Discussion week 2

Law and Human Behavior, Vol. 21, No. 1, 1997

From the Editor

As I began to think about a plan for managing Law and Human Behavior, I reviewed
the editorial policies of the previous editors of this journal (Bruce Sales, Michael
Saks, and Ronald Roesch) and found that they defined the journal as “a multidis-
ciplinary forum for the publication of articles and discussions of issues arising out
of the relationship between human behavior and the law. legal system, and legal
process” (inside back cover of the journal). Although the journal sometimes pub-
lished shorter pieces such as commentaries, notes concerning research issues in
practice, adversary forum debates, and book reviews, the longer articles that made
up the bulk of the text were “original research, reviews of past research, and theo-
retical studies that make significant contributions to our understanding of the re-
lationship of human behavior to the law, the legal process, and the legal system.”
This policy has served the journal well. As I take over the responsibilities of editor,
I cannot help but be impressed by the quality of the material that has appeared
in Law and Human Behavior over the years, and I am continually made to feel
proud by the comments of colleagues from law colleges, medical schools, social
science programs other than psychology, and of course from other psychologists.
There is no need to alter the basic policies of Law and Human Behavior, and I will
take no actions to do so. Nonetheless, as I sampled some of the articles published
under the watches of the various editors of our journal, I did find some differences
in the types of articles, which I assume resulted, at least in part, from differences
in the emphases of the editors and the editorial boards.

My plan is to continue to emphasize articles that are of the highest quality
of scholarship and which approach problems of law and human behavior from an
interdisciplinary point of view. The best manuscripts will be those that present
analyses of legally relevant issues from a theoretical and empirical base within the
social sciences. Articles that are empirical should report data collected in accord-
ance with current standards of rigorous scientific investigation, and those that con-
sist primarily of commentary should offer scholarship in the best traditions of law
and social science. My own view of sociolegal scholarship is that the best work goes
beyond sophisticated social science methodology applied to problems of law and
legal process. The best work is truly interdisciplinary in that it begins with a careful
analysis of law, the legal system, or legal process, and proceeds by offering a mean-
ingful social scientific analysis of the problem. The most interesting and persuasive
empirical investigations are those that use our most powerful empirical methods to
test insights drawn from social scientific theory and research.

1
0147-7307

260 PSYCHIATRY, PSYCHOLOGY AND LAWVOLUME 14 NUMBER 2 2007 pp. 260–271

Correspondence to: Professor Bernadette McSherry, Faculty of Law, Building 12, Monash University, Clayton VIC 3800, Australia.
E-mail: [email protected]

Providing Mental Health Services
and Psychiatric Care to Immigration
Detainees: What Tort Law Requires

Bernadette McSherry and Azadeh Dastyari
Monash University, Australia

There is increasing evidence that the provision of mental health services is inadequate for immigration detainees.In S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549, Justice PaulFinn held that the Commonwealth had breached its duty to ensure that reasonable care was taken of two
Iranian detainees, ‘S’ and ‘M’, in relation to the treatment of their respective mental health problems. The lack of
proper psychiatric care at Baxter Detention Centre was also highlighted in the Palmer Inquiry into the detention of
Cornelia Rau. This article analyses the Commonwealth Government’s legal duty to provide adequate levels of
mental health services and psychiatric care to immigration detainees as well as the implications of the cases brought
on behalf of a child refugee, Shayan Badraie and an Iranian man, Parvis Yousefi against the Department of
Immigration and Citizenship and the detention centre operators.

There is growing evidence that the detention of
‘unlawful noncitizens’ under s189(1) of the
Migration Act 1958 (Cth) contributes to feelings
of anxiety, hopelessness and depression1 and that
children are particularly vulnerable to the effects
of prolonged detention.2 It has been suggested
that the detention environment is a direct
contributor to psychological stress, either on its
own or as a ‘retraumatising influence’.3 This is
borne out by suicide rates in detention centres,
which are estimated to be between 3 to 17 times
that in the Australian community.4 Refugees who
have spent time in detention have twice the risk
of depression and three times the risk of
posttraumatic stress disorder when compared to
refugees who have not been in detention.5
Further, self-harm appears to be widespread
among the detainee population. Department of

Immigration and Citizenship (DIAC) records
reveal 506 incident reports of attempted or actual
self-harm involving 878 detainees between July
2002 and June 2005.6 Already, a number of
lawsuits have been filed on behalf of detainees for
harms sustained while in detention and it is
expected that these will continue.7

It is well established that the Commonwealth
government has a duty to provide health care to
immigration detainees. Ian Freckelton has pointed
out that the civil justice system may have a role to
play in ensuring that the Gove

MULTIPLE REASONABLE BEHAVIORS
CASES: THE PROBLEM OF
CAUSAL UNDERDETERMINATION
IN TORT LAW

Maytal Gilboa*

The University of Toronto

ABSTRACT
This article introduces a signi!cant yet largely overlooked problem in the law of torts:
causal underdetermination. This problem occurs when the causal inquiry of a but-for
test produces not one but two results, which are contradictory. According to the !rst,
the negligent defendant is the likely cause of the plaintiff’s injury, whereas according
to the second, she is not. The article explains why causal underdetermination has
escaped the radar of tort scholars and is perceived by courts as lack of causation.
It demonstrates that the current practice in cases of causal underdetermination
might lead to erroneous decisions, absolving negligent defendants of tort liability
even when the evidence suggests that they are in fact the likely cause of the plaintiff’s
injury. This, in turn, the article asserts, may not only lead to underdeterrence among
potential defendants, but also encourage manipulative litigation strategy to escape
liability in retrospect. The article then proposes solutions that contend with causal
underdetermination and resolve the dif!culties that the current practice entails.

INTRODUCTION

To impose liability in negligence, a plaintiff is required to preponderantly
prove three basic elements: the existence of harm, the defendant’s

* Postdoctoral fellow, University of Toronto Faculty of Law. A !rst draft of this article was writ-
ten during my postdoctoral fellowship at the Federmann Center for the Study of Rationality,
Hebrew University of Jerusalem. Earlier drafts of this article have been selected for presenta-
tion at the 27th Annual Meeting of the American Law and Economic Association, the 33rd
Annual Meeting of the European Association of Law and Economics, the 2017 meeting of
the Canadian Law and Economics Association, and the 2017 meeting of the Israeli Private
Law Association. I would like to thank the participants in these meetings, as well as Natalie
Davidson, David Enoch, Rea Golan, Ehud Guttel, Alon Harel, Barak Medina, Omer Pelled,
Omri Rachum-Twaig, Arthur Ripstein, Ohad Somech, Ernest Weinrib, Asaf Wiener, and the
two Legal Theory anonymous referees for their helpful comments on earlier drafts. I wish to
express a special thanks to Ariel Porat for his priceless comments and suggestions for this arti-
cle at different stages of its writing. Lastly, I thank the Cegla Center for Interdisciplinary
Research of the Law for their generous !nancial support.

Legal Theory, 25 (2019), 77–104.
© Cambridge University Press 2019 0361-6843/19
doi:10.1017/S135232521900003X

77

unreasonable behavior,1 and the existence of a causal link between the
defendant’s unreasonable behavior and the plaintiff’s harm.2 The latter
requirement is the focus of this article

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Australian & New Zealand Journal of Psychiatry, 53(11)

https://doi.org/10.1177/0004867419850320

Australian & New Zealand Journal of Psychiatry
2019, Vol. 53(11) 1070 –1079
DOI: 10.1177/0004867419850320

© The Royal Australian and
New Zealand College of Psychiatrists 2019
Article reuse guidelines:
sagepub.com/journals-permissions
journals.sagepub.com/home/anp

Introduction
Contemporary understandings of capacity and consent are
shifting and evolving as debates on feminism, disability,
human rights and the state’s role in protecting vulnerable
citizens dominate media headlines, policy considerations
and legal frameworks. One area in which these discourses
uncomfortably collide is the way sexual intimacy is
responded to in inpatient mental health settings. In an envi-
ronment where human rights are regularly limited, and yet
where sexual violence is a common complaint, the law is
poorly understood and inconsistently applied. The
Convention on the Rights of Persons with Disabilities
(CRPD, 2008) is a factor in driving this change in mental
health law, while the #MeToo movement is shining a bright
spotlight on sexual violence everywhere. Meanwhile, the
mental health practice context is focused on its liabilities in
tort and dominated by risk averse policy. To explore this

tension, between the rights to be safe, to be intimate, to
autonomy and dignity, this paper explores recent develop-
ments in capacity law, in the state of Victoria, Australia, to
highlight the variety of intersecting legal frameworks
which govern this issue. To highlight the tensions in prac-
tice, consider this fictional scenario:

Quinn is admitted to an inpatient unit under the Mental Health
Act 2014 (Vic). While there, Quinn meets Tran, another
involuntary patient. Quinn and Tran begin a relationship,

The capacity to consent to sex in
mental health inpatient units

Christopher Maylea

Abstract

Objective: Discussions of capacity to consent in mental health care usually revolve around capacity to consent to treat-
ment. This paper instead explores the issue of capacity to consent to sexual activity in a mental health inpatient setting as
a way of exploring capacity from a different perspective. This is not a purely theoretical exercise, with both consensual
sexual activity and sexual assault commonplace in mental health inpatient units, current policy and practice approaches
are clearly not working and require re-examination.

Methods: Four key frameworks are explored: human rights law, mental health law, the criminal law and the law of tort
governing the duty of care. These frameworks are explored by highlighting relevant case law and statutes and considering
their potential application in practice. This is undertaken using the state of Victoria, Australia, as a case study.

Results: The four frameworks are shown

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