Limits on the duty of care in the setting of psychiatric treatment: Hunter and New England Local Health District v McKenna; Simon

13 May 2015
When someone is injured or dies due to the actions of a person with a mental illness, attention often turns to the health system that was responsible for the treatment of the mentally ill person. Why were they allowed to be a risk to the public? What is the legal liability of the treating health professional or facility?

A recent decision of the High Court illustrates how difficult it is for those injured by mentally ill patients and their families to prove that they were owed a duty of care. 

Mr Stephen Rose was killed by his friend, Mr Pettigrove, who was a patient discharged into his care from the Manning Base Hospital in New South Wales. Mr Rose’s relatives brought a claim against the Health Authority for psychiatric injury sustained as a result of his death. Mr Rose’s relatives were unsuccessful in the District Court of New South Wales, but successful in the Court of Appeal where the Court found a duty of care existed, breach had occurred, and Mr Rose’s relatives had been injured as a result.

The Health Authority then appealed to the High Court, where a unanimous bench* found in favour of the Health Authority on the basis that neither the hospital nor its staff owed the relatives a duty of care.

The decision turned largely on section 20 of the NSW Mental Health Act 1990, which provides that a mentally ill person is not to be detained unless the medical superintendent is of the view that “no other less restrictive care is appropriate and reasonably available.”

The Court concluded that despite the risk that a mentally ill person might act irrationally following discharge, the now-repealed Act did not require doctors to take measures against that risk when deciding to discharge a patient. It found that the common law duty to protect against the risk of harm caused by a mentally ill person would be inconsistent with the duty under legislation not to restrict the liberties of patients where there are less restrictive means of treatment available.

Other states have laws that are similar to the current NSW Mental Health Act 2007, which restates section 20 of the previous Act. In Victoria, the ‘treatment criteria’ to be considered under section 5 of the Mental Health Act 2014 (Vic) by a psychiatrist or Tribunal in making an order in respect of involuntary admission and detention includes determining that “there is no less restrictive means reasonably available to enable the person to receive the immediate treatment”. Very similar provisions appear in the Mental Health Act 2000 (Qld), where section 46 states that after becoming an involuntary patient an authorised doctor must make an assessment regarding ‘treatment criteria’, one of which is that there is “no less restrictive way of ensuring the person receives appropriate treatment for the illness”.

It is clear that the focus of laws across the states is on providing the least restrictive treatment for those requiring treatment for mental illness.  As a result it appears that it will be very difficult for affected third parties to argue that a duty of care should exist, despite the risks that premature release of a mentally ill patient poses to others.

The effects of Hunter for the general community are significant, as practitioners in the mental health field may not be held liable for treatment decisions such as the discharge of a patient in particular circumstances. In Hunter the decision to discharge the mentally ill patient was considered to be a decision which was, at first instance, “prima facie inappropriate” however the practitioners responsible were not held liable.

*Hunter and New England Local Health District v McKenna; Simon [2014] HCA 44 (Hunter)

By Gabrielle Feery and Louis Baigent