- The High Court considered whether a hospital and its employed health professionals owe a common law duty of care to third parties to prevent them from sustaining personal injury caused by a mentally ill person following discharge, particularly pure mental harm from nervous shock.
- The High Court (French CJ and Hayne, Bell, Gageler and Keane JJ) held that, in light of the absolute dichotomy between the statutory obligation owed by the Medical Superintendent of a hospital under section 20 of the Mental Health Act 1990 (NSW) and the common law duty of care requiring regard to be had to the interests of third parties with whom the mentally ill person may come into contact if not detained, no duty of care was owed.
Mr Phillip Pettigrove was born in 1962 and raised in Echuca, Victoria. He had a history of mental illness and, in about 2001, was diagnosed with chronic paranoid schizophrenia. Mr Pettigrove’s mental illness was controllable with regular anti-psychotic medication, however on several occasions he required involuntary admission to hospital.
In 2003, Mr Pettigrove moved from Victoria to Byron Bay and re-connected with Mr Stephen Rose, an old friend. On 20 July 2004, Mr Rose arranged for Mr Pettigrove to be transported to Manning Base Hospital, Taree (Hospital) in the Hunter and New England Local Health District (Local Health District). Mr Rose was concerned about his mental health.
Mr Pettigrove was assessed by three doctors at the Hospital, including psychiatrist Dr Warwick Coombes. He was involuntarily detained as a ‘mentally ill person’ pursuant to sections 21, 29, and 33 of the Mental Health Act 1990 (NSW) (now repealed) (MHA). Dr Patrick Saw of the Hospital indicated that the detention of Mr Pettigrove was necessary for his own protection and the protection of other persons from serious harm. During his hospitalisation, Mr Pettigrove made a request to return to his family in Victoria. On this basis, Dr Coombes discharged Mr Pettigrove into the care of Mr Rose, on the understanding that Mr Pettigrove would be driven by Mr Rose to his mother’s home in Victoria and receive continuing medical care of a ‘less restrictive kind’.
On 21 July 2004, Dr Coombes discharged Mr Pettigrove from the Hospital into the care of Mr Rose. No medication was administered to or taken by Mr Pettigrove prior to or on discharge from the Hospital, as Mr Pettigrove was to share the driving with Mr Rose.
Mr Pettigrove strangled and killed Mr Rose when they stopped on the Newell Highway near Dubbo, NSW on 21 July 2004. In an interview with police, Mr Pettigrove stated that he had acted on impulse, believing that Mr Rose had killed him in a previous life. Mr Pettigrove later committed suicide.
The Plaintiffs (the mother and sisters of the late Mr Rose) commenced proceedings in the District Court of NSW against the Local Health District; the body responsible in law for the acts and omissions of the Hospital and its employees (including Dr Coombes), claiming damages pursuant to section 30(2)(b) of the Civil Liability Act 2002 (NSW) (CLA) for pure mental harm arising from nervous shock consequent on learning of the manner of Mr Rose’s death. The Plaintiffs alleged that the Hospital owed Mr Rose and them a duty of care that was breached when, through the conduct of Dr Coombes and the hospital nursing staff, Mr Pettigrove was discharged into the care of Mr Rose.
On 2 March 2012, Elkaim DCJ held that there had been no breach of the duty of care in connection with the discharge of Mr Pettigrove from the Hospital into the care of Mr Rose. His Honour held that the Plaintiffs had failed to establish, pursuant to section 5B(1) of the CLA, that the risk of harm was foreseeable and ‘not insignificant’, and noted that no causal nexus had been established between the alleged act of negligence and Mr Rose’s death and the Plaintiffs’ consequent psychiatric injuries.
Justice Elkaim DCJ did not consider whether a common law duty of care was in fact owed. Rather, his Honour accepted that a duty of care existed and the issue between the parties was whether the duty had been breached. The Plaintiffs appealed to the NSW Court of Appeal.
NSW Court of Appeal
On 23 December 2013, a majority of the NSW Court of Appeal (Beazley P agreeing with Macfarlan JA except as to the content of the duty of care, and Garling J dissenting) allowed the appeal.
The NSW Court of Appeal found that the Hospital owed a duty of care to Mr Rose and a coextensive duty of care to the Plaintiffs; however there was disagreement within the majority as to the content of that duty. Whereas Macfarlan JA defined the duty of care as a duty owed by the Hospital to Mr Rose ‘to take reasonable care to prevent Mr Pettigrove causing physical harm to Mr Rose’,1 Beazley P considered the duty to be narrower in scope.2
Macfarlan JA briefly considered whether a duty to prevent physical harm to an identified third party or class of persons would be inconsistent with the objects of the MHA. His Honour noted that the objects of the MHA (section 4(1)) included: ‘to provide for the care treatment and control’ of mentally ill persons and, referring to the definitional provisions in sections 9 and 10 (which imported that object), reasoned that the term ‘control’ included control designed to prevent such persons from causing serious harm to others.3Accordingly, Macfarlan JA concluded that the imposition of a duty of care was consistent with the objects of the MHA.4
In dissent, Garling JA held that the Hospital did not owe a duty of the type postulated, which his Honour saw as creating inconsistent obligations and tensions between the duty owned by the Hospital to Mr Pettigrove (a duty affected by the MHA) and any duty said to be owed to Mr Rose.5 Further, his Honour opined that a duty of this kind created an intolerable burden as the scope of the duty was not expressed to be limited in time, or to a specified event, or by reference to the type, seriousness or mechanism of injury, or to a particular person or class of persons.6
With respect to breach of duty, Macfarlan JA (Beazley P concurring) identified the risk to be assessed as the risk of ‘any harm’ to Mr Rose, including harm that Mr Rose may result from attempts by Mr Pettigrove to self-harm.7 His Honour reasoned that this interpretation was consistent with the common law position that a plaintiff is not required to prove that the extent or precise nature of injury was foreseeable.8 Macfarlan JA (Beazley P agreeing) therefore held that a reasonable person in the position of the Hospital would have taken precautions against the risk of harm to Mr Rose by continuing to detain Mr Pettigrove and that the decision by Dr Coombes, and therefore the Hospital, to discharge Mr Pettigrove constituted a breach of the Hospital’s duty of care.9
The NSW Court of Appeal also held that the Hospital’s decision to discharge Mr Pettigrove to be a ‘necessary condition of the occurrence of the harm to Mr Rose’ and the Hospital should have taken care to guard against the risk of harm.10
The Local Health Service also submitted that sections 5O and/or 43A of the CLA were enlivened. Macfarlan JA observed that for a defence under section 5O to be available, a practice must have been in existence at the relevant time that was widely accepted in Australia as competent professional practice.11 As a decision to discharge a psychiatric patient is, by necessity, based on a wide variety of considerations unique to the patient and it is difficult to identify a widely accepted professional practice, his Honour (Beazley P concurring) held that a section 5O defence was unavailable.
In raising the section 43A defence, the Local Health Service submitted that Dr Coombes, in deciding to discharge Mr Pettigrove, had exercised or failed to exercise a ‘special statutory power’, being that conferred by section 35(3) of the MHA. It contended that section 35(3) imposed a duty on the Hospital to discharge Mr Pettigrove if the Medical Superintendent formed the opinion that care of a less restrictive kind was available, which is what occurred. Macfarlan JA (Beazley P concurring) concluded that the Local Health Service was not entitled to the protection of section 43A as the discharge of Mr Pettigrove into the care of Mr Rose ‘did not occur as a result of an exercise or purported exercise of a special statutory power, namely that conferred by s 35(3) of the MHA. It was, simply, unauthorised, because the power to discharge that might conceivably have authorised it (s 35(3)) was not utilised.12
On 12 November 2014, the High Court delivered a unanimous judgement allowing the appeal on the finding that no duty of care was owed by the Hospital or Dr Coombes to the Plaintiffs. In so finding, the other issues raised by the Local Health District on appeal did not fall for consideration, and nor were they considered, by the High Court. Prominent among the issues ventilated by the High Court was the question of whether the Local Health District could owe a duty of care to third parties concurrent with the exercise of a statutory power to detain and discharge mentally ill patients.
The High Court noted that the task of determining whether the Hospital or Dr Coombes owed a duty of care to the Plaintiffs (and, if so, the nature and scope of that duty) was plagued by the four difficulties identified inSullivan v Moody. Specifically, competing considerations of the nature of the harm, the exercise of a statutory power or discretion, indeterminacy of the class of persons to whom a duty may be owed, and coherence. However, it ultimately found the issue of statutory power to be determinative in the circumstances.
In considering the MHA, the High Court found that the MHA prescribed the powers, duties and responsibilities of the Hospital and Dr Coombes with regard to the involuntary admission and detention of mentally ill persons, such as Mr Pettigrove, and the matters to be considered in the exercise or non-exercise of those powers.
The High Court construed the MHA as prohibiting the detention or continued detention of a mentally ill person in a hospital except where the Medical Superintendent of the hospital had formed the opinion that other less restrictive care was neither appropriate nor reasonably available. Accordingly, the Medical Superintendent, in deciding whether a person should be (or should continue to be) involuntarily admitted and detained, was required to answer two questions. Each question involved clinical assessment and judgment and could be answered ‘yes’ or ‘no’. The questions were:
- Is the person ‘mentally ill’ or ‘mentally disordered’?
- If so, is any other appropriate care available that is less restrictive than compulsory admission and detention in the hospital?
It therefore followed that a person could only be detained or continue to be detained in a hospital if the Medical Superintendent answered question 1 ‘yes’ and question 2 ‘no’.
In the result, the High Court found performance of the statutory power in the MHA to compulsorily admit and detain or continue the detention of a mentally ill person to be inconsistent with a common law duty of care requiring regard to be had to the interests of third parties with whom the ‘mentally ill’ may come into contact when not detained.14 It illustrated the point in the following terms at .
‘If a person is a mentally ill person, the risk of that person acting irrationally will often not be insignificant, far-fetched or fanciful. …In some cases, there will be a risk that the mentally ill person will engage in conduct that may have adverse consequences for others…. In some cases, perhaps many, the reasonable person in the position of the hospital or doctor would respond to those risks by continuing to detain the patient …, thus avoiding the possibility that the risk of harm to others will eventuate. But that is not what the Mental Health Act required. It required the minimum interference with the liberty of the mentally ill person. It required that the person be released from detention unless the medical superintendent of the hospital formed the opinion that no other care of a less restrictive kind was appropriate and reasonably available to that person.’
In the circumstances of that irreconcilable dichotomy, the High Court held that neither the Hospital nor Dr Coombes owed the Plaintiffs a duty of care. It ordered that the judgments entered in favour of the Plaintiffs be set aside.
This decision highlights the difficulties involved in determining whether and to what extent a duty of care is owed by a hospital, not only to its patients but to identified third parties and the public at large.
While the NSW Court of Appeal found that a common law duty of care was owed, it was careful to confine its decision to the facts of the case. That is, to situations where a clear link could be established between the Hospital’s decision and the resultant harm. The Court emphasised that in those circumstances the finding of such a duty would not give rise to indeterminate liability, as the duty would be owed to a specific person or class or persons, and not a stranger or the world at large.
The legislation on which the NSW Court of Appeal decision was based has been replaced by the Mental Health Act 2007 (NSW) (2007 Act). The equivalent provision to section 35(3)of the MHA is section 12 of the 2007 Act. While the two provisions are substantially similar, a third criterion has been added to section 12, which requires the Medical Superintendent to also be satisfied that the other less restrictive care available to the mentally ill person is ‘consistent with safe and effective care’.
The addition of this third criterion has important practical implications. A hospital cannot automatically discharge a mentally ill person on the prospect that ‘other care of a less restrictive kind’ may be available. Rather, the hospital is required to be satisfied that the other less restrictive care is safe and effective. The reference to ‘safe … care’ may also import a requirement that the hospital have due regard to the safety of the public in deciding whether or not to discharge a patient, creating scope for argument that the irreconcilable dichotomy identified by the High Court no longer exists.
The High Court, while not deciding the point, has inferred that the finding of a duty to take reasonable care to prevent a third party from inflicting physical injury on a person (or class) does not, by necessary implication, mean that a coextensive duty of care will also be owed to the close relatives of that person (or class).