A health authority does not owe a duty of care to the relatives of a person murdered by a mentally ill patient after his release from hospital.
The High Court in New England Health Authority v McKenna [2014] HCA 44 has overturned the decision of the New South Wales Court of Appeal, ruling that the Hunter and New England Local Health District (Health Authority) did not owe a duty of care to the relatives of Mr Stephen Rose (Mr Rose). Mr Rose was killed by Mr Phillip Pettigrove (Mr Pettigrove) after Mr Pettigrove was released from hospital subsequent to being classified a mentally ill person.
In this Alert, Partner Robert Tidbury, Associate Andrew Vinciullo and Law Graduate Isabel Vidot discuss the case and the High Court's decision in this matter.
Background
Mr Pettigrove had a long history of paranoid schizophrenia for which he was receiving treatment. In July 2004 while in New South Wales with Mr Rose, Mr Pettigrove was involuntarily admitted to the Manning Base Hospital (the Hospital). Dr Warwick Coombes (Dr Coombes) and medical Superintendent, Dr Wu, both classified Mr Pettigrove as a mentally ill person. Dr Coombes reviewed Mr Pettigrove's medical records and after consulting with Mr Pettigrove, Mr Pettigrove's mother and Mr Rose, all agreed that Mr Pettigrove would be kept overnight and Mr Rose would drive Mr Pettigrove to his mother's home in Echuca, Victoria.
In the course of the journey to Echuca, Mr Pettigrove killed Mr Rose, telling police he acted on impulse believing Mr Rose had killed him in a past life. Mr Pettigrove subsequently took his own life.
The dispute
Two separate proceedings were instituted in the District Court of New South Wales, one by Mr Rose's sister and the other by Mr Rose's mother and another sister (the Relatives). The Relatives argued the Hospital owed Mr Rose (and the Relatives) a duty to take reasonable care when deciding to allow Mr Pettigrove to leave the hospital. They argued that the powers given by the Mental Health Act 1990 (NSW) (Mental Health Act), which had been used to detain Mr Pettigrove, should no longer be used to prevent him leaving the Hospital. In allowing Mr Pettigrove to be released, there was a risk that Mr Pettigrove would cause physical harm to Mr Rose and as such, the Hospital had breached its duty.
Decisions of the Lower Courts
At first instance, the trial judge held that the Hospital had not breached its duty of care. It held that the Relatives were unable to establish that a reasonable person in Dr Coombes' position would have concluded that there was not an insignificant risk of Mr Pettigrove behaving as he did pursuant to section 5O of the Civil Liability Act 1990 (NSW) (CLA). Further, Dr Coombes acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice.
On appeal, the New South Wales Court of Appeal (in a decision split 2-1) overturned the District Court finding in favour of the Relatives. The majority held:
- the Hospital owed a duty of care to prevent Mr Pettigrove causing harm to Mr Rose;
- Dr Coombes was negligent in discharging Mr Pettigrove;
- the Health Authority was not entitled to the protection of section 5O of the CLA; and
- the negligence was the cause of Mr Pettigrove's harm and consequently caused the harm suffered by the Relatives.
The Health Authority appealed to the High Court on each matter.
The High Court decision
In a joint decision of five justices, the High Court unanimously held that the Hospital and Dr Coombes did not owe the relatives a duty of care and the appeal was allowed.
Citing the decision in Sullivan v Moody1, their Honours considered that the following issues in this case may be difficult in determining the existence, nature and scope of the duty of care:
- Nature of harm (being psychiatric injury);
- Statutory power (being the powers conferred under the Mental Health Act);
- Indeterminacy of class (and the potential to open the floodgates of liability); and
- Coherence (being the need for the duty to be consistent with the broader legal framework).
However, their Honours stated that the nature of the statutory powers were the determinative factor in this case. In Sullivan the court held that, where a suggested duty of care is inconsistent with obligations under statute this would ordinarily be a reason for denying that the duty exists.
The relevant sections of the Mental Health Act were as follows:
- Section 4(2)(b) – "every function, discretion and jurisdiction conferred or imposed by the Mental Health Act" be, as far as practicable, performed or exercised, so that (among other things), "any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances".
- Section 20 - "A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person ."
The crux of the Relatives' complaint was that the Hospital should have continued to detain Mr Pettigrove. However, the court identified that this had to be balanced with the obligation imposed by Section 20 of the Mental Health Act not to detain or continue to detain a person unless a medical superintendent felt that no other care of a less restrictive kind was available to the patient. As section 20 required the release of Mr Pettigrove, unless Dr Wu believed that no other less restrictive care options were appropriate, it was not relevant to decide whether Dr Wu positively authorised his release from Hospital.
Ultimately the court held that the Hospital and Dr Coombes did not owe the Relatives the relevant duty of care. The court further determined that a common law duty of care, as alleged by the Relatives, would be inconsistent with the provisions of Section 20 of the Mental Health Act.
The Primacy of Statutory Obligations
The High Court's decision in McKenna is an important decision for government departments and other organisations and agencies that operate, or have powers and obligations conferred under legislation.
The decision reaffirms the High Court's position in Sullivan that, where an organisation has statutory duties or obligations, they will operate to the exclusion of a duty of care imposed at common law, to the extent such a duty would be inconsistent with the statute.
Footnote
1Sullivan v Moody (2001) 207 CLR 562.
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