One of the most significant challenges faced by staff in mental health wards is managing patient behaviour.

While there is a weak statistical association between mental illness and violence, there are certain subgroups of patients suffering from mental illness who may exhibit violent or erratic behaviour.

This presents problems for both doctors and nurses not only in their treatment of (and care for) mental health patients, but also in making decisions on whether a particular patient should be discharged.

Treatment and Care

Hospitals have a duty to minimise foreseeable risks to their patients.

In 1999, the Mt Isa Hospital was ordered to pay over $450,000 to a patient for failing to adequately minimise a foreseeable risk of injury (which they had been warned of previously). The patient, suffering from paranoid delusions, was able to access a balcony on the second floor of the building and jumped from it.[1]

Use of Force

Persons caring for patients are expected to use the minimum force necessary in the event that an inpatient requires restraining, and must assist in “de-escalating” distressed patients wherever necessary.[2]

However, there is no requirement for hospitals or their staff to supervise or restrain a person, properly triaged, from leaving the hospital where that person does not wait to be seen by a treating doctor.[3]

Staff Vulnerability

Hospitals also need to be aware of the potential risks faced by staff members specific to mental health settings.

For example, hospitals can be liable for actions in negligence for their failure to establish a safe system of work. In Queensland, a nurse was entitled to damages for the injuries caused by a mental health patient who became agitated and violent while waiting for a room to become available in the ward.[4]

The Court found that it would not be too onerous for the hospital to have established a system where staff members call ahead to advise a ward of an incoming patient, which would have alleviated the patient’s agitation caused by the delay in admitting him to the ward.


Further challenges arise for hospitals and mental health staff, particularly treating psychiatrists, when deciding whether or not to discharge patients (permanently or for a certain period) from hospital.

The balancing act for hospitals and their staff is incredibly difficult.

On one hand, patients may cause harm to themselves or others if they are released prematurely.

On the other hand, mental health legislation around Australia provides that patients should not be kept in hospital involuntarily if there are less restrictive treatment options appropriate for their illness.[5]

What duty is owed to the patients and their families (or third parties) in these circumstances?

In a recent High Court case,[6] a patient suffering from schizophrenia, Mr Pettigrove, had been admitted to hospital on an involuntary treatment order under the Mental Health Act (NSW). He was released the next day into the custody of his friend, Mr Rose, who was to drive him back to be in his mother’s care and to receive further treatment. During the drive home, Mr Pettigrove strangled Mr Rose (as a result of a paranoid delusion). Mr Rose’s relatives brought a nervous shock action against the hospital and the treating psychiatrist for psychiatric injuries caused by Mr Rose’s death.

The hospital argued that, as Mr Pettigrove had been involuntarily admitted under the Mental Health Act, they were required to release him when less restrictive treatment methods were available.

The Court held that the hospital and Mr Pettigrove’s treating psychiatrist did not owe a duty of care to Mr Rose or his relatives for the harm suffered by Mr Rose’s death. In the event of inconsistent duties, they held that the hospital’s exercise of their statutory duty to release Mr Pettigrove overrides its common law duty of care to third parties.

Is a hospital liable to compensate a patient for acts of homicide they commit after their discharge?

This arose in the case of Hunter Area Hospital Service v Presland,[7] where a mental health patient killed his brother’s fiancée following his release from the Hunter Area Hospital Service. The patient was acquitted of murder on the grounds of his mental illness, and was detained as a forensic patient for eighteen (18) months for his actions.

The patient then brought an action against the Hunter Area Hospital Service and his treating psychiatrist, alleging that they had discharged him from hospital negligently, as he was at risk to himself and others. The Court held that a hospital’s duty of care to a patient does not extend to protecting them from their loss of liberty while legally detained for their wrongdoings.

Briana Smith assisted in compiling this article.

[1] Brumen v State of Queensland (unreported, Supreme Court of Queensland, Jones J, 28 September 1999).

[5] Mental Health Act 2000 (Qld), s 14; Mental Health Act 2007 (NSW), s 12; Mental Health Act 2014 (Vic), s5; Mental Health Act 2009 (SA), ss 21, 25 and 29; Mental Health Act 2014 (WA), s 25; Mental Health and Related Services Act (NT), s 14; Mental Health Act 2015 (ACT), s80 & 85.

[6] Hunter Area Health Service v McKenna & Anor [2014] HCA 44.