Abstract
Dear Sir,
To what extent are psychiatrists accountable for the behaviour of their patients, and how do these concerns balance against the principle of least restrictive care?
This is a question we ask ourselves often in the acute setting when we make decisions about involuntary admission, and it may provide some comfort to clinicians that the High Court has reinforced the importance of ensuring least restrictive care in its recent judgement on the appeals of the matters of Hunter and New England Local Health District v McKenna (2014) and Hunter and New England Local Health District v Simon (2014). 1
In 2004 Mr Phillip Pettigrove, a man with schizophrenia, tragically killed his friend Mr Stephen Rose after an overnight stay at Manning Base Hospital in Taree, NSW. Mr Rose brought his friend to the hospital because of psychotic symptoms, and Mr Pettigrove was released from hospital and back into his friend’s care the following day for transport to Victoria, his home state. Relatives of Mr Rose sued the health service for damages alleging psychiatric injury to them leading from the death, and accusing the treating doctor of negligence in discharging Mr Pettigrove. The District Court found no breach of duty of care, the family appealed to the Court of Appeal which disagreed and so the decision was appealed to the High Court.
The High Court seemed to grasp the difficulty of the dilemma we face, in deciding whether to wear our libertarian hat and strictly adhere to the need to give ‘care and treatment in the least restrictive environment’, 2 or our paternalistic hat evident in the family’s argument that there was a duty owed to them breached by negligence. Indeed the discussion between Mr R.J. Cheney, SC, (acting for the health department), and the Honourable Justice Keane, describes the tension: 3
… It may at first blush seem to be an odd or an unusual conclusion that the welfare of the public at large is not an object of the Mental Health Act, but if one stands back and puts oneself in the position of the medicos they would be cast in an impossible position if, on the one hand they were to give primary concern to the welfare of the patient and yet be constrained by, at every turn, the further inquiry whether if I discharge this person into the care of a friend or relative, or indeed, into the care of his treating – treators in another facility, that something untoward may befall the public by reason of that person’s discharge. It would put the medicos in an impossible position, in my submission, and that –
Well, it would put them in an impossible position or it would mean that their decision making would be affected –
And conservative, yes.
– and the default position would be to detain.
The bench, in a unanimous verdict, identified the principle of ‘inconsistent duties’ to make their judgement, that when various duties contradict, no duty is owed. Therefore they concluded that in this case no duty was owed to the relatives of Mr Pettigrove.
On first reading, this judgement seems to focus our decision making on the patient’s rights, with quite a firmly libertarian reading of the law. There seems to be a systemic risk, however, in this conclusion. Services under extreme pressure can be tempted to use the libertarian argument to prematurely discharge ill patients. One would hate to think that the strained practicalities of our mental health system might in some way encourage a judgement supporting premature discharge, particularly when patients suffering from schizophrenia, often with poor insight, may disproportionately suffer the consequences.
Footnotes
Disclosure
The authors report no conflict of interest. The authors alone are responsible for the content and writing of the paper.