Duty to third parties arising out of discharge of mentally ill patients

Judgment was handed down by the High Court on 12 November 2014 in the appeal from the New South Wales Court of Appeal decision in McKenna v Hunter & New England Local Health District. 1  The Court of Appeal in that case (reported in Pulse Issue 6 - 15 April 2014) found that a hospital owed (and had breached) a duty of care to the family of a person murdered by a psychiatric patient. The patient had been discharged into the person’s care so that they could travel to the patient’s home town for treatment.

The High Court unanimously allowed the appeal. It found that the health service did not owe a duty of care to the relatives of the victim to avoid causing them mental harm when considering whether to detain a mentally ill person. Such a duty would be inconsistent with a prohibition, imposed by section 20 Mental Health Act 1990 (NSW) on the health service, preventing it from detaining a person unless there was no other appropriate care of a less restrictive kind which was reasonably available.

Duty to warn of rare risks

In our April edition of Pulse, we reported on the Victorian Court of Appeal’s decision in Odisho v Bonazzi, 2  in which a patient’s appeal from a County Court judge’s decision that a gynaecologist was not negligent in failing to warn her of a rare side-effect of a particular medication, was dismissed. The primary reason for both the trial judge and the Court of Appeal’s dismissal of the plaintiff’s claim was that she had failed to establish a causal link between the taking of the medication and the pulmonary emboli that she subsequently developed. 

The patient sought leave to appeal to the High Court, however that application was recently dismissed on the grounds that she had insufficient prospects of success.3