Does a hospital owe a duty of care when discharging a mentally ill patient?
In November 2014 the High Court of Australia unanimously allowed an appeal from a decision of the New South Wales Court of Appeal, finding that the Hunter and New England Local Health District (“the defendant”), a health authority responsible for Manning Base Hospital at Taree, New South Wales, did not owe a duty of care to the relatives of a man killed by a mentally ill patient who had been discharged from the hospital and into the man's care (“the plaintiffs”). [i]
On 20 July 2004, Stephen Rose was concerned about the mental state of his friend William Pettigrove, and arranged for him to be taken by ambulance to hospital.
Following a medical assessment, Mr Pettigrove was compulsorily detained at the hospital pursuant to the Mental Health Act 1990 (NSW). After an assessment by a psychiatrist working at the hospital, Mr Pettigrove was discharged on 21 July 2004 into the custody of Mr Rose so they could drive to where Mr Pettigrove’s mother lived. It was expected that Mr Pettigrove would then undergo further psychiatric treatment.
When the two men stopped on the highway after nightfall, Mr Pettigrove strangled and killed Mr Rose. Mr Pettigrove said in an interview with police that he had acted on impulse, apparently believing that Mr Rose had killed him in a past life and seeking revenge. Mr Pettigrove subsequently committed suicide.
Mr Rose’s mother and sisters claimed damages for psychiatric injury resulting from nervous shock caused by the negligence of the defendant, which was responsible for the conduct of the hospital and those working in it. They claimed that the hospital breached a duty of care by discharging Mr Pettigrove from the hospital into Mr Rose’s custody.
The Decision at Trial
The trial judge held that the plaintiffs had not established negligence on the part of the psychiatrist and therefore the defendant. Further, the plaintiffs had not established that Mr Rose’s death, and therefore the psychiatric injuries the plaintiffs had suffered, were causally related to the negligence they alleged.
The Decision of the New South Wales Court of Appeal
There were a number of issues raised on appeal including whether the hospital owed Mr Rose a duty of care; whether the injuries suffered were causally related to the alleged negligence and whether the defendant was entitled to the protection of section 5O and section 43 of the Civil Liability Act 2002 (NSW) (“CLA”).
The Court of Appeal ultimately held that:
- The hospital owed Mr Rose, and therefore the plaintiffs, a duty to take reasonable care to prevent Mr Pettigrove causing harm to Mr Rose;
- The hospital breached its duty by discharging Mr Pettigrove in circumstances where he had suicidal tendencies and there was a risk of harm to Mr Rose if Mr Pettigrove attempted to harm himself;
- Causation was established because the hospital’s decision to discharge Mr Pettigrove was a necessary condition of the occurrence of the harm to Mr Rose, and it was appropriate that the hospital’s liability extend to the harm. The discharge and subsequent road trip enabled Mr Pettigrove to attack Mr Rose in isolated circumstances where no-one was able to come to Mr Rose’s assistance;
- The hospital was unable to rely on the defence in section 5O of the CLA concerning conduct of professionals in accordance with peer opinion because the hospital did not establish that there was a certain practice in place to deal with this type of situation; and
- The hospital was also unable to rely on section 43A of the CLA which provides a defence where a public authority exercises a “special statutory power” (unless the exercise of that power was so unreasonable that no authority with that power would consider the exercise of the power to be reasonable). The purported exercise of a special statutory power in this case was the hospital’s decision to cease detaining Mr Pettigrove under the Mental Health Act. The Court of Appeal held that this was not the exercise of a special statutory power and section 43A of the CLA did not apply.
An application by the defendant for special leave to appeal to the High Court was granted on 20 June 2014.
The Decision of the High Court
The High Court identified that a threshold issue was whether, in the circumstances, the appellant owed a common law duty of care to Mr Rose's relatives.
The Court noted with approval comments made in the earlier High Court decision in Sullivan v Moody (2001) (207 CLR 562), which gave examples of four classes of case where determining the existence and nature and scope of a duty of care will be particularly difficult:
“Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.”
In the court’s view, although each of these examples was relevant to the present case, it was the issue of statutory power which was determinative. In concluding that the the defendant did not owe a duty of care to the plaintiffs the Court had regard to the following relevant features:
- The powers, duties and responsibilities of doctors and hospitals respecting the involuntary admission and detention of mentally ill persons were prescribed by the Mental Health Act;
- It was therefore the provisions of the Mental Health Act which identified the matters to which doctors and hospitals must have regard in exercising or not exercising those powers. Of particular significance was section 20 of that Act which provided:
“A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person.”
- Those provisions were inconsistent with the existence of a common law duty of care as alleged by the plaintiffs. This is because, if such a duty was to exist, the reasonable person in the position of the hospital or doctor may respond to the risk of a patient injuring another by continuing to detain the patient for so long as he or she remained a mentally ill person.
Given the absence of a duty of care owed by the defendant, it was unnecessary for the Court to deal with sections 5B, 5O, 43 and 43A of the CLA.
Implications of the Decision
The decision may prove useful in defending negligence claims brought against medical professionals, if their actions were relevantly performed pursuant to statutory obligations imposed upon them. Indeed it may have implications for professionals more generally where they take action pursuant to a power conferred, and/or in a manner prescribed, by legislation.
The decision is also a reminder of the competing factors that a Court will need to weigh up in determining the existence, nature and scope of any duty of care in novel cases.
[i] Hunter and New England Local Health District v Merryn Elizabeth McKenna, Hunter and New England Local Health District v Sheila Mary Simon & Anor  HCA 44