On 12 November 2004 the High Court handed down its decision in Hunter & New England Local Health District v McKenna & Simon involving claims in negligence brought by family members of Mr Rose (the deceased) who was murdered by a psychiatric patient recently discharged from the Manning Base Hospital at Taree (the Hospital).
Phillip Pettigrove had a long history of paranoid schizophrenia and was involuntarily admitted and detained under the Mental Health Act 1990 to the Hospital. The Hospital obtained Mr Pettigrove’s medical records and spoke with his family and the deceased. All agreed he should be detained overnight and that the following day the deceased would drive him to Victoria, where he would receive continuing medical treatment. Accordingly, the next day Mr Pettigrove was released, but tragically killed Mr Rose en route and later took his own life.
In the District Court the Plaintiffs argued the Hospital and its Psychiatrist failed to exercise reasonable professional care and skill in discharging Mr Pettigrove. Their case wasn’t based on the discharge itself, but rather they alleged placing Mr Pettigrove into the deceased’s care was negligent. The District Court found for the Defendants under section 5B(1) of the Civil Liability Act (the Act) because it was not established that a reasonable person in the position of the Hospital and Psychiatrist would have concluded that there was a not insignificant risk. Additionally, the District Court found under section 5O of the Act that the Psychiatrist had acted in a manner widely accepted by peer professional opinion and competent professional practice.
A majority decision the New South Wales Court of Appeal overturned the decision holding the Hospital owed the deceased a duty of care not to release Mr Pettigrove into his care, or sole care. The Court found the Hospital owed the deceased a duty to take reasonable care to prevent Mr Pettigrove causing him harm, found the Psychiatrist negligent in discharging Mr Pettigrove and that the Hospital was not entitled to rely upon the protection under section 5O of the Civil Liability Act.
High Court allows Appeal finding no duty, but does not address other issues
On 12 November 2014 the High Court unanimously overturned the decision in favour of the Plaintiffs. Interestingly (and some may say disappointingly) the High Court did not deal with the arguments concerning breach of duty, the operation of section 5O of the Act regarding competent professional practice and section 43 of the Act in relation to statutory duties. In a very short judgment the High Court found it did not need to address these grounds of the Appeal because it found that the Hospital and Psychiatrist did not owe a duty of care to the relatives in any event.
Accordingly, the High Court has not decided whether the Court of Appeal was right in concluding that because a duty of care was owed to the deceased, that they also owed his relatives a duty to take reasonable care to prevent psychiatric injury to them. Additionally, the High Court did not consider the breadth of such a duty, but observed that if a duty was owed to the deceased and his relatives, it likely extended to any person Mr Pettigrove came into contact with after his discharge. Obviously, the range of people who might foreseeably suffer harm was extensive and readers of this case law alert can expect to hear more on this point in the future.
In its 2001 decision of Sullivan v Moody, the High Court pointed out a number of difficulties relevant to the determination of existence, nature and scope of a duty of care. They included nature of the harm, use of statutory powers, difficulties confining the class of people to whom a duty may be owed and preserving other legal principles governing certain conduct or relationships. Each of these difficulties was relevant to determining duty in the proceedings against the Hospital and consideration of the statutory powers conflict was determinative of the Appeal.
The High Court found that identifying whether there was a duty of care and if so its nature and scope, required consideration of the Mental Health Act 1990. The intention of the Mental Health Act is that any restriction on the liberty and rights of mentally ill patients is to be kept to the minimum necessary in the circumstances and further, section 20 prohibited the detention or continued detention of Mr Pettigrove unless there was no other less restrictive care appropriate and reasonably available. Determining whether Mr Pettigrove was mentally ill was, of itself, simply not enough for his continued detention.
Accordingly the Hospital and Psychiatrist had statutory duties under the Mental Health Act and it was on this basis that the High Court granted the Appeal, and found that no duty of care existed in the circumstances. The High Court found that performance of the obligations under the Mental Health Act was inconsistent with a common law duty of care towards people Mr Pettigrove may have subsequently come into contact with after his discharge. As the Court has previously illustrated in Sullivan, if a suggested duty of care gives rise to inconsistent obligations, that would ordinarily be a reason for denying the existence of the duty.
Notwithstanding that the other elements establishing a duty of care may arise from a discharged psychiatric patient, requiring a Hospital to take reasonable care to protect any number of people from such a risk, such a duty of care is inconsistent with a Hospital’s obligations and a patient’s rights under the Mental Health Act which required minimum interference with Mr Pettigrove’s liberty. Accordingly, the High Court allowed the Hospital’s Appeal and overturned the finding against it.
Unfortunately, the High Court found that in the circumstances, it was not necessary to consider the extent and scope of the liability which imposing such a duty of care would entail. Nor was it necessary to consider breach of duty of care under section 5B of the Act, professional negligence under section 5O and statutory powers under section 43 of the Civil Liability Act as the Hospital and Psychiatrist simply did not owe the relatives a duty of care in the circumstances of the claim.
This decision and the majority judgement in the New South Wales Court of Appeal (major components of which were not addressed by the High Court) will be of interest to any Defendant considering the existence of, nature and scope of a duty of care in unusual circumstances or relationships, and particularly to those entities exercising statutory powers.
Should you have any questions or any other matters please do not hesitate to contact Matthew Gerathy in our office.