Liability of Psychiatrists and Mental Health Services for Failing to Admit or Detain Patients with Mental Illness

John Hunter Hospital

Police who later restrained Presland described him as agitated and aggressive and yelling at one stage that rats were ‘eating’ his eyes and toes.

Presland was taken by ambulance to John Hunter Hospital, Newcastle. After a CT head scan, he was interviewed at 2320 hours by a social worker of the Crisis Assessment Team who, in her referral sheet, wrote inter alia:

The social worker later testified at trial that when she interviewed him, Presland said that he had been drinking heavily the previous day (Sunday). At trial, the social worker was emphatic that she was not informed that Presland had attacked a young child or had made threats to kill Blake's family. The social worker also did not recall discussing illicit drugs.

However, at trial, both policemen who had originally subdued Presland at Blake's house testified that they had told the social worker how Presland screamed about ‘rats’ eating his eyes and toes, about his references to ‘killing the children’ and ‘the devil’, the change in his behaviour from ‘passivity’ when he was handcuffed and the renewed violence when the handcuffs were removed. One policeman testified that he had tried to fully describe what had happened to ensure that Presland was admitted to a psychiatric hospital.

Notes made by a doctor in the emergency ward included the following entries:

Presland agreed to a voluntary overnight hospital admission and it was decided that he should be admitted for further assessment to the James Fletcher Hospital, a mental health facility operated by the Hunter Area Health Service. The social worker later testified that Presland was ‘more than willing’ to go to James Fletcher Hospital and she never considered that he might need to be made an involuntary patient.

The trial judge found that although the emergency doctor spoke to the psychiatry registrar on duty that night at James Fletcher Hospital and sent a brief referral, the John Hunter Hospital notes and ambulance report were not sent to James Fletcher Hospital. The trial judge also found that the required police escort assessment form was not given to the psychiatry registrar at James Fletcher Hospital.

James Fletcher Hospital

At about midnight on Monday 3 July 1995, a psychiatric nurse at John Fletcher Hospital made the following notes:

The admitting psychiatry registrar notes record the following:

The admitting registrar did not record whether Presland was asked about or denied using any stimulant substances (like amphetamines, MDAa or cocaine) and no request for a urine drug screen was recorded. Presland was admitted as a voluntary (informal) patient to an open ward. Subsequent ward nursing staff entries in the medical records referred to Presland stating he was ‘going to do away with himself’, being awake ‘praying’ at 0200 hours on Tuesday 4 July 1995 and Presland saying he was afraid to go asleep because he had ‘seen the devil’ and would ‘die’ if he closed his eyes.

Referring to the nursing notes made overnight, the admitting registrar made a further entry at some time later in the early morning:

The registrar ordered a statum dose of oral chlorpromazine. The admitting registrar gave no verbal handover to the ward registrar who came on duty later in the morning. The court judgements do not record whether Presland received any medication during his overnight admission.

Assessment by ward psychiatry registrar

The ward registrar was an overseas medical graduate who had undertaken studies in psychiatry in his own country and had worked as a psychiatry registrar before migrating to Australia in 1991 and commencing accredited training with the Royal Australian and New Zealand College of Psychiatrists. In 1995, he was employed as a third year training registrar at James Fletcher Hospital.

At trial, the ward registrar testified that after commencing his shift at 08.30 hours on the morning of Tuesday 4 July 1995, he was approached by nursing staff who told him Presland and his brother wanted to leave the hospital. Although the registrar later suggested in evidence at trial that this was a major, indeed the major influence on character of the consultation, the notes of the consultation show no reference to any request or suggestion that Presland wished to leave.

After reading the available hospital notes (including notes made by the admitting registrar and the subsequent nursing entries made overnight), the ward registrar interviewed Presland with his brother. The registrar's notes from 1030 hours record inter alia:

The trial judge noted that even if Presland and his brother had indicated however, strongly a desire to leave the hospital, they had consented to seeing the registrar before doing so. The trial judge was satisfied that in fact Presland's brother was anxious for Presland to stay in hospital.

The trial judge found that even if Presland wished to leave the hospital, this was not the decisive of the ultimate issue at trial as it was Presland's case that, whatever his wishes, it was negligent for the Hunter Area Health Service to have released him, in other words, it was negligent not to have kept him as a voluntary patient or an involuntary patient under the Mental Health Act.

Discharge from hospital

Presland was taken by his brother to his brother's home. Some time within the next 6 hours, after his brother left to gather some clothes and personal articles for him, Presland murdered his brother's fiancée with a kitchen knife. Police who arrived at the scene reported hearing loud smashing noises from inside the house and a male voice screaming unintelligibly. After the door was broken down, police disarmed Presland who was naked, holding a knife and apparently covered in blood.

After his arrest, Presland was taken by police to John Hunter Hospital. He had multiple lacerations including a large laceration to his scalp which required suturing and a blood transfusion. He was later assessed by a consultant psychiatrist who concluded that his symptoms were consistent with ‘a psychotic illness, possibly paranoid schizophrenia’.

Presland was transferred to the psychiatric ward at Long Bay Gaol where he remained for some 5 weeks. He was discharged to remand on 3 August 1995 and was transferred to Maitland Gaol when he was required to attend court and would stay for several weeks at a time where conditions were filthy and overcrowded and where, by his account, he witnessed bashings of other inmates. Presland later testified that he came to understand what had happened and became very depressed and ashamed.

Expert reports

The surgical registrar who first saw Presland on the previous night and had arranged for the CT scan had also arranged for some pathology tests, but no results were ever reported or described.

The trial judge referred to one of the police as saying that Presland had been ‘… breath tested with negative result’ when he was first detained on the Monday night. Other than this cursory observation, there was no reference in any of the written judgements to any psychiatric opinion commenting upon any result of a blood alcohol estimation or urine drug screen taken from Presland at any time.

In a report written in August 1995 (a month after the offence), a consultant psychiatrist wrote that Presland had committed the murder while ‘experiencing a florid alcohol withdrawal syndrome’.

Although Presland gave no previous history of alcohol withdrawal symptoms and had consumed alcohol on the day of the offence, another consultant psychiatrist reported in March 1996 that, at the time of the offence, Presland was suffering from ‘an acute, severe psychotic illness’… ‘likely precipitated by alcohol withdrawal’. The opinion was qualified by the comment that the presence of delusional beliefs in particular suggested ‘other possible causes’. Describing Presland's recovery after he was admitted to the prison hospital 2 days after the homicide, the psychiatrist reported:

Presland was subsequently tried for murder before Newman J sitting without a jury. On 7 May 1996, Presland was found not guilty on the grounds of mental illness and was ordered to be detailed in strict custody in a psychiatric hospital. On 26 November 1997, he was conditionally released following the recommendation of the Mental Health Review Tribunal and required to live in the community in accommodation administered by the Salvation Army. On 25 March 1998, Presland was released from detention under the Act by an Order in Council.

Duty of care

It is established law that among the categories which might impose a common law duty of care upon a statutory public authority was conduct by which a public authority ‘… may place itself in such a position that others rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action’.b The principle is that if statutory powers are conferred, they must be exercised with reasonable care, so that if those who exercise them could, by reasonable precaution, have prevented an injury which has been occasioned, and it was likely to have been occasioned by their exercise, damages for negligence may be recovered.

Division 2 of Part 1 of the Mental Health Act (NSW) provides for an inquiry to be made by a Magistrate following the detention of someone as a mentally ill or mentally disordered person. The person must be brought before a Magistrate as soon as possible, the hearing is conducted in public and the person is entitled to be legally represented. If the Magistrate is of the opinion that no other care of a less restrictive nature is appropriate and reasonably available or that for any other reason it is not appropriate to take the action proposed, the Magistrate must direct that the person be detained.

At trial, it was argued that a Magistrate conducting such an inquiry is protected from suit and that this indicated that it was not intended by the legislature to impose liability for negligence on doctors exercising the function of making decisions under sections 9 and 10 (criteria for involuntary admission) or cognate provisions of the Act.

While accepting that the immunity from suit conferred on magistrates was fundamental to their exercise of their judicial and quasi-judicial functions and existed as a matter of public policy, Adam J rejected the argument that there was a good reason for extending to doctors anything resembling statutory immunity from law suits in circumstances such as those that the registrar at John Fletcher Hospital found himself.

His Honour noted that a feature of the case was that Presland claimed that there was a statutory duty on the part of the Hunter Area Medical Service to detain him against his will to prevent him doing harm to others or himself. Adams J was satisfied that such a duty existed ‘… where a person refuses treatment because they are mentally ill or mentally disordered person and would otherwise suffer or cause serious injury. The administration of medicine or even surgery that is necessary to avoid this consequence is not only permitted, but required…c

Mental Health Act

Rejecting the proposition suggested by an expert witness that when deciding whether to detain a patient in hospital for further assessment under the Act, a doctor will be particularly influenced by regard to the patient's right to liberty, His Honour said:

Findings of negligence

Adams J made a number of adverse findings against the registrar who assessed Presland on the morning after his admission to John Fletcher Hospital. Although His Honour found it probable that a number of documents containing crucial collateral information were not available in the John Fletcher Hospital file, the registrar's consultation was, in a number of respects ‘seriously inadequate’.

Adams J held that the psychiatry registrar was obliged to take into account the whole clinical presentation (including the possibility that Presland's symptoms might fiuctuate or that Presland's account was selfcensored) and make reasonable inquiries as to available collateral information.

Adams J held that the most useful predictor of dangerousness is past dangerousness especially in the context of a patient who has been violent in the immediate previous hours. His Honour found that there was sufficient information available in Presland's hospital record to alert the registrar to the risk that there had been serious violence in the previous 12 hours which should have alerted him to the necessity to ensure that apparently irrational elements of Presland's history were explored to see if they were still present and whether they represented a risk of serious injury to Presland or others.

His Honour held that Presland's care had been negligent and that it was foreseeable that without appropriate treatment (namely detention), Presland might suffer harm by seriously injuring himself or another.

Adams J concluded that Presland's killing of his victim and the adverse personal and legal consequences which followed were both foreseeable and caused by the negligence of the psychiatry registrar (and vicariously the Hunter Area Health Service) who discharged him on the morning of the homicide.

While concluding that it was difficult to predict whether Presland's symptoms would have recurred, His Honour found that were it not for the homicide, Presland would probably have been detained in hospital for approximately 4 weeks. Presland was awarded $225 000 damages for pain and suffering (incurred in his incarceration and prolonged hospitalization) and in excess of $100 000 for loss of income.

Judgement of Sheller JA

In the most detailed judgement of the Court of Appeal, Sheller JA observed that both defendants accepted that they each owed the plaintiff a general duty of care at common law. This concession inevitably recognized that if the plaintiff should have been detained because he was mentally ill and there were grounds for believing that his detention was necessary to protect others from serious harm, the defendants could scarcely argue that they could not have foreseen the risk of injury of the kind that in fact occurred.

Further, His Honour emphasized that it was obvious that a person charged with the care of another person who is mentally ill to a degree that he may cause serious harm to others, owes a duty to the patient to take reasonable care to ensure that the patient does not do serious harm to others.

His Honour first considered the argument that some intervening action or event (which was itself ‘foreseeable’) could break the chain of causation between the negligence and the damages and make an otherwise negligent defendant not liable for damages which resulted from that intervening action or event.

His Honour held that this argument was not compelling if the intervening action was in the ordinary course of things, the very kind of thing likely to happen as a result of the defendant's negligence.

His Honour held that although Presland's claim for damages was to compensate him for the results of his actions in killing his victim, Presland's losses could be traced back to the negligence of the Hunter Area Health Service and the psychiatry registrar for not detaining him in hospital.

His Honour held that had Presland in the event not killed Ms Laws but injured himself in an attempted suicide and sued the health service for damages, a defence raised by the health authority that the act of attempted suicide was ‘voluntary’ may not have succeeded for reason that the health service's negligence foreseeably resulted in an increased risk of injury to the plaintiff and that risk had eventuated. His Honour held that the defendants’ conduct had materially contributed to Presland's injuries whether or not other factors, and particularly Presland's voluntary act, had contributed to its occurrence.g

However, His Honour found that two considerations stood in the way of Presland's case. Although he was acquitted on the grounds of mental illness, Presland's act was an unlawful act. Presland's crime was not a justifiable homicide but was an unlawful homicide for which he was not criminally responsible.

The damages Presland sought were for the consequences of that act of killing. The result of that act was that Presland was lawfully detained in a psychiatric hospital until released by the due process of law. His Honour held that public policy must loom large in a court's consideration of whether Presland should be compensated for the harm so suffered.

In considering the responsibility of one person to another for the harm done to the latter by a third person, His Honour referred to the special relationship between a parent and a young child and cited the well-known passage in the decision of the Australian High Court in Smith v Leurs:

Referring to the present case, His Honour observed:

His Honour found also that the Mental Health Act was directed to enabling detention only as a last resort and it was doubtful whether the policy behind the statutory provisions contemplated or permitted an aggrieved party to recover damages because a doctor refused to admit him or her as a voluntary patient, albeit that the decision to refuse to admit was a negligent decision. His Honour held that to permit such a construction of the Act would have the tendency to discourage the due performance by the statutory authority and its servant doctors of duties and responsibilities under the Act –in particular, the fundamental principle of providing the least restrictive treatment.

Judgement of Santow JA

Agreeing with Sheller, J., Stanlow J held that both at common law and in relation to the relevant statute, the duty of care owed by the registrar employed by the Hunter Area Health Service did not extend to the registrar's decision whether or not to detain Presland so as permit Presland to later recover damages for non-physical injury essentially based on a loss of liberty.

His Honour held that to impose such an extended duty would distort the impartiality of the exercise of discretion under the Mental Health Act by introducing a detrimentally defensive frame of mind and promote a bias towards detention when that should be an impartial decision taken only when fully justified if not as a last resort.

As a corollary, His Honour found that if the exercise of the discretion not to detain gave rise to legal liability in negligence at the suit of the person not detained, it must follow that in other circumstances legal liability in negligence would attach to the decision to detain compulsorily which would further distort the discretion in a way that would be contrary to the purpose of the statutory scheme.

The Latin phrase ex turpi causa-non-actio (‘… from a base cause, an action does not arise’) refers to the legal maxim which requires that a court should refuse to assist a litigant who brings an action predicated upon an immoral or illegal act. Stated another way, the maxim precludes an award of damages to a plaintiff who genuinely seeks to profit from illegal conduct or where the compensation claimed amounts to an evasion of a criminal sanction.

It is accepted law that for the maxim to apply, the claimant's conduct must be so clearly reprehensible as to justify condemnation by the court. If the maxim applies, the cause of action does not arise and the defendant's conduct, even if held to be negligent, is irrelevant.

Invoking the doctrine of ex turpi causa-non-oritur actio, His Honour added that it would be unjust to render the defendants legally responsible for a non-physical injury traced back to Presland's unlawful but not criminal conduct. While excused, Presland's act constituted wholly unreasonable and unjustified action although lacking moral culpability by reason of his insanity.

English case authority

Courts have clearly been reluctant to hold statutory authorities liable for the consequences of the actions of persons under their care, supervision or control.

In Clunis v Camden&Islington Health Authority,j the plaintiff had a history of mental illness and had been detained in hospital under the Mental Health Act 1982 (UK). After his discharge from hospital, he was subject to after-care by the defendant health authority and Social Services. The after-care was not provided partly because the plaintiff failed to attend two mental health clinic appointments which had been arranged for him. The plaintiff's mental state deteriorated over 2 months and Social Services were subsequently advised by local police that the plaintiff had been observed ‘waving screw drivers and knives and talking about devils.’ However, the reporting police constable had apparently not taken any action to remove the plaintiff to a place of safety and, during a delay in arranging an urgent assessment later that day, the plaintiff, in a sudden and unprovoked attack, stabbed to death an unrelated person on a London subway station.

The plaintiff was later held to have been suffering from schizoaffective disorder and subsequently was found of diminished responsibility and was ordered to be detained in a secure hospital. He brought an action claiming a breach of the common law duty of care and contended that, if he had been assessed in a timely and proper manner, he would either have been detained or would have consented to becoming a patient and would not have committed the manslaughter. It was contended that, in consequence of the defendant's breach of duty, the plaintiff was unlikely to regain his liberty for many years. In dismissing an appeal, the Court of Appeal held that the rule of public policy that a plaintiff should not be able to rely on his own criminal act required a court to deny its aid to a plaintiff seeking to enforce a cause of action if the plaintiff was implicated in the illegality.

The Court also held that the Mental Health Act 1982 (UK) did not found a cause of action for failure to carry out the duties under statute. The Court held that the local authority was not negligent for failing to arrange a more prompt assessment of the plaintiff's mental state. The Court further held that the employed psychiatrist should not be held liable to the plaintiff for damages for failure to arrange the plain-tiff's assessment more speedily than she did. An application for leave to appeal the decision in Clunis to the House of Lords was dismissed.