The High Court has unanimously allowed an appeal from the New South Wales Court of Appeal’s decision in McKenna v Hunter and New England Local Health District. In 2004, Stephen Rose became concerned about the mental health of his friend William Pettigrove and arranged for him to be taken to a hospital within the appellant health district. Pettigrove was discharged after a psychiatric assessment into Rose’s custody to allow them both to travel to Victoria where Pettigrove’s mother lived. During the drive, Pettigrove killed Rose, and later told police that he did so because he believed Rose had killed him in a past life. Rose’s family claimed damages for psychiatric injury by nervous shock caused by the negligence of the Health Service. A majority of the NSWCA held that the hospital owed Rose a common law duty of care to prevent Pettigrove causing harm to Rose, on the basis that it had dealt directly with Rose and had control over that source of risk. The Court also held that the assessing psychiatrist had acted negligently in releasing Pettigrove into Rose’s custody, and that the action was not prevented by provisions of the Civil Liability Act 2002 (NSW) relating to professional practice, breach of statutory duty, or causation.
The Court held that the Hospital and assessing psychiatrist did not owe the relatives a relevant duty of care. The Court explained that each of the four examples of difficulties in identifying the existence, nature and scope of a duty raised in Sullivan v Moody [2001] HCA 59 were raised in this matter:
Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.
The determinative example was the second consideration on statutory power (though the other considerations remained relevant: [19]); here, a duty to take reasonable care when deciding that the detention powers under s 20 of the Mental Health Act 1990 (NSW) should no longer be used to stop Pettigrove leaving the Hospital. The Court construed that power as requiring that the assessor first establish whether the person is ‘mentally ill’ or ‘mentally disordered’, and if that is the case then, second, whether there is no other care available that is less restrictive than involuntary admission and detention in the Hospital (at [27]–[28]). That statutory duty to not detain unless those conditions were satisfied was inconsistent with a common law duty of care: ‘In some cases, perhaps many, the reasonable person in the position of hospital or doctor would respond to [the risks posed by the conduct of a mentally ill person] by continuing to detain the patient … thus avoiding the possibility that the risk of harm to others will eventuate. But that is not what the Mental Health Act required. It required the minimum interference with the liberty of a mentally ill person’: [31] (emphasis in original). Because the Court found there was no duty it did not consider several other issues raised on appeal: see at [14]–[16] and [34].
| High Court Judgment | [2014] HCA 44 | 12 November 2014 |
| Result | Appeal allowed | |
| High Court Documents | McKenna | |
| Full Court Hearing | [2014] HCATrans 218 | 8 October 2014 |
| Special Leave Hearing | [2014] HCATrans 137 | 20 June 2014 |
| Appeal from NSWCA | [2013] NSWCA 476 | 23 December 2013 |
| Trial Judgment, NSWDC |
[2012] NSWDC 19 | 2 March 2012 |
Dear Martin – Minimum interference – and death… Having just read this decision, I found not for the first time that I was searching the internet, hoping to find some comment and analysis on it, perhaps even a seconder or two to the immediate disquiet if felt upon reaching the end of the judgment. I often do this when I find a High Court judgment troubling in its wider implications, irrespective of the more technical legal issues dealt with. I am always surprised at the dearth of such fora for critical discussion, so when Google led me to this blog and I saw your areas of study include philosophy as well as law, I was hoping for something more than a brief and neutral recitation of the freely available case summary. To me, this case raises fundamental issues about decision making in mental health in Australia, where a mentally ill person/patient has a propensity for violence. The judgment is really far wider in scope than its dealing with a duty to Mr Rose’s family (although the difficulties were very briefly noted). A fundamental issue raised by this decision is that where a person is mentally ill and potentially violent, the relevant statute governing the professional decision-making of the doctors concentrates heavily on the interests & rights of that mentally ill person and his or her continued detention being effectively a “last resort” rather than on balancing those rights with the rights of the public to be free from the (foreseeable?) risk of that person being at large. It seems to me on my reading, and following Sullivan, that if the perpetrator had been discharged not into the care of Mr Rose but (on the same basis) simply into the general public and had then committed some terrible violent act(s) at the local supermarket or railway station (etc…), the same analysis by the Court would have to apply: the framework of the statute would lead to the conclusion that no duty of care is owed because it would be inconsistent with the statutory obligation on the doctors to effectively view further detention as (in paraphrase) a last resort. Like Kakavas, this relatively short and matter-of-fact decision provides scant analysis of the deeper and more troubling aspects of the factual situation. It seems a very unsatisfactory response (whether correct in strict jurisprudence or not) to say that it is up to that august and wise institution, the Parliament of NSW, to examine the balance provided by the mental health legislation in the interests of the wider society. I do hope that the University is still encouraging reflection and debate on these issues among law (and philosophy) students.
Rgds
Dear Declan,
Many thanks for your comments on the case; I couldn’t agree more that the legal framework is incredibly troubling, that the Court is at best only briefly suggestive of the problems you raise, and that this case raises a range of questions about the limits of adjudication and the problems of balancing statutory and common law duties. On the philosophical level, it reminded me of Robert Cover’s work on violence and adjudication (http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3687&context=fss_papers). It’s also true that the Court doesn’t seem to turn its attention to the significance of releasing him into Rose’s care, rather than into the general public — I’d imagine that was relevant to the original decision, as much as that led to the horror that followed, but I’m not sure. It’s worth noting that this provision has been repealed, though I haven’t looked into what (if anything) has replaced it.
The point of these case pages, however, isn’t to offer my thoughts on the decision but rather to go beyond the (even scanter, though very welcome) High Court summaries to offer an introduction to the matter, the reasoning of lower courts, and a description of the main moves the judgment(s) of the High Court make. Because we have a wide readership of lawyers and non-lawyers, these pages have to remain simplistic and descriptive rather than evaluative. They aim to provide a quick roadmap for those who want to read the decision but want to get straight to the important sections.
We leave the larger context and the social/political/philosophical issues raised by cases to opinion posts. We’re hoping to have a post from someone who follows these issues in depth up shortly and encourage you to weigh in.
Thanks again,
Martin
Declan –
I can offer some brief philosophical reflection.
I am a clinical psychiatrist and am often in the position of judging whether, in the words of the provision that replaced the one referred to in the 1990 Act, there is, other than involuntary detention “no other care of a less restrictive kind, that is consistent with safe and effective care, … appropriate and reasonably available to the person” (*Mental Health Act 2007* (NSW) s 12). I am also an academic and write a great deal on mental health law reform.
It is important to bear two things firmly in mind when considering this decision. First, as a society we place a very high value on freedom. As a consequence it would seem appropriate that our default position should be that a person with a mental illness should not be detained, and that (ongoing) detention ought only occur if reasonable conditions are met. Second, though it is common for people to imagine that psychiatrists are blessed with knowledge or tools that would allow them to determine whether or not the patient in front of them belongs to a class of mental ill people who can be usefully categorised as potential violent, this is not the case. No characteristic (or combination of characteristics) of a patient has been identified that would justify the detention of a mentally ill person on the basis of their future risk of violence (Christopher Ryan, et al., ‘Clinical Decisions in Psychiatry Should Not Be Based on Risk Assessment’ (2010) 18 Australasian Psychiatry 398).
If the HCA had not allowed the appeal then psychiatrists could hardly have been blamed for continuing to detain a mentally ill person against their will despite seeing an appropriate and reasonably available, less restrictive and reasonably safe and effective alternative. In the end though decisions not to detain a person under these circumstances would have been purely arbitary.
Co-authors and I argue this position in more detail in a piece submitted for publication in *Australasian Psychiatry*, that I hope will be available early in 2015.
Chris