No duty owed by hospital in discharging mentally ill patient
Insurance eBulletin - 20 November 2014
In Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon, the High Court allowed an appeal by a provider of health services in relation to a nervous shock claim. The claim was initiated by the relatives of a man who was killed by a mentally ill friend following his discharge from one of its hospitals. The Court found that the hospital did not owe a duty of care to the relatives, primarily because such a duty would conflict with its obligations under the Mental Health Act 1990 (NSW).
The circumstances of this case relate to the involuntary admission of a mentally ill patient to a hospital in NSW. The hospital, after discussions with the patient’s family, decided that the patient should be discharged and driven by a friend to his mother's home town where he would continue to receive medical treatment. During that journey, the patient had a psychotic episode and killed his friend.
The deceased’s family brought a claim for nervous shock against the hospital. At trial, the District Court held that there was no breach of duty and entered judgment for the hospital. This was overturned by the New South Wales Court of Appeal. The majority found that the hospital had a common law duty that was breached by discharging the patient into the care of his friend. For a detailed discussion of the Court of Appeal decision, refer to page 8 of our April edition of Pulse.
The High Court unanimously allowed the health service's appeal. While numerous grounds of appeal were relied upon,1 the High Court limited its decision to the question of whether the hospital owed a duty of care to the relatives at all.
This duty was framed as one to avoid causing psychiatric injury to the relatives by taking reasonable care when deciding that powers under the Mental Health Act 1990 (NSW) (Act) to detain the patient, should no longer be used.2
The Court cited with approval its earlier decision of Sullivan v Moody3 where it noted some of the difficult issues that arise when determining the existence of a duty of care. These included the nature of harm (as a result of a criminal act of a third party), the fact that statutory powers and discretions are involved, indeterminacy of the class of persons to whom a duty may be involved and coherence with other legal principles.
All these difficulties arose in this case, but the High Court found that the issue of the exercise of statutory power was determinative.
The Court closely examined the obligations imposed on the hospital in detaining mental health patients under the Act. It paid particular regard to the fact that the Act mandated the minimum interference with the liberty of a mentally ill person. Further, s 20 prohibited detention, or the continuation of detention, unless the medical superintendent of the hospital formed the view that no other care of a less restrictive kind was appropriate and reasonably available.
This prohibition against continuing to detain the patient was inconsistent with the existence of a duty to the relatives.
The principles and objectives of the Victorian counterpart of the Act include the assessment and treatment of persons receiving mental health services "in the least restrictive way possible with the least possible restrictions on human rights and human dignity."4 The Victorian Act promotes a clear preference for voluntary rather than involuntary treatment. The provisions concerning "Compulsory Patients" mandate a number of criteria to be considered in their detention, including that assessment or treatment "cannot occur in the community".
The language of the Victorian Act differs in many respects and while the particular wording of the NSW Act was crucial to the High Court's decision in McKenna, and has since changed with the introduction in 2007 of new legislation,6 the reasoning in the case is likely to be influential in determining a similar Victorian case.
1. The appeal raised issues about a) the existence of duty; b) whether a duty had been breached (s 5B Civil Liability Act 2002 (NSW) (CLA); c) causation (s 5O CLA); d) the "competent professional practice" defence (s 5O CLA); and e) defences relating to liability for breach of statutory duty and the exercise of 'special statutory powers' (ss 43 and 43A CLA)
2. This Act has since been repealed and replaced with a new scheme. See Mental Health Act 2007 (NSW)
3. (2001) 207 CLR 562
4. Mental Health Act 2014 (Vic) ss 10 and 11
5. See generally Part 4
6. Mental Health Act 2007 (NSW). For example the new Act still mandates that a person must not be detained if no other care of a less restrictive kind is appropriate, however there is a rider that the care "is consistent with safe and effective care."
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