Psychiatrists’ liability for violent acts by patients

Professor Alex Stein has recently written on a US decision Volk v DeMeerleer 386 P.3d 254, which involved a psychiatric patient who killed his girlfriend and her nine-year old son and then committed suicide. For nine years leading up to that tragedy, the patient received outpatient care from the defendant psychiatrist, during which he expressed suicidal and homicidal ideations, without naming the potential victims.

The Court held that the psychiatrist had a “special relationship” with the victims because he was able to control the patient. Correspondingly, the psychiatrist had a duty to exercise “reasonable care to act consistent with the standards of the mental health profession, in order to protect the foreseeable victims of his or her patient.”

The Legal System and the Legitimacy of Clinical Guidelines

In the most recent edition of the Journal of Law and Medicine (Volume 24 Part 4 – 19 July 2014) is an article by Fiona McDonald: The Legal System and the Legitimacy of Clinical Guidelines.

The article examines the norms established by the courts concerning the legitimacy of clinical guidelines and the factors considered,  including expertise, consensus, consultation, evidence, bias and conflicts of interest, and compliance with relevant law.

The full table of contents for the current edition is available online.

Organisational liability for child abuse: New statutory duty and onus reversal in Victoria

Although difficult to cover in a brief note, it seems possible that the newly inserted Part XIII of the Wrongs Act 1958 (Victoria) may have application to some health care organisations, if they meet the definition of  being organised to exercises care, supervision or authority over children (under age 18) whether as part of their primary functions or activities or otherwise. An example might be an adolescent mental health care facility.

The amendment to the Wrongs Act flows from the Wrongs Amendment (Organisational Child Abuse) Act 2017.


Apparently not retrospective (see section 93), the purpose of the amending Act is to impose a duty of care that forms part of a cause of action in negligence on certain organisations exercising care, supervision or authority over children to prevent the physical abuse or sexual abuse of those children committed by individuals associated with those organisations: See section 91.


Section 91(3) states that in a proceeding on a claim against a relevant organisation for damages in respect of the abuse of a child under its care, supervision or authority, on proof that abuse has occurred and that the abuse was committed by an individual associated with the relevant organisation, the relevant organisation is presumed to have breached the duty of care referred to in subsection (2) unless the relevant organisation proves on the balance of probabilities that it took reasonable precautions to prevent the abuse in question.


Section 91(6) provides that the section 91(2) duty does not apply to abuse of a child committed by an individual associated with a relevant organisation in circumstances wholly unrelated to that individual’s association with the relevant organisation.


Abuse is defined to mean physical abuse or sexual abuse (being sexual assault or other sexual misconduct): Section 88.

A relevant organisation means an entity (other than the State) organised for
some end, purpose or work that exercises care, supervision or authority
over children, whether as part of its  primary functions or activities or
otherwise: Section 88.

Statutory will: Birth trauma claim proceeds

A Limited v J (No 2) [2017] NSWSC 896 provides an example of orders for a statutory will (Succession Act 2006 (NSW)) for a child aged 14 years, who had the benefit of proceeds of a compensation claim arising from her brain injury suffered at birth.

An earlier statutory will had been made in circumstances where the child was then about to undergo what was feared could be a life-threatening procedure in hospital: [10]. In relation to the content of the new will, there was disagreement as between the mother and father of the child: [22]. At [25] Ward CJ Eq noted:

The nub of the factual dispute in this regard is that the Father maintains that the Mother has understated his contribution to the Child’s welfare over the years and, in essence, attributes blame for the lack of time spent by him with the Child at least in part to the Mother; the Mother, on the other hand, believes that her ex-husband effectively abandoned the Child and the family as a whole.

The Court held at [63] that the proposed apportionment of residue put forward by the Mother’s proposed will reflects what a reasonable person, in the position of the Child, would do to recognise the respective claims on the Child’s testamentary bounty of the Father on the one hand and the siblings on the other. Ultimately a 42.5% share of residue was left to the Mother, with the remainder of the residue divided in equal shares between the Father and the six siblings.

At [71] the Court further held that there should be an adjustment to take into account the effect of superannuation payouts and at [77] that it was appropriate to include in the will provision for the establishment of testamentary trusts.

Medical practitioner social drug use, absent a mandatory reporting obligation.

Health Care Complaints Commission v DAC [2017] NSWCATOD 98 is of interest for its consideration of a doctor’s knowledge of drug use in a social setting by another doctor, in circumstances where there was not a mandatory reporting obligation. Other issues arose which are not addressed in this note.

At [58] the Tribunal said:

The practitioner notes that initially the complainant had alleged that the practitioner was duty-bound, pursuant to ss.140 and 141, to report Dr A, but such complaint did not proceed. Instead, the allegation was made as currently framed, namely that the conduct constituted unsatisfactory professional conduct or professional misconduct. Whilst the Tribunal does not know the motivation for altering the complaint, the Tribunal notes that s.141 requires a reporting where a registered health practitioner forms a reasonable belief that the other registered health practitioner has behaved in an untoward manner “in the course of practising the first health practitioner’s profession…”. In the present circumstances, events surrounding Complaint 2 do not necessarily relate to that concept, but rather from the acknowledged facts gleaned in circumstances not arising from “the course of practising…”

Notwithstanding the withdrawal of the allegation of failure to make a mandatory report, the Tribunal said at [62]:

The Tribunal is satisfied that the practitioner owed, as his primary duty, a duty to patient care. Knowing that Dr A was consuming illicit drugs as specified in the complaint, it was incumbent upon him to report Dr A.

In [67] the Tribunal concluded:

The Tribunal is satisfied that the practitioner was so overcome with his affection for Dr A that he subverted his responsibility to notify Dr A’s superiors when there was a clear risk that patients could be exposed to potential harm. The Tribunal considers such failure by the practitioner to so notify as egregious conduct especially since the practitioner was a mentor of Dr A.

Gard: European Court of Human Rights

BBC News has reported today that the European Court of Human Rights have declined an application to intervene, made by the parents of Charlie Gard. A similar application to the Supreme Court of the United Kingdom had not succeeded.

The decision is now available online: Charles Gard v United Kingdom.

An earlier Court press release stated in part:

In the proceedings before the European Court, Charlie’s parents argued – on their own behalf and that of their son – under Article 2 (right to life) that the hospital has blocked access to life sustaining treatment (in the U.S.A.) for Charlie and under Article 5 (right to liberty and security) that, as a result, he is unlawfully deprived of his liberty. They further alleged under Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) that the domestic court decisions amounted
to an unfair and disproportionate interference in their parental rights.
The Court bore in mind the considerable room for manoeuvre (“wide margin of appreciation”) left to the authorities in the sphere concerning access to experimental medication for the terminally ill and in cases raising sensitive moral and ethical issues, reiterating that it was not for the Court to substitute itself for the competent domestic authorities. From this perspective, the Court gave weight to the fact that a domestic legal framework – compatible with the Convention – was available governing both access to experimental medication as well as withdrawal of life sustaining treatment.
Furthermore, the domestic court decisions had been meticulous, thorough and reviewed at three levels of jurisdiction with clear and extensive reasoning giving relevant and sufficient support for their conclusions; the domestic courts had direct contact with all those concerned (notably, they had heard from all the medical experts involved in the treatment as well as experts instructed by the applicants, from Charlie’s parents themselves and from an independent professional appointed as the child’s guardian, had received expert reports from other doctors of international standing in the field and had visited the hospital); it was appropriate for the hospital to approach the courts in the UK in the event of doubts as to the best decision to take; and, lastly, the domestic courts had concluded, on the basis of extensive, high-quality expert evidence, that it was most likely Charlie was being exposed to continued pain, suffering and distress and that undergoing experimental treatment with no prospects of success would offer no benefit, and continue to cause him significant harm..

Subpoena for mandatory report documents

Behrens v Herlihy (NSWSC 22 June 2017; Registrar Bradford) is a decision not yet available on Caselaw. It may be the first decision referring a subpoena issued (by a plaintiff) upon the Medical Council of NSW for production of mandatory report documents (in respect of a defendant) under section 140 of the Health Practitioner Regulation National Law (NSW) No 86a.

The issues on hearing of the defendant’s motion to set aside the subpoena focused on whether there was a legitimate forensic purpose for access to the documents, given matters remaining in issue after the filing of a defence.

The defendant did not argue that the documents were protected by any particular aspect of the mandatory reporting regime.


Boundary violation claim: Police & witnesses

Although not a claim involving medical treatment, Auditore v State of New South Wales [2017] NSWDC 150 is of interest for its pleading of an action in negligence against the State of New South Wales for psychiatric injury alleged to result from a police officer having a sexual relationship with a witness.

The interlocutory hearing saw comment by the court at [8] that despite several attempts at a claim in negligence requiring the plaintiff to plead a novel duty of care, the nature of the claim as demonstrated by the particulars such as “inappropriate” behaviour and “grooming” is not a claim for negligence but either an intentional tort or a claim for sexual harassment. The pleader’s attempt to address these issues by a negligence claim raises issues of coherence (Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 as well as the need to identify the precise acts and/or omissions in order to determine the nature of the wrong alleged, and thus the remedy sought.

After an overview of some earlier relevant cases,  the statement of claim was struck out with leave to re-plead.


Making an Advance Care Directive – form and information booklet

The NSW Ministry for Health has helpfully published a booklet entitled Making an Advance Care Directive, which includes a precedent form.

The form includes prompts in relation to:

  • Personal values about dying
  • Directions about medical care, with some specific care types referred to
  • Organ donation, including ante-mortem treatment to facilitate organ donation
  • Capacity confirmation by a treating health professional.

The Advance Care Directive is currently being trialled as part of a project by South Eastern Sydney Local Health District. Following the evaluation of this project, the NSW Ministry of Health will consider if any changes to the form are required.