Liability for Health Services for not Involuntarily Detaining and Treating a Mentally Ill Person

Abstract

A patient with chronic schizophrenia was compulsorily detained overnight under the Mental Health Act 1990 (NSW). Following an assessment by a psychiatrist, the patient was discharged into the care of a friend to enable them to drive to Victoria where the patient's mother lived. After nightfall, the patient killed his friend on the highway. Family members of the patient's deceased friend commenced an action in negligence against the Health Service. The primary judge concluded that the plaintiffs had not established negligence. On appeal, the majority of the NSW Court of Appeal in McKenna v Hunter & New England Local Health District [2013] NSWCA 476 held that, given that the hospital had direct dealings with the friend and had control over the source of risk, the hospital owed the patient's friend (and his family members) a common law duty to take reasonable care to prevent the patient causing harm to the friend. The Court of Appeal held that there was a foreseeable and ‘not insignificant’ risk of serious harm to the friend. In New England Local Health District v McKenna Hunter and New England Local Health District v Simon [2014] HCA 44, the High Court found that the exercise of the duties and responsibilities in relation to the involuntary detention of a mentally ill person as prescribed by the Mental Health Act were inconsistent with a common law duty of care to another person or the relatives of another person. The High Court held that the involuntary detention of a person in hospital must only occur if no other care of a less restrictive kind was appropriate and reasonably available to the person. However, a range of alternative ‘less restrictive options’ was available to the Health Service. The High Court has inappropriately endorsed a purely ‘geographical solution’ as satisfying the stipulations in the Mental Health Act that any restrictions on the liberty of patients who are mentally ill be kept to the minimum.