Hunter and New England Local Health District

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Hunter and New England Local Health District v McKenna [2014] HCA 44 Introduction The case of Hunter and New England Local Health District v McKenna[1] concerned the primary issue of whether a common law duty of care owed to third parties by health authorities and their employees were consistent with the appellants’ statutory obligations in relation to detaining and discharging mentally ill persons[2], under the Mental Health Act 1990 (NSW) (MHA).[3] The High Court of Australia unanimously held in favour of the appellants. An objective of the MHA, however, was the ‘control’ of mentally ill patients.[4] On this basis, the decision of the High Court is questionable, as the Court failed to assess a least restrictive environment enabling care and treatment against the necessity for ‘control’. Such a need for control was required in these circumstances, and accordingly gave rise to a duty of care which was breached through the discharge of the patient. Facts Mr Pettigrove, who suffered from a history of mental illness, was involuntarily admitted to, and detained in hospital, upon his friend, Mr Rose, being concerned about the mental state of Mr Pettigrove. Following an assessment by a psychiatrist, he was discharged into the custody of Mr Rose to enable them to travel to Victoria where Mr Pettigrove’s mother lived. During the car drive, Mr Pettigrove killed Mr Rose. Before later committing suicide, Mr Pettigrove told police that he had acted on impulse, believing that Mr Rose had killed him in a past life. Mr Rose’s family brought an action against the health authority claiming negligence on its part. The respondents alleged that the appellants owed Mr Rose and his relatives a duty to prevent Mr Pettigrove causing harm to Mr Rose, which it failed to do and as a consequence, they suffered nervous shock brought about by Mr- Rose’s death.[5] --------------------------------------- Procedural History At first instance, Elkaim DCJ, the trial judge of the New South Wales District Court found that there was no breach of duty of care as the respondents had failed to establish, that the risk was reasonably foreseeable and ‘not insignificant’ that a reasonable person would have taken precautions against it.[6] On appeal, the New South Wales Court of Appeal (consisting of Beazley P, Macfarlan JA, and Garling J dissenting) held that ‘[t]he Hospital owed Mr Rose a common law duty to take reasonable care to prevent Mr Pettigrove causing physical harm to Mr Rose’,[7] and that that duty had been breached by the manner of discharge. By special leave, the appellants appealed to the High Court of Australia. Decision and Judicial Reasoning On the 12th of November 2014, the High Court (consisting of French CJ, Hayne, Bell, Gageler and Keane JJ) unanimously allowed the appeal. The Court held that the appellants did not owe the alleged common law duty of care to Mr Rose and the respondents as this duty was inconsistent with the statutory obligations prescribed by the MHA. Referring to the judgement in Sullivan v Moody,[8] the High Court highlighted the difficulty in determining the existence and nature and scope of a duty of care. The difficulties included where (a) the nature of the harm suffered is caused by criminal conduct; (b) the defendant has a specific discretion or obligation under the existence of a statutory power; (c) the class of persons to which a duty is owed to is difficult to confine and (d) there is a need to preserve legal principles, or a statutory scheme.[9] Although each of these areas were observed to be relevant to the case, the Court concentrated on the second point in particular when reaching its decision. The Court concluded that the provisions of the MHA, which prohibited the detention or the continued detention of an individual unless no other less restrictive care was available, was inconsistent with a common law duty of care requiring regard for the safety and welfare of those whom a mentally ill person may come into contact--with--when--not—detained. Emphasis on ‘Control’ The MHA manifested the need for mentally ill patients to ‘receive the best possible care and treatment in the least restrictive environment’[10] which, inherently favoured Mr Pettigrove’s discharge. Nonetheless, the objectives of the MHA, were equally concerned with the ‘control’ of mentally ill persons including control intended to protect and prevent such persons, and others, from serious harm. Mr Pettigrove was admitted with principal diagnosis of exacerbation of chronic paranoid schizophrenia. He was certified by the medical superintendent to be mentally ill and involuntary admission and detention was found to be required.[11] During the early hours of the morning in the hospital, a nurse documented Mr Pettigrove to be ‘clearly experiencing psychotic phenomenon’, ‘pre-occupied and agitated’ and having admitted to ‘voices that bother him’.[12] On the morning of the drive to Victoria, a psychiatrist assessed Mr Pettigrove and said that he did not have any distressing thoughts during the night. However, this was inconsistent with the nurses’ notes. Moreover, it is difficult to accept that the observations of that morning formed a sufficient basis to conclude the symptoms for which Mr Pettigrove had been admitted to hospital had disappeared. It may be argued that Mr Rose volunteered to drive Mr Pettigrove to Victoria and therefore he was adequately placed to exercise his own judgment about his ability to protect himself from harm.[13] However, Mr Rose’s offer was to drive Mr Pettigrove when he was ‘well enough’[14] which clearly implied that Mr Rose relied on the hospital forming the view that, before he was discharged, Mr Pettigrove was fit to travel with him to Victoria. Therefore, Mr Rose’s safety was dependent upon an astute judgment by the appellants. In light of these observations, there was a need for control of Mr Pettigrove by continued detention. For the purposes of complying with statutory obligations, Mr Pettigrove’s involuntary treatment order could have been revoked and he could have simply been encouraged to remain in hospital as a voluntary patient to undergo further treatment. Further, these observations suggest that there was a ‘reasonably foreseeable risk’ that was ‘not insignificant’ that without appropriate treatment, Mr Pettigrove might cause harm to himself or a third party. Referring to the present case, the High Court stated that: ‘[For] ... a mentally ill person, the risk of that person acting irrationally will often not be insignificant, far‑fetched or fanciful. And, in such cases, there will often be a risk that the irrational action will have adverse consequences’.[15] These observations would have led a reasonable psychiatrist in the appellants’ position, to continue to detain Mr Pettigrove and not consign him into the care of Mr Rose for a long road trip on their own. A reasonable psychiatrist would have asserted that Mr Pettigrove’s symptoms were liable to fluctuate and that there was no guarantee of recovery from a psychotic episode.[16] Therefore, a duty of care was owed to third parties and that duty was subsequently breached by the health authority in discharging Mr Pettigrove into the custody of Mr Rose. As a result, the appellants failed to uphold the aspect of ‘control’ pursuant to the MHA. A Question of Public Policy Section 20 of the MHA ultimately promotes the civil rights of mentally ill persons by requiring minimum interference with their liberty. InCarrier v Bonham,[17]McPherson J referred to ‘more humane methods of treatment’for mental health patients, enabling ‘greater liberty of movement’.[18] However, the right to dignity, autonomy and respect of mentally ill persons should not detract from the more imperative right to proper care and treatment, including protection. This priority assumes even greater significance when the person’s insight into his or her mental illness is impaired and their decision-making capacity is affected. [19] Such was the situation of Mr Pettigrove and therefore, the necessity for control through detention, should have outweighed the requirement for ‘least restrictive’ care and treatment. Implications The decision of this case creates a high level of immunity for psychiatrists and the institutions through which they provide services, from tortious liability for violent conduct of patients upon failure to impose involuntary detention or maintain involuntary detention.[20] This decision also reinforces the judgement of Sullivan v Moody, that when determining the nature and scope of a duty of care in particular circumstances, regard must be had to statutory obligations, which may serve to circumscribe or override the duty otherwise owed.[21] Conclusion The appellants owed, and breached a duty of care to Mr Rose and the respondents by discharging Mr Pettigrove. Such an act involved an imprudent exercise of the statutory duty under the MHA as the Act was equally concerned about the ‘control’ of mentally ill patients as with their liberty. The High Court failed to evaluate this necessity of control against a least restrictive environment. Nevertheless, the decision of the case heightens the tension surrounding both the balance between the liberty of mental health patients, and the protection of such patients and the wider community, as well as the coexistence of statutory powers and common law liability. Bibliography Articles/books/reports Freckelton, Ian, ‘Legal Liability for Psychiatrists’ Decisions about Involuntary Inpatient Status for Mental Health Patients’ (2014) 22(2), Journal of Law and Medicine 280-289 Freckelton, Ian, ‘LiabilityofPsychiatristsforFailuretoCertify’ (2003) 10(2) Psychiatry, Psychology and Law 397-404 Peterso, Kathryn, ‘Where is the line to be drawn? Medical Negligence and Insanity in Hunter Area Health Service v Presland’ (2006) 28(1), Sydney Law Review 181-196 Rangarajan, Shrikkanth and Bernadette McSherry, ‘To Detain or Not to Detain: A Question of Public Duty?’ (2009) 16(2), Psychiatry, Psychology and Law 288-302 Scott, Russ, ‘Hunter Area Health Services v Presland: Liability of Mental Health Services for Failing to Admit or Detain a Patient With Mental Illness’ (2006) 13(1), Psychiatry, Psychology and Law 49-59 Scott, Russ, ‘LiabilityforHealthServices for not Involuntarily Detaining and Treating a Mentally Ill Person’ (2015) 22(1), Psychiatry, Psychology and Law 1-31 Scott, Russ, ‘Liability of Psychiatrists and Mental Health Services for Failing to Admit or Detain Patients with Mental Illness’ (2006) 14(3), Australasian Psychiatry 256-262 Cases Carrier v Bonham [2001] QCA 234 Hunter and New England Local Health District v McKenna [2014] HCA 44 McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Presland v Hunter Area Health Service [2003] NSWSC 754 Sullivan v Moody (2007) 207 CLR 562 Legislation Mental Health Act 1990 (NSW) Civil Liability Act 2002 (NSW) Other Blacker, Wendy, and Tejas Thete, ‘Detention or Release: The Common Law and Statutory Dichotomy’ (2014) Gadens <http://www.gadens.com/publications/Pages/Detention-or-release-the-common-law-and-statutory-dichotomy.aspx> at 4th April 2015 Leaver, Cameron, ‘Hunter and New England Local Health District V Merryn Elizabeth McKenna [2014] HCA 44; Hunter and New England Local Health District V Sheila Mary Simon & Anor [2014] HCA44’ on Cameron Leaver, Hicksons Health Law Blog (13 November 2014) <http://hicksonshealthlawblog.com/2014/11/13/hunter-and-new-england-local-health-district-v-merryn-elizabeth-mckenna-2014-hca-44-hunter-and-new-england-local-health-district-v-sheila-mary-simon-anor-2014-hca-44/> at 3rd April 2015 Merryn Elizabeth McKenna, ‘Appellant’s Chronology’, Submission in Hunter and New England Local Health Services v McKenna, S142/2014, 25 July 2014 Hunter and New England Local Health District, ‘Appellant’s Submissions’, Submission in Hunter and New England Local Health Services v McKenna, S143/2014, 25 July 2014 Van de Poll, John and Vahini Chetty, ‘Is a Hospital Liable for the Criminal Acts of Its Mental Health Patients?’ (May 2014) Holman Webb Lawyers <http://www.holmanwebb.com.au/publications/is-a-hospital-liable-for-the-criminal-acts-of-its-mental-health-patients> at 3rd April 2015
[1] [2014] HCA 44. [2] Mental Health Act 1990 (NSW) s 9 (definition of ‘mentally ill person’). [3] Ibid s 20. [4] Ibid s 4(1). [5] John Van de Poll and Vahini Chetty, ‘Is a Hospital Liable for the Criminal Acts of its Mental Health Patients?’ (May 2014) Holman Webb Lawyers < http://www.holmanwebb.com.au/publications/is-a-hospital-liable-for-the-criminal-acts-of-its-mental-health-patients> at 3 April 2015. [6] Civil Liability Act 2002 (NSW) s 5B (1).

[7] McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, [108] (Macfarlan J).

[8] Sullivan v Moody (2007) 207 CLR 562. [9] Ibid [50]. [10] Mental Health Act 1990 (NSW) s 4(2). [11] Merryn Elizabeth McKenna, ‘Appellant’s Chronology’, Submission in Hunter and New England Local Health Services v McKenna, S142/2014, 25 July 2014, 2.

[12] Dr Russ Scott, ‘LiabilityforHealthServices for not Involuntarily Detaining and Treating a Mentally Ill Person’ (2015) 22(1) Psychiatry, Psychology and Law 1, 4.

[13] Hunter and New England Local Health District, ‘Appellant’s Submissions’, Submission in Hunter and New England Local Health Services v McKenna, S143/2014, 25 July 2014, 10 [54]. [14]14 Ibid 4 [21]. [15] Hunter and New England Local Health District v McKenna [2014] HCA 44, [31]. See also Presland v Hunter Area Health Service [2003] NSWSC 754.

[16] McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, [133] (Macfarlan J).

[17] Carrier v Bonham [2002] QCA 234. [18] Ibid [36] (McPherson J). [19] Dr Scott Russ, ‘LiabilityforHealthServices for not Involuntarily Detaining and Treating a Mentally Ill Person’ (2015) 22(1) Psychiatry, Psychology and Law 1, 26. [20] Ian Freckelton, ‘Legal Liability for Psychiatrists’ Decisions about Involuntary Inpatient Status for Mental Health Patients’ (2014) 22(2), Journal of Law and Medicine 280. [21] Wendy Blacker and Tejas Thete, ‘Detention or Release: The Common Law and Statutory Dichotomy’ (1 December 2014) Gadens < http://www.gadens.com/publications/Pages/Detention-or-release-the-common-law-and-statutory-dichotomy.aspx> at 4 April 2015.
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