Legal accountability in mental health care is increasingly gaining recognition in human rights discourse. Negligence is one accountability mechanism that can provide compensation, but has been criticised for failing to deliver justice. The Mental Health and Wellbeing Act 2022 (Vic), along with immunity provisions for clinicians who act in good faith, have shone the spotlight on whether current mechanisms are effective accountability measures. Analysis of authorities suggests that clinicians and health authorities will ordinarily be protected from liability when clinical decisions are made that are consistent with mental health legislation. Yet clinicians often misunderstand the concept of ‘duty of care’ and use it as an extra-legal power to control. Using a fictional vignette, this article addresses the tensions and dilemmas that exist in tort law and mental health care. Our analysis lends itself to two solutions: the need for effective training and the promise of no-fault insurance schemes.

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