Professional liability in psychiatry:evolution and critical issues

The aim of the article is to present the evolution of professional liability in psychiatry from law 36 of 1904 to today. Through an examination of the doctrinal positions and of the jurisprudential expression it was possible to highlight three distinct phases in which profes- sional responsibility has declined over the years. A custodial phase, in which the spirit that animated the law of psychiatric assistance was in- spired by principles of social defense and the responsibility of the psychiatrist was recognized mainly in the lack of custody of the psychiatric patient. A phase of indulgence, in which, like other disciplines, the psychiatrist was recognized with “reduced impunity” due to an alleged “special difficulty” in exercising the medical profession. A phase of empowerment, in which the doctor in general, and the psychiatrist in par- ticular, was confronted with empowering positions that led to convictions. An examination of the application of the guarantee position to psy- chiatry allows us to highlight current difficulties, sometimes a legacy of the past.