Liability for health services for not involuntarily detaining and treating a mentally ILL person

Psychiatry, Psychology and Law

Volumn 22, Issue 1, 2015, Pages 1-31

  Scott, Russ ^a  

^a Forensic Psychiatrist   (Australia)

Author keywords

Involuntary detention; Least restrictive option; Mental Health Act; Tort liability

Indexed keywords

ARTICLE; CIVIL RIGHTS; COURT; DECISION MAKING; DETENTION; HEALTH SERVICE; HOSPITAL ADMISSION; HOSPITAL DISCHARGE; HUMAN; INFORMED CONSENT; LAW; LEGAL LIABILITY; NEGLIGENCE; PATIENT CARE; PSYCHIATRIST; SCHIZOPHRENIA;

EID: 84923377674     PISSN: 13218719     EISSN: 19341687     Source Type: Journal    
DOI: 10.1080/13218719.2015.1004659     Document Type: Article

References (91)

1. McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 at (18).
2. Simon & Anor v Hunter & New England Local Health District. McKenna v Hunter & New England Local Health District [2012] NSWDC 19 at (19).
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8. McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 at (26).
9. McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 at (35).
10. McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 at (36).
11. McKenna v Hunter & New England Local Health District [2013] NSWCA 476 (23 December 2013) at [38].
12. At [39].
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15. Transcript 121.3.
16. McKenna v Hunter & New England Local Health District [2013] NSWCA 476. 17. [2005] NSWCA
17. See also I Freckelton, ‘Liability of Psychiatrists for Failure to Certify’ (2003) 10 (2) Psychiatry, Psychology and Law 397
18. R Scott, ‘Liability of Mental Health Services for Failing to Admit or Detain a Patient with Mental Illness’ (2006) 13 (1) Psychiatry, Psychology and Law 49
19. K Peterson, ‘Where is the Line to be Drawn? Medical Negligence and Insanity in Hunter Area Health Service v Presland’ (2006) 28 (1) Sydney Law Review 1. 18. [2006] NSWCA 158. 19. [2004] NSWCA 113.
20. Applying The Home Office v Dorset Yacht Co Limited [1970] AC 100 and Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, Spigelman CJ, Sheller and McColl JJA held there was no established category of duty of care owed by a prison authority to prevent harm caused by an escaped prisoner beyond the immediate vicinity of a gaol. The duty of a gaoler to prevent the criminal activity of an escaped prisoner, so far as it has been established, was confined to the course of the escape, where control is still capable of being reasserted. 21. [2009] HCA 15; 237 CLR 215.
21. See also I Freckelton, ‘Liability for Failure by Police to Detain Potentially Suicidal and Dangerous Persons’ (2008) 15 (2) Psychiatry, Psychology and Law 175
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26. Referred in this context to Lym International Pty Ltd v Marcolongo, the trial judge (at [84]) cited Campbell JA who said at [243] with reference to s 5D of the Civil Liability Act: Evaluation of any action for the purpose of attribution of responsibility recognises that the action occurs in the context or against a background of circumstances and actions that are in themselves neutral or normal for evaluative purposes. In attributing responsibility for a motor car collision, it may well be that the accident would not have happened if one of the drivers had not been invited to meet a friend, supposing that the accident happened en route to that meeting. While the friend’s invitation is a factual cause of the accident, it is inappropriate to attribute responsibility to the friend for issuing the invitation. This is because inviting a friend to visit is the sort of thing that is itself part of the ordinary background of social action that is not in itself blameworthy... It is the blameworthiness of the particular necessary condition for the accident that makes it appropriate to attribute responsibility to the person who performed that necessary condition. Conversely, if a person’s action is a necessary condition of particular harm happening but is not itself blameworthy, that person’s action is not seen, for the purposes of attribution of responsibility, as justifying the imposition of liability. That does not involve denying the causal role of the necessary condition, just saying that not all causes deserve the attribution of legal liability. 28. [2013] HCA 19; 87 ALJR 648.
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30. Transcript at line 170.
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32. Hunter and New England Local Health District v McKenna Hunter and New England Local Health District v Simon [2014] HCA
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34. Compare Tame v New South Wales (2002) 211 CLR 317 at 399_400 [243]_[246]; [2002] HCA 35 in which during the investigation of a vehicle collision, a policeman inadvertently transposed the heavily intoxicated driver’s blood-alcohol reading with the reading of the other driver (Mrs Tame) who had a zero blood alcohol reading. Although the mistake was subsequently corrected and no one acted on the erroneous information, Mrs Tame claimed that she developed a depressive illness, not as a result of the shock of the collision but when her solicitor told her of the incorrect entry. The High Court held that the police officer did not owe Mrs Tame a duty to take reasonable care to avoid causing her injury of the kind she had suffered. See also D Mendelson, ‘The Modern Australian Law of Mental Harm: Parochialism Triumphant’ (2005) 13 (2) Journal of Law and Medicine 164.
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36. Nature of harm, conduct of third parties: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61.
37. Statutory power: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59; Brodie v Singleton Shire Council (2002) 211 CLR 540; [2002] HCA 54; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54.
38. Indeterminacy of class of persons: Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16.
39. Coherence: Hill v Van Erp (1997) 188 CLR 159 at 231; [1997] HCA 9; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15.
40. Including ss 28, 29 and 35. Emphasis added.
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90. Emphasis added.
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