The Facts
Mentally ill man admitted involuntarily to hospital
A Victorian man had a long history of chronic paranoid schizophrenia and was being treated for his illness at Echuca in Victoria.
In July 2004, while in NSW with a friend, the man was involuntarily admitted to and detained in a regional hospital.
Both the psychiatrist and the medical superintendent who saw the man at the hospital recorded their opinion that the man was a “mentally ill person”.
Patient discharged from hospital, leading to tragic outcome
The psychiatrist read the man’s medical records from the Echuca Community Mental Health Service, as well as speaking with the man, his mother and his friend. It was agreed that the man would spend the night at the hospital and that his friend would drive him to his mother’s house the following day for treatment with his usual treatment providers.
The next day the man was discharged from the hospital and travelled with his friend to Echuca. Sadly, in the course of that journey the man killed his friend. Before taking his own life, the man told police that he had acted on impulse, believing that his friend had killed him in a past life.
The family of the friend brought a case against the hospital and the psychiatrist on the basis that, amongst other things, a duty of care was owed to the friend and that the duty was breached by discharging the man into his custody for the drive back to Echuca.
Expert commentary on the court's decision
Successive court judgments overturn decision of previous court
The case was first heard in the District Court. (See Simon & Anor v Hunter & New England Local Health District; McKenna v Hunter & New England Local Health District [2012] NSWDC 19.)
It was then appealed in the NSW Court of Appeal before proceeding to the High Court. (See McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 for the Court of Appeal decision and Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44 for the High Court decision.)
The borderline nature of this case is demonstrated by the fact that each successive court overturned the decision of the previous court, with the District Court finding in favour of the hospital, the Court of Appeal finding in favour of the family and the High Court then finding in favour of the hospital.
District Court finds duty of care existed but was not breached
The trial judge found that there was a duty of care, but that there had been no breach of that duty, and entered judgment in favour of the hospital. The trial judge based his conclusions about breach of duty on the application of the Civil Liability Act 2002 (NSW) (“the CLA”).
In particular, the judge found that section 5B(1)(c) of the CLA was engaged because it was not shown that “a reasonable person in Dr Coombes’ position would have concluded that there was a not insignificant risk of Mr Pettigrove behaving as he did”.
Furthermore, section 5O of the CLA was applied, with the trial judge finding that Dr Coombes had acted “in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”.
NSW Court of Appeal finds duty of care was breached
The NSW Court of Appeal overturned that decision, with a majority of the court holding that the hospital owed Mr Rose a common law duty of care to prevent Mr Pettigrove causing harm to Mr Rose, on the basis that it had dealt directly with Mr Pettigrove and had control over that source of risk.
The court also held that Dr Coombes had acted negligently in releasing Mr Pettigrove into Mr Rose’s custody, and that the action was not prevented by provisions of the CLA relating to professional practice, breach of statutory duty, or causation.
High Court considers health providers’ responsibilities under Mental Health Act
The matter went to the High Court, which assessed the duties of Dr Coombes and the hospital in light of the obligations under the Mental Health Act 1990 (NSW).
In particular, in considering whether a patient judged to be mentally ill ought to be involuntarily detained, the Mental Health Act required consideration of whether there was any other care, of a less restrictive kind, as appropriate and reasonably available to the person.
If that were the case, Section 20 of the Mental Health Act prohibited detention of Mr Pettigrove. (Please note that the Mental Health Act 1990 has now been repealed and replaced by the Mental Health Act 2007. Section 31(4) in the new legislation corresponds to section 20 of the repealed Act.)
Obligations under Mental Health Act inconsistent with common law duty of care
Therefore, the hospital and Dr Coombes had a competing obligation with respect to determining whether to keep Mr Pettigrove detained. The High Court concluded that performance of the obligation under the Mental Health Act would not be consistent with a common law duty of care that required the doctor and the hospital to have regard to the interests of those who the mentally ill person may come in contact with when not detained.
And, as explained in Sullivan v Moody [2001] 207 CLR 562, “if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists”.
For more information, please see What is “duty of care” if you are injured? and Does a bank have a duty of care to its customers during a robbery?