About Bernadette McSherry

Professor Bernadette McSherry is the Foundation Director of the Melbourne Social Equity Institute at the University of Melbourne. She is an internationally recognised legal academic in the fields of criminal law and mental health law and became an Australian Research Council Federation Fellow in December 2007. She was appointed in 2005 to the position of Louis Waller Chair of Law and Associate Dean (Research) at Monash Law School. She was elected a Fellow of the Academy of Social Sciences in Australia and a Fellow of the Australian Academy of Law in 2011.

No Duty to Detain Individuals with Severe Mental Health Problems: Hunter and New England Local Health District v McKenna

By Professor Bernadette McSherry

McKenna Case Page

Mental health practitioners may be breathing a sigh of relief that the High Court has unanimously held that a New South Wales hospital and a psychiatrist in its employ held no duty of care to the relatives of a man who was killed by a recently discharged patient. While the judgment is confined to a consideration of the effect of a statutory provision on whether or not a common law duty of care exists, the finding has repercussions for the movement in modern mental health care towards a focus on recovery and human rights rather than purely on preventive detention.

Risk assessment and risk management of those with severe mental health problems is now a core part of mental health practice. Mental health laws in Australian states and territories generally enable the involuntary detention and treatment of those with mental health problems on the basis that the individual concerned needs to be prevented from causing serious harm to him or herself or to others.

The question of how mental health practitioners ought to determine whether someone is at risk of harming him or herself or others is subject to a vast amount of literature and debate: see here, here and here. It remains the case, however, that it is exceptionally difficult to predict whether a specific individual may be at risk of harming another, particularly when there has been no history of violent behaviour. Forensic psychiatrists Andrew Carroll, Mark Lyall and Andrew Forrester pointed out in a 2004 article that ‘[n]o method, clinical, actuarial or combined, achieves anywhere near 100% predictive power, whether short or long term risk is considered.’ (at 413).

The deaths of Stephen Rose and Phillip Pettigrove
Phillip Pettigrove was born in 1962 and had a long history of mental health problems. Continue reading

The High Court Ends a Criminal Justice Debacle: Yates v The Queen

By Professor Bernadette McSherry

Yates v The Queen Case Page

In February this year, Judge Mark Taft of the County Court of Victoria referred to the year long detention in prison of a man with intellectual disabilities who had been charged with wilful and obscene exposure because of a lack of other accommodation for him as ‘an embarrassment to the administration of criminal justice’.

If the detention of a person with an intellectual disability in prison for one year because of the lack of a viable alternative may be considered an embarrassment, then the detention of Gregory Yates, a man with an intellectual disability, for over 25 years on the basis of a ‘fear’ that he might reoffend may be viewed as a debacle. The High Court put an end to the ongoing imprisonment of Gregory Yates in Yates v The Queen [2013] HCA 8, but the indefinite detention of people with intellectual disabilities continues to raise substantial questions. Continue reading