Published today 12 November 2014 was the judgment of the High Court in the linked appeals Hunter & New England Local Health District v McKenna / Simon [2014]  HCA 44. The High Court was expected to address whether health authorities owe a duty of care to third parties in exercise of statutory powers to detain and discharge mentally ill patients.

Five justices of the Court sat for the appeal: French CJ with Gageler, Hayne, Bell and Keane JJ. Their reasons are contained in a single joint judgment. As anticipated, following the oral submissions only about 4 weeks ago on 8 October 2014, the High Court allowed the appeals brought by the hospital.

The High Court’s focus is on the duty of care aspect of the claims: [12]. It held that the Hospital and Dr Coombes did not owe the relatives a duty of care. The determinative issue was statutory power, which required (at [31]) the minimum interference with the liberty of the mentally ill person. The provisions of the relevant legislation were (at [33]) inconsistent with the common law duty of care argued for by the relatives.

At [29] the Court further highlighted the inconsistent duty point, commenting that:

Particularly relevant was the obligation imposed by s 20 not to detain or continue to detain a person unless the medical superintendent was of the opinion that no other care of a less restrictive kind was appropriate and reasonably available to the person.  Performance of that obligation would not be consistent with a common law duty of care requiring regard to be had to the interests of those, or some of those, with whom the mentally ill person may come in contact when not detained.

Other duty aspects

The High Court expressly did not address the potential differences between the duties owed to the late Mr Rose and to his relatives, saying at [15];

It is not necessary, however, to decide whether the two different duties are related[12] in the manner assumed in argument in the Court of Appeal.  That is, it is not necessary to decide whether the Court of Appeal was right to conclude that, because the Hospital and Dr Coombes owed Mr Rose a duty to take reasonable care to prevent Mr Pettigrove inflicting physical harm on him, they also owed the relatives a duty to take reasonable care to prevent psychiatric injury sustained on learning that Mr Pettigrove had killed Mr Rose.  Nothing in these reasons should be understood as deciding that point.

Nor was the indeterminacy of the proposed duty point decided: see [16]. Though the Court did remark that If, as the relatives submitted, the Hospital and Dr Coombes owed Mr Rose and his relatives a duty of care, it was not easy to see why that duty did not extend to any and every person with whom Mr Pettigrove would come in contact after his release from the Hospital.

Other issues not decided

The hospital’s notice of appeal had addressed three other issues which arose in the New South Wales Court of Appeal. The three other issues were not examined by the High Court: [12].

  • The application of the breach of duty of care provisions (section 5B, Civil Liability Act 2002 (NSW).
  • The peer opinion defence (Section 5O). It had been said In the Court of Appeal by Macfarlan JA (Beazley P agreeing) that the evidence did not identify a relevant practice to which the defence could apply. Garling J appears not to have found it necessary to address that issue. The hospital had in written submissions focused on the wording of the section, and (in effect) argued that there was a practice identifiable from the evidence. This issue may require consideration by the Courts on another occasion, though it still seems that there has never been a decision in which the Court found a breach of common law duty, but then identified a peer practice which relieved the defendant of responsibility.
  • The exercise of a power by a public authority (section 43 / 43A Wednesbury unreasonableness) issue was highlighted by the dissenting judgment of Garling J in the Court of Appeal. He stated that unless there was a finding of fact by the trial judge that the patient would have remained as a voluntary patient, the asserted liability must arise as a consequence of a failure by the Hospital through the medical superintendent to exercise the special statutory powers – hence section 43A would apply so as to provide that the asserted failure does not give rise to civil liability unless the act or omission was such that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. This issue was not addressed by the High Court in its judgment.

Earlier decisions

The McKenna matter can be usefully considered with two earlier decisions of the High Court and one of the New South Wales Court of Appeal.

Conflicting duties in a statutory context were addressed some 13 years ago in Sullivan v Moody [2001] HCA 59. The Court considered whether medical practitioners, social workers and departmental officers involved in investigating and reporting upon allegations of child sexual abuse (under a statutory scheme for the protection of children) owed a duty of care to suspects. The Court held that the suggested duty of care to suspects did not exist, noting that the suggested duty would give rise to inconsistent obligations. There was a statutory obligation to treat the interests of the children as paramount.

Flowing from (but not for) the killing of another person by a psychiatric patient, was the well-known New South Wales Court of Appeal decision Hunter Area Health Service & v Presland [2005] NSWCA 33 (21 April 2005). There the patient / claimant asserted negligence by a psychiatric hospital and a psychiatrist in discharging and failing to restrain him and care for him, in circumstances where he was at risk to himself and others as a consequence of a mental illness. He killed another person soon after discharge and made a claim for the consequent loss of his own liberty.

The suicide of a person who was not mentally ill was considered 4 years ago in Stuart v Kirkland-Veenstra [2009] HCA 15, the Mental Health Act 1986 (Vic), s 10 empowered police to apprehend a person who “appears to be mentally ill” if there were reasonable grounds for believing that person had recently attempted suicide or likely to do so. The complaint (by relatives of the deceased, who later committed suicide) the complaint was not about the care with which a statutory power was exercised; it was a complaint that the power was not exercised. The various judgments in that matter addressed a number of issues, but ultimately absent the holding of an opinion that the plaintiff’s husband was mentally ill, the statutory power to apprehend was not available. A condition necessary to the power did not exist in law and so the statutory provisions supplied no relevant statutory power to which a common law duty could attach.

References

The New South Wales Court of Appeal judgment was McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 (23 December 2013) per Beazley P & Macfarlan JA, Garling J dissenting.

The reasons of the trial judge Elkaim SC DCJ appear in Simon & Anor v Hunter & New England Local Health District. McKenna v Hunter & New England Local Health District [2012] NSWDC 19 (2 March 2012).

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