Which case won?

casea
The case for the relatives
  • The relevant act of negligence was placing the man into the care of our relative, rather than the act of discharging the mentally ill man.
  • The hospital and psychiatrist owed a duty of care to our relative in circumstances where it was foreseeable that discharging a mentally ill person into his sole care gave rise to a foreseeable risk of harm.
  • The hospital and psychiatrist failed to exercise reasonable professional care and skill in deciding that the man could leave the hospital with our relative.
caseb
The case for the hospital and the psychiatrist
  • We did not owe the mentally ill man’s friend a duty of care.
  • If a duty of care did exist, there was no breach of that duty. The risk of injury posed by the man was not foreseeable in the circumstances, and in deciding to discharge the man into his friend’s care, we acted in accordance with the requisite level of skill and care.
  • In deciding to discharge the man into his friend’s care, we acted in accordance with what would be widely considered as competent practice in Australia by peer professional opinion.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
a37%
b63%

Expert commentary on the court's decision

Iain MillerSenior Lawyer
“In considering whether a patient judged to be mentally ill ought to be involuntarily detained, the Mental Health Act required consideration of whether there was any other care, of a less restrictive kind, as appropriate and reasonably available to the person.”
Successive court judgments overturn decision of previous court

The case was first heard in the District Court. (See Simon & Anor v Hunter & New England Local Health District; McKenna v Hunter & New England Local Health District [2012] NSWDC 19.)

It was then appealed in the NSW Court of Appeal before proceeding to the High Court. (See McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 for the Court of Appeal decision and Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44 for the High Court decision.)

The borderline nature of this case is demonstrated by the fact that each successive court overturned the decision of the previous court, with the District Court finding in favour of the hospital, the Court of Appeal finding in favour of the family and the High Court then finding in favour of the hospital.

District Court finds duty of care existed but was not breached

The trial judge found that there was a duty of care, but that there had been no breach of that duty, and entered judgment in favour of the hospital. The trial judge based his conclusions about breach of duty on the application of the Civil Liability Act 2002 (NSW) (“the CLA”).

In particular, the judge found that section 5B(1)(c) of the CLA was engaged because it was not shown that “a reasonable person in Dr Coombes’ position would have concluded that there was a not insignificant risk of Mr Pettigrove behaving as he did”.

Furthermore, section 5O of the CLA was applied, with the trial judge finding that Dr Coombes had acted “in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”.

NSW Court of Appeal finds duty of care was breached

The NSW Court of Appeal overturned that decision, with a majority of the court holding that the hospital owed Mr Rose a common law duty of care to prevent Mr Pettigrove causing harm to Mr Rose, on the basis that it had dealt directly with Mr Pettigrove and had control over that source of risk.

The court also held that Dr Coombes had acted negligently in releasing Mr Pettigrove into Mr Rose’s custody, and that the action was not prevented by provisions of the CLA relating to professional practice, breach of statutory duty, or causation.

High Court considers health providers’ responsibilities under Mental Health Act

The matter went to the High Court, which assessed the duties of Dr Coombes and the hospital in light of the obligations under the Mental Health Act 1990 (NSW).

In particular, in considering whether a patient judged to be mentally ill ought to be involuntarily detained, the Mental Health Act required consideration of whether there was any other care, of a less restrictive kind, as appropriate and reasonably available to the person.

If that were the case, Section 20 of the Mental Health Act prohibited detention of Mr Pettigrove. (Please note that the Mental Health Act 1990 has now been repealed and replaced by the Mental Health Act 2007. Section 31(4) in the new legislation corresponds to section 20 of the repealed Act.)

Obligations under Mental Health Act inconsistent with common law duty of care

Therefore, the hospital and Dr Coombes had a competing obligation with respect to determining whether to keep Mr Pettigrove detained. The High Court concluded that performance of the obligation under the Mental Health Act would not be consistent with a common law duty of care that required the doctor and the hospital to have regard to the interests of those who the mentally ill person may come in contact with when not detained.

And, as explained in Sullivan v Moody [2001] 207 CLR 562, “if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists”.

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