative and quantitative methods are used to assess the degree to which patient perceptions of coercion, fairness and legitimacy impact upon their level of treatment engagement, risk for adversity and progress in recovery. A prospective, two-year follow-up will investigate the impact of patient and clinician perspectives on outcomes in the domains of forensic hospital readmission, criminal reoffending, and rate of progress through the forensic system.

Results from this mixed-methods study will yield a rich and detailed account of patient perceptions of the forensic mental health system, and specifically whether perceptions of procedural fairness, justice and legitimacy, as well as perceived coercion, systematically influence patients’ risk for adversity, their ability to progress in their recovery, and ultimately, advance through the forensic system towards successful community living. Findings will provide conceptual clarity to the key elements of secure recovery, and illuminate areas of similarity and divergence with respect to how patients and clinicians assess risk and recovery needs. In doing so, knowledge from this study will provide a deep understanding of factors that promote patient safety and recovery, and provide a foundation for optimizing the forensic mental health system to improve patient outcomes.

Peer Review reports

Forensic patients are most commonly defined internationally as persons with a serious mental disorder who have come in contact with or may come in contact with the criminal justice system. In Canada, the forensic patient designation is usually confined to persons who have been found by a court to be either unfit to stand trial (UST) or not responsible for a criminal offense on account of mental disorder (NCRMD). The care and recovery framework for such patients – approximately 4500 individuals in Canada – is overseen by provincial Review Boards constituted under the Canadian Criminal Code (CCC s. 672.34). Review Boards are responsible for annually reviewing the status of every person under their jurisdiction and making ultimate decisions regarding the least restrictive placement of the individual (i.e., continued detention, conditional or absolute discharge) having regard to public safety. Judgments regarding progression through the forensic system (e.g., to conditional and absolute discharge) are predicated on decisions of risk – that is, whether the person continues to pose a significant threat to the community, defined as a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying (CCC s. 672.54; the conduct giving rise to the harm must also be criminal in nature).

Risk – both for physical and psychological harm – is therefore of central importance to the mental health provisions of the Criminal Code. It is the focal point of almost all decision-making in forensic mental health services, from treatment planning, to determinations of patient security level, provision of community access privileges, and decisions to conditionally and absolutely discharge patients from the system. Measures that assess empirically-supported risk factors for future violence and criminal offending are routinely used to evaluate forensic patients and make decisions about how best to meet their needs while also protecting the safety of the public.

Alongside measures of risk, it is increasingly acknowledged that forensic assessments need to incorporate recovery-oriented and strengths-based factors to accurately gage patients’ clinical and rehabilitative progress. Indeed, the focus on risk for adversity has seriously limited investigation of successful outcomes among forensic patients, and more broadly, of their recovery process and quality of life. This is a serious deficiency in forensic research and service provision, particularly as recovery-based philosophies, which promote patient voice and self-determination, have come to dominate expectations on mental health services in Canada and other countries [ 29 ]. As we have recently argued [ 40 ], recovery for forensic service users has the core elements of recovery for all persons with a serious mental illness but also offence specific themes, and themes derived from the nature of their detention and legal oversight. Little research has been performed to elucidate these themes.

Canadian forensic services are organized by province and vary from one province to another. In Ontario (the location of the current study), secure hospital services include one maximum security hospital and 10 regional forensic hospitals containing both medium and low security beds in varying proportions depending on the program. Generally, approximately half of all forensic patients in Ontario are inpatients and the other half under forensic outpatient care. Graduated hospital grounds and community access (in the form of progressing passes and privileges) is granted by the hospital within an envelope of available passes defined in the annual disposition issued by the provincial review board [ 41 ].

Of specific interest in this proposed study is whether patients consider their involvement in forensic mental health system as legitimate, whether they feel they are treated fairly, and whether these perceptions impact how they engage with treatment and risk management efforts, and ultimately, progress through the forensic system toward successful community living. Exploring patient perceptions of legitimacy, which are based on perceptions of procedural justice [ 46 ] and likely also affected by experiences of coercion arising from their involuntary status, is particularly relevant in the understanding how patients engage in recovery. As Livingston [ 24 ] has recently shown, forensic patients are acutely aware of the competing processes of the need to live a “compliant life” with the needs to develop personal independence. Others have similarly highlighted the tension – and often perceived incompatibility – between recovery principles and the nature of secure care (e.g., promoting autonomy and self-determination under conditions of legal coercion [ 17 ];). These themes of ambivalence, and the experience of the journey through secure care as being limiting, though necessary, for recovery have been described in the systematic review of forensic user experiences by Shepherd et al. [ 39 ] and the more recent work of Livingston [ 24 ], Aga et al. [ 2 ] and Tomlin et al. [ 45 ].

To explore these themes further, this study assesses patient perceptions of procedural justice and coercion within the Canadian forensic mental health system. Using quantitative and qualitative approaches, we investigate the degree to which patient perceptions within these domains impact upon their level of treatment engagement, risk for adversity (e.g., reoffending, readmission to secure care) and progress in recovery. Patient- and clinician-rated assessments of risk and recovery are also collected to inform what may be areas of agreement and divergence with respect to the estimation of risk and recovery needs. Finally, we prospectively examine how this constellation of variables impacts upon the actual likelihood of an adverse outcome and rate of progress through the forensic system.

Risk assessment and its relationship with patient recovery

As principles of secure recovery have evolved over the past decade, so too have considerations of best-practices in violence risk assessment and management, and in particular, how to better align the practice of risk assessment with recovery principles. Traditionally, the literature has focused almost exclusively on the predictive efficacy of professional risk assessment schemes, with little attention paid to the ways in which patients perceive their own risk and how their perspectives can or should be woven into their assessments. Forensic patients report being minimally aware of the content of their risk assessments, and that they had been informed of the risk judgments rather than asked to contribute to the formulation [ 14 ]. Dixon [ 14 ] also found that the level of agreement between clinicians and patients was low; they had differing views about the reasons for their offending behavior and about appropriate risk management strategies. Other studies have similarly found poor concordance between patient- and clinician-rated assessments of risk and protective factors (e.g., [ 47 ]), although this concordance strengthens as patients progress in their recovery pathways.

Results suggesting suboptimal agreement between patient- and clinician-formulated risk is perhaps the expected outcome of a tradition of doing risk assessments “to” rather than “with”. In contrast, a collaborative approach to risk assessment would serve to better align this practice with a recovery framework, in part, by promoting patient voice, empowerment, and engagement with treatment providers [ 4 ]. Furthermore, a shared decision-making model for risk (e.g., [ 5 , 8 , 14 , 44 ]) would increase the likelihood that resulting risk formulations and management plans are relevant and palatable to the patient, and encourage a deeper understanding and mastery over risk issues. This, in turn, would presumably be associated with fewer adverse outcomes as patients’ progress in their recovery. At present, however, the utility and reliability of patient self-assessments remains to be shown in an empirical manner.

Alongside the absence of patient voice and perspective, the sole focus on risk for adversity (i.e., violence and offending) has significantly curtailed knowledge regarding those variables which promote successful outcomes for forensic patients, whether in hospital or upon transition to the community. In the context of forensic assessments, the failure to consider protective or strengths-based factors can result in inaccurate, overly pessimistic predictions of risk [ 11 ]. Protective factors may simply be the absence of risk in a particular domain (e.g., no history of substance abuse), but also include positive personal characteristics (e.g., coping skills, employability), social factors (e.g., peer support, prosocial relationships), and factors related to treatment compliance and responsivity [ 11 , 13 ]. At present, we know strikingly little about the prevalence of strengths-based factors and successful outcomes experienced by forensic patients as they recover and progress from inpatient forensic care to the community [ 24 , 42 ].

Perceived procedural justice and coercion

Procedural justice (PJ) relates to the fairness and transparency of process by which decisions are made. PJ theory posits that satisfaction with legal or clinical decisions is primarily determined by the quality of the procedural experience rather than the outcome of the decision. Decisions that are perceived as procedurally just involve respect and dignity, participation in the decision-making process, trust in the fairness of the process, and the absence of coercion.

Available evidence suggests that a fair and transparent legal process has beneficial effects on clinical outcomes. For instance, perceived PJ is found to be positively correlated with favorable attitudes toward recovery for individuals undergoing mental health court diversion [ 22 ]. In contrast, perceptions of coercion are inversely associated with perceptions of fairness and legitimacy with respect to decision-making in general psychiatric services [ 23 , 27 , 28 , 36 ]. Involuntary treatment, which reduces patient autonomy and liberty, is associated with increased patient perceptions of coercion relative to voluntary patients, although voluntary patients also commonly experience coercion in relation to health care decisions [ 31 , 36 ].

The related constructs of PJ and perceived coercion (PC) are particularly relevant to consider within the context of forensic mental health care, given the real limits that are imposed on patient autonomy and liberty in the name of public safety. To date, there have been a limited number of investigations of forensic patients’ experiences of PJ and PC (e.g., [ 15 ]), such that the role of PJ and PC on risk and recovery-based outcomes is largely unknown [ 7 ]. It is conceivable that perceptions of coercion and negative appraisals of procedural justice would adversely affect risk management and rehabilitative efforts, particularly given that PC is associated with increased levels of negative affect, notably anger and resentment [ 26 , 30 , 49 ], which are themselves risk factors for violence [ 16 ] and common motivating factors for absconding from forensic hospitals [ 48 ]. PC may also play a role in the high levels of poor treatment engagement observed among forensic patients [ 33 ]. Furthermore, a lack of choice and negative perceptions of treatment are key factors for poor engagement in both forensic and correctional populations [ 43 ].

In the general population, perceptions of the law’s fairness and legitimacy results in greater acceptance and compliance with legal rules and processes [ 46 ], and may promote the internalization of the value of rules and law [ 22 ]. By extension, forensic patients may be more engaged, compliant and responsive to treatment efforts if they perceive their involvement in the forensic system as procedurally just and legitimate.

Methods/design

Study aims and hypotheses.

To date, there is little information about how forensic patients experience their care and supervision under the forensic mental health system, to what extent they perceive the system as fair and legitimate, and how these perceptions impact upon treatment engagement, risk, and progress in recovery. The principal aim of this study is to explore forensic patient perceptions of procedural justice and experiences of coercion, and to relate these perceptions to relevant clinical outcomes in the domains of treatment engagement, risk for adversity and progress in recovery. A secondary aim is to assess the degree of agreement between patient and clinician estimates of risk and progress in recovery, explore areas of relative concordance and divergence.

We hypothesize that (1) the experience of PJ will be positively associated with treatment engagement and progress in recovery, while (2) higher levels of PC will be inversely associated with these outcomes, and positively associated with measures of risk and adversity. Further, we hypothesize that (3) greater patient-clinician concordance with respect to estimates of risk and recovery will be associated with a reduced likelihood of hospital readmission, reoffending and prolonged tenure under the supervision of the forensic system. To isolate the effects of PJ and PC, hypotheses will be tested in models controlling for variables related to progress in recovery (namely, the presence of protective factors as measured by the SAPROF, described below) as well as variables related to the likelihood of adversity in the domains of hospital readmission, reoffending and prolonged forensic system tenure (i.e., risk factors as measured by the HCR-20 V3 , described below). Patients’ current degree of liberty/restriction (i.e., current level of security, current passes and privileges granted) will also be accounted for.

See Fig. 1 for a depiction of the study design. This study will use a sequential mixed-methods design with a prospective component. The mixed-methods portion of the study will be carried out in two phases; in phase one the quantitative data will be collected, and in phase two the qualitative data will be gathered. The prospective portion of the study will be phase three.

Study Design

As depicted in Fig. 1 , a mixed-methods sequential design is typically characterized by the collection and analysis of quantitative and then qualitative data in two consecutive phases within one study. A final phase entails the integration or linking of data from the two separate phases of data collection. A central advantage of a mixed-methods approach is that it can draw upon the respective strengths of both quantitative and qualitative research methodologies, and that findings from each method may be integrated, either concurrently or sequentially, in order to more fulsomely and robustly address the overarching research objectives [ 20 ].

As applied to this study, the quantitative data are collected and analyzed prior to the qualitative data, while the latter are used primarily to help explain and elaborate on the quantitative results obtained. Quantitative and qualitative findings will be integrated with the use of a joint display, which allows data to be visually brought together [ 18 ]. Sample quotes from the qualitative interviews will be compared and contrasted with findings generated from the quantitative analyses. Areas of relative convergence and divergence between the qualitative and quantitative results will be distilled and interpreted in the final analysis of results. Relatively greater weight will be afforded to the quantitative results in the final interpretation and discussion of results, given that these data are drawn from the total sample, rather than a smaller subsample as is be the case for the qualitative findings.

Setting and participants

Participants will be 120 patients recruited from adult inpatient and outpatient forensic services within a large urban psychiatric hospital in Ontario, encompassing 180 forensic inpatient beds and approximately 240 outpatients. All participants will have been adjudicated as not responsible for a criminal offense on account of mental disorder (NCRMD) and will be under the supervision of the Ontario Review Board (ORB). Quota sampling will be used to select a sample of inpatients ( n = 60) and outpatients ( n = 60) who have had their annual review by the ORB within the last 3 months. Given our prior work detailing the sociodemographic and clinical characteristics of all forensic patients in Ontario ([ 35 ]; described below), we will be able to ascertain whether the current sample is representative of the larger patient population in the province.

Anticipated sample characteristics may be gleaned from our prior population-based study of all Ontario forensic admissions from 1987 to 2012 resulting in a disposition of NCRMD ( N = 2533 [ 35 ];). The majority were male (86%), had less than a high school education (48%), and were never married (58%). Most (82%) had committed at least one violent offense as part of their admitting offense to the hospital. Eighty-two percent had a primary psychotic disorder (schizophrenia in 57%, other psychoses in 25%), and 49% were diagnosed with a comorbid substance use disorder. The average length of time spent in the forensic system was over 7 years (M = 7.8 [SD = 6.0]).

Power calculations for each of the study’s hypotheses is somewhat complicated by the lack of prior effect size estimates available in the literature. Nevertheless, an N = 120 is in the range of previous studies on PC and PJ (e.g., [ 31 , 36 ]), as well as investigations of the DUNDRUM-3 and DUNDRUM-4 [ 9 , 10 , 32 ]. If moderate effect sizes (i.e., d = 0.5–0.8) are anticipated with respect to the associations between PJ, PC and treatment engagement / progress in recovery, a sample size of 120 (allowing for a modest amount of attrition) yields a power of at least 95% with alpha = 0.05 to detect an association between these variables.

Recruitment

Subjects will be recruited within 3 months of their annual ORB hearing. Potential participants will be referred to the study by their primary clinician if they deem that the patient has the capacity to consent and participate in the study. The approach to participate is by research staff, not by members of the treatment team. The recruiting individual will provide interested participants with a consent form, and will attain written consent from individuals wishing to participate. Prior to signing the consent form participants will have the chance to ask and have answered any questions they might have. Additionally, in order to determine whether the participant understands the purpose of the study and their role within the study, patients will be asked the following questions; 1) In your own words, please describe what the study is about; 2) What are some benefits of participating in this study?; 3) What are some risks of participating in this study?; and 4) Will your participation influence decisions made by the ORB? These questions are based on the factors to consider for obtaining consent, as outlined by the Personal Health Information Protection Act (PHIPA, 2004). Potential participants will be approached until we achieve our sample size of 60 in each of the inpatient and outpatient samples.

The following quantitative measures will be administered during phase one of the study to assess the specified constructs of interest.

Perceived coercion (PC)

The MacArthur Perceived Coercion Scale (MPCS [ 19 ];) is a widely-used survey designed to assess perceptions of coercion in psychiatric patients. Our version adapts the questions for use in both inpatient and outpatient forensic settings and consists of 8 items, each focusing on one aspect of PC: influence, control, choice, freedom, persuasion, inducements, threats, and force (e.g., How much influence do you have on your personal and legal/health situation? How much is your personal and legal/health situation based on your choice? Did you feel as though anyone tried to force you into accepting your personal and legal/health situation?). Participants’ responses will be recorded using a 7-point Likert scale where higher values indicate greater PC.

Procedural justice (PJ)

The PJ Scale (PJS [ 23 ];) is used to measure patients’ perceptions of PJ surrounding their ORB hearing and the decisions made regarding their ongoing treatment and supervision within the forensic mental health system. Our adapted PJS consists of 9 items, each focusing on one dimension of PJ: motivation, respect, validation, fairness, information, voice, deception, interest, and satisfaction. Questions appearing on the PJS will be asked separately for the patient’s healthcare team, psychiatrist, lawyer, and members of ORB, for a total of 36 questions. For example, in the domain of respect, the same question will be asked for each of the four groups listed above (i.e., how much respect did your healthcare team/psychiatrist/lawyer/ORB) treat you with?).

The above two scales have been used previously in forensic settings [ 25 ] and have shown results consistent with their use in general mental health settings. They have also been adapted for community mental health settings [ 26 ] and are the most commonly used measures of coercion in compulsory community treatment care studies (e.g., [ 36 ]).

Treatment engagement / Progress in recovery

The Programme Completion and Recovery scales of the Dangerousness, Understanding, Recovery, and Urgency Manual (DUNDRUM [ 21 ];) are designed to assess patient engagement and progress in treatment, as well as progress in recovery. The Programme Completion scale (7 items) relates to progress and engagement in key “pillars of care”: physical health, mental health, drugs and alcohol, problem behaviours, self-care and activities of daily living, education, occupation and creativity, and family and social networks. The Recovery scale (6 items) includes items assessing stability, insight, rapport / working alliance, leave, dynamic violence risk, and victim sensitivities.

The DUNDRUM scales all have parallel patient- and staff-rated versions, enabling a comparison between these user groups on estimates of progress in treatment and recovery, and related areas of unmet treatment need/risk. The patient- and clinician-rated versions of the scales have excellent internal consistency, are correlated with each other (Spearman’s rho = 0.57 [Programme Completion], 0.71 [Recovery]), and predict inpatient violence, inpatient self-harm, conditional discharges to the community, and progress along the recovery pathway [ 1 , 9 , 10 ].

The Personal Recovery Outcome Measure-Brief Form (PROM-BF [ 3 ];) is a 10-item measure designed to assess personal recovery of people with mental illness living in the community. The measure was developed by drawing upon existing measures of recovery and using an iterative process of qualitative and quantitative testing guided by Rasch Measurement Theory. Each item (e.g., I am motivated to keep myself well; I can identify the early warnings signs of becoming sick; I accomplish the goals I set out for myself) has a 5 point response scale with 0 = None of the time and 4 = 100% of the time . Although the scale was originally developed and validated on community-dwelling individuals with mental illness, we administer the PROM-BF to both inpatients and outpatients in this study as it was deemed that all items are relevant and appropriately phrased for both patient groups.

Violence risk

Risk status will be measured with the Historical, Clinical and Risk Management-20, Version 3 (HCR-20 V3 [ 16 ];), a widely used and extensively validated structured professional tool to assess violence risk. It consists of 10 risk factors relating to historical variables (e.g., previous violence, past problems with substance use or employment, trauma history), 5 items describing the patient’s current clinical concerns (e.g., insight, active symptoms of major mental illness, current treatment compliance), and 5 items describing areas for future risk management (e.g., future plans for housing or employment, presence of social supports). Each item may be scored on a three-point scale as 0 (not present), 1 (possibly or partially present), or 2 (definitely present). A final summary risk rating is then presented as low, moderate, or high.

Protective factors for violence risk

The Structured Assessment of Protective Factors for violence risk (SAPROF [ 11 ];) is a structured professional judgment tool consisting of 17 protective factors which are rated on a three-point scale (0–2) reflecting the degree to which the protective factor is judged to be present. Items are organized within three scales: Internal factors (e.g., intelligence, empathy, self-control), Motivational factors (e.g., motivation for treatment, life goals), and External factors (e.g., social network, living circumstances). After rating the protective factors, an overall protection judgement (low, moderate, high) is made regarding the level of protection from relapse. A total sum score of the 17 SAPROF item scores can also be calculated. Recent research has demonstrated the predictive validity of the SAPROF in forensic psychiatric settings in relation to reduced rates of adverse clinical outcomes (e.g., inpatient violence, self-harm [ 1 , 12 ];).

First, a review of patients’ health record information is conducted to gather sociodemographic information (e.g., age, sex, primary diagnosis) and rate the risk and protective factors appearing on the HCR-20 V3 and SAPROF (see Measures section). Once the file review is complete, the same member of the research team schedules an interview with the participant, at which time the quantitative self-report questionnaires assessing procedural justice, perceived coercion, and recovery are administered. At present, 28 patients have completed phase one of the study. This recruitment occurred over a three-month period. We anticipate it will take 1 year to recruit the full sample for the study.

In the second stage, a subset of approximately 20 participants who consent to being re-contacted are purposively sampled for a follow-up one-to-one qualitative interview performed within 4 weeks of their first appointment. Specifically, those who are highly concordant (~ 10 patients) and discordant (~ 10 patients) with their primary clinician’s ratings on the DUNDRUM Programme Completion and Recovery scales are sampled, creating two groups. The qualitative research paradigm would suggest that this size of sample per group is adequate in the context of the methods proposed in this study [ 34 , 38 ].

Mean concordance scores across the DUNDRUM Programme Completion and Recovery scales are used to guide participant selection in phase two. Highly discordant participants are defined as those whose average concordance score on either or both the DUNDRUM Programme Completion and Recovery scales is greater than or equal to one standard deviation above the overall mean (M = 1.1, SD = 0.8) concordance score across the two scales found in Davoren et al. [ 10 ] (lower values = greater concordance). Conversely, highly concordant patients are defined as those whose average concordance score on both of the two scales is less than or equal to one standard deviation below this published norm.

To get a representative sample of the forensic population at the hospital, our purposive sampling strategy also considers the age, sex, status (outpatient, inpatient), and security level (type of inpatient unit – minimum or medium) when selecting participants to conduct follow-up qualitative interviews.

Qualitative interview structure

Semi-structured interviews with a selection of the highly concordant/discordant patients last approximately 1 h. Interviews consist of open-ended questions that elicit and probe participants’ perspectives and experiences regarding their time under the ORB and their current clinical care. Specifically, patients are asked about: (1) their experiences of being under the ORB; (2) whether they perceive their being under the ORB as legitimate (e.g., fair, reasonable, right) both at present and when they were first under the ORB; (3) their perception of their own risk, as well as if and how this relates to their being under the ORB; (4) their perceptions of their own recovery, as well as if and how this relates to their being under the ORB; and, (5) their understanding of the relationship between risk and recovery.

Phase three

Outcome data in the domains of forensic hospital readmission, criminal reoffending, and duration of tenure within the forensic system is collected at 24 months following the first interview (phase one). Rates of hospital readmission (for outpatients or patients achieving discharge during the study window) are collected from the health record. Rates of reoffending are tracked via records from the Canadian Police Information Centre (CPIC). Lastly, length of stay within the forensic system is calculated by subtracting the date of admission from three separate dates representing recovery-oriented milestones in the trajectory of forensic care: (1) initial discharge from hospital into the community; (2) conditional discharge from the ORB; and (3) absolute discharge from the ORB (i.e., complete cessation of forensic patient status).

Statistical analysis

All analyses of the data collected in phase one will be carried out using R with a conventional two-sided p < 0.05. Bivariate correlations will first be computed to examine the associations between PJ, PC and measures of treatment engagement and recovery (i.e., DUNDRUM scales). Then, scores on our measures of treatment engagement and recovery will be regressed on scores from the PJ and PC scales while controlling for scores on the SAPROF and HCR-20 V3 . A series of linear regressions will be conducted to examine the predictive efficacy of patient and clinician ratings on prospectively-measured, dichotomously-coded outcomes in the domains of hospital readmission and reoffending. Length of stay (inpatient) and total duration of time spent under forensic supervision will be included as covariates in these models. Survival analysis will be used to model the duration of time elapsing from the point of admission to the gradual points of discharge from the forensic mental health system (i.e., community living, conditional and absolute discharge).

Patient-clinician agreement on the DUNDRUM Programme Completion and Recovery scales will be assessed by examining the bivariate correlations between patient- and clinician-generated scores. Unstandardized difference scores will be calculated in order to examine the magnitude and direction of discrepancies between patient and clinician ratings. The unstandardized difference score is obtained by simply subtracting the raw score of one informant from a second informant’s raw score. Lastly, difference scores will be entered into a regression model to investigate whether the degree of patient-clinician concordance is associated the likelihood of adversity at the 24-month follow-up.

Qualitative analysis

All interview data gathered in stage two, with the consent of participants, is audio-recorded and transcribed verbatim. We will be guided by Braun and Clarke’s [ 6 ] method of thematic analysis, involving six discrete steps. First, familiarizing yourself with your data requires repeated engagements with the data and noting preliminary ideas and areas of analytic interest. Second, generating initial codes involves producing preliminary codes from the entire data set. Third, searching for themes involves organizing the codified data into potential themes and subthemes. Fourth, reviewing themes requires considering, and revising as needed, the internal coherence of the codes in each theme as well as the overall coherence of the identified themes in relation to the entirety of the data. Fifth, defining and naming themes involves refining, defining, and naming each theme. Finally, producing the report , the last level of analysis, involves selecting the most suitable way to present the data and explicitly linking it to the research questions and the extant literature.

The qualitative data analysis will be conducted with the assistance of NVivo software. For quality control and consistency, 10–15% of the transcripts will be double-coded by a second rater who will be blinded to the coding of the primary rater. Additionally, initial themes, findings and concerns will be brought to the research team for discussion. Preliminary analyses will be performed concurrently with data collection, and emerging themes may inform the focus of subsequent interviews as well as the point at which thematic saturation has been reached.

As noted above (section 2.2), quantitative and qualitative findings will be visually integrated in the final analysis and sample quotes from the qualitative interviews will be compared and contrasted with findings generated from the quantitative analyses. Areas of relative convergence and divergence between the qualitative and quantitative results will be distilled and interpreted in the final analysis of results. The qualitative data and their analysis is anticipated to refine and explain the quantitative results by exploring participants’ views in more depth, and potentially uncovering new conceptual domains of risk and recovery not covered by the quantitative scales employed.

Ethical approval

Ethical approval has been gained from the Centre for Addiction and Mental Health Research Ethics Board (approval number CAMH REB 046–2017). It is funded through a peer audited Centre for Addiction and Mental Health Foundation Grant from the Grey Foundation (Grant number K Grey Foundation RE092 Law and Mental Health Program).

This study will be one of the first to comprehensively investigate patient perceptions of care under the forensic mental health system, and specifically, to explore the impact of these perceptions on relevant clinical outcomes in the domains of treatment engagement, risk for adversity, and progress in recovery. Our focus on perceptions of procedural justice and coercion is particularly germane given the major loss of liberty associated with secure care and the length of inpatient forensic hospitalizations. By combining quantitative and qualitative methodological approaches, and both patient and care provider viewpoints, the data generated from this study will yield a nuanced understanding of the factors that promote or hinder successful outcomes and recovery efforts among forensic patients.

The investigation of patient and clinician agreement with respect to progress in treatment and recovery is particularly novel, as only a few studies to date have looked at the degree of agreement and its impact on progress and outcomes. Shared decision making processes are lacking in forensic mental health [ 37 ] and the DUNDRUM is one of the few measures that will allow us to explore these dimensions. Finally, given that the quantitative exploration of this constellation of concepts is novel, the addition of a qualitative approach is crucial. This will promote a richer understanding of patient experiences, thereby allowing us to critically reconsider the risk and recovery frameworks employed in forensic interventions and ORB processes.

Availability of data and materials

The data that support the findings of this study will be available on request from the corresponding author once the study is published. The data are not publicly available due to the sensitivity of the subject and participants.

Abbreviations

Dangerousness Understanding, Recovery and Urgency Manual

Historical Clinical Risk Management-20, Version 3

Level of Restrictions Scale

MacArthur Perceived Coercion Scale

Not Criminally Responsible on account of Mental Disorder

Ontario Review Board

Perceived coercion

Procedural justice

Procedural Justice Scale

Personal Recovery Outcome Measure-Brief Form

Structured Assessment of Protective Factors for Violence Risk

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Acknowledgements

We thank the Grey Foundation for the financial support of this study.

The study is funded through a peer audited CAMH Foundation Grant from the Grey Foundation (Grant number K Grey Foundation RE092 Law and Mental Health Program).

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Alexander I. F. Simpson, Irene Boldt, Stephanie Penney, Roland Jones, Sean Kidd & Treena Wilkie

Department of Psychiatry, University of Toronto, Toronto, Canada

Alexander I. F. Simpson, Stephanie Penney, Sean Kidd, Arash Nakhost & Treena Wilkie

Lawrence S. Bloomberg Faculty of Nursing, University of Toronto, Toronto, Canada

Irene Boldt

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AS, IB, SP, RJ, TW and SK designed the study. AN contributed study design from prior work on similar, non-forensic populations. AS, SP and IB wrote the study design. All authors reviewed the manuscript. The author(s) read and approved the final manuscript.

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Correspondence to Alexander I. F. Simpson .

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Simpson, A.I.F., Boldt, I., Penney, S. et al. Perceptions of procedural justice and coercion among forensic psychiatric patients: a study protocol for a prospective, mixed-methods investigation. BMC Psychiatry 20 , 230 (2020). https://doi.org/10.1186/s12888-020-02629-6

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Ethical Considerations and Fairness in the Use of Artificial Intelligence for Neuroradiology

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In this review, concepts of algorithmic bias and fairness are defined qualitatively and mathematically. Illustrative examples are given of what can go wrong when unintended bias or unfairness in algorithmic development occurs. The importance of explainability, accountability, and transparency with respect to artificial intelligence algorithm development and clinical deployment is discussed. These are grounded in the concept of “primum no nocere” (first, do no harm). Steps to mitigate unfairness and bias in task definition, data collection, model definition, training, testing, deployment, and feedback are provided. Discussions on the implementation of fairness criteria that maximize benefit and minimize unfairness and harm to neuroradiology patients will be provided, including suggestions for neuroradiologists to consider as artificial intelligence algorithms gain acceptance into neuroradiology practice and become incorporated into routine clinical workflow.

ABBREVIATION:

Artificial intelligence (AI) is beginning to transform the practice of radiology, from order entry through image acquisition and reconstruction, workflow management, diagnosis, and treatment decisions. AI will certainly change neuroradiology practice across routine workflow, education, and research. Neuroradiologists are understandably concerned about how AI will affect their subspecialty and how they can shape its development. Multiple published consensus statements advocate the need for radiologists to play a primary role in ensuring that AI software used for clinical care is fair to and unbiased against specific groups of patients. 1 In this review, we focus on the need for developing and implementing fairness criteria and how to balance competing interests that minimize harm and maximize patient benefits when implementing AI solutions in neuroradiology. The responsibility for promoting health care equity rests with the entire neuroradiology community, from academic leaders to private practitioners. We all have a stake in establishing best practices as AI enters routine clinical practice.

Definitions

“Ethics,” in a strict dictionary definition, is a theory or system of values that governs the conduct of individuals and groups. 2 Ethical physicians should endeavor to promote fairness and avoid bias in their personal treatment of patients and with respect to the health care system at large. A biased object yields 1 outcome more frequently than statistically expected, eg, a 2-headed coin. Similarly, a biased algorithm systematically produces outcomes that are not statistically expected. One proposed definition for algorithmic bias in health care systems is “when the application of an algorithm compounds existing inequities in socioeconomic status, race, ethnic background, religion, sex, disability, or sexual orientation to amplify them and adversely impact inequities in health systems.” 3 This definition, while not ideal, is a request for developers and end users of AI algorithms in health care to be aware of the potential risk of poorly designed algorithms for not merely reflecting societal imbalances but also amplifying inequities.

“Fairness” can be defined as the absence of favoritism toward specific subgroups of populations. 4 Individual fairness is the principle that any 2 individuals who are similar should be treated equally. 5 In contrast, “group fairness,” ie, statistical or demographic parity, is the principle that the demographics of the group receiving positive or negative treatment are the same as the population as a whole. 5 Considering harm caused by algorithmic bias, ie, allocational (denial of opportunities or resources 6 ) or representational (reinforcement of negative stereotypes 7 ) harm, may be more intuitive.

Algorithmic Bias

Algorithmic fairness.

Scientists and companies involved in designing and implementing AI solutions across various industries have recognized the importance of fairness and social responsibility in the software they create, embodied in the concept of fairness, accountability, transparency, and ethics in AI. 9 For commercial algorithms, there are regulatory considerations. For example, the Federal Trade Commission is empowered to prohibit “unfair or deceptive acts or practices in or affecting commerce,” which include racially biased algorithms. 10 A bill introduced in Congress (the Algorithmic Accountability Act) would go further by directing the Federal Trade Commission to require impact assessment around privacy, security, bias, and fairness from companies developing automated decision-making systems. 11

Multiple ways to measure algorithmic fairness have been developed. 12 ⇓ ⇓ - 15 Corbett-Davies and Goel 14 proposed 3 definitions for algorithmic fairness: 1) anticlassification for which protected features (eg, sex, race) are explicitly excluded from the model, 2) classification parity for which model performance is equal across groups organized by protected features, and 3) calibration for which model outcomes are independent of protected attributes. However, the impossibility theorem shows that it is not possible to simultaneously equalize false-positive rates, false-negative rates, and positive predictive values across protected classes while maintaining calibration or anticlassification fairness. 12 If only 1 fairness criterion can be achieved, clinical and ethical reasoning will be required to determine which one is appropriate. 16

Techniques have been developed to explain poor fairness scores in AI algorithms. One approach applied the decomposition method of “additive features” 17 to quantitative fairness metrics 14 , 15 (eg, statistical parity). 18 By means of simulation data for features which were purposefully manipulated to result in poor statistical parity, this method identified features that were most responsible for fairness disparities in the outputs of AI algorithms.

AI Algorithms: What Could Possibly Go Wrong?

Prominent examples from outside of medicine can be instructive in understanding how particular problems in AI processes, namely lack of representative data sets and inadequate validation, may lead to unfair outcomes with the potential for serious consequences. A sparsity of training data from geographically diverse sources can lead to both representational harm (through bias amplification) 19 and allocational harm (from algorithms working less accurately). 20 , 21 A study of facial-recognition programs reported that while all software correctly identified white males (<1% error rate), the failure rate for women of color ranged from 21% to 35%. 22 A ProPublica 23 investigation of an AI algorithm that assessed the risk of recidivism showed that white defendants who re-offended were incorrectly classified as low risk almost twice as often as black offenders. In contrast, black defendants who did not re-offend were almost twice as likely as white defendants to be misclassified as at high risk of violent recidivism. These AI algorithms were inadvertently used to perpetuate institutional racism. 24 There are many theoretical reasons for the poor performance, with nonrepresentative training data being the most likely important factor.

Primum No Nocere

Embedded in the Hippocratic Oath for physicians is the concept of “primum no nocere” (first, do no harm), which applies to technological advances in medicine, including neuroradiology and AI implementation. AI models deployed in health care can lead to unintended unfair patient outcomes and can exacerbate underlying inequity. Not surprising, given massive interest in applying AI to medical imaging, examples of bias specific to neuroradiology are emerging. In a study that analyzed >80 articles that used AI on head CT examinations, >80% of data sets were found to be from single-center sources, which increases the susceptibility of the models to bias and increases model error rates. 25 The prevalence of brain lesions in the training and testing data sets did not match real world prevalence, which will likely overinflate the performances of models. 25 In a meta-analysis of AI articles on intracranial aneurysm detection, the authors concluded that most studies had a high risk of bias with poor generalizability, with only one-quarter of studies using an appropriate reference standard and only 6/43 studies using an external or hold-out test set. 26 They found low-level evidence for using these AI algorithms and that none of the studies specifically tested for the possibility of bias in algorithm development. 26 In a study that used AI models to detect both intracranial hemorrhage and large-vessel occlusion, the algorithm showed similar excellent performance in diverse populations regardless of scanning parameters and geographic distribution, suggesting that it is unbiased. 27 This study did not use independent data sets to test that assertion formally. 27

In the neuroradiology literature, there are currently few studies assessing how bias may affect AI algorithms developed for routine clinical use. In 1 study, training cohort bias in 15 O-Water PET CBF calculation was evaluated. 28 The study showed that predictions in patients with cerebrovascular disease were poorer if only healthy controls were used for training models. However, predictions for healthy controls were unaffected if the models were trained only on patient data. 28 Training with data including healthy controls and patients with cerebrovascular disease yielded the best performance. 28 From these neuroradiology examples, incorporating diverse patient characteristics that reflect target patient populations in the training and validation sets may be a reasonable strategy for mitigating bias.

In health care, there are many potential sources of bias such as age, sex, ethnicity, cultural, geographic, environmental, and socioeconomic status along with additional confounders such as disease prevalence and comorbidities. 1 It is easy to imagine that physical characteristics present in neuroradiology images could affect algorithm performance if not sufficiently represented in training sets. Inadequate sampling or matching disease prevalence could impact performance for different populations. Population-based studies could have inadequate inclusion of diverse data. In neuroradiology, additional sources of bias include heterogeneity of scanners, scanner parameters, acquisition protocols, and postprocessing algorithms.

Other ethical issues in AI use center on clinical deployment. Will the use of algorithms be equitable across hospital systems, or will only large, urban academic hospitals have access to state-of-the-art tools? Other considerations include whether the AI model will perform robustly across time. Medicine, health care practices, and devices are constantly evolving. Models need to be periodically validated on diverse populations and calibrated with data reflecting current clinical practices if they are expected to remain clinically relevant. 29 In medicine, interesting case studies that defy common medical knowledge can improve our understanding of disease and lead to practice changes. One such example is that of a patient who defied the odds of a severe motor vehicle crash to achieve complete recovery. 30 How to incorporate these outlier cases into AI algorithms is unclear. Overall, effective, fair, and ethical applications of AI to neuroradiology problems will require balancing competing demands across multiple domains (Online Supplemental Data).

Mitigating Bias and Unfairness

Sources of bias in medical AI have been previously described. 16 In brief, there may be biases in the training data set construction, model training, clinician/patient interaction, and model deployment. It is incumbent on all stakeholders to do their part in mitigating bias and unfairness in the development, deployment, and use of AI models in neuroradiology.

Integration of Fairness, Accountability, Transparency, and Ethics Principles in the AI Cycle

Fairness, accountability, transparency, and ethics principles should be integrated 1 , 31 , 32 into the AI development lifecycle ( Fig 1 , adapted from Cramer et al 31 and the Online Supplemental Data). Diverse stakeholder involvement is critical for all stages. For task definition, one should clearly define the intended long-term effects of the task and model. One should define processes for discovering unintended biases at this stage. This outcome can be achieved by defining fairness requirements.

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The AI algorithm development lifecycle.

Data collection that is ethical and transparent and allows sufficient representation of protected groups should be ensured. One should check for biases in data sources. Many neuroradiologic AI applications require labeled data, eg, subarachnoid hemorrhage versus subdural hemorrhage. How and by whom are labels generated? Does it match the expected clinical deployment context? One should check for biases in how data are collected, which could lead to underrepresentation of underserved populations. Data collection should preserve privacy. For example, the collection of high-resolution images enables reconstruction of faces that can potentially be cross-linked to the patient's real identity through face-recognition software 33 as demonstrated in a reconstruction of data from an anthropomorphic phantom ( Fig 2 ). 34 In a PET study for which CT and MR imaging data were collected for standard uptake value quantification, researchers showed that face-recognition software could match facial reconstructions from CT and MR imaging data to their actual face photographs with correct match rates ranging from 78% (CT) to 97%–98% (MR imaging), leading the researchers to advocate for the routine use of de-identification software. 35 When one uses de-identification software, the rates of recognition plummet to 5% for CT and 8% for MR imaging, without impacting standard uptake value quantification. 35 A recent report used a novel de-identification software that deliberately distorted the ears, nose, and eyes that prevented facial recognition from CT and MR images, 36 which may be a viable solution for this privacy concern.

A 3D T1-weighted MR imaging scan ( A ) of an anthropomorphic phantom ( B ), which has no patient-identifying information. A 3D-rendered lifelike reconstruction ( C ) is possible, comparable with the original (photograph courtesy of Jacob C. Calkins, MGH Athinoula A. Martinos Center for Biomedical Imaging). The reconstruction was performed using open source software (Horos Version 3.3.6; Horos Project).

To address patient privacy concerns, many AI applications use synthetic data for training. 37 These synthetic data sets are typically produced using generative algorithms 38 and have the potential for promoting data-sharing (being unrestricted by regulatory agencies) and for the creation of diverse data sets. 37 However, the use of synthetic data can lead to nonrealistic scenarios 39 or inadvertently reinforce biases. 40 , 41

For the model definition stage, model assumptions must be clearly defined, and potential biases, identified. Model architecture must be checked for introduction of biases and whether the cost function has unintended adverse effects. 42

For the training stage, there are several online free resources to detect and mitigate bias 43 based on statistical definitions of fairness. Fairlearn 44 and AI Fairness 360 45 provide tools to detect and mitigate unfairness. Machine learning–Fairness-Gym takes a slightly different approach using simulation to evaluate the long-term fairness effects of learning agents in a specified environment. 46 The What-If Tool lets one visualize trained models to detect bias with minimal coding. 47 In addition, embedding learning methods that can debias AI models may help mitigate unfairness. 8 For example, Amini et al 8 proposed incorporating learning latent space structures for reweighting data during training to produce a less biased classifier.

For the testing stage, one should ensure that testing data have not leaked into the training data, match the expected deployed clinical context, and sufficiently represent the expected patient population. Potential issues with data-distribution discrepancies 48 can exacerbate unfairness. Variations among data sets can lead to biased learning of features from data sets collected from different sources (ie, domains) under different conditions. 49 Comparing differences between the source domain (where training data were collected) and the target domain (the test data for which the AI model will be used) may help explain any biases that are found. Many advanced domain-matching algorithms have been introduced to improve AI fairness by reducing the domain differences for cross-site data sets. 50 , 51

In the deployment stage, continued surveillance of performance in terms of fairness and accuracy is needed. One should determine whether detected errors are one-off or systemic problems. There is no consensus yet on who bears this responsibility. Is it the end-users (radiologists/clinicians), the health care system/hospitals, or the vendors who make and sell the product? How will the algorithms be provided to the medical community? Will they be available equitably to diverse communities? One should ideally be able to explain how the trained AI model makes its decisions and predictions.

For the feedback stage, use and misuse of the system in the real world should be monitored and corrected in a transparent fashion. Fairness metrics 14 , 15 should be evaluated and then used to refine the model. Accountability for errors needs to be predefined.

Trust, Radiology, and AI: Guiding Principles

Neuroradiologists need to become educated and involved to ensure that AI is used appropriately in the diagnosis, management, and treatment of patients. For neuroradiologists to trust the use of AI in image interpretation, there needs to be greater transparency about the algorithm. Training data are foundationally critical to algorithm development, explaining why “good” data are so valuable. Therefore, trust-building for neuroradiology starts with the quality of data, its collection and management, its evaluation, the quality of its associated labels, and the protection of patient privacy. To many radiologists, the entire field of AI is opaque, where a “black box” takes images and spews out predictive analytics. For AI to gain widespread acceptance by patients and radiologists, everyone needs to comprehend how a particular trained AI model works. 52

There are many unresolved issues around the development of AI in radiology. Large amounts of imaging data are needed, which are difficult to share among institutions because there is reticence to engage in data-sharing agreements when imaging data are financially valuable to industry. Additionally, there are data-use agreements and data-sharing agreements that stipulate noncommercial use. However, some might argue that excluding companies from developing products on the basis of de-identified, shared data is itself counterproductive and cannot be enforced in a meaningful way. Federated learning shows promise in disrupting this sharing-based landscape because it alleviates the need to share patient data by training models that gain knowledge from local data that are retained within the acquiring institution at all times. 53 , 54 However, security concerns 54 such as inferential attacks and “model poisoning” from corruption of the AI model and/or data from ≥1 site remain. 55 , 56 Unfairness in federated learning can be exacerbated by the challenge of simultaneously maintaining accuracy and privacy; 57 however, these potential limitations are being addressed. 58 Informed consent, ownership of data, privacy, and protection of data are major topics that remain in flux without clear best practice guidelines. 59

For AI algorithm development in academic medical centers, new concepts are necessary. Should we assume that patients who enter a major academic medical center automatically opt-in to allow their anonymized imaging data to be used for research, including AI? Do patients need to explicitly opt-out in writing? If patient data are used to develop AI algorithms, should patients be financially compensated? One viewpoint is that “clinical data should be treated as a form of public good, to be used for the benefit of future patients” once its use for clinical treatment has ended. 60 These questions underscore the need to consider both the patient's and society's rights with respect to the use of such data.

The core principles of ethical conduct in patient research include beneficence (do only good), non-maleficence (do no harm), autonomy, and justice, 61 which must also guide AI development in neuroradiology. In the AI era of neuroradiology, there may be conflicts that evolve around how much decision-making is retained by the neuroradiologist and how much is willingly ceded to an AI algorithm. Floridi and Cowls 52 stated that the “autonomy of humans should be promoted and that the autonomy of machines should be restricted and made intrinsically reversible, should human autonomy need to be protected and re-established.” This statement is precisely the major problem that occurred when pilots were unable to override an automated, erroneous AI-driven navigation system to prevent nosedives, leading to plane crashes with significant loss of life. 62 Justice is conceptually implicit throughout AI development in neuroradiology from the data chosen to train the model to its validation so that no harm or unfairness occurs to certain groups of patients. 52

Some researchers have articulated the need for a new bioethical consideration specifically to address algorithm development of AI in neuroradiology. Explicability can include explainability (how does it work?) and accountability (who is responsible for how it works?). 52 , 63 , 64 It is important that both patients and neuroradiologists understand how imaging tools such as AI algorithms are used to render decisions that impact their health and well-being, particularly around potentially life-saving decisions in which neuroradiology has a clear role. For example, a visual saliency map that delineates on images where the AI algorithm focused its attention to arrive at a prediction (ie, intracranial metastatic lesion on a brain MR imaging examination) would be useful to drive its acceptance by both clinicians and patients. 65 Neuroradiologists need to think like patients and adopt patient-centered practices when AI is deployed. Neuroradiologists should establish a practice to address real or perceived grievances for any unintended harm attributable to AI use. 52 Fear, ignorance, and misplaced anxiety around novel technology can derail the best of scientific intentions and advances, so we need to be prudent as we develop AI and encode bioethical principles into its development and deployment. Transparency can build trust, 66 with both code and data sets made publicly available whenever possible. However, for AI applications involving medical images, one must also balance the need for open science with patient privacy.

Ideally, neuroradiologists should be able to explain in lay language how data are used to build an AI tool, how the AI algorithm rendered a particular prediction, what that prediction means to patient care, and how accurate and reliable those predictions are. 64 , 65 This explanation will require education in AI from residency through fellowship and a process of life-long learning. The American Society of Neuroradiology (ASNR) convened an AI Task Force to make recommendations around education, training, and research in AI so that the ASNR maintains its primacy as a leader in this rapidly evolving field.

Suggestions for Neuroradiologists in AI

Academic neuroradiologists need to lead. It is our responsibility to establish the benchmarks for best practices in the clinical utility of AI in conjunction with our academic partners in imaging societies such as the American College of Radiology and the Radiological Society of North America, as well as federal stakeholders such as the National Institutes of Health, National Institute of Standards and Technology, the Advanced Research Projects Agency, and the Food and Drug Administration. Although guidelines have been published around the ethical implementation of AI code, more work is needed from all relevant stakeholders including neuroradiologists, clinicians, patients, institutions, and regulatory bodies so that consensus builds around best practices that include the new concepts of explainability and accountability while preserving patient privacy and protection against security breaches such as cyberattacks. 1 , 52 , 61 , 65 Quality assurance and quality improvement processes will be needed to detect potential biases in algorithms used in clinical care. Additional processes are needed to redress any perceived grievances and to quantify how AI affects patient outcomes. 67 In the Online Supplemental Data, across the AI development lifecycle, guidelines are listed in the form of essential questions that should be considered and asked around task definition, data collection, model definition, training and testing, and deployment and feedback, particularly when neuroradiologists are asked to evaluate clinical AI tools for their practices.

In a joint North American and European consortium white paper, 1 the authors made a recommendation that AI in radiology should “promote any use that helps individuals such as patients and providers and should block the use of radiology data and AI algorithms for irresponsible financial gains.” Additionally, all AI algorithms must be informed by bioethical principles in which the benefits of AI outweigh the risks and minimize the potential for harm or bad outcomes and minimize the chances that AI will lead to greater health care inequity. Neuroradiologists need to participate fully in this transformative technology and set best practice standards for fair, ethical, and nonbiased deployment of AI in routine neuroimaging practice.

ACKNOWLEDGMENTS

We acknowledge Yilan Gu for assistance in literature research and Jacob Calkins for assistance with the phantom data.

Disclosure forms provided by the authors are available with the full text and PDF of this article at www.ajnr.org .

Indicates open access to non-subscribers at www.ajnr.org

Wu CC , et al
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Received January 30, 2023.
Accepted after revision July 7, 2023.
© 2023 by American Journal of Neuroradiology

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Understanding Bias in Artificial Intelligence: A Practice Perspective
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This article has been cited by the following articles in journals that are participating in Crossref Cited-by Linking.

Gross failure rates and failure modes for a commercial AI‐based auto‐segmentation algorithm in head and neck cancer patients Simon W. P. Temple, Carl G. Rowbottom Journal of Applied Clinical Medical Physics 2024
Understanding Bias in Artificial Intelligence: A Practice Perspective Melissa A. Davis, Ona Wu, Ichiro Ikuta, John E. Jordan, Michele H. Johnson, Edward Quigley American Journal of Neuroradiology 2023

Shedding Light on Healthcare Algorithmic and Artificial Intelligence Bias

Impact of artificial intelligence in contemporary medicine.

When people go to a medical facility for help, they expect the doctor to make appropriate health decisions for their optimal health and outcome.

Doctors and other health care providers are increasingly using healthcare algorithms (a computation, often based on statistical or mathematical models, that helps medical practitioners make diagnoses and decisions for treatments) and artificial intelligence (AI) , to diagnose patient illnesses, suggest treatments, predict health risks, and more. In some cases, this is fine. However, using healthcare algorithms and AI can sometimes worsen things for people from certain ethnic or racial groups. This is because algorithms and AI are based on data from one set of the population that may not work well for others.

Awareness of Bias

Healthcare algorithms and AI bias can contribute to existing health disparities for certain populations based on race, ethnicity, gender, age, or other demographic factors.

One reason for healthcare algorithm and AI bias is the lack of diversity in the data used to train computer programs. It is important to use data from patients with diverse demographic factors when creating AI computer programs to ensure the algorithm works well for everyone.

Another way bias can enter healthcare algorithms and AI is through the assumptions made by the people who create them. For example, if developers assume that some symptoms are more common in non-Hispanic White women than in Black/African American women. This can lead to algorithms producing unfair or inaccurate results for Black/African American women with those symptoms.

A Case Study

If a woman has had a cesarean delivery, also known as a C-section, there is a chance that a subsequent delivery can be attempted through a vaginal birth, which is known as Vaginal Birth after Cesarean Delivery or VBAC. However, there are known risks associated with attempting VBAC, such as uterine rupture or other complications.In 2007, the VBAC algorithm was designed to help healthcare providers assess the likelihood of safely giving birth through vaginal delivery. The algorithm considers many things, such as the woman's age, the reason for the previous C-section, and how long ago it happened. However, in 2017, in a study by Vyas, et al., researchers found the original algorithm was not correct. It predicted that Black/African American and Hispanic/Latino women were less likely to have a successful vaginal birth after a C-section than non-Hispanic White women. This caused doctors to perform more C-sections on Black/African American and Hispanic/Latino women than on White women.

After years of work by researchers, advocates, and clinicians, changes were made to the algorithm. The new version of the algorithm no longer considers race or ethnicity when predicting the risk of complications from VBAC. This means that doctors can make decisions based on more accurate and impartial information that works for all women, providing more equitable care regardless of race or ethnicity. To access more information about this case study, visit: Challenging the Use of Race in the Vaginal Birth after Cesarean Section Calculator .

The Treatment Plan for Bias

There are best practices that healthcare data scientists and developers can incorporate to address the challenges of using algorithms and AI. These include:

Have a more diverse body of people review and supervise the algorithms and AI.
Use methods or techniques to best manage situations where there is not enough information available, like using synthetic data.
Work with diverse communities to ensure the algorithms are helpful and don't cause harm.
Introduce the algorithms gradually and carefully instead of all at once.
Create ways for people to provide feedback and improve the algorithms over time.
Involve diverse members of your workforce in developing the algorithms and validating patient data from various racial and ethnic backgrounds.

The Office of Minority Health (OMH) is focused on helping to reduce differences in health outcomes, known as health disparities, for racial and ethnic minority populations and American Indian and Alaska Native communities. By encouraging equity in the lifecycle of algorithms and AI, OMH and other federal agencies aim to lower the risk of bias and improve healthcare outcomes for everyone.

The Center for Open Data Enterprise (CODE). (2019). Sharing And Utilizing Health Data for A.I. Applications: Roundtable Report . U.S. Department of Health and Human Services. https://www.hhs.gov/sites/default/files/sharing-and-utilizing-health-data-for-ai-applications.pdf

U.S. Government Accountability Office & The National Academy of Medicine. (2020). Artificial Intelligence in Health Care Benefits and Challenges of Technologies to Augment Patient Care . U.S. Government Accountability Office, Science, Technology Assessment, and Analytics. https://www.gao.gov/assets/gao-21-7sp.pdf

United States Department of Health and Human Services (HHS) (2022). Artificial Intelligence (AI) at HHS. Retrieved from: https://www.hhs.gov/about/agencies/asa/ocio/ai/index.html

Davenport, and Kalakota (2019). The potential for artificial intelligence in healthcare. Free article: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6616181/

Bohr, and Memarzadeh (2020). The rise of artificial intelligence in healthcare applications. Free article: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7325854/

Norori, et al. (2021). Addressing bias in big data and AI for health care: A call for open science. Free article: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8515002/

National Institute for Health Care Management (NIHCM) Foundation (2021). Racial Bias in Health Care Artificial Intelligence. Free article: https://nihcm.org/publications/artificial-intelligences-racial-bias-in-health-care

Jackson, M. C. (2021). Artificial Intelligence & Algorithmic Bias: The Issues with Technology Reflecting History & Humans. Journal of Business, 19. Free article: https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1335&context=jbtl

Harris, L. A. (2021). Artificial Intelligence: Background, Selected Issues, and Policy Considerations. Congressional Research Service. https://crsreports.congress.gov/product/pdf/R/R46795

Huang, J., Galal, G., Etemadi, M., & Vaidyanathan, M. (2022). Evaluation and Mitigation of Racial Bias in Clinical Machine Learning Models: Scoping Review. JMIR Medical Informatics, 10(5), e36388. Free PMC article: http://www.ncbi.nlm.nih.gov/pmc/articles/pmc9198828/

Schwartz, R., Vassilev, A., Greene, K., Perine, L., Burt, A., & Hall, P. (2022). Towards a Standard for Identifying and Managing Bias in Artificial Intelligence. U.S. Department of Commerce, National Institute of Standards and Technology. https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.1270.pdf

Bernstam, E. V., Shireman, P. K., Meric-Bernstam, F., N. Zozus, M., Jiang, X., et al. (2022). Artificial Intelligence in Clinical and Translational Science: Successes, Challenges, and Opportunities. Clinical and Translational Science, 15(2), 309–321. Free PMC article: http://www.ncbi.nlm.nih.gov/pmc/articles/pmc8841416/

Marcus, J. L., Sewell, W. C., Balzer, L. B., & Krakower, D. S. (2020). Artificial Intelligence and Machine Learning for HIV Prevention: Emerging Approaches to Ending the Epidemic. Current HIV/AIDS Reports, 17(3), 171–179. Free PMC article: http://www.ncbi.nlm.nih.gov/pmc/articles/pmc7260108/

Solomonides, A. E., Koski, E., Atabaki, S. M., Weinberg, S., Mcgreevey, J. D., et al. (2022). Defining AMIA’s Artificial Intelligence Principles. Journal of the American Medical Informatics Association (JAMIA), 29(4), 585–591.

Lee, E. W. J., & Viswanath, K. (2020). Big Data in Context: Addressing the Twin Perils of Data Absenteeism and Chauvinism in the Context of Health Disparities Research. Journal of Medical Internet Research, 22(1), e16377. Free PMC article: http://www.ncbi.nlm.nih.gov/pmc/articles/pmc6996749/

Lin, S. (2022). A Clinician’s Guide to Artificial Intelligence (AI): Why and How Primary Care Should Lead the Health Care AI Revolution. Journal of the American Board of Family Medicine, 35(1), 175. Free article: https://doi.org/10.3122/jabfm.2022.01.210226

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Psychiatr Psychol Law
v.28(2); 2021

Procedural fairness in mental health review tribunals: the views of patient advocates

a Faculty of Law, Queensland University of Technology, Brisbane, Australia

Tamara Walsh

b University of Queensland, Brisbane, Australia

Mental health review tribunals face the difficult task of balancing an obligation to be efficient and accessible against the obligation to provide procedural fairness. We conducted focus groups with lawyers and advocates who support people with matters before the Queensland Mental Health Review Tribunal to ascertain their views on issues relating to procedural fairness in this particular forum. Consistent with similar studies in other jurisdictions, our participants expressed concerns about how well informed their clients were about the proceedings, the probative value of the evidence relied upon and the extent to which medical evidence is effectively challenged. We analyse the concerns raised by our participants in light of the limited Australian case law on procedural fairness in mental health review tribunals.

Introduction

Mental health review tribunals have been established in most states and territories in Australia. 1 These tribunals are required to make legal decisions about involuntary treatment for people with mental illnesses. 2 Striking the right balance between fairness on one hand, and accessibility on the other, has been noted as an ongoing challenge for Australian tribunals. 3 Arguably, an appropriate balance is particularly difficult to achieve, but assumes special importance in the case of mental health review tribunals.

The justifications for resolving matters in tribunals, rather than courts, are efficiency and accessibility. 4 The assumption is that by moving away from formal court rules and procedures to a less formal set of procedures, matters can be finalised more quickly, and unrepresented individuals can more meaningfully participate in proceedings.

Mental health review tribunals are required to decide whether or not an individual will be subject to involuntary medical treatment, and possibly, whether or not that individual must also be detained. Clearly, these are very weighty decisions. 5 In fact, the tribunal’s forensic order jurisdiction could be considered to form part of the criminal justice system. 6 In these circumstances, it is expected that the decision-maker will act with utmost care, rigour and impartiality. 7 On the other hand, due to the challenges faced by people with mental illnesses, the goals of accessibility and informality may be more important in mental health proceedings. 8

The aim of this research was to investigate the manner in which the Queensland Mental Health Review Tribunal (QMHRT) makes decisions in the context of these competing objectives. In this paper, we assess current QMHRT practices against the rules of ‘procedural fairness’ that have developed in the common law. 9 There are three reasons for this focus. Firstly, procedural fairness is known to play a central role in the public’s respect for and compliance with the law. 10 In the area of mental health law, studies have shown that the perceived fairness of procedure has a significant impact on how those compulsorily detained and treated for mental illness accept the decisions made about them and engage with treatment. 11 Secondly, adherence to the rules of procedural fairness may be inherently challenging for tribunals that are required to practice less formal decision-making, 12 and studies in various jurisdictions have uncovered concerns in relation to procedural fairness in mental health tribunals. 13 Thirdly, the common-law rules of procedural fairness represent an established set of legal obligations that rest on the QMHRT. 14 There is a significant body of literature that critically assesses the way in which decisions about involuntary treatment for mental illness are made through different lenses such as therapeutic jurisprudence, 15 discrimination 16 or human rights. 17 But to our knowledge, previous studies in Australia have not analysed the decision-making of mental health tribunals specifically in relation to the current legal requirements imposed by the rules of procedural fairness. 18

This article reports on the results of empirical research involving focus groups with lawyers and advocates who support people with mental health difficulties appearing before the QMHRT. We begin by providing some context, outlining the relevant provisions of the Mental Health Act 2016 (Qld). We then turn to the study’s methodology and results, before analysing our findings in light of the literature and case law on procedural fairness.

The Queensland Mental Health Review Tribunal and the Mental Health Act 2016 (Qld)

Like most tribunals in Australia, the QMHRT occupies a contested legal and administrative space between the executive and judicial arms of government. 19 The QMHRT is required to act independently when exercising its discretion, 20 but it receives its funding from Queensland Health (not the Department of Justice and Attorney-General). 21 Its members are appointed for fixed terms; the president for five-year terms, other members (medical, legal and community) for three-year terms. 22 In this way, the QMHRT is distinguishable from a court, as the separation of the judicial and executive arms of government is achieved, in part, by judges having tenure. 23 Yet, the QMHRT must determine whether people will be given medical treatment, and possibly also detained, against their will. 24 Therefore, the QMHRT, while formally a part of the executive arm of government, exercises ‘judicial power’, as it makes ‘binding declarations of rights in the course of adjudicating disputes about rights and obligations as a result of the operation of law upon events or conduct that have or has occurred’. 25

Of course, many other state tribunals with fixed-term appointments for its members similarly exercise judicial power. Most prominently, this includes the ‘super tribunals’, like the Victorian Civil and Administrative Tribunal (VCAT), which now operate in most states and territories in Australia. 26 Importantly, appeals of QMHRT decisions to the Mental Health Court are by way of rehearing, 27 and there is nothing in the Act to limit the grounds of appeal. 28

The current Mental Health Act 2016 (Qld) came into effect in March 2017 and largely maintained the composition and procedure of the QMHRT as it had existed under the previous Mental Health Act 2000 (Qld). 29 One change brought in by the 2016 Act was an expansion in the role for representation in QMHRT hearings, 30 including a right to have a lawyer appointed in fitness for trial reviews and forensic order reviews in which the Attorney-General has elected to appear, as well as cases involving minors and where the tribunal considers it would be in the best interests of the person. 31 The Act requires legal representation to be provided in these circumstances at no cost to the person, 32 and it also allows for the person to be accompanied by a ‘nominated support person’, who could be a family member, carer or other nominated person. 33

In most cases, the QMHRT makes decisions about involuntary treatment for mental illness by reviewing treatment authorities. The QMHRT’s other main task is to review forensic orders, 34 that is, it must determine whether to confirm or revoke the forensic order, 35 and if the order is to be continued, it must determine whether the order will be an inpatient or community treatment order. 36 In the 2018–2019 financial year, of the 20,220 matters that were ‘opened’ at the tribunal, 16,352 were treatment authority reviews and 1777 were forensic order reviews, so these types of matters are those most commonly heard by the QMHRT. 37

What do the rules of procedural fairness require in this context?

The Mental Health Act 2016 (Qld) empowers the QMHRT ‘to inform itself on a matter in any way it considers appropriate’. 38 The Act states that the Tribunal is not bound by the rules of evidence 39 and requires the Tribunal to act ‘as quickly , and with as little formality and technicality , as is consistent with a fair and proper consideration of the matters before the tribunal’. 40 However, the Act also requires the QMHRT to ‘act fairly and according to the substantial merits of the case’ 41 and to ‘observe the rules of natural justice’. 42 In any case, it is well established that unless expressly excluded, administrative decisions that affect a person’s rights or interests must comply with the rules of procedural fairness. 43 The concurrent requirements to be efficient and informal on one hand, and to observe the rules of procedural fairness (or ‘natural justice’) on the other, similarly apply to many other tribunals in Australia, including the state ‘super tribunals’ like VCAT. 44

What procedural fairness requires of a decision-maker varies according to the specific circumstances of the decision being made. 45 For the QMHRT, some procedural instructions are set out in the Act ; any further guidance must be taken from the case law on procedural fairness. Clearly, tribunals like the QMHRT, which are required to be as efficient and informal as possible, would not be expected to follow the rules of formality and procedure that apply to courts. 46 The question is: how informal and flexible can such tribunals be without offending their requirement to observe the rules of procedural fairness?

Case law provides some guidance on this; however, as will be seen, case law relating specifically to Australian mental health review tribunals is extremely sparse.

In a general sense, the requirement of procedural fairness comprises two rules, the hearing rule and the bias rule. 47 The hearing rule itself comprises a number of individual considerations, for example, sufficient prior notice of a determination is a general principle of procedural fairness that affects all administrative decision-making, including tribunal decisions. 48 Consistent with this, the Mental Health Act 2016 (Qld) requires a patient to be given seven days’ notice of a hearing, 49 and clinical reports must also be made available to clients at least seven days before the hearing. 50 The hearing rule further requires that the person who is the subject of the proceedings is able to respond to information from which a fact finder could make an adverse inference and that any information provided is communicated in such a way that the person can understand. 51 This requirement is reflected in the provisions of the Mental Health Act 2016 (Qld). One of the principles of the Act is that a person ‘is to be encouraged to take part in making decisions affecting the person’s life, especially decisions about treatment and care’. 52 Another is that a person is to be ‘provided with necessary support and information to enable the person to exercise rights’ under the Act . 53 The provisions relating to notice requirements, and the availability of legal representation, could also be seen as supporting this principle.

The second component of the requirement for procedural fairness is the bias rule. Bias may be actual or apprehended, although cases of actual bias are more difficult to prove and are less common. 54 The accepted test for apprehended bias in Australian law is:

whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. 55

In the context of mental health review tribunals, bias may take the form of prejudgement if a decision-maker is ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’. 56 However, it is important to note that conduct by a judge in adversarial litigation that would give rise to a reasonable apprehension of bias might be considered acceptable if engaged in by a tribunal. 57 Indeed, procedural fairness may oblige a tribunal with inquisitorial powers faced with an unrepresented party to take an active role in the hearing; what is required is a balance between the exercise of its inquisitorial function and fairness of process. 58

We discussed issues relating to both components of procedural fairness – the hearing rule and the bias rule – with our focus group participants.

Methodology

This project provides some empirical evidence of the operation of the QMHRT under the new regime of the Mental Health Act 2016 (Qld). To examine how the QMHRT fulfils its obligation to comply with the rules of procedural fairness, whilst also ensuring that its processes are informal and accessible, we convened a series of focus groups with lawyers and advocates who support people appearing before the QMHRT. 59 We emailed all relevant organisations – legal centres, non-government organisations and statutory authorities – to determine whether or not they would be willing to participate in a group interview at their premises. All but one of the organisations we contacted indicated their willingness to participate. 60 We then attended their premises at an agreed time and conducted a group interview.

The focus group interviews were semi-structured in nature, and the same prompt questions were used for each group. The questions asked participants to reflect on the following themes:

How informed their clients seemed to be about the nature of the hearing, and how prepared they were for the hearing;
Whether or not their clients were able to meaningfully participate in the hearing;
The kind of evidence relied upon and the probative value of that evidence;
The nature of any oral submissions made by those present and the nature of any questions posed by tribunal members during proceedings;
Whether or not the QMHRT is sufficiently accountable and transparent in respect of its processes and determinations and the role of lawyers and advocates in this.

Focus group methodology was appropriate for this project because this research was exploratory in nature. Our aim was to generate new qualitative data and to allow for unexpected findings by facilitating a fluid discussion of relevant issues amongst a relatively homogenous group of professionals. 61 Our goal was to ‘elicit people’s understandings, opinions and views’ on a topic that our participants all shared expertise in without imposing an unreasonable burden on their limited resources. 62

We acknowledge that there are some limitations associated with using a focus group methodology. The problem with interviewing a homogenous group of professionals is that the perspectives of only one stakeholder group are represented – other stakeholders may well hold very different views. There is no real way of corroborating the data provided, confirming the accuracy of the stories that are shared or eliminating bias. 63 Further, the group dynamic may result in the silencing of individual voices of dissent. 64 Having said this, focus group research is useful, as interactions between participants can themselves generate data because through exchange, participants are able to engage in ‘collective sense-making’ of their shared experiences. 65 Importantly, the opinions of our participants were not uniform, and we have been careful to note any points of dissent and subjects of disagreement between participants in the results section below.

All of the focus groups were audio recorded and transcribed, and all participants signed a consent form agreeing to this. We obtained ethical clearance for this study from two university human research ethics committees. 66

Participants

Nine focus groups were held, with a total of 36 participants. Participants were lawyers, student lawyers, social workers and staff of relevant statutory agencies. Of the 36 participants, 19 were solicitors or barristers and 17 worked for advocacy organisations, either in statutory agencies or non-government organisations. Each organisation and individual agreed to participate on the basis that they would remain anonymous and their employer’s identity would remain confidential. Twenty-one participants were female and 15 were male. Most of the participants referred to the people with mental illness whom they work with as ‘clients’, rather than ‘patients’, so that is how we have described them in this paper.

This small empirical study obtained the perspectives of those who work alongside, and advocate for, people with mental illness; employees of the QMHRT, including tribunal members, were not invited to participate, nor were employees of mental health services, psychiatrists or treatment team members. Ascertaining the views of these other stakeholders, and the views of clients themselves, is an important avenue for future research. It must be noted that most of our participants ( n = 20) were trained as lawyers, and the perspectives of other professional groups and individuals may be different, particularly as regards the importance of procedural fairness and the role that lawyers play, or should play, in tribunal proceedings. 67

Data analysis

Once all of the focus groups had been completed and transcribed, both authors undertook content analysis and identified themes for coding. 68 The themes identified by each author were compared with one another, and a common set of themes was agreed upon and codes were developed. The transcripts were then analysed by the authors again, using these thematic codes. Manual coding was undertaken, whereby each time a participant mentioned a code, this was marked in the margin of the transcript, and a descriptive count of codes was then taken across the groups. The focus groups were also entered into NVIVO so that recurrent terminology could be identified and counted. The results of the qualitative analyses are presented in the following section of the paper.

Access to information about tribunal hearings and processes

As noted above, it is a legislative requirement that individuals who are the subject of QMHRT proceedings be provided with written notice of the hearing. 69 However, some of our participants said that clients often do not receive these notices, perhaps because they have changed address, or have recently been an inpatient, or because they live in regional areas where ordinary mail is slow.

Participants in all nine focus groups said that even when clients do receive written notice of the hearing, they often did not understand the purpose of the hearing or the nature of the tribunal’s processes unless they had attended a hearing before. Participants said:

They certainly don’t understand [the hearing notice] if they do [receive it]. A lot of the people we work with have dual diagnosis. So they don’t have the support to really understand that document. (FG3) They’re informed of it [the hearing], but they often don’t understand it and they’re very rarely prepared. (FG2) Participant 2: When you first engage with clients they often have no idea what’s going on, some of them don’t even know that they have a hearing coming up, things like that. Which is obviously very concerning. Participant 3: And I’ve also found the same – similar thing. Like, clients don’t even know the process of the tribunal hearing and they just are a bit clueless [about] what’s happening. (FG4)

Some participants believed that in some cases neither the QMHRT nor the client’s treating team provided them with sufficient notice and information about the hearing:

The requirement is that they have the report discussed with them, and quite often it’s not explained what the actual purpose [of the hearing] is. They’ll turn up, and quite often they’ll decline to attend a hearing because they don’t understand what it’s about, and when they do attend, they don’t really know what they seem to be there for. (FG9) I don’t think they would often understand the processes. They’ve never seen their treatment plan, most of them, so I don’t think they really know enough to understand what’s going on. It’s a very foreign process unless you’ve been through them all the time. (FG3)

Others thought that whilst clients may have the process explained to them, this was not always done in language they were able to understand:

I also think that the people doing the explaining quite often don’t use language that’s freely accessible to the clients. So they might put it in those clinical terms what the hearing is about, and what they’re going to discuss, but you’re dealing with people that might have an intellectual, or cognitive impairment that don’t have the availability for that language group to their own understanding. So it’s difficult for them to understand what’s being explained to them, as well as often not being told until the day before. (FG9)

Participants agreed that their clients’ failure to understand the nature and purpose of proceedings impacted upon their ability to participate and be heard:

If they don’t understand the material, if they don’t really understand why they’re there, how can they put their best foot forward and provide an adequate explanation? I don’t know how they can. (FG8)

Participation in tribunal proceedings

Participants described a number of barriers to their clients’ participation in tribunal proceedings. Some of these barriers related to their clients’ psychiatric and other impairments, whilst others stemmed from the nature of the proceedings.

Participants said that their clients often found hearings to be ‘intimidating’ and ‘stressful’, indeed some said their clients were so ‘nervous’ and ‘fearful’ that they were ‘physically sick’ or unable to remain in the room. In addition to this, for many clients, their ‘clinical presentation could interfere with how much they can actually participate’ (FG1, agreed in FG5). For example, participants said that the nature of their client’s diagnosis, or the fact that they were heavily medicated, sometimes meant that they were too unwell to meaningfully participate.

The hearing venue also affected clients’ ability to participate in proceedings. In particular, where proceedings were held at the hospital, clients were often reluctant to attend or speak up in front of their treating team:

Some of the clients we’ve had have found it very confronting to go back into a mental health ward that’s locked. … We’ve had some who’ve really struggled just to go back in to have a hearing. (FG4) How comfortable is the patient actually expressing themselves when you’re in front of, not only the strangers, but the treating team that’s in charge of what happens to you every single day? … [T]hey are a figure of authority to the patient … most people from my experience are usually reluctant to speak out against authority, especially if that authority has direct control over your life. (FG7)

Participants explained that holding hearings at the hospital also gave clients the impression that the tribunal was not independent because ‘the whole environment is controlled by the hospital’ (FG3):

[The hearing] is often within the treating facility. The whole feeling is that this is just a part of the institutional – it’s not so much of an independent review. (FG6) The hospital has all this power over them so it’s difficult for them to speak freely. (FG3)

Participants were also critical of proceedings being convened via videolink or teleconference. Participants who had been involved in proceedings over video or telephone said that the technology often failed, they could not hear everything that was being said and they did not know who was speaking at any given time. They also said that despite all of these problems, hearings often proceeded, even in circumstances where it was impossible for the lawyer and client to follow what was happening. Whilst most participants said they preferred a videolink to a telephone hearing, there was general agreement that both were ‘unsatisfactory’ (FG2), particularly considering the nature of the client group. As one participant noted:

Clients sometimes don’t do well with hearing voices at the other end of the phone. Neither do we. (FG9)

Evidence before the tribunal

Participants in all focus groups were critical of the quality and accuracy of the evidence put before the tribunal. Participants emphasised that the clinical reports, which are ‘the main evidence before the tribunal’, generally contained inaccuracies, were out of date and mostly comprised ‘historic information’. They said that these reports were essentially ‘a collection of anecdotal evidence’ and unsubstantiated comments with ‘little actual evidence’:

It will often be a blanket statement of, there’s a risk to the community, therefore the order should continue. Without an actual interrogation, or identification of, well, what’s the actual risk? What’s the assessment of the risk? What are you relying on to say there’s a risk? (FG9) They might say something that’s not backed up, you know, it’s just a statement that there is an imminent risk without anything to substantiate it and that’s enough. (FG1)

In six of the focus groups, clinical reports were described as a ‘cut and paste’ of previous reports containing old and inaccurate ‘allegations’. Participants in other groups agreed with this, but used different terminology, describing the reports as ‘a mess’ (FG8), ‘all over the place’ (FG8), ‘a dog’s breakfast’ (FG9) and ‘piecemealed together’ (FG5). Participants said that clients often became distressed at the inaccuracies contained in the reports, yet despite this, the reports were rarely corrected. Participants agreed that the reports often did not accurately reflect the person’s current mental health status and mainly focused on past assessments of risk, often dating back many years:

They’re not really a fresh look at the person as they are now. (FG3) It’s information that’s 10 or 15 years old, and it’s presented in a way that makes it seem it’s still current and relevant. (FG9) Participant 1: They only get looked at for their medical history, their past, rather than what’s going forward. Which is not great. Participant 3: Actually, that’s an interesting point. They do tend to concentrate on things that are never going to change. Participant 2: Static factors. (FG2)

Participants further explained that lawyers were limited in their capacity to orally test the evidence contained in the reports because the treating psychiatrist does not always appear before the tribunal:

Quite often you’ll find that the treating psychiatrist doesn’t work on a Thursday and so they’re proxied by someone who the only document that they’ve got is that clinical report and they can’t speak to it well enough. [Another team member] might be sitting there going, ‘yes, well, I haven’t seen the person in four months, so I don’t really know what their status quo is’. So there’s a real lack of available concrete information being presented to the tribunal. (FG9)

Tribunal procedures related to questioning and hearing oral submissions

Even if someone from the treatment team with knowledge of the client did appear, participants said that lawyers were not permitted to cross-examine, or ask questions of, health service staff. Instead, they were required to direct any questions to the tribunal members:

It’s an inquisitorial jurisdiction, but with a limit [on] how you can be inquisitorial. And we won’t allow you to question medical treating teams, because it’s not about interrogating them, but how do you identify whether a treatment is appropriate if you aren’t allowed to question the treatment? (FG8) It’s inquisitorial, therefore any questions you have are directed to the tribunal. You’re not actually allowed to ask questions of any parties … it doesn’t have to be aggressive, it doesn’t have to be adversarial. But it indicates to people [that] you’re not allowed to question, you’re not allowed to ask about either the Attorney-General’s position, or the treating team’s position. And the MHRT supports that view. (FG9)

Whilst participants generally agreed that a level of informality of proceedings was appropriate and important for their clients, many of the participants felt that relaxing the rules of evidence put their clients at a distinct disadvantage because ‘opinion’ was being confused with ‘evidence’:

It’s just basically whoever happens to be sitting at the table can make a statement about the person and it’s considered. (FG3) If the doctor wants it, that’s evidence. … Really what they’re doing is they’re expressing a personal medical opinion without actually putting the medical evidence for the treatment before the tribunal. (FG7)

Participants in two of the focus groups raised concerns regarding the questioning of their clients by tribunal members. They said that the questions asked of clients were sometimes inappropriate, because they were too ‘personal’, expressed in a ‘hostile’ manner or were ‘very leading’:

Certain questions get asked in a very leading manner, and there’s no real mechanism for us as their advocates to oppose those questions being asked in the manner in which they’re asked. And those leading questions take the person to an inevitable conclusion, which is the self-serving conclusion generally to confirm the order, or confirm the treatment authority. (FG5) Participant 5: They’ve really loaded the questions sometimes. Participant 3: I agree. … They’ll lead the answer. ‘As was said, you’ve been taking this medication for six months, and you feel a lot better now, your behaviour is a lot calmer’. And the client quite often will just agree with that. (FG9)

Considering the serious consequences of the decisions being made, participants in all groups suggested that a better balance could be struck between formality and flexibility:

[The tribunal] should be picking up on, well, inconsistencies. They should be picking up on if the evidence is weak. … That’s not natural justice, when the evidence before the tribunal is clearly not robust, not supported by anything objective, and it’s only supported by an opinion without any kind of justification behind it. (FG7)

Transparency, accountability and the role of lawyers

Participants in all focus groups said that most often, the tribunal simply approved the recommendation of the treating psychiatrist, and that ‘they really don’t provide an independent check’ or a ‘proper process’. In four of the groups, participants described the decisions of the tribunal as a mere ‘rubber-stamp’ of the medical team’s determinations. Participants used many other phrases to express the same view, including: ‘psychiatrists rule the day’ (FG2, S2); ‘whatever the psychiatrists says goes’ (FG2, S3); ‘doctors are the law’ (FG3, S4); ‘the treating team’s evidence is gold every time’ (FG5); ‘whatever the medical staff say, goes/It’s their tribunal’ (FG7); ‘most of it is just, trust me, I’m a doctor’ (FG7); ‘the clinical team’s position is taken first and foremost’ (FG9). In four of the focus groups, the phrase ‘tick and flick’ was used to describe the tribunal’s decision-making process – the consensus was that there was generally no substantive engagement with the relevant legislative criteria and no independent discussion or critique of the psychiatrists’ recommendations. In two groups, the tribunal was described as ‘biased’ towards the doctors. Participants were concerned that even when the contents of the clinical report were questionable, tribunal members did not always test the evidence presented to them:

The majority of the actual hearings are just, you had that behaviour once, you’re a high risk, so everything else is secondary. (FG8) It’s like someone else told you something and now it’s taken as law or it’s taken as fact. … And it shows up in the clinical report, it’s then taken as, yes, that’s actually what happened. (FG4) The clinical report occupies the field and there’s no contest to its conclusions. (FG6) It’s basically like, we’ve come to that hearing on the basis that this is the gospel, and whatever is said in this report is basically the whole truth. (FG9)

Participants agreed that the only way to challenge the evidence of the treating team was to obtain an independent report, however this was generally not possible for their clients because they had limited means:

You needed to challenge the tribunal’s evidence and the treating team’s evidence, you need your own independent evidence. And psychiatric reports start at $2,000, right? And our clients personally have very little money. (FG2)

Indeed, participants in seven of the focus groups expressed the view that lawyers were ‘useless’ in MHRT hearings because the outcome of proceedings was predetermined. Many of the lawyers said that they felt that appearing before the tribunal was a ‘waste of my time’ because they were unable to influence the result. They made comments such as:

What’s the point in having an MHRT hearing? … I don’t want to waste my time as a solicitor being allocated to a task like that if I can’t fight it. There’s no point. (FG2) It’s sort of like they’ve already formed an opinion on a lot of these criteria before they even get to the hearing … it just seems like you’re already playing from behind for a lot of these clients. (FG4, S5) The reason I stopped doing tribunal hearings was because I felt the outcome was predetermined and a waste of my time. (FG4, S4) Even when people are legally represented, it’s like just completely pointless. I don’t even think that they really can get to say anything, and if they do, again it’s also completely discarded. (FG9)

Participants in all groups agreed that the tribunal was ‘cautious’ in its decision-making, often basing its decisions on the ‘worst’ or ‘most conservative’ report. The phrase ‘risk-averse’ was used to describe the tribunal in seven of the focus groups. One participant said in respect of forensic order review hearings:

I feel like you’ll get a range of reports from a range of different sources but the tribunal disproportionately gives weight to the report which is most restrictive of your client’s rights. (FG1)

Participants explained that, as a result, orders were confirmed or renewed in almost all cases, and that ‘not many clients ever get out’ of the order being made.

A written statement of reasons can be requested, but it can take up to 21 days to receive, 70 and participants described them as inadequate. At best, participants described the written reasons as ‘just a summary’, ‘lacking in substance’, ‘instinctively selective’, which ‘often [don’t] have everything that was said’ and are ‘not really a completely accurate record’:

We often find that whatever they’ve written in the statement of reasons doesn’t paint a full picture of what we’ve noticed or what the clients have felt happened. (FG4) Even when you do request a reason, I find they’re often lacking in substance. That it will be a throwaway line saying, ‘we’ve seen the evidence, and we’re satisfied’. (FG8)

At worst, participants said that the written reasons can be misleading and even deliberately self-serving in some cases:

Sometimes if you request a statement of reasons and you need to get an appeal notice in quickly, the statement of reasons will come back addressing your appeal grounds that you’ve put in … I had one statement of reasons that came back with just blatantly saying things that I know I actually didn’t say. They weren’t in my notes and I checked with [another person in attendance]. But you’ve got limited opportunity to be able to really raise that dispute because there’s no common record. (FG4) Participant 1: There’s plenty of things in statements of reasons that I’ve seen where, as far as I saw, that’s not what was said, or that’s not what happened. But you can’t challenge that because – Participant 2: Because there’s no record. (FG7)

Thus, participants said that the lack of transparency of the tribunal was compounded by the fact that no record of proceedings is taken. At the time of our study, there was no audio recording, no transcript of proceedings was generated and no statements of reasons were published: ‘it’s all off the record, basically’ (FG5). Participants in all groups discussed the consequences of there being no comprehensive statement of reasons and no record of proceedings, in terms of consistency and accountability:

It’s really hard to hold them accountable in certain situations because there’ll be no record of what we’ll find to be an error in judgement or whatever it may be. There’s no record of it, so they’re controlling what the record is. (FG4) Not only is there no recording, but they never publish their decisions. … If you don’t have recordings or publications, there’s no consistency in decisions. (FG7)

More specifically, many participants raised the fact that since there was no record of proceedings, there are ‘no precedents’ or at least none that lawyers had access to. This, they said, made it difficult for them to effectively advocate for their clients:

The legal representatives aren’t privy to all the [Mental Health Court] precedents that are available. So the tribunal, the panel members, will rely on decisions that have been handed down in the Mental Health Court but we don’t have access to or even know about those judgements. So we’re unaware as legal representatives that there is precedent law available and that the tribunal are relying on. And to make it even worse, the Attorney General representatives usually are privy to that. So it’s not a fair playing field for all concerned. … In another forum, you would expect as a lawyer to be able to say, ‘well, I haven’t been told about that case, or I don’t have access to that case, and that’s unfair, therefore you shouldn’t rely on it’. But it’s not that kind of forum. (FG1)

Participants agreed that proceedings should be recorded and that a transcript of proceedings should at least exist and be accessible for the purpose of an appeal:

If you do not have a record of what proceeded in the discussion, and you’re relying on a statement of reasons that is provided sometimes weeks after the event, how are you able to clearly articulate where the error is, or what you are appealing against? (FG8) [The absence of a recording] makes it almost impossible to appeal any decisions. … How do we know that the people that are making the decisions are making them in a legislative way? What sections of the legislation are the decisions being made under? It all goes hand in hand, really. (FG9)

Two participants raised the concern that if proceedings were recorded, people could ‘be more guarded and they won’t speak freely’ (FG2). However, people who held this view were in the minority. The most commonly expressed view was that recording proceedings would likely improve the quality of the interactions between parties at the hearing because at present people ‘can freely say what they want without ramification’. One participant said:

We would get more accountability and hopefully more consistency across the State. And sometimes even if there isn’t maybe an error in the decision, sometimes there’ll be some really inappropriate things are said. … If there was a recording, I’d be able to access that and then feed back to the tribunal and say, ‘look, I was concerned by this question’. (FG4)

Since these focus groups were performed, the QMHRT conducted a survey among stakeholders on the topic of audio-recording its hearings. Most responses received were in favour of commencing audio-recordings, and the Tribunal has ‘agreed in principle’ to do so. 71 Also since these focus groups, the QMHRT has commenced publishing a limited number of statements of reasons on its website. 72

The vast majority of participants agreed that the QMHRT needed to become more transparent and accountable, particularly given the vulnerability of the people coming before it, and the gravity of the decisions being made:

It’s a tribunal dealing with some of the most vulnerable people in the state, and it has the power to approve things to be done to people that no one else can do. … And it also authorises the continued detention of people. So with those kinds of powers should come high levels of accountability and transparency. And it’s the least accountable and transparent tribunal in the state. (FG7) It’s a gross infringement on human rights to undertake that kind of decision-making that restricts a person’s either free movement in the community, or a treatment that essentially is forced upon them, and then not record those decisions. I don’t know of any other jurisdiction across Australia who proceeds in that way, who doesn’t have that accountability for the decisions that they make for people. (FG9)

Since our focus groups were held, the Human Rights Act 2019 (Qld) has come into effect, and there is potential for this legislation to impact upon the manner in which QMHRT proceedings operate. Whilst there is some scepticism as to the effectiveness of human rights instruments with respect to mental health decision-making, 73 the rights to self-determination, freedom from non-consensual medical treatment and personal inviolability were referred to recently by the Victorian Supreme Court in PBU and NJE v Mental Health Tribunal when over-turning an approval for electroconvulsive treatment. 74 The Human Rights Act 2019 (Qld) includes a right to have one’s civil proceedings ‘decided by a competent, independent and impartial court or tribunal after a fair and public hearing’, 75 and this would seem to assume particular importance with respect to mental health review tribunal hearings.

However, Justice Emilios Kyrou has said of the equivalent Victorian provision that it is ‘unlikely’ to ‘add materially’ to the existing requirements of the rules of natural justice. 76 Carney et al point out that in the Australian system, the primary vehicle for the protection of rights has been the ‘procedural safeguards’ that mental health tribunals provide, rather than directly enforceable rights (that may derive from specific rights instruments), like the right to refuse treatment. 77 It may be that jurisprudence pertaining to human rights legislation and mental health will develop further in the future. Yet at this point, the rules about procedural fairness in mental health review tribunals arguably remain one of the most important legal mechanisms for the protection of the rights of people with mental illnesses.

Chief Justice Robert French has noted that the concept of procedural fairness has informed the common-law system from its inception. 78 The justifications for imposing this requirement on decision-makers are both instrumental and ethical, promoting decision-making that is better quality and more just. 79 One specific justification is that it promotes confidence in official decision-making, 80 a consideration that is arguably heightened in the case of mental health tribunals, which determine whether coercive procedures are to be authorised. Importantly, studies have shown that mental health patients’ perceptions of the fairness of tribunal proceedings will affect their response to the coercion that the proceedings may authorise. 81

In this section of the paper, we will examine three of the key themes that emerged from the focus group data on procedural fairness – notice and the provision of information; evidence; and ‘rubber-stamping’ – in light of the literature and available case law. It is important to note at the outset that very few reported decisions have been handed down that address in detail procedural fairness requirements as they relate to Australian mental health review tribunals. Relevant case law that does exist will be discussed here, as will the applicable literature.

Notice and the provision of information

As noted above, many of our participants said that their clients did not always receive notice of their QMHRT hearing, or were unable to understand the documents that were provided to them. This reflects the experiences of some participants in Carney et al’s study on mental health review tribunals in New South Wales, Victoria and the ACT. 82 One question that case law has yet to make clear is whether and to what extent the procedural fairness requirement of sufficient notice must take into consideration the particular circumstances of an individual who may face communication barriers.

Aronson, Groves and Weeks argue, in the context of persons from non-English speaking backgrounds, that because the purpose of notice is to enable participation, ‘the content of the notice must be such as to allow its recipient to participate fully and effectively in whatever manner is found to be appropriate in the circumstances of the particular case’. 83 They concede that there is no general rule that notice should be given in the party’s first language, 84 however, they argue that in certain circumstances, a translation may be required, for example, if the decision-maker knows that the applicant does not read English and would not be able to get a translation in time. 85 Courts have not addressed the question of whether special arrangements for notice must be made for people with communication difficulties associated with mental illness; however, an equivalent argument could be made. If the notice provided by a mental health review tribunal does not allow the party to ‘participate fully and effectively’ in proceedings, then this may potentially breach the rules of procedural fairness. This will be especially so where, as would normally be the case, the tribunal ought to be aware of the mental health issues that impeded the party’s understanding of the notice provided.

Another matter that is not wholly settled by the case law is the extent to which relevant information must be made available to a person in preparation for a hearing. In EO v Mental Health Review Board , 86 the Western Australian Supreme Court considered a review of a patient’s involuntary status by the Western Australian Mental Health Review Board. Like the Mental Health Act 2016 (Qld), the Western Australian Mental Health Act 1996 (since repealed) directed the Board to act ‘without regard to technicalities and legal forms’ and declared that the Board was ‘not bound by the rules of evidence’. 87 In EO’s case, the appellant had applied to a hospital for access to his medical records. The appellant was only provided documents pertaining to his current admission, not previous admissions; yet the Mental Health Review Board made reference to materials relating to the appellant’s previous admissions in its decision. Section 160 of the Mental Health Act 1996 (WA) gave people in the appellant’s position the right to inspect and be given a reproduction of ‘any relevant document’. However, it was the hospital’s policy to only provide information relevant to the ‘current or recent period of detention’. 88 Templeman J found that this policy was ‘a clear breach’ of section 160. 89 Importantly, Templeman J also found that procedural fairness was not afforded to the appellant because he did not have access to ‘relevant material’. 90 This was considered of ‘utmost importance’ because the operation of the Act on the appellant could result in his involuntary detention. 91 On this reasoning, it would seem that procedural fairness requires that parties are provided with all material on which a mental health tribunal may make a decision before a hearing.

Many of our participants were concerned that their clients had not been adequately informed of their rights, and this concern has been raised elsewhere, particularly in relation to patients’ right to representation (where relevant) and their right to appeal. 92 Carney et al express the opinion that the process of informing patients of their legal entitlements may not be implemented in a way that is sensitive to the unique communication needs of individual patients. 93 Our participants made similar observations.

Challenging evidence: cross-examination and oral submissions

Certain formal rules of court procedure, such as the rule in Browne v Dunn , 94 do not apply to tribunals that are given the right to inform themselves as they see fit and to act expeditiously. 95 Yet, wherever a person’s rights are affected, the hearing rule requires that the person have ‘a fair and adequate opportunity of answering any allegation or charge’. 96 Therefore, affected persons must have an opportunity to challenge any material upon which a mental health review tribunal bases its decision. 97 This requirement is closely connected to the right to have access to evidence that is relied upon in decision-making. In EO v Mental Health Review Board , 98 the respondent had argued that failing to provide the appellant with documents pertaining to previous hospital admissions did not amount to procedural unfairness, because the documents did not disclose anything adverse to the appellant. Templeman J explained why this argument failed, stating that:

[It] overlooks the important point: the appellant was denied the opportunity of considering whether there was anything either positive or negative in the relevant materials and was denied the opportunity, which has now of course been lost, of making submissions to the Board in relation to anything which might have been in the notes and, more importantly, of questioning [the psychiatrist who provided evidence] about those matters. 99

Rees argues that in tribunals exercising ‘judicial power’ there is a right to cross-examine witnesses called by the other party. 100 However, he also acknowledges that there is no case authority for this as a general proposition, and therefore whether the right exists depends on the circumstances. 101 Many of our participants believed that unfairness often resulted from the fact that lawyers and clients were not entitled to challenge the evidence put to the QMHRT by the treatment team through cross-examination.

Some of our participants also felt that it was unfair that witnesses had the benefit of hearing one another’s evidence because it allowed for, and facilitated, corroboration. Others said that having an ‘informal discussion’ with the client at the start of proceedings, before hearing the medical evidence, meant that the QMHRT deprived the person of the chance to effectively respond to the evidence of the treatment team.

The order in which evidence is heard, and the possibility that this could result in unfairness was addressed in MH6 v Mental Health Review Board & Anor. 102 In that case, the Victorian Court of Appeal considered the question of procedural fairness regarding a VCAT order for involuntary treatment of the applicant. The VCAT hearing itself resulted from an application to review a decision of the Mental Health Review Board; VCAT, like the QMHRT, was not bound by the rules of evidence but was required to observe the rules of natural justice and was required to act with as little formality and technicality as the matter permitted. 103 Under normal VCAT procedure at the time, the applicant was required to put his case first. In his appeal, the applicant relied on Towie v Medical Practitioners Board , 104 where the Court of Appeal had reviewed a VCAT decision in which that same procedure had been followed. In that case, the court had found that requiring an applicant to present their case first ‘would not generally be appropriate’ where an applicant ‘is a person who is or may be exposed to a penalty’. 105 Applying the findings of Towie v Medical Practitioners Board , 106 the Court of Appeal in MH6 v Mental Health Review Board & Anor found:

Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement. 107

This meant that it would ‘not normally be appropriate’ for a person facing an involuntary treatment order to be required to present his or her evidence first in a mental health review tribunal matter. 108 The Court of Appeal explained:

An adequate opportunity [to be heard in accordance with the hearing rule] will not have been afforded unless the party knows what is alleged, knows what evidence is relied upon to substantiate the allegation, and has an opportunity to respond to the case against them and put forward their own case. 109

Even where the process has an inquisitorial component, a party against whom adverse findings may be made, having been apprised of the issues, must be given the opportunity to put evidence and argument in response, even though there is no ‘case’ being advanced against the party. 110 This would tend to suggest that the rules of procedural fairness require that parties before the QMHRT be made aware of, and have the opportunity to challenge, any evidence that may be used in the determination of their involuntary treatment, which is consistent with the views of our participants.

Admission of evidence and hearsay

Most Australian tribunals, including the QMHRT, are not bound by the rules of evidence. 111 This, as Gleeson CJ and Handley J have stated, means that a tribunal ‘will not err in law merely because it acts on evidence which would not be admissible in a court or because there is no legally admissible evidence to support any of its findings’. 112 Nevertheless, this does not mean that there are no restrictions at all on the use of evidence by tribunals. 113 To be admitted, evidence must have probative value, 114 and a tribunal decision must be based on evidence ‘which is reasonably capable of sustaining it’. 115 In a frequently cited early pronouncement, Evatt J found that when rules of evidence are expressly excluded from application, that does not mean that ‘all rules of evidence may be ignored as of no account’. 116 More recently, it has been stated that ‘the policies which underpin those principles and rules should be borne in mind when a decision is made on the admissibility or weight of a piece of evidence’. 117 However, Brennan J cautioned that expressly excluded provisions must not ‘creep back through a domestic procedural rule’. 118 Similarly, a tribunal’s reliance on hearsay evidence does not invalidate a decision on that basis alone. However, tribunals cannot treat hearsay evidence as they would other sources of evidence: its quality as a form of evidence that is inherently less reliable must be taken into consideration. 119 In the context of mental health review tribunals, it is important that the person be given an opportunity to challenge hearsay evidence; if such an opportunity is not given, that may preclude its admissibility. 120

Therefore, whilst tribunals such as the QMHRT are free to accept evidence that would not be admissible in a court, they must pay careful attention to the manner in which they use such evidence. Our participants’ views regarding the use of the evidence contained in clinical reports give cause for concern. They said that the clinical reports upon which the tribunal tends to rely in making its decisions are often outdated, inaccurate and include ‘cut and pasted’ anecdotes and unsubstantiated comments. 121 Similar concerns have been raised in the literature about the general quality of the medical evidence that is presented to mental health review tribunals. 122 In her cross-jurisdictional study of mental health court and tribunal proceedings, Fritze found that if the court or tribunal challenged the treating team’s evidence, including on issues such as hearsay, the quality of proceedings improved. 123 The case law would suggest that the QMHRT should be submitting the contents of these reports to a higher level of scrutiny, particularly as regards hearsay evidence.

‘Rubber stamping’

Whilst the QMHRT’s power to inform itself in any way it considers appropriate allows it to take an active role in proceedings, it must still ensure that it remains independent and rigorous in its processes. Only two of our participants used the word ‘biased’ to describe the QMHRT’s decision-making processes, however, many described its processes as a mere ‘rubber stamp’ of the treatment team’s recommendation.

The most commonly expressed concern in the literature on mental health review tribunals relates to whether these tribunals provide a genuinely independent review of the medical evidence. 124 In most jurisdictions, mental health review tribunals are asked to consider involuntary treatment orders that have already been made by a psychiatrist or psychiatrists, and it is commonly alleged that these tribunals have a strong tendency to confirm existing treatment orders; 125 in fact, the process is often described as a ‘rubber stamp’ of the views of the treating psychiatrists, in which the evidence presented by the treating psychiatrists is insufficiently challenged. 126 Existing scholarship provides various examples of how this manifests, such as the inappropriate acceptance of hearsay evidence, 127 acceptance of medical opinion as fact 128 and failure to allow cross-examination of medical evidence. 129

Whilst there are no reported Australian decisions related to mental health tribunals on point, this issue was discussed in XYZ v State Trustees , 130 where the Victorian Supreme Court heard an appeal from a VCAT decision to make an administration order for the plaintiff. The VCAT decision had relied heavily on a neuropsychological report stating that the adult lacked financial capacity. The Supreme Court found that VCAT had erred by placing ‘undue reliance’ on the neuropsychological report despite other available evidence, including that from the adult himself, 131 and by treating the neuropsychological report as ‘presumptively correct’. 132 In S v State Administrative Tribunal of Western Australia , Em Heenan J noted that the Briginshaw standard 133 should have been adopted when deciding that the appellant lacked capacity and that a limited trustee and a limited administrator should be appointed, given the ‘seriousness of the allegations made and gravity of the adverse consequences for the appellant’. 134

Therefore, given the significance of the allegations made, and the gravity of the consequences of QMHRT decisions, it would seem that ‘rubber stamping’ the decision of a doctor, such that it appears that the tribunal has abdicated its decision-making role, may constitute an error of law. Yet, our participants said that this happens regularly in the QMHRT. Uncritical acceptance of medical evidence from the treating team is particularly problematic in this context because, as our participants noted, even when the patient has legal representation, clients in the mental healthcare system face considerable practical difficulties in finding a second medical opinion to challenge that evidence.

Conclusion and recommendations

The task of providing a tribunal procedure that is both fair on one hand, and sufficiently informal and efficient on the other, is obviously very difficult. In the context of decisions about involuntary treatment for people with mental illness, it is even more so. Nevertheless, the view of our participants was that there is significant room for improvement in QMHRT practice with regards to its obligation to provide procedural fairness.

Fairness of process is of heightened importance when decisions are being made that restrict a person’s liberty. Moreover, regardless of the forum, decision-makers must address the applicable legislative criteria in a methodical and deliberate manner. It is critical to ensure that clients are communicated with before the hearing and after the decision is made. The legislative scheme in Queensland places the central burden of that on the client’s treating team, but the tribunal itself, and legal representatives, also play a role. Communication with people with mental illness must obviously take into consideration their particular difficulties, including the effects of their impairments, medications and their vulnerability generally, on their capacity to understand and engage with the process. The recent decision to commence recording proceedings will likely improve transparency, accountability and predictability of QMHRT proceedings and decisions.

That QMHRT proceedings may not be sufficiently challenging evidence put by the treating doctors who made the initial orders is perhaps a more difficult issue to address. However, for the Tribunal to genuinely provide an independent review of the legislative criteria for treatment authorities and forensic orders, evidence from the treating team must be open to challenge.

Of course, further research is required to determine whether or not these concerns are shared by other stakeholders, including treating psychiatrists, tribunal members and people with mental illness themselves.

1 See Mental Health Act 2016 (Qld) s 704(1); Mental Health Act 2007 (NSW) s 140(1); Mental Health Act 2014 (Vic) s 152(1); Mental Health Act 2013 (Tas) s 167(1); Mental Health Act 2014 (WA) s 380; and Mental Health and Related Services Act 1998 (NT) s 118.

2 See eg Mental Health Act 2016 (Qld) ss 419, 441. In South Australia decisions about involuntary treatment for mental illnesses are made by the South Australian Civil and Administrative Tribunal (SACAT): see eg Mental Health Act 2009 (SA) ss 3(1), 16. In the ACT these decisions are made by the ACT Civil and Administrative Tribunal (ACAT): see eg Mental Health Act 2015 (ACT) s 58(2). The provisions relating to evidence and procedure that apply to SACAT and ACAT when making these decisions are equivalent to those that apply to mental health review tribunals: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 8, 24(2); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39(1).

3 Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals , Report No 39 (1995) [3.9].

4 Robin Creyke, ‘Tribunals – “Carving Out the Philosophy of Their Existence”: The Challenge for the 21st Century’ (2012) 71 Australian Institute of Administrative Law Forum 19, 21–22.

5 EO v Mental Health Review Board [2000] WASC 203 [39].

6 Piers Gooding and others, ‘Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change’ (2017) 40(3) Melbourne Univ Law Rev 816, 851–52. Note, however, that one of the objects of the Queensland Mental Health Act is to divert people from the criminal justice system: Mental Health Act 2016 (Qld) s 3(1)(b).

7 In Queensland, the Mental Health Review Tribunal is required to observe the rules of natural justice: Mental Health Act 2016 (Qld) s 733(3)(a).

8 Mary Donnelly, ‘Review of Treatment Decisions: Respecting Rights or Jumping Through Hoops?’ in Bernadette McSherry and Penny Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing 2010) 283.

9 We assess different aspects of QMHRT decision-making in other papers, see Boyle, Walsh and Nelson, ‘A Study into the Operation of the Queensland Mental Health Tribunal’ (2020) (forthcoming) and Boyle, ‘Involuntary Electroconvulsive Therapy and Human Rights Obligations on Mental Health Tribunals’ (2020) (forthcoming).

10 Tom R Tyler, ‘Procedural Justice, Legitimacy, and the Effective Rule of Law’ (2003) 30 Crime Justice 283.

11 Bruce Winick, Civil Commitment: A Therapeutic Jurisprudence Model (Carolina Academic Press 2005) 145; James D Livingston and others, ‘Forensic Mental Health Tribunals: A Qualitative Study of Participants’ Experiences and Views’ (2016) 22(2) Psychol Publ Pol Law 173.

12 Margaret Allars, ‘Neutrality, the Judicial Paradigm and Tribunal Procedure’ (1991) 13 Sydney Law Rev 377, 392.

13 Katey Thom and Ivana Nakarada-Kordic, ‘Mental Health Review Tribunals in Action: A Systemic Review of the Empirical Literature’ (2014) 21(1) Psychiatry Psychol Law 112, 123.

14 Procedural fairness is the term favoured in Australian courts when assessing administrative decisions rather than the term ‘natural justice’, with which it can be ‘equated’; Kioa v West [1985] HCA 81, (1985) 159 CLR 550, 583. Procedural fairness may also be compared to the ‘parallel’ concept of ‘due process’ that exists in the American system: Frederick F Schauer, ‘English Natural Justice and American Due Process: An Analytical Comparison’ (1976) 18 William Mary Law Rev 47.

15 Terry Carney and others, ‘Mental Health Tribunals: “TJ” Implications of Weight Fairness, Freedom, Protection and Treatment’ (2007) 17 J Judicial Admin 46.

16 See Michael L Perlin’s discussions on ‘sanism’ in eg ‘Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality and Why and How Mental Disability Law Developed as It Did’ (1999) 10 J Contemp Legal Issues 3.

17 Eg Neil Rees, ‘International Human Rights Obligations and Mental Health Review Tribunals’ (2003) 10(1) Psychiatry Psychol Law 33.

18 Ian Freckelton has examined two Supreme Court decisions on procedural fairness and mental health tribunal decisions: ‘Civil Commitment: Due Process, Procedural Fairness and the Quality of Decision-Making’ [2001] 8(1) Psychiatry Psychol Law 105.

19 Laurence W Maher, ‘The Australian Experiment in Merits Review Tribunals’ (1989) 12(2) Law Context 73; L Curtis, ‘Crossing the Frontiers Between Law and Administration’ (1989) 58 Canberra Bull Publ Admin 55.

20 Mental Health Act 2016 (Qld) s 705(2).

21 Mental Health Review Tribunal, Annual Report 2017–2018 (Queensland Government, 2018) 8.

22 Mental Health Act 2016 (Qld) s 708.

23 Duncan Kerr, ‘State Tribunals and Ch III of the Australian Constitution’ (2007) 31 Melbourne Univ Law Rev 622.

24 Mental Health Act 2016 (Qld) s 705(1)(a)(ii).

25 Solomons v District Court of NSW (2002) 211 CLR 119; 192 ALR 217 [49]. As such, it meets Rees’ criterion for being a ‘court substitute tribunal’; see Neil Rees, ‘Procedure and Evidence in “Court Substitute” Tribunals’ (2006) 28 Austr Bar Rev 41, 43.

26 See Director of Housing v Sudi [2011] VSCA 266 [208]. See also Rebecca Ananian-Welsh, ‘CATs, Courts and the Constitution: The Place of Super-Tribunals in the National Judicial System’ (2020) 43(4) Melbourne Univ Law Rev.

27 Mental Health Act 2016 (Qld) s 546(2).

28 Although the Notice of Appeal form does require the person to specify their grounds of appeal: < https://www.courts.qld.gov.au/__data/assets/pdf_file/0019/511264/mha-2016-f-4.pdf > accessed 9 July 2019

29 See Mental Health Act 2016 (Qld) s 733; cf Mental Health Act 2000 (Qld) s 459. A significant difference in the Mental Health Act 2016 (Qld) relates to the ‘treatment criteria’ the Tribunal must apply when determining whether to confirm a ‘treatment authority’. A ‘treatment authority’ (previously known as an involuntary treatment order), is ‘a lawful authority to provide treatment and care to a person who has a mental illness’ but lacks the capacity to consent to be treated: Mental Health Act 2016 (Qld) s 18(1). Under the new Act , if a person has capacity to consent to be treated for their illness, the ‘treatment criteria’ are not met, and they cannot be subjected to involuntary treatment under a treatment authority: Mental Health Act 2016 ss 12(1)(b), 14; cf Mental Health Act 2000 (Qld) s 14(1)(f)(ii). Note that the Act now states that a person can have capacity to consent to treatment even though the person decides not to receive treatment: s 14(2). For a person to meet the treatment criteria, there must also be ‘a risk of imminent serious harm to the person or others’, however, this was also the case under the old Act : Mental Health Act 2016 (Qld).

30 Mental Health Act 2016 (Qld) s 739.

31 Mental Health Act 2016 (Qld) s 740(2), (3).

32 Mental Health Act 2016 (Qld) s 740(6).

33 Mental Health Act 2016 (Qld) s 739.

34 In which the Queensland Mental Health Court has determined that a person was either of unsound mind when an offence was allegedly committed, or is unfit for trial and the unfitness is permanent: Mental Health Act 2016 s 134.

35 Mental Health Act 2016 s 441(1).

36 Mental Health Act 2016 s 444.

37 Mental Health Review Tribunal, Annual Report 2018–2019 (Report, 2019) 21 < https://www.mhrt.qld.gov.au/sites/default/files/2019-10/MHRT%20Annual%20Report%202018-19_191010%20-%20Tabled%20Report.pdf21 > accessed 9 September 2019

38 Mental Health Act 2016 (Qld) s 733(3)(d).

39 Mental Health Act 2016 (Qld) s 733(3)(c).

40 Mental Health Act 2016 (Qld) s 733(3)(b) (emphasis added).

41 Mental Health Act 2016 (Qld) s 733(2).

42 Mental Health Act 2016 (Qld) s 733(3)(a).

43 Annetts v McCann [ 1990] HCA 57; (1990) 170 CLR 596, 598; Saaed v Minister for Immigration and Citizenship [2010] HCA 23 [2].

44 See Director of Housing v Sudi [2011] VSCA 266 [208].

45 Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585.

46 Matthew Groves, ‘The Power of an Administrative Tribunal to Inform Itself’ (2015) 22 Austr J Admin Law 236, 241.

47 Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (5th edn, Lawbook 2013) 398–99.

48 See eg R v Small Claims Tribunal; Ex parte Cameron [1976] VR 427, 432.

49 See eg s 418(2).

50 Mental Health Act 2016 (Qld) s 723(3). Note that the treating practitioner can apply for a confidentiality order in respect of the report: s 723(4).

51 Saaed v Minister for Immigration and Citizenship [2010] HCA 23 [2], [20].

52 Mental Health Act 2016 (Qld) s 5(b).

53 Mental Health Act 2016 (Qld) s 5(d). As to the right to legal representation in tribunal proceedings, see Michael Hocken, Paul Latimer and Stephen Marsden, ‘Legal Representation in Australia Before Tribunals, Committees and Other Bodies’ (2007) 14(2) Murdoch Univ Electonic J Law 122.

54 Rees (n 17) 58.

55 Johnson v Johnson [2000] HCA 48; 201 CLR 488; 174 ALR 655; 74 ALJR 1380 [11]; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 [7].

56 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; 178 ALR 421, 438.

57 Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 [23]; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128; 179 ALR 296 at [27]. See also CDK16 v Minister for Immigration & Anor [2018] FCCA 3626 [158]; SZSNU v Minister for Immigration & Anor [2013] FCCA 1219 [30].

58 S ZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 [33]; Titan v Babic (1994) 126 ALR 455, 464.

59 Note that in 2017/18, the QMHRT heard 12,335 matters and appointed legal representatives in 21% ( n = 2541) of those: Mental Health Review Tribunal (2018) 28.

60 Anonymity of all participants was a requirement of our research ethics approval. For this reason, we cannot reveal which agency declined to participate in the research.

61 Sue Wilkinson, ‘Focus Group Methodology: A Review’ (1998) 1(3) Int J Soc Res Methodol 181, 190–91.

62 Tobian Nyumba and others, ‘The Use of Focus Group Discussion Methodology: Insights from Two Decades of Application in Conservation’ (2018) 9(1) Methods Ecol Evol 20, 21.

63 Nyumba and others (n 62) 27.

64 Jenny Kitzinger, ‘The Methodology of Focus Groups: The Importance of Interaction Between Research Participants’ (1994) 16(1) Sociol Health Illness 103, 112.

65 Wilkinson (n 61) 184.

66 The Queensland University of Technology Human Research Ethics Committee (#1800001004) and The University of Queensland Human Research Ethics Committee (#2018002284).

67 We sought permission from the president of the Mental Health Review Tribunal to undertake an observational study of the Tribunal’s processes, however, we were denied permission to undertake this study.

68 As to content analysis, see Wilkinson (n 61) 195–96.

69 This is required under the Mental Health Act 2016 (Qld) ss 418(2), 471(2), 487(2), 508(2)(b).

70 The Act sets a 21-day limit: Mental Health Act 2016 (Qld) s 756(2).

71 ‘Electronic Audio Recording Project’, Mental Health Review Tribunal (Web Page) accessed 25 May 2020. < https://www.mhrt.qld.gov.au/information-about/electronic-audio-recording-project > In its 2018/19 Annual Report, the Queensland Mental Health Review Tribunal stated that it was ‘currently evaluating’ feedback from the survey and ‘investigating the possible mechanisms by which electronic recording could be implemented’: Mental Health Review Tribunal (n 37) 21.

72 ‘Published Statements of Reasons’, Mental Health Review Tribunal (Web Page) < https://www.mhrt.qld.gov.au/resources/published-statement-of-reasons > accessed 10 October 2019

73 Terry Carney and others, Australian Mental Health Tribunals: Space for Fairness, Freedom, Protection and Treatment (Themis Press 2011) 41. There is also considerable support for human rights law as an avenue for the improved treatment of people with mental illnesses, see for example Peter Bartlett, Oliver Lewis and Oliver Thorold, Mental Disability and the European Convention on Human Rights (Martinus Nijhoff Publishers 2007).

74 PBU and NJE v Mental Health Tribunal [2018] VSC 564 [276]. In that case, Bell J held that the gravity of the consequences to the individual subject to involuntary mental health treatment meant that the treatment criteria needed to be ‘convincingly shown’.

75 Human Rights Act 2019 (Qld) s 31(1). In Victoria, see Charter of Human Rights and Responsibilities 2006 (Vic) s 24(1).

76 Justice Emilios Kyrou, ‘VCAT’s Natural Justice Obligations’ (Paper delivered at the VCAT, 23 June 2010) < http://classic.austlii.edu.au/au/journals/VicJSchol/2010/23.pdf > accessed 27 May 2019. [29].

77 Terry Carney, David Tait and Fleur Beaupert, ‘Pushing the Boundaries: Realising Rights Through Mental Health Tribunal Processes?’ [2008] 30 Sydney Law Rev 329, 336–37.

78 Chief Justice Robert French, ‘Procedural Fairness: Indispensable to Justice?’ (Sir Anthony Mason Lecture, The University of Melbourne Law School, 7 October 2010) < www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj07oct10.pdf > accessed 27 May 2019

79 French (n 78).

80 French (n 78).

81 Winick, Civil Commitment (n 11) 145.

82 Carney and others, Australian Mental Health Tribunals (n 73) 152.

83 Mark Aronson, Matthew Grove and Gregory Weeks, Judicial Review of Administrative Action and Government Liability (6 th edn, Thomson Reuters 2016) 532.

84 Nguyen v Refugee Review Tribunal (1997) 74 FCR 311.

85 Fn 180. It can be noted that the Federal Court in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 found that mis-translation during proceedings may amount to procedural unfairness, depending on the precise circumstances of the case.

86 EO v Mental Health Review Board [2000] WASC 203.

87 Mental Health Act 1996 (WA) sch 2, cl 7–8.

88 EO v Mental Health Review Board [2000] WASC 203 [30].

89 EO v Mental Health Review Board [2000] WASC 203 [32].

90 EO v Mental Health Review Board [2000] WASC 203 [35].

91 EO v Mental Health Review Board [2000] WASC 203 [40]–[41].

92 Carney and others, ‘Mental Health Tribunals’ (n 15) 57, citing Victoria, Auditor-General, Mental Health Services for People in Crisis (Auditor General, Victoria, 2002); Charles D Parry and Eric Turkheimer, ‘Length of Hospitalization and Outcome of Commitment and Recommitment Hearings’ (1992) 43 Hospital Commun Psychiatry 65, 66.

93 Carney and others, Australian Mental Health Tribunals (n 73) 157.

94 (1893) 6 R 67 (HL).

95 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALRJ 1909 [57]; Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 [149].

96 MH6 v Mental Health Review Board & Anor [2009] VSCA 184 [20].

97 Secretary, Department of Social Security v Murphy (1998) 52 ALD 268; Ileris v Comcare (1999) 56 ALD 301 [43]; Casey v Repatriation Commission (1995) 39 ALD 34, 38.

98 EO v Mental Health Review Board [2000] WASC 203.

99 EO v Mental Health Review Board [2000] WASC 203 [37].

100 Rees (n 25) 76, fn 246.

101 Juliet Lucy, ‘Merits Review and the 21 st Century Tribunal’ (2017) 24 Austr J Admin Law 121, 132; Rees (n 25), fn 246. See Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 93 ATR 775; [2013] FCAFC 26 [73].

102 [2009] VSCA 184.

103 Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 91(1). The VCAT review was by way of a full rehearing of the original application to the Mental Health Review Board: MH6 v Mental Health Review Board [2008] VSC 345 [6]–[7]. Note that the Mental Health Act 1986 (Vic) has since been repealed and replaced by the Mental Health Act 2014 (Vic). Original applications are now heard by the Mental Health Tribunal.

104 Towie v Medical Practitioners Board [2008] VSCA 157.

105 Towie v Medical Practitioners Board [2008] VSCA 157 [9].

106 Towie v Medical Practitioners Board [2008] VSCA 157.

107 MH6 v Mental Health Review Board & Anor [2009] VSCA 184 [26].

108 MH6 v Mental Health Review Board & Anor [2009] VSCA 184 [26].

109 MH6 v Mental Health Review Board & Anor [2009] VSCA 184 [36], citing Towie v Medical Practitioners Board [2008] VSCA 157.

110 MH6 v Mental Health Review Board & Anor [2009] VSCA 184 [28]. Note that the Court of Appeal did not overturn the VCAT decision in MH6 v Mental Health Review Board & Anor . It found that the applicant was not disadvantaged by the order of presentation of evidence because he did not call any medical evidence. Also, the procedure followed did not deny the applicant the opportunity to contest the evidence presented, because the relevant material had already been ‘fully exposed and tested’ in the earlier Mental Health Review Board decision: [33]–[34].

111 Mental Health Act 2016 (Qld) s 733(3)(c). See also eg Mental Health Act 2014 (Vic) s 181(1)(a).

112 Qantas Airways Ltd v Gubbins (1992) 28 ALD 538, 542.

113 Gleeson JA and Hanley J note that it is ‘not unfettered’: Qantas Airways Ltd v Gubbins (1992) 28 ALD 538, 542.

114 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 119; [1953] ALR 461; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356; 94 ALR 11.

115 Minister for Immigration and Ethnic Affairs v Pochi (1979) 44 FLR 41, 67; 31 ALR 666. Note that the requirement to act on logically probative evidence is not strictly considered an element of procedural fairness. Nevertheless, it is grounds for review of decision that is closely linked to that requirement. See Aronson and Groves (n 47) 400–402.

116 R v War Pensions Entitlement Appeals Tribunal; ex parte Bott (1933) 50 CLR 228, 256.

117 Ileris v Comcare (1999) 56 ALD 301 [43]. See also Bannon v The Queen (1995) 70 ALJR 25.

118 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, 256; 2 ALD 33, 41.

119 Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 [4]–[5]. For example in A & B v Director of Family Services (1996) 132 FLR 172, a magistrate’s decision was overturned, in part, for reliance on hearsay evidence, even though in the jurisdiction (child welfare) the magistrate was not bound by the rules of evidence.

120 Ileris v Comcare (1999) 56 ALD 301 [43].

121 Participants in Carney et al’s study similarly stated that hearsay evidence was sometimes used inappropriately: Carney and others, Australian Mental Health Tribunals (n 73) 201.

122 Carney and others, Australian Mental Health Tribunals (n 73) 210–15; Genevra Richardson and David Machin, ‘Judicial Review and Tribunal Decision Making: A Study of the Mental Health Review Tribunal’ (2000) Autumn Public Law 494. The same arguments have been made with respect to social workers’ affidavits in child protection matters: see Tamara Walsh and Heather Douglas, ‘Lawyers, Advocacy and Child Protection’ (2011) 35(2) Melbourne Univ Law Rev 621.

123 Eleanore Fritze, Shining a Light behind Closed Doors (2015, Victorian Legal Aid).

124 See Thom and Nakarada-Kordic (n 13) for an overview of the literature.

125 Genevra Richardson and David Machin, ‘Doctors on Tribunals: A Confusion of Roles’ (2000) 176 British J Psychiatry 110, 115; Amar Shah, ‘Is the Mental Health Review Tribunal Inherently Unfair to Patients?’ (2010) Psychiatry Psychol Law 17, 25–31; Sameer Sarkar and Gwen Adshead, ‘Black Robes and White Coats: Who Will Win the New Mental Health Tribunals?’ (2005) 186(2) Brit J Psychiatry 96, 96–97; Ian Freckelton, ‘Therapeutic Jurisprudence Misunderstood and Misrepresented: The Price and Risks of Influence’ (2008) 30(2) Thomas Jefferson Law Rev 575, 587; Carney and others, Australian Mental Health Tribunals (n 73) 52–57; Liv Zetterberg, Stefan Sjöström and Urban Markström, ‘The Compliant Court: Procedural Fairness and Social Control in Compulsory Community Care’ (2014) 37 Int J Law Psychiatry 543, 547; Sol Jaworowski and Rumiana Guneva, ‘Decision-Making in Community Treatment Orders: A Comparison of Clinicians and Mental Health Review Board Members’ (2002) 10 Australas Psychiatry 29.

126 Bruce Winick, ‘Therapeutic Jurisprudence and the Civil Commitment Hearing’ (1999) 10 J Contemp Legal Issues 37, 41. See also Michael L Perlin, ‘Who Will Judge the Many When the Game Is Through: Considering the Profound Differences Between Mental Health Courts and Traditional Involuntary Civil Commitment Courts’ (2017–2018) 41 Seattle Univ Law Rev 937, 943.

127 Penelope Weller, ‘Taking a Reflexive Turn: Non-adversarial Justice and Mental Health Review Tribunals’ (2011) 37(1) Monash Univ Law Rev 81, 95.

128 Sarkar and Adshead (n 125) 96–97.

129 Jill Peay, Tribunals on Trial: A Study of Decision-Making Under the Mental Health Act 1983 (Clarendon Press, 1989) 93; Shah (n 125).

130 XYZ v State Trustees [2006] VSC 444.

131 XYZ v State Trustees [2006] VSC 444 [47].

132 XYZ v State Trustees [2006] VSC 444 [53].

133 Briginshaw v Briginshaw (1938) 60 CLR 336, 361–62.

134 S v State Administrative Tribunal of Western Australia (No. 2) [2012] WASC 306.

Ethical standards

Declaration of conflicts of interest.

Sam Boyle has declared no conflicts of interest.

Tamara Walsh has declared no conflicts of interest.

Ethical approval

All procedures performed in studies involving human participants were in accordance with the ethical standards of the Queensland University of Technology and University of Queensland’s research ethics committees and with the 1964 Helsinki declaration and its later amendments or comparable ethical standards.

Informed consent

Informed consent was obtained from all individual participants included in the study.

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Algorithmic fairness in healthcare is a nascent field of study focused on the creation of nondiscriminatory algorithmic systems that are optimized to "ensure equality in patient outcomes, performance, and resource allocation" (Rajkomar et al., 2018). These efforts are either computational or procedural in nature.
Health equity and distributive justice considerations in critical care
Amid the possibility of resource shortages in health care during a public health crisis, guiding principles established by several groups advocate for allocating life-sustaining treatments on the basis of a patient's chances of survival, resulting in an approach of saving the most lives possible.1 To assist in this approach, many triage frameworks use acute illness scores to predict short-term ...
Medical Ethics: Justice
Justice - in the context of medical ethics - is the principle that when weighing up if something is ethical or not, we have to think about whether it's compatible with the law, the patient's rights, and if it's fair and balanced. It also means that we must ensure no one is unfairly disadvantaged when it comes to access to healthcare.
Justice and Fairness
Nevertheless, justice is an expression of our mutual recognition of each other's basic dignity, and an acknowledgement that if we are to live together in an interdependent community we must treat each other as equals. This article appeared originally in Issues in Ethics V3 N2 (Spring 1990). It was updated in August 2018.
Paradigm (4 boxes)
Paradigm (4 boxes) A case-based approach to ethical decision-making. Adapted from AR Jonsen, M Siegler, W Winslade, Clinical Ethics, 7th edition. McGraw-Hill, 2010. MEDICAL INDICATIONS. The Principles of Beneficence and Nonmaleficence. What is the patient's medical problem?
Principles of Clinical Ethics and Their Application to Practice
Abstract. An overview of ethics and clinical ethics is presented in this review. The 4 main ethical principles, that is beneficence, nonmaleficence, autonomy, and justice, are defined and explained. Informed consent, truth-telling, and confidentiality spring from the principle of autonomy, and each of them is discussed. In patient care situations, not infrequently, there are conflicts between ...
Perceptions of procedural justice and coercion among forensic
Results from this mixed-methods study will yield a rich and detailed account of patient perceptions of the forensic mental health system, and specifically whether perceptions of procedural fairness, justice and legitimacy, as well as perceived coercion, systematically influence patients' risk for adversity, their ability to progress in their ...
04 Seatwork 1 Ethics
CASE STUDY FOR JUSTICE AND FAIRNESS. Patient. You have recently been speaking to your nursing colleagues about Mr. Goodwin, a patient from the community to comes to hospital once per week to receive a nurse-administered medication. You have been wondering whether it is appropriate to keep treating Mr. Goodwin in hospital, given that he would be ...
Application of fairness to healthcare, organizational justice, and
In the case study, a model was designed using the LightGBM algorithm (Ke et al., 2017) to predict whether a customer would default. The efficiency of the model was evaluated based on the f1-score, recall, and precision. The fairness of the model was assessed through the equal opportunity and disparate impact definitions of fairness.
Ethical Considerations and Fairness in the Use of Artificial
Definitions "Ethics," in a strict dictionary definition, is a theory or system of values that governs the conduct of individuals and groups. 2 Ethical physicians should endeavor to promote fairness and avoid bias in their personal treatment of patients and with respect to the health care system at large. A biased object yields 1 outcome more frequently than statistically expected, eg, a 2 ...
Justice: a key consideration in health policy and systems research
HPSR's underlying moral commitment to health and social justice. Much HPSR, especially in low-income and middle-income countries (LMICs), is conducted with the ultimate aim of reducing health disparities between and within countries and enhancing health system performance for those considered disadvantaged and marginalised. 8 Recent work in bioethics suggests such an aim is necessary to ...
Fairness matters: organisational justice in project contexts
Theoretical background. Organisational justice is viewed as a phenomenon which is complex and multifaceted 'as individuals are concerned about fairness for several reasons, judge the fairness of several aspects of decision events, and use fairness perceptions to guide a wide range of key attitudes and behaviors' (Colquitt, Greenberg, et al. Citation 2005, 45).
Shedding Light on Healthcare Algorithmic and Artificial Intelligence
Doctors and other health care providers are increasingly using healthcare algorithms (a computation, often based on statistical or mathematical models, that helps medical practitioners make diagnoses and decisions for treatments) and artificial intelligence (AI), to diagnose patient illnesses, suggest treatments, predict health risks, and more. In some cases, this is fine. However, using ...
Procedural fairness in mental health review tribunals: the views of
The Queensland Mental Health Review Tribunal and the Mental Health Act 2016 (Qld). Like most tribunals in Australia, the QMHRT occupies a contested legal and administrative space between the executive and judicial arms of government. 19 The QMHRT is required to act independently when exercising its discretion, 20 but it receives its funding from Queensland Health (not the Department of Justice ...

Case Studies: Justice / Fairness

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Introduction

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Non-discrimination

Priority to the worse off

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Perceptions of procedural justice and coercion among forensic psychiatric patients: a study protocol for a prospective, mixed-methods investigation

Risk assessment and its relationship with patient recovery

Perceived procedural justice and coercion

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Perceived coercion (PC)

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BMC Psychiatry

American Journal of Neuroradiology

Ethical Considerations and Fairness in the Use of Artificial Intelligence for Neuroradiology

Definitions

Algorithmic Bias

AI Algorithms: What Could Possibly Go Wrong?

Primum No Nocere

Mitigating Bias and Unfairness

Integration of Fairness, Accountability, Transparency, and Ethics Principles in the AI Cycle

Trust, Radiology, and AI: Guiding Principles

Suggestions for Neuroradiologists in AI

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