Daniel Smith (patient) was involuntarily detained as a mentally disordered person under the Mental Health Act 2007. 1 Under the Act, a person can be involuntarily detained in a mental health facility for no more than three consecutive days.

During a period of weekend leave approved by psychiatrists at the Mental Health Unit at Liverpool Hospital (Health District), the patient attempted suicide. He suffered a hypoxia brain injury and is now confined to a wheelchair with permanent injuries.

The Supreme Court of New South Wales recently handed down judgment in this case (Smith v Pennington2 ), examining whether the decision of the Health District to grant a period of leave to the patient was negligent and causative of his injuries.


In 2008, the patient was diagnosed with depression and anxiety. He had a turbulent relationship with his then girlfriend. In November 2008, following the breakdown of his relationship the patient attempted suicide by hanging himself in his parents’ garage. He was taken to hospital in a coma and involuntarily admitted as a mentally disordered person.

A few days after his transfer to the mental health unit, the patient was reviewed and his suicide risk was assessed as low. A meeting on 12 November 2008 was held with the patient’s parents and a psychiatric registrar where they discussed his stressors and the possibility of weekend leave. On 13 November 2008, a consultant psychiatrist assessed the patient and confirmed that weekend leave was appropriate. No further meeting was arranged with the patient’s parents after this and he was sent home.

On Sunday 16 November 2008, the patient went out with a few friends on a 4WD expedition, followed by a drink at the local tavern. He returned home where there was an exchange of text messages with a friend about tyres belonging to his former girlfriend. There was no direct texting between the patient and his former girlfriend. That evening, the patient’s mother found him in the garage hanging by a strap tied to his neck. He was rushed to hospital where he was resuscitated. A suicide note was later found in the garage, which referred to his former girlfriend and not being able to live without her.


The patient alleged that he should not have been granted leave in November 2008 to go home for four nights. He alleged that granting the leave was negligent, and that had he remained in hospital he would not have attempted suicide and sustained injury.3

On the basis of expert psychiatric opinion and evidence from the treating doctors at the hospital, the Court found that the Health District’s decision to grant the patient leave was not unreasonable.4 He had been assessed as having a low suicide risk and this assessment was adequate. He denied suicidal ideation and expressed a desire to be discharged and to return to work. The Court also recognised that giving leave to an involuntary patient was a proper therapeutic measure designed to assist with a patient’s integration back into the community after a period of treatment.

The Court accepted that the patient’s parents were given no instructions or information about what they should look out for or what precautions they should take when their son came home on leave. The Court found that the Health District failed to warn the patient’s parents about the stressors that he should avoid whilst at home; namely that he should avoid drinking alcohol and should not make contact with his former girlfriend. This failure by the Health District was held to amount to a breach of duty.

However, the patient’s case ultimately failed on causation. The Court held that there was no causal connection between the breach of duty and the patient’s attempted suicide.

The evidence established that the patient had no direct contact with his former girlfriend in the immediate period leading up to the suicide attempt and had only consumed two alcoholic beverages that afternoon. Even if the patient’s parents had received information and warnings from the hospital, there was nothing more they could have done that would have prevented the patient from attempting to take his own life.


The case highlights the obligations on hospital staff to adequately provide (and document) instructions or information to family members or next of kin when involuntary patients are sent home on leave.

It also highlights the difficulties faced by plaintiffs in proving causation, even when a breach of duty has been established.

The Health District was precluded from relying on the defence outlined at section 43A of the Civil Liability Act 20025 given its failure to adequately warn the patient’s parents.