Involuntary detention as a mentally disordered person: Smith v Pennington

Reasons for judgment were delivered today in Smith v Pennington [2015] NSWSC 1168. Relevantly, the plaintiff claimed for brain damage which he suffered from attempted suicide after his discharge (for a period of four days leave) from the Campbelltown Hospital, where he was understood to be an involuntary patient.

The Court addressed a range of detailed issues but of general interest were the following findings:

  • The grant of a period of leave was not a breach of duty [275];
  • Section 43A of the Civil Liability Act 2002 (NSW) applied to the decision to grant leave, but as the trial judge was not persuaded to the ordinary level that the decision was unreasonable such as to amount to a breach of duty, he was not persuaded that the higher section 43A to which breach must be proved in such a circumstance had been discharged [277];
  • The failure to give certain advice regarding avoidance of alcohol before the discharge was a breach of duty, to which section 43A did not apply: [323], [329];
  • However, the lack of warning about alcohol was not causative as the effects if any of the alcohol imbibed late in the afternoon would have long since ceased: [342];
  • There was nothing in the evidence which would enable a conclusion to be drawn that any breach of duty relating to banning contact or communication with the claimants former girlfriend, in any way gave rise to the decision made by the plaintiff to take his own life. There was no temporal connection between any such contact and the plaintiff’s own actions: [358];
  • Section 5O was not relevant given the findings in relation to leave: [377]
  • Section 5P applied such that the the provisions of s 5O did not apply to the breach of failure, after the decision to grant leave was made, to communicate adequately with the plaintiff’s parents and to provide advice to them: [378];
  • Section 5I (inherent risk) was not relevant: [390];
  • Section 5R (contributory negligence) was not proven: [393].

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