In the recent case of McKenna v Hunter & New  England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, the New South Wales Court of Appeal held that a hospital and the health district was liable to the family members of a man who was murdered by one of its patients.

Mr Pettigrove suffered from a lengthy history of mental illness including  depression,  psychosis and chronic paranoid schizophrenia. In the early hours of 20 July 2004, Mr Pettigrove’s friend, Mr Rose, became concerned about his mental state and arranged for him to be taken by ambulance to Manning Base Hospital (the Hospital) in New South Wales. The principal cause of Mr Rose’s concern was that his friend was experiencing what he described to be “physical jerks”.

Upon presenting to the hospital, Mr Pettigrove was assessed and a certificate was issued for his compulsory detention.

Later that day a meeting was held between the duty psychiatrist, Dr Coombes, Mr Pettigrove, Mr Rose and the duty nurse. Mr Pettigrove requested during the course of the meeting that he be permitted to return to his family in Victoria and receive ongoing treatment. Mr Rose indicated that he wished to drive Mr Pettigrove back to his family and it was agreed that he would be permitted to do so the next day.

During the course of that night, Mr Pettigrove was witnessed by nursing staff to have been pacing in his room and talking loudly to himself.

On the morning of 21 July 2004, Dr Coombes once again assessed Mr Pettigrove and noted that he did not have any hallucinations or distressing thoughts. Mr Pettigrove was given enough medication for one day (one Risperidone tablet) and was discharged into Mr Rose’s care. Dr Coombes gave evidence that Mr Pettigrove was to share the driving to Victoria and there was a concern that providing him with additional medication would have caused drowsiness.

That evening Mr Pettigrove and Mr Rose stopped near Dubbo after nightfall. It was then that Mr Pettigrove strangled and killed Mr Rose. In an interview with police, Mr Pettigrove stated that he had acted on impulse, believing that Mr Rose had killed him in a past life leading him to seek revenge.

Mr Rose’s mother and his two sisters, Ms Simon and Ms McKenna (the Appellants) brought an action against the Hunter & New England Local Health District for psychiatric injury resulting from the nervous shock, claiming that the hospital had breached its duty of care by discharging Mr Pettigrove into Mr Rose’s custody.

The majority in this case found that in light of his behavior the night before, his history of mental illness; the fact that it was more likely that Mr Pettigrove would become more agitated at night; the appreciable risk that Mr Pettigrove would suffer an acute psychotic episode of the type that had led to his admission to the hospital; the fact that the oral medication administered on the morning of 20 July 2004 was likely to have been wearing off and the fact that but for Mr Rose’s offer to drive Mr Pettigrove he would not have been discharged from the Hospital as he was not fit to travel by public transport, the hospital had breached its duty of care owed to Mr Rose.

The Court also found that the hospital’s decision to discharge Mr Pettigrove was a necessary condition of the occurrence of harm to Mr Rose as he was not given further medication as a result of the intended road trip and was effectively undermedicated at the time that he killed Mr Rose. This liability was found to extend to the Hunter & New England Local Health District.

The Appellants were awarded damages and an order for costs was made in their favour.

It is noteworthy in this case that because the hospital discharged Mr Pettigrove directly into Mr Rose’s care, a clear link could be found between the hospital’s decision to discharge Mr Pettigrove and the resultant harm. In contrast, in the case of Hunter Area Health Service v Presland[2005] NSWCA 33, it was found that the hospital in question was not liable where a psychiatric patient killed his brother’s fiancé six hours after being discharged. The Court found in that case that once the hospital’s control was lost by the refusal to detain the patient, it was difficult to see how a duty for control extended for some indeterminate period while the patient was at large. This case was however distinguished from the present decision on its facts.

 Vahini Chetty