When ketamine prescribing causes permanent harm or death: can a patient or family in NSW bring a medical negligence claim?
This article examines what the clinical standard requires of prescribers who use ketamine, where that standard is most often breached, and what the law in NSW says about the consequences of those breaches.
What ketamine is, what it does, and how it is used in Australian clinical practice
Ketamine is a dissociative anaesthetic — a drug that interrupts the brain’s NMDA receptors, producing sedation, analgesia, and at higher doses, a dissociative state in which the patient feels detached from their body and surroundings. Developed in the 1960s as a battlefield anaesthetic, it remains on the World Health Organization’s list of essential medicines for use in surgical settings.
In contemporary Australian clinical practice, ketamine appears in three distinct contexts. First, as an intravenous anaesthetic agent in operating theatres and emergency departments, where its use is tightly controlled and dose-limited. Second, as an infusion therapy for treatment-resistant depression and certain chronic pain conditions, administered in specialist clinics under direct supervision. Third — and this is where the risk landscape changes dramatically — as a compounded oral or intranasal preparation prescribed for ongoing home use, sometimes through telehealth platforms, sometimes through pain clinics, and sometimes continued by GPs who inherit a prescription they did not initiate.
The clinical evidence base for ketamine in depression and pain management is real but narrow. Intravenous ketamine infusions for treatment-resistant depression show short-term efficacy in a subset of patients.1 Sub-anaesthetic doses for certain neuropathic pain conditions have demonstrated benefit in controlled settings.2 What the evidence does not support is open-ended, unmonitored, dose-escalating prescribing — particularly in the outpatient or telehealth context.
For a plain-English explanation of ketamine’s pharmacology and clinical applications, Healthdirect Australia provides accessible information for patients and families.
What it requires: Ketamine is a Schedule 8 controlled drug under the Poisons Standard. In NSW, prescribing ketamine for non-anaesthetic purposes requires compliance with the Poisons and Therapeutic Goods Regulation 2008 (NSW), including authority prescribing requirements for chronic use, mandatory record-keeping, and — for compounded preparations — compliance with TGA compounding guidelines. Prescribers must not supply quantities that exceed clinical need or that facilitate dependence.
Why this matters: A prescriber who issues repeat prescriptions for escalating doses of compounded oral ketamine without authority, without monitoring, or in quantities that facilitate dependence may have breached their regulatory obligations — and that breach is directly relevant to a negligence analysis.
What the standard of care requires of ketamine prescribers
The standard of care in law means the standard of a reasonably competent clinician practising in the same specialty, in the same circumstances, at the time of the treatment. It is an objective test. What this particular clinician intended, or believed, or was told by a pharmaceutical representative does not set the standard. What a competent clinician in that role would have done sets the standard.
For ketamine prescribing, the standard of care is defined by a convergence of sources: the Australian and New Zealand College of Anaesthetists (ANZCA) professional documents on ketamine use, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) guidance on novel treatments for depression, the TGA’s scheduling requirements, and the emerging body of specialist consensus statements on ketamine-associated uropathy and hepatotoxicity.
What it requires: Ketamine administration for procedural sedation requires pre-procedure assessment, monitoring of vital signs and level of consciousness throughout, and post-procedure observation. The document does not endorse unmonitored outpatient ketamine use for chronic conditions without specialist oversight and structured review.
Why this matters: A pain clinic or telehealth prescriber who issues ketamine for chronic home use without the monitoring infrastructure this standard implies has departed from the framework the profession has established for safe ketamine use.
What it requires: The RANZCP position statement acknowledges ketamine’s emerging role in treatment-resistant depression but requires that its use occur within a structured clinical framework: baseline psychiatric assessment, informed consent that specifically addresses the risks of dissociation, dependence, bladder toxicity, and hepatotoxicity, regular clinical review, and cessation protocols if organ toxicity develops. The statement explicitly cautions against open-ended prescribing without these safeguards.
Why this matters: A psychiatrist or clinic that prescribes ketamine for depression without this framework — particularly without warning the patient of bladder and liver risks — has not met the standard the profession has set for itself.
In my view, the most important clinical obligation that prescribers consistently fail to meet is the monitoring obligation. Ketamine-associated uropathy — the progressive destruction of the bladder wall caused by chronic ketamine exposure — is not a rare or unpredictable complication. It is a well-documented, dose-dependent consequence of prolonged ketamine use that has been described in the medical literature since at least 2007.3 A prescriber who continues ketamine beyond the short-term without urological monitoring, and without warning the patient of this risk, cannot credibly claim ignorance of the harm they were creating.
Sources: Middela & Pearce (2011); Winstock et al. (2012); TGA Scheduling; RANZCP Position Statement on Ketamine (2022). This visualisation is educational only.
Where care breaks down — the specific failure patterns in ketamine prescribing
It is a sequence of smaller failures — each one defensible in isolation, each one compounding the last — until the patient is sitting in a urologist’s office being told their bladder is the size of a walnut and cannot be repaired. Or a family is being told their son died of respiratory depression and nobody flagged that his ketamine dose had tripled in six months.
Failure 1: Prescribing without adequate baseline assessment
Before any clinician initiates ketamine for a chronic condition, the standard requires a thorough baseline assessment: psychiatric history, substance use history, renal and hepatic function, urological history, and a documented risk-benefit analysis. Many prescribers — particularly in high-volume pain clinics and telehealth platforms — skip this step entirely or reduce it to a brief questionnaire.
The patient with a history of substance dependence, or pre-existing bladder dysfunction, or elevated liver enzymes, carries a materially higher risk of ketamine toxicity. A prescriber who does not identify those risk factors before initiating treatment cannot make an informed prescribing decision. She went to the clinic with chronic back pain. Nobody asked about her history of urinary symptoms. Six months later, she was catheterising herself four times a day.
Failure 2: Dose escalation without clinical justification or monitoring
Ketamine’s analgesic and antidepressant effects are subject to tolerance — the same dose produces diminishing returns over time. Patients report this to their prescribers. The prescriber’s response, in the cases I examine, is frequently to increase the dose rather than to reassess the treatment plan. No urological review. No liver function tests. No ceiling dose. Just a higher number on the next prescription.
Dose escalation without monitoring is not a clinical judgment call. It is a failure to apply the basic pharmacological principle that ketamine’s toxicity is dose-dependent and cumulative. The prescriber who escalates without monitoring is not managing a patient — they are managing a prescription.
Failure 3: Failure to warn of bladder and liver toxicity
Ketamine-associated uropathy was first described in the medical literature in 2007 and has been the subject of substantial research since.3 By 2012, the condition was sufficiently well-characterised that any clinician prescribing ketamine for chronic use had an obligation to warn patients of the risk.4 Hepatotoxicity — specifically ketamine-induced cholangiopathy, a progressive destruction of the bile ducts — has been documented in chronic users and carries a risk of liver failure.5
Under the High Court’s decision in Rogers v Whitaker (1992) 175 CLR 479, a clinician must warn a patient of any material risk — meaning any risk that a reasonable person in the patient’s position would want to know about, or that this particular patient would want to know about. Permanent bladder damage requiring surgical removal of the bladder is, without question, a material risk. Liver failure is a material risk. A prescriber who does not disclose these risks before initiating chronic ketamine therapy has not obtained lawful informed consent.
Failure 4: Continuing to prescribe after organ damage is documented
This is the failure that, in my experience, causes the most severe harm. The patient reports urinary symptoms — frequency, urgency, pain, haematuria (blood in the urine). The prescriber notes the symptoms. Sometimes they refer for a urological review. But they do not stop the ketamine. The referral takes weeks. The ketamine continues. By the time the urologist sees the patient, the bladder wall is fibrotic and the capacity is measured in millilitres, not hundreds of millilitres.
Continuing to prescribe a drug that is causing documented organ damage is not a defensible clinical decision. It is a breach. The standard is clear: ketamine must be ceased when uropathy or hepatotoxicity is identified, and the patient must be referred urgently to the relevant specialist.
Failure 5: Telehealth and remote prescribing without adequate safeguards
The expansion of telehealth in Australia since 2020 has created a new category of ketamine prescribing risk. Some platforms offer ketamine prescriptions — particularly for depression — following a video consultation of 20 to 30 minutes, with compounded preparations delivered to the patient’s home. No in-person assessment. No baseline blood tests. No monitoring protocol. No mechanism for identifying the patient who is developing bladder symptoms or elevated liver enzymes.
The Australian Commission on Safety and Quality in Health Care has identified telehealth prescribing of controlled substances as a patient safety risk requiring specific governance frameworks. A telehealth platform that prescribes ketamine without those frameworks in place has not met the standard of care — and the individual prescriber who signs the prescription carries personal liability for that failure.
What happened: A medical practitioner prescribed controlled substances to patients without adequate clinical assessment, without monitoring, and in quantities that facilitated dependence. The HCCC brought disciplinary proceedings.
What the court found: The Court of Appeal confirmed that prescribing controlled substances without proper assessment, monitoring, and clinical justification constitutes unsatisfactory professional conduct capable of supporting disciplinary action — and that the prescriber’s belief in the therapeutic benefit of the treatment did not excuse the failure to apply proper clinical safeguards.
Why this matters: The principle established in Litchfield applies directly to ketamine prescribing: a genuine therapeutic intention does not protect a prescriber who fails to assess, monitor, and apply appropriate limits to a controlled drug with known toxicity.
This breakdown reflects common failure patterns identified in the clinical and medicolegal literature. Individual cases vary. Educational purposes only.
The legal framework in NSW — what the law requires and how it applies to ketamine cases
Medical negligence in NSW is governed by the Civil Liability Act 2002 (NSW) — a statute that modified the common law of negligence in response to concerns about insurance costs and litigation volume. Understanding what the Act does, and what it does not do, is essential to understanding whether a ketamine prescribing failure gives rise to a legal claim.
The Act does not eliminate negligence claims. It structures them. Three elements must be established: duty of care, breach of that duty, and causation of harm.
Duty of care
Every prescribing clinician — whether a pain specialist, psychiatrist, anaesthetist, GP, or telehealth doctor — owes a duty of care to the patient they treat. That duty arises from the clinical relationship. It is not in dispute in ketamine cases. The question is always breach and causation.
Breach — and the peer professional opinion defence
Section 5O of the Civil Liability Act 2002 (NSW) provides that a clinician is not negligent if their conduct was consistent with a practice widely accepted by peer professional opinion as competent professional practice. This is the defence that clinicians and their insurers most often invoke. It is not a shield against all criticism.
Section 5O has two important limits. First, the court must be satisfied that the peer professional opinion is itself rational — it cannot be based on irrational or unreasonable grounds. Second, the defence does not apply where the clinician failed to warn of a risk: the consent obligation is governed by a separate standard derived from Rogers v Whitaker (1992) 175 CLR 479, which requires disclosure of any material risk regardless of what peers might or might not have disclosed.
In ketamine cases, the section 5O defence is difficult to sustain where the prescriber departed from the RANZCP position statement, the ANZCA guidelines, or the TGA’s scheduling requirements. A practice that is inconsistent with the relevant specialty body’s published position is unlikely to be “widely accepted” as competent professional practice.
Causation — the “but for” test and its application to ketamine harm
Section 5D of the Civil Liability Act 2002 (NSW) requires that the breach be a necessary condition of the harm — that the harm would not have occurred but for the breach. In ketamine cases, causation is often the most contested element.
The argument the defendant will make is that the patient’s underlying condition — chronic pain, treatment-resistant depression — would have caused suffering regardless of the ketamine prescribing. That argument does not defeat causation where the specific harm (bladder destruction, hepatotoxicity, death from respiratory depression) would not have occurred but for the prescribing. The underlying condition did not destroy the bladder. The ketamine did.
For more on how negligence claims are structured and run in NSW, Reframe Legal — Medical Negligence provides a detailed overview of the legal framework.
What happened: A patient suffered harm following medical treatment. The defendant argued that the harm would have occurred regardless of any breach, because the underlying condition carried inherent risk.
What the court found: The Court of Appeal confirmed that causation requires the plaintiff to establish, on the balance of probabilities, that the breach materially contributed to the harm — and that where a breach deprived the patient of a chance of a better outcome, that lost chance is itself a compensable harm in appropriate circumstances.
Why this matters: In ketamine cases where the prescriber’s failure to monitor deprived the patient of the opportunity to cease treatment before irreversible organ damage occurred, the lost opportunity to avoid that damage is itself a form of compensable harm.
When ketamine prescribing may amount to medical negligence — specific scenarios
Scenario 1: Chronic prescribing without urological monitoring, resulting in bladder damage
If a pain clinic or psychiatrist prescribed ketamine for longer than three months without arranging urological review, and the patient developed ketamine-associated uropathy that was not detected until the bladder was irreversibly damaged, that raises a clear breach question. The clinical literature establishing the monitoring obligation predates most of these prescriptions by years. A prescriber who did not know about ketamine-associated uropathy by 2015 was not keeping up with the literature in their field. That failure to keep up is itself a breach.
Scenario 2: Failure to cease prescribing after the patient reported urinary symptoms
If the patient told the prescriber about urinary frequency, urgency, pain, or blood in the urine — and the prescriber continued the ketamine without urgent urological referral — that is a failure at the most basic level of clinical response. The prescriber had the information they needed to act. They did not act. If the bladder damage that followed was irreversible, the causal link between the failure to act and the harm is direct.
Scenario 3: Telehealth prescribing resulting in death from respiratory depression
If a telehealth platform prescribed compounded ketamine to a patient without in-person assessment, without identifying contraindications, and without any monitoring mechanism — and that patient died from respiratory depression while using the medication unsupervised at home — the prescriber and the platform face serious liability exposure. The duty to assess before prescribing a Schedule 8 controlled drug is not modified by the telehealth setting. The standard of care does not lower because the consultation was conducted by video.
Scenario 4: Failure to obtain informed consent for bladder and liver risks
If the treating clinician did not warn the patient that chronic ketamine use carries a risk of permanent bladder damage and liver toxicity before initiating treatment, the patient did not give informed consent to that treatment. Under Rogers v Whitaker, that failure is actionable if the patient would not have proceeded with the treatment had they been properly warned — or if they would have proceeded differently, with more frequent monitoring or a lower dose ceiling. The question is not whether the patient would have refused treatment entirely. It is whether the undisclosed risk was material to their decision.
Scenario 5: GP continuation prescribing without specialist oversight
If a GP continued a ketamine prescription initiated by a pain specialist or psychiatrist, without understanding the monitoring obligations, without seeking specialist review, and without any mechanism for detecting organ toxicity — and the patient suffered harm that monitoring would have detected — the GP carries liability for that continuation. Inheriting a prescription does not mean inheriting the specialist’s authority to prescribe without the specialist’s monitoring obligations.
The three elements of negligence applied to ketamine overprescription
The diagram below maps the three legal elements of negligence onto the specific clinical context of ketamine overprescription. Reading it alongside the failure patterns described above will help you understand where your situation may sit within the legal framework.
A patient who develops transient dissociation or nausea during a supervised ketamine infusion conducted within ANZCA guidelines — these are known, disclosed risks of the procedure, not failures of care.
A prescriber who continued oral ketamine for 18 months without urological review, ignored the patient’s reports of urinary symptoms, and did not warn the patient of bladder toxicity risk — resulting in a bladder contracture requiring surgical removal.
This is a general educational framework only. Each case depends on its individual facts and circumstances.
The long-term and permanent harm caused by ketamine overprescription
The people who come to me with these cases are not just dealing with a medical injury. They are dealing with a life that changed shape — sometimes overnight, sometimes over months — and the financial and psychological consequences of that change are often as significant as the physical ones.
Physical consequences
Ketamine-associated uropathy, in its severe form, produces a bladder that has lost its capacity to store urine. Patients urinate dozens of times a day. Many require catheterisation. Some require cystectomy — surgical removal of the bladder — and the creation of a urinary diversion, a permanent change to how the body eliminates waste. This is not a complication that resolves. It is a permanent alteration of bodily function caused by a drug that a clinician prescribed and continued to prescribe.
Ketamine-induced cholangiopathy destroys the bile ducts. In severe cases, it progresses to liver failure. The condition is not reversible once established, and some patients require liver transplantation.5 Death from ketamine-related hepatic failure has been documented in the medical literature.
Respiratory depression — the suppression of the drive to breathe — is the mechanism of death in ketamine overdose. In a supervised clinical setting, this risk is managed by monitoring and resuscitation equipment. In a home setting, with a patient who has been prescribed a compounded oral preparation without adequate assessment, there is no safety net.
Psychological consequences
Chronic ketamine use produces psychological dependence in a significant proportion of users. The dissociative effects of the drug — which many patients initially experience as relief from pain or depression — become a need in themselves. Cessation produces cravings, anxiety, and a return of the original symptoms, often amplified. The patient who was prescribed ketamine for depression may find, after months of use, that their depression is worse than before, that they cannot function without the drug, and that the prescriber who created this situation has no plan for managing withdrawal.
Post-traumatic stress disorder and severe depression are documented sequelae of the experience of discovering that a prescribed medication has permanently damaged your body. The psychological harm of learning that a clinician you trusted caused irreversible damage — and that the damage was preventable — is not a minor or transient consequence.
Financial consequences
Cystectomy and urinary diversion surgery carries significant costs. Ongoing urological care, catheter supplies, and management of complications add to those costs over a lifetime. Patients who develop severe uropathy frequently cannot work — the frequency of urination alone makes sustained employment impossible without significant accommodation. Lost income, lost superannuation contributions, and the cost of ongoing care compound over years into a financial harm that can exceed the cost of the medical treatment itself.
For families who have lost a person to ketamine-related death, the financial consequences include funeral costs, lost income, and — where the deceased was a primary carer or income earner — the long-term economic impact of that loss on dependants.
What compensation covers in NSW
A successful medical negligence claim in NSW can recover two broad categories of damages. General damages compensate for pain, suffering, and loss of enjoyment of life. Special damages compensate for specific financial losses — past and future medical expenses, lost income, the cost of care provided by family members, and the cost of aids and equipment.
Under section 16 of the Civil Liability Act 2002 (NSW), non-economic loss (general damages) is only recoverable if the severity of the harm exceeds a threshold — currently set at 15% of a most extreme case. Permanent bladder damage requiring cystectomy, or permanent liver damage, or death, will typically exceed this threshold. The threshold is a filter, not a barrier, for serious harm.
The limitation period for medical negligence claims in NSW is generally three years from the date the cause of action is discoverable — meaning the date the person knew, or ought reasonably to have known, that they had suffered harm that might have been caused by a clinician’s failure.6 For ketamine cases where the harm developed gradually and the connection to the prescribing was not immediately apparent, the discovery rule may extend the period within which a claim can be brought. Time limits are serious. They must be examined early.
| Severity of harm | Indicative range (NSW) | Key factors |
|---|---|---|
| Moderate injury with recovery | $50,000–$150,000 | Duration of pain, treatment required, time off work |
| Serious injury with lasting effects | $150,000–$500,000 | Permanent impairment, ongoing treatment, care needs |
| Severe or life-changing injury | $500,000–$2,000,000+ | Catastrophic loss of function, lifetime care, lost earnings |
These figures are general reference ranges only. Each case turns on its own evidence — medical records, expert opinion, and economic reports that quantify the actual loss. Ketamine cases involving cystectomy, liver failure, or death will typically fall in the severe category, with lifetime care costs and lost earnings forming the largest components of the claim.
How to think about your own situation
These questions are not a legal test. But in my experience, the people who answer yes to several of them are the people whose cases, when I examine the records, show something that was not right.
For a detailed explanation of how medical negligence claims proceed in NSW — from gathering records to expert opinion to the litigation process — Reframe Legal — How Medical Negligence Claims Work in NSW sets out the process in plain terms.
Uncertainty is normal — and it does not mean nothing went wrong
Most people who come to me with ketamine cases carry a version of the same doubt: “Maybe the prescriber was doing their best. Maybe I should have asked more questions. Maybe this is just what happens with this kind of treatment.” That doubt is understandable. It is also, in most cases, not an accurate account of what the law requires.
The standard of care is not measured by what the prescriber intended. It is measured by what a competent clinician in that specialty, with access to the same clinical literature, would have done. A prescriber who did not know about ketamine-associated uropathy in 2018 was not keeping up with the literature in their field. That is not a defence. It is the breach.
Legal analysis in these cases works from facts: the medical records, the prescribing history, the monitoring notes (or the absence of them), and the opinion of an independent clinical expert who can say whether the prescribing met the standard. The patient’s certainty — or uncertainty — about what happened is not the starting point. The records are the starting point. And in my experience, the records in these cases tell a story that the patient was never told.
Informed consent is a separate but related question. If you were not told about the risks of bladder damage or liver toxicity before you agreed to treatment, the question of whether your consent was legally valid is worth examining. Reframe Legal — Informed Consent and Medical Negligence explains what the law requires of clinicians when they ask a patient to agree to treatment.
If you are uncertain whether what happened to you or your family member involved a regulatory failure as well as a clinical one, AHPRA — Australian Health Practitioner Regulation Agency is the body that registers and regulates health practitioners in Australia. A complaint to AHPRA is a separate process from a civil negligence claim, and the two can run in parallel.
Dr Rosemary Listing is a lawyer with a PhD focused on medical negligence. Her practice concentrates on cases where clinical care in NSW failed to meet the standard the law and the profession require — and where that failure caused harm that was preventable.
What Dr Listing sees most often when she examines records in these cases is not a single catastrophic error. It is the absence of monitoring — a prescribing history that shows dose after dose, repeat after repeat, with no urological review, no liver function tests, and no documented discussion of the risks the patient was accumulating with every prescription. The harm, when it arrives, is not a surprise to anyone who reads the literature. It is a surprise only to the patient, who was never told.
The clients who come to Dr Listing with ketamine cases are not, in her experience, looking to punish anyone. They want to understand what happened to their body — or to the person they lost. Many of them spent months or years being told that their symptoms were part of their underlying condition, or that the prescriber had done everything correctly, before they sought any independent examination of their records.
Dr Listing examines medical records alongside expert clinical opinion and applies the legal standard — not to assign blame, but to give people an honest answer about whether what happened to them met the benchmark the profession sets for itself. In ketamine cases, that benchmark is clear. Whether it was met is a question the records can usually answer.
References
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- Murrough JW et al., ‘Antidepressant Efficacy of Ketamine in Treatment-Resistant Major Depression: A Two-Site Randomized Controlled Trial’ (2013) 170(10) American Journal of Psychiatry 1134–1142.
- Niesters M et al., ‘Ketamine for Chronic Pain: Risks and Benefits’ (2014) 77(4) British Journal of Clinical Pharmacology 357–367.
- Shahani R et al., ‘Ketamine-Associated Ulcerative Cystitis: A New Clinical Entity’ (2007) 69(5) Urology 810–812.
- Winstock AR et al., ‘The Prevalence and Natural History of Urinary Symptoms Among Recreational Ketamine Users’ (2012) 110(11) BJU International 1762–1766.
- Noppers IM et al., ‘Drug-Induced Liver Injury Following a Repeated Course of Ketamine Treatment for Chronic Pain in CRPS Type 1 Patients: A Report of 3 Cases’ (2011) 152(9) Pain 2173–2178.
- Limitation Act 1969 (NSW) s 50C (discoverability rule for personal injury claims).
- Civil Liability Act 2002 (NSW) ss 5O, 5D, 16.
- Rogers v Whitaker (1992) 175 CLR 479 (High Court of Australia).
- Dobler v Halverson [2007] NSWCA 335 (NSW Court of Appeal).
- Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (NSW Court of Appeal).
- Royal Australian and New Zealand College of Psychiatrists (RANZCP), Position Statement on the Use of Ketamine for Psychiatric Disorders (2022).
- Australian and New Zealand College of Anaesthetists (ANZCA), Professional Document PS09: Guidelines on Sedation and/or Analgesia for Diagnostic and Interventional Medical, Dental or Surgical Procedures (2014, amended 2023).
- Therapeutic Goods Administration (TGA), Poisons Standard — Schedule 8 (Controlled Drugs) (current edition).
- Poisons and Therapeutic Goods Regulation 2008 (NSW).