In February this year, the Federal Government announced the Terms of Reference for a review of mental health services, and from now to May 2015 the Beyond Blue National Roadshow will take its big blue bus and its message to ‘Take One Step for Better Mental Health’ to hundreds of communities around Australia. Mental health issues are increasingly in the public eye. Those suffering from mental illness and their supporters hope that this will eventually mean better support and better treatment for those affected.
This is an obviously desirable goal. The provision of treatment for patients with mental illnesses does however raise unique practical and legal challenges. A recent New South Wales Court of Appeal decision1 illustrates the tragic consequences that can turn on the decision to discharge a mentally ill patient from hospital.
On 20 July 2004, Mr Rose arranged for his friend, Mr Pettigrove to be taken by ambulance to the Manning Base Hospital as he was concerned about his mental state. Mr Pettigrove was compulsorily detained, but discharged the next day into the care of Mr Rose who was to drive him from New South Wales to Victoria (where Mr Pettigrove's mother lived).
On the journey, Mr Pettigrove strangled and killed Mr Rose. Mr Rose's mother and two sisters sought damages for nervous shock arising from the manner of Mr Rose's death from the Hospital.
The plaintiffs were initially unsuccessful on the basis that negligence and causation had not been established. They appealed against this decision to the Court of Appeal, which found that the hospital had control over the source of risk to Mr Rose and as such owed him a duty of care. The Court also found that the decision to discharge Mr Pettigrove was negligent and that this caused Mr Rose’s death and the resulting injury to the plaintiffs.
The court was unimpressed by an argument that a finding of liability would prompt a defensive frame of mind and a bias towards detention, stating that "the Court ought to be slow to conclude that a medical practitioner, acting true to his or her profession, would permit the process of formulating a professional opinion to be distorted by the prospect of civil liability".
Of course, as well as their patients and (at least in the circumstances that lead to the death of Mr Rose) the friends and families of their patients, health service providers owe a duty of care to their employees, including those faced with the challenge of caring for patients with mental illness. Queensland Health took steps to manage that risk by providing training to nurses in mental health units in certain aspects of self defence. It would however have been disappointed with the outcome in the recent case of Munro v State of Queensland2, where the plaintiff recovered damages after falling while undertaking the training program.
Each case turns upon its own facts, but the above examples illustrate the challenges health care providers face when trying to balance their obligations to their patients, their staff and third parties who may be affected by the actions of their patients. Given the current and expected future focus on this area, these are challenges that are likely to become more rather than less prominent in the future.