Recently Posted to SSRN:
A sizable minority of mental health professionals continue to use treatment methods that are totally lacking in scientific support, some of which harm their patients. Particularly when a treatment has been demonstrated to be harmful and effective evidence-based treatments are available, they should be liable for malpractice. We need malpractice reform in the mental health arena, but not as it is usually conceived. Unlike lawsuits against other medical professionals, lawsuits against psychiatrists and psychologists continue to be exceptionally rare, and successful suits even rarer. Mental health practitioners have escaped liability for using scientifically unproven or even harmful treatments by relying on prevailing community practices – no matter how misguided – to define the permissible standards of care. A defendant can always round up some like-minded practitioners who will testify that the treatment in question is practiced, even if scientifically unfounded. But plaintiffs can and should make use of the Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals (1993), which requires that expert testimony be based upon “reliable scientific knowledge” rather than common practice, to make their claims viable. We discuss the implications of Daubert for mental health malpractice litigation and the beneficial role such litigation can have in making mental health care more scientifically based, the proper role for clinical judgment in the context of evidence-based practice, and the need for practice guidelines and consumer education.