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. He had been diagnosed with schizophrenia and was under the care of the Echuca Community Mental Health Service in Victoria where until 2003 he lived close to his family.

In July 2004, he was staying in the Coopernook Forest Caravan Park in New South Wales with his friend Stephen Rose. In the early hours of the 20 July 2004, Mr Rose became concerned about Mr Pettigrove who was experiencing ‘physical jerks’ and called an ambulance which took Mr Pettigrove to the Manning Base Hospital in Taree. After a conversation with the consultant psychiatrist, the duty doctor in the Emergency Department detained Mr Rose as a compulsory patient under s 21 of the Mental Health Act 1990 (NSW) (now repealed and replaced by the Mental Health Act 2007 (NSW)). The certificate stated that Mr Pettigrove ‘wishes to kill himself’.

The consultant psychiatrist met with Mr Pettigrove, Mr Rose and the duty nurse at around 4pm on the day Mr Pettigrove was admitted. During this meeting, Mr Pettigrove’s mother was contacted by phone and she indicated that she would like to see him home as soon as possible. It was agreed that Mr Rose would pick him up the next day and drive him from Taree to his mother’s place in Echuca. The duty nurse noted (at [24]) that ‘Phillip was generally uncommunicative’ and the consultant psychiatrist noted (at [25]) that there was a ‘[w]ell-documented history of schizophrenia for 20 years. Now withdrawn, perplexed, almost mute, sitting quietly by himself. No[t] obviously hallucinating. Insufficient speech to detect delusions’.

Mr Pettigrove needed bilateral hearing aids and had vision difficulties (at [160]). It appeared the hearing aids were not functioning properly and it is unclear what accommodation was made for this fact.

Mr Rose arrived at the hospital after 11:00am the next day to collect Mr Pettigrove. That evening around 8:30pm, Mr Pettigrove attacked and killed Mr Rose in the car that was parked alongside the Newell Highway about 25 kilometres south of Dubbo. Mr Pettigrove was recorded (at [2]) as saying that ‘just something inside me said to do it’.

Some two and a half months later, on 2 October 2004, Mr Pettigrove was found hanged in his cell at Long Bay Prison.

Mr Rose’s mother, Sheila Simon and his sisters, Wendy Rose and Merryn McKenna claimed damages from the Hunter and New England Local Health District (the body responsible for the operation of the hospital and its medical staff) for nervous shock arising from Mr Rose’s death.

The lower court rulings
In the District Court, the main argument (at [74]) concerned whether the consultant psychiatrist had been negligent in discharging Mr Pettigrove into Mr Rose’s care. The threshold issue of whether or not there was a duty of care to Mr Rose and, by extension, his relatives was not the subject of a specific ruling, apart from Elkaim J stating (at [74]) that ‘the issue here is not the question of whether to detain or not’.

While Elkaim J observed (at [91]) that he ‘did not think Mr Pettigrove should have been discharged after only one restless night in hospital and without a proper medication plan having been observed’, he found (at [85]) that there had been no breach of the duty of care because the risk of Mr Rose’s death was ‘not foreseeable and was not so significant that a reasonable person would have taken precautions against it’.

An appeal against the District Court decision was upheld by a majority in the Court of Appeal. Macfarlan J, with whom Beazley P agreed, held (at [10]) that the hospital owed Mr Rose ‘a common law duty to take reasonable care to prevent Mr Pettigrove causing physical harm to Mr Rose’ and that the consultant psychiatrist had been negligent in discharging Mr Pettigrove from the hospital. In relation to the question of a duty of care, the majority emphasised the fact that the question concerned a duty to Mr Rose rather than a stranger (at [98]) and that the consultant psychiatrist and other staff had met with Mr Rose and took his views into account (at [107]).

Garling J, in dissent, found (at [255]) that there was no duty of care owed to Mr Rose because the statutory obligations in the Mental Health Act 1990 (NSW) required discharge where there less restrictive care is appropriate and available were inconsistent with finding a common law duty ‘to detain Mr Pettigrove as an involuntary patient for the prevention of harm to the late Mr Rose’. He also pointed out (at [258]) that the ‘burden on the Hospital in the event of such a duty being imposed would be “intolerable”’(emphasis in original).

The High Court finds in favour of the hospital
The High Court decision focused on the threshold question as to whether there was a common law duty owed to Mr Rose and his relatives, given the operation of the Mental Health Act 1990 (NSW). In a unanimous and remarkably short decision, the High Court found that the provisions of the Mental Health Act 1990 (NSW) were inconsistent with finding a common law duty of care to Mr Rose and his relatives.

The Court referred to the four difficult areas identified in a previous High Court judgment, Sullivan v Moody [2001] HCA 59 (at [50]) in which it might be difficult to find a duty of care. To paraphrase, these are where:

1. the harm suffered is caused by criminal conduct
2. the defendant has a specific discretion or obligation under a statute
3. the class of plaintiffs may be difficult to confine to reasonable limits
4. there is a need to preserve certain principles or a statutory scheme

The Court concentrated on the second point in reaching its decision, but observed (at [19]) that all of these problematic areas could be relevant to the facts.

The Court observed (at [29]) that ‘[t]he core of the relatives’ complaint in this matter is that each was injured because a decision was made not to continue to detain a mentally ill person’. It found (at [26]) that the provisions of the Mental Health Act 1990 (NSW) prohibited the continued detention of an individual unless no other less restrictive care was appropriate and reasonably available. It required ‘the minimum interference with the liberty of a mentally ill person’ (at [31]). On that basis, the provisions of the Act were inconsistent with finding a common law duty of care.

In relation to the third point set out in Sullivan v Moody, the Court observed (at [16]):

If … the Hospital and [the consultant psychiatrist] owed Mr Rose and his relative a duty of care, it is not easy to see why that duty did not extend to any and every person with whom Mr Pettigrove came into contact after his release from the Hospital.

This echoed Garling J’s observation in the Court of Appeal that the burden placed on the Hospital would be intolerable. Given the Court’s finding on this threshold question, it did not go on to discuss any of the arguments relating to the law of negligence.

A public policy perspective
The appalling death of Stephen Rose no doubt was extremely distressful for his mother and sisters and it is understandable that they would want to hold someone accountable for it. However, from a public policy perspective, imposing a duty to detain individuals with severe mental health problems on the basis of what they might do would signal a return to the discriminatory practices of the past. In Carrier v Bonham [2001] QCA 234 (at [36]) McPherson J of the Queensland Court of Appeal referred to ‘more humane methods of treatment’ for those with mental health problems enabling ‘greater liberty of movement’. He went on to state:

If in the process they take advantage of that liberty to venture, even if briefly, into ‘normal’ society, it seems only proper that, in the event of their doing so, their conduct should be judged according to society’s standards including the duty of exercising reasonable foresight and care for the safety of others. If that principle is not applied, then it is only a matter of time before there is reversion to the older and less humane practices of the past in the treatment of mental patients.

Decisions to detain and treat individuals with mental health problems without their consent are not taken lightly. Most mental health acts are now couched in terms of human rights and mental health policy is increasingly influenced by the tenets of the ‘recovery’ approach which emphasises the empowerment and autonomy of the individual receiving treatment and care. Boardman and Shepherd (at 7) describe recovery as ‘a process through which people attempt to increase their sense of hope, agency and opportunity’ (emphasis added).

The fact that most mental health statutes emphasise that there must be no less restrictive means of treatment available before a person can be detained without consent aligns with the importance placed on individual liberty and autonomy. To hold that there is a duty of care to any person with whom a person comes into contact after discharge from hospital would lead to defensive medical practice in the sense of practitioners erring on the side of caution in continuing to detain for fear of what a person might do. Ideally, emphasis should be on treatment based on the best results for an individual’s mental health, rather than on an unwarranted fear of litigation (see Rangarajan and McSherry, 2009).

AGLC3 Citation: Bernadette McSherry, ‘No Duty to Detain Individuals with Severe Mental Health Problems: Hunter and New England Local Health District v McKenna’ on Opinions on High (21 November 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/11/21/mcsherry-mckenna/>.

Bernadette McSherry is the Foundation Director of the Melbourne Social Equity Institute at The University of Melbourne.