Duty of Care to Third Parties

Case history

The claim arose from the discharge of a psychiatric patient, Phillip Pettigrove, from the Manning Base Hospital at Taree in NSW.

Mr Pettigrove had a long history of chronic paranoid schizophrenia and was being treated for his illness in Echuca, Victoria. While in NSW with a friend, Mr Stephen Rose, in July 2004 Mr Pettigrove was involuntarily admitted to, and detained in, the Manning Base Hospital under the Mental Health Act 1990.

Following admission, Mr Pettigrove’s medical records from the Echuca Community Health Service were obtained and he was reviewed by a Psychiatrist, Dr Warwick Coombs. Dr Coombs spoke with Mr Rose as well as Mr Pettrigrove’s mother in Victoria over the phone. All agreed that Mr Pettigrove would be kept in hospital overnight and that Mr Rose would then drive Mr Pettigrove to his mother’s home in Echuca, where he would receive continuing medical treatment.

Mr Pettigrove was discharged from the hospital the following day and he set off with Mr Rose to travel by car to Echuca. In the course of that journey at about 8:30pm, while parked alongside the highway south of Dubbo, Mr Pettrigrove attacked and killed Mr Rose. He later told the police that he acted on impulse, believing that Mr Rose had killed him in a past life. Mr Pettigrove later committed suicide.

Mr Rose’s mother and his two sisters commenced proceedings against the Local Health District and the Psychiatrist alleging negligence and seeking damages for psychiatric injury.

Medico-legal issues

District Court

At first instance in the District Court, the trial judge found in favour of the Local Health District and Dr Coombs. His decision focused on whether there was a breach of duty of care.2 The trial judge was not satisfied that the risk of Mr Pettigrove attacking Mr Rose was sufficiently foreseeable, taking into account there was no history of violence towards others in Mr Pettrigrove’s 20-year history of schizophrenia. The trial judge also accepted peer expert evidence that the treatment accorded with widely accepted peer practice.3 On causation, the trial judge was not satisfied that the incident was triggered by the road trip in itself or the lack of additional medication.

Court of Appeal

The relatives appealed the decision of the trial judge. The Court of Appeal overturned the District Court’s decision and ordered judgments totalling $251,424, together with interest and costs in favour of the relatives.

While the main focus of the trial judge’s decision was breach of duty, the Court of Appeal addressed in more detail the question of whether a duty of care was owed to the relatives. The Court was satisfied that a duty of care was owed in view of the degree of control the hospital and Dr Coombs had over the risk that arose to Mr Rose and the extent of their dealings with him.

The Court of Appeal disagreed with the trial judge’s approach to breach of duty holding that the relevant risk to be assessed was not the risk that Mr Pettigrove would intentionally kill Mr Rose, but the risk of physical harm to him; and that the car trip enabled the attack to occur in isolated circumstances where no one was able to come to Mr Rose’s assistance. The Court of Appeal also held that the trial judge was in error with regard to the treatment being in accordance with peer practice, as no relevant practice had been sufficiently identified.

High Court

The Local Health District and Dr Coombs obtained special leave to appeal to the High Court against the Court of Appeal decision. On 12 November 2014, the High Court unanimously allowed the appeal.

The focus of the High Court’s reasoning was whether imposing a duty of care would be inconsistent with a practitioner’s obligations under the Mental Health Act 1990 (the Act).

The High Court noted that the Act should be applied such that the interference with the rights, dignity and self-respect of mentally ill patients is kept to the minimum necessary in the circumstances.⁴

Consistent with this is Section 20 of the Act which states:

“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 High Court considered that this section was particularly relevant and held that the performance of this obligation could give rise to inconsistent obligations if hospitals and practitioners also owed a common law duty of care to those whom a mentally ill person may come into contact with after being discharged.

The High Court indicated classes of cases in which difficulty can arise in determining the existence and scope of a duty of care – such as when the defendant exercises a statutory power or discretion; the direct cause of the harm suffered is criminal conduct of a third party; or there is difficulty confining the duty within reasonable limits.5 In this case, the determining factor was the nature of the statutory power being exercised by the hospital and Psychiatrist.

The High Court commented that if, as the relatives submitted, the hospital and Dr Coombs owed Mr Rose and his relatives a duty of care, then it was not easy to see why that duty did not extend to any and every person with whom Mr Pettigrove would come in contact with after his release from the hospital and who might foreseeably suffer harm if Mr Pettigrove acted irrationally or violently. The potential liability could be extensive.

Conclusion

The decision provides guidance to practitioners treating involuntary patients and is an endorsement of the importance of the principle of least restrictive care. While the Act has been amended in NSW, similar provisions are contained in the new legislation6 and are also contained in the mental health legislation in other states and territories. Claims arising from the discharge of involuntary patients are likely to be significantly curtailed by the decision.

Karen McMahon
Medico-legal Adviser
MDA National

References

1. Hunter and New England Local Health District v Sheila Mary Simon & Anor [2014] HCA 44.
2. Section 5B of the Civil Liability Act 2001 (NSW).
3. Section 50 of the Civil Liability Act 2001 (NSW).
4. Section 4(2)(b) of the Mental Health Act 1990 (NSW).
5. Relying on the earlier High Court decision of Sullivan v Moody (2001) 207 CLR 562.
6. Sections 12(1)(b) and s68(f) of the Mental Health Act 2007 (NSW).