Cases and Comments. Where is the Line to be Drawn? Medical Negligence and Insanity in Hunter Area Health Service v Presland

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1 Cases and Comments Where is the Line to be Drawn? Medical Negligence and Insanity in Hunter Area Health Service v Presland KATHRYN PETERSON * It sometimes happens that we are punished for our faults by incidents, in the causation of which these faults had no share. SAMUEL TAYLOR COLERIDGE, BIOGRAPHIA LITERARIA, SIBYLLINE LEAVES (1817) The frenzy of the brain may be redress d By med cine well applied, but without grace The Heart s insanity admits no cure. WILLIAM COWPER, THE TASK (1784) 1. Introduction Most actions in negligence raise the thorny policy question of personal responsibility. Where is the line to be drawn between individual accountability and reasonable reliance on the prudence and good sense of others? This common conundrum was amplified in the recent, and highly unusual case of Hunter Area Health Service & Anor v Presland. 1 The case involved a negligence action by a mentally-ill plaintiff against a public health service administering two hospitals where he was treated and an individual medical registrar. In July 1995 the plaintiff had arrived at hospital in clear psychiatric distress and medical staff decided not to compulsorily admit him. The plaintiff was quickly released from hospital and subsequently attacked and killed a young woman. The crux of the plaintiff s case was that liability could arise from a negligent failure to involuntarily detain. Under these circumstances, Sheller JA asked where is the line to be drawn either in the case of a claim by the attacker for the consequences of his attack (the present case) or a claim by the victim or the victim s representatives? 2 Any negligence action presents a number of outs for courts looking to deny liability. Even if a duty is established, a statute may intrude or the defendant s conduct may be found lax but reasonable, or causation may be untenable. Presland presents an example of such a web of hurdles and caveats. Such civil cases involving insanity and negligence are likely to be rare, if not unique; yet this field provides rich data for questioning whether we are drawing lines based on instinct 1 * Law Student University of Sydney. Many thanks to Barbara McDonald for her valuable insight and helpful advice. All errors or omissions are my own. 1 (2005) 63 NSWLR 22 (hereafter Presland Court of Appeal). 2 Presland Court of Appeal above n1 at 102.

2 182 SYDNEY LAW REVIEW [VOL 28: 181 or based on principle. The purpose of this paper is to review this decision and comment on the potential to draw a brighter line in cases involving insanity and medical negligence. 2. Statutory Context The Mental Health Act 1990 (NSW) (MHA) deals with the care, treatment and control of mentally ill and mentally disordered persons. The MHA permits involuntary admission. The statutory scheme commands a refusal to detain unless certain criteria are satisfied, in which case the medical practitioner is empowered to detain a patient. This remains a discretionary decision. Further, s 4(2) states the intention that mentally ill or disordered persons are to receive the best possible care and treatment in the least restrictive environment and interference with the liberty rights, dignity and self-respect of patients is to be kept to the minimum necessary in the circumstances. 3 The possibility of involuntary admission was the basis for Mr Presland s case. s21 of the MHA defines the scope for involuntary admission by a medical practitioner. The practitioner must have personally examined or observed the patient shortly before admitting them and must be satisfied that no other appropriate means for dealing with the person are reasonably available, and that involuntary admission and detention are necessary. 4 The terms mentally ill person and mentally disordered person are defined in sections 9 and The primary criterion in both cases is that there are reasonable grounds for believing that care, treatment or control of the person is necessary to protect the patient and others from serious physical harm The Facts On 3 July 1995 police officers took the plaintiff, Kevin Presland, to John Hunter Hospital following an episode of irrational and violent behaviour. 7 Mr Presland was suffering hallucinations and engaging in violent and threatening conduct. Mr Presland had head-butted walls, attacked a fence and threatened to kill his friend and a young child. This conduct was reported to medical staff both verbally and in writing by the police who accompanied Mr Presland to hospital. After general medical treatment, the plaintiff was transferred to James Fletcher Hospital (a public psychiatric hospital) and, in the early hours of 4 July 1995, was 3 Mental Health Act 1990 (NSW) s4(2)(a), (b) (hereafter MHA). 4 MHA s21(1). 5 Under section 9 a mentally ill person must exhibit a recognised mental illness, whereas a patient is defined as a mentally disordered person if the person s behaviour for the time being is so irrational as to justify on reasonable grounds the need for temporary involuntary admission to prevent harm under section These definitions were amended in The sections now turn on serious harm rather than serious physical harm. 7 Presland v Hunter Area Health Service & Anor [2003] NSWSC 754 at paras (Adams J) (hereafter Presland First Instance).

3 2006] CASES AND COMMENTS 183 admitted as a voluntary patient. Shortly afterwards, he was seen by a psychiatric nurse and the registrar on duty. The plaintiff was discharged mid-morning after an assessment by a psychiatric registrar, Dr Nazarian, who diagnosed no psychotic illness. Six hours later Mr Presland killed his brother s fiancée, Ms Laws, during a psychotic episode. Mr Presland was charged with murder. On 7 May 1996 he was found not guilty on the ground of mental illness. Newman J ordered Mr Presland to be detained as a forensic patient in a psychiatric ward under s39 of the Mental Health (Criminal Procedure) Act 1990 (NSW). Mr Presland was released on 8 December 1997 under the supervision of the NSW Mental Health Review Tribunal. 8 Mr Presland sued Dr Nazarian and the Hunter Area Health Service, which administered James Fletcher Hospital. The plaintiff argued that it was negligent for the Hunter Area Health Service (which ran both hospitals) and the doctor who discharged him not to have detained him as an involuntary patient. He submitted that this would have averted the death of Ms Laws and prevented his subsequent incarceration, psychological distress and economic loss. He sought damages relating to the trauma of his forensic detention and associated loss of income. Mr Presland succeeded before Adams J in the Supreme Court of New South Wales and was awarded $ general damages and $ for economic loss. 9 Adams J found numerous inadequacies in the care and treatment provided to Mr Presland and the administrative structures within the hospitals. These findings of fact were upheld unanimously on appeal. It is sufficient therefore to describe the key aspects of negligence identified. Dr Nazarian s diagnostic assessment was seriously inadequate. Key concerns included the brevity of the consultation, the inadequate notes taken, and the fact that Mr Presland s brother participated in the discussion. There were obvious omissions in Dr Nazarian s questioning of Mr Presland. 10 Adams J concluded [Dr Nazarian] did not see any psychotic illness or a psychiatric disorder, in my opinion, because he did not conscientiously look for them. I regret to say that I think that Dr Nazarian was merely going through the motions and, even then, only some of them An ABC radio report in June 2005 indicated that Mr Presland subsequently breached his conditions of release by using marijuana, and was returned to custody in late Mr Presland s Legal Aid lawyer, Robert Wheeler, stated in the interview that during the 18 months since his return to detention the Mental Health Review Tribunal twice recommended Mr Presland be conditionally released. The Minister refused both of those recommendations; ABC Radio National, The Law Report The Case of Kevin Presland (14 June 2005) <http:// (accessed 28 February 2006). 9 Presland First Instance, above n7 at For commentary on the decision at the time of judgment see Peter Crofts, Presland v Hunter Area Health Service duty to psychotic patient at risk of harming others (2003) 12(3) Australian Health Law Bulletin 29 and Ian Freckleton, Liability of Psychiatrists for Failure to Certify Presland v Hunter Area Health Service and Dr Nazarian [2003] NSWSC 754 (2003) 10(2) Psychiatry, Psychology and Law For example, Dr Nazarian did not explore what the patient s feelings were at the time of the fight prior to admission, why he had head-butted a door and attacked a fence, whether he thought he would die if he slept or closed his eyes (a feeling he had reported to medical staff repeatedly), nor what he thought about rats, the devil and death (all issues he had raised in disordered terms).

4 184 SYDNEY LAW REVIEW [VOL 28: 181 Further, Dr Nazarian proceeded on the basis that Mr Presland s brother wanted him discharged. This was factually incorrect. In any event, his brother s wishes were of marginal relevance at best to Mr Presland s mental state and suitability for admission. Mr Presland s hospital file was poorly maintained and key documents reporting his pre-admission episode were either misplaced or ignored. Communication between John Hunter Hospital and James Fletcher Hospital was poor and critical information was not recorded by staff at James Fletcher Hospital. 4. Issues The case raised a number of critical legal questions, namely: i. Could the applicable statutory scheme, the Mental Health Act 1990 (NSW) admit a concurrent common law duty of care? If so, what was the scope of this duty? ii. Did the plaintiff s unlawful attack while mentally ill prevent recovery? If so, was this because causation was untenable or because policy dictated that a remedy should be denied? At first instance, Adams J focused more on the first of these questions. In determining the scope of the relevant duty of care, given the framework of the MHA, Adams J applied the six-stage test set out by McHugh J in Crimmins v Stevedoring Industry Finance Committee. 12 He found there was a common law duty of care. The risk determining the scope of this duty was that the plaintiff, without appropriate treatment (that is, detention) might suffer harm by seriously injuring himself or another. 13 Adams J did not identify any obstacles to recovery either on the basis of foreseeability or causation. In April 2005, the New South Wales Court of Appeal overturned the trial decision (Spigelman CJ dissenting). On appeal, both of the issues listed above featured prominently. The factual findings of the trial judge were not disturbed, however, the legal conclusions of Adams J were reversed. As a side matter, the Court of Appeal also ruled that had the substantive appeal been unsuccessful, the damages awarded should have nonetheless been reduced. The figure of $ for general damages was held to be manifestly excessive. 14 The Court of Appeal would have substituted the amount of $ , attributable as 75 per cent for past damage and 25 per cent for the future. 15 This damage concerned the loss of amenities and intrusive supervision and restraint during confinement as a forensic 11 Presland First Instance, above n7 at (1999) 200 CLR 1 at 39 (hereafter Crimmins), applied in Presland First Instance, above n7 at para Presland First Instance, above n7 at para Presland Court of Appeal, above n1 at 41 (Spigelman CJ), at 123 (Santow JA), at (Sheller JA). 15 Id at 307.

5 2006] CASES AND COMMENTS 185 patient. The Court of Appeal did not comment on the $ awarded for economic loss. The following discussion describes the approach of the Court of Appeal to the two issues described above and comments on the majority approach in light of broad policy concerns about mental health services and international case law dealing with insanity and medical negligence. 5. Statutory Powers and Common Law Duties The coexistence of statutory powers and common law liability is an unsettled issue. In Crimmins, the High Court expressed six different views on the circumstances justifying a common law duty to exercise a statutory power. 16 In Presland, the Court of Appeal favoured a four-stage test. The Adams J at first instance had applied McHugh J s six-step test from Crimmins. On appeal, Spigelman CJ considered that Graham Barclay Oysters Pty Ltd v Ryan had modified this approach, requiring instead a four-step inquiry addressing purpose, control, vulnerability and coherence. 17 Santow JA agreed, albeit without directly addressing the question of selecting an appropriate test. 18 Sheller JA provided little guidance on the issue. The divergence between Spigelman CJ, who found for Mr Presland on the duty question, and Santow JA, who did not, is explained by how the four-stage test was applied. Both judges held that a consideration of the statutory purpose did not favour a duty. The harm suffered by Mr Presland during forensic detention was outside the purpose of the MHA. Sections 9 and 10 of the MHA showed that the Act was concerned with preventing serious physical harm to Mr Presland or others, not non-physical consequences of such conduct. 19 The Judges then disagreed on the significance of control, vulnerability and coherence in the circumstances. For both Spigelman CJ and Santow JA, control and vulnerability were interrelated, however they drew markedly different conclusions. The locus of inquiry for Spigelman CJ was the narrow clinical setting of a patient seeking psychiatric treatment and a medical practitioner providing treatment. It was a question of control in context how did control and vulnerability manifest in this setting? On the matter of control, Spigelman CJ cited Graham Barclay Oysters, Brodie v Singleton Shire Council 20 and Crimmins to the effect that the key issue is the presence of a special degree of control over the safety or conduct of a person. 21 In particular, Spigelman CJ quoted McHugh J in Crimmins, who stated: it can seldom be the case that a person who controls or 16 See for discussion Martin Davies, Common law liability of statutory authorities: Crimmins v Stevedoring Industry Finance Committee (2000) 8 Torts Law Journal Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 (hereafter Graham Barclay Oysters). 18 Presland Court of Appeal, above n1 at 109 (Santow JA). 19 Id at 28, 30 (Spigelman CJ) and at (Santow JA). 20 (2001) 206 CLR 512 (hereafter Brodie). 21 Presland Court of Appeal, above n1 at 28 (citing Gaudron, McHugh & Gummow JJ in Brodie at 559 and McHugh J in Crimmins at 42).

6 186 SYDNEY LAW REVIEW [VOL 28: 181 directs another person, does not owe that person a duty to take reasonable care to avoid risks of harm from that direction or the effect of that control. Such control was evident in the power to involuntarily detain and was especially significant where a patient was unable to understand the desirability of their own admission. 22 This factor was therefore entitled to substantial weight. 23 Vulnerability was a corollary of such control. For Spigelman CJ, vulnerability is the inability of a person to protect himself or herself from the consequences of negligent conduct by a medical practitioner acting under s18 or s Again, in circumstances where a patient is unable to understand the desirability of admission, the scope for voluntary admission under the MHA did not detract from the overarching vulnerability of a person in Mr Presland s position. 25 The locus of inquiry for Santow JA was the broader setting of a potentially dangerous patient presenting for psychiatric assessment. It was a question of controlling a dynamic risk of violence by the patient. Control was therefore less significant as the MHA provided only a limited, conditional power to detain and compulsory detention is unlikely under the Act to last very long if resisted, given the statutory constraints. 26 This did not amount to full control of the relevant risk, namely the risk that the person concerned will later kill or injure someone while insane. 27 Vulnerability was also framed differently. Mr Presland was vulnerable to committing homicidal acts whilst insane, but there was no certainty that treatment during a period of compulsory admission would be effective. 28 Consequently, for Santow JA neither control nor vulnerability warranted the imposition of a duty covering non-physical injury. 29 In considering which approach is more compelling, it is relevant to emphasise that control and vulnerability are considerations going to the existence of a duty. This is a threshold inquiry prior to considering the appropriate scope of liability for consequences of tortious conduct. Spigelman CJ s approach helpfully focuses on the relationship created by the statutory arrangement before moving to the potentially fatal consequences of negligence. The final factor in the four-stage test is coherence, that is, whether a common law duty would be incompatible with the statutory function, for example by distorting the focus of decision-making 30 or otherwise undermining the due performance of statutory duties. 31 This issue was another key point of departure between Spigelman CJ in dissent and Santow JA. Further, although Sheller JA did 22 Id at Ibid. 24 Id at Ibid. 26 Id at Ibid. 28 Id at Id at Crimmins, above n12 at 292; see also Hill v Chief Constable of West Yorkshire [1989] AC 53 (hereafter Hill). 31 See X v Bedfordshire County Council [1995] 2 AC 633; Graham Barclay Oysters, above n18 at 574; Crimmins, above n12 at 77.

7 2006] CASES AND COMMENTS 187 not articulate an appropriate test in exact terms, incoherence between common law duty and statutory function featured prominently in his judgment. Spigelman CJ believed that the statutory scheme for the review of admission decisions would minimise the risk of defensive medicine impinging on the civil liberties of patients. He also considered that the extended duty, covering nonphysical injury, that Mr Presland s case sought to establish would not amplify any existing incentives towards defensive medicine. The threat of liability was already a presence in the hospital setting. The majority judges, by contrast, considered that common law liability would encourage a detrimentally defensive frame of mind in officers making decisions under the MHA. 32 Common law liability would encourage preventative detention. Santow JA considered that the judicial difference of opinion in Harry v Mental Health Review Tribunal 33 was instructive on the question of purpose and incoherence. In that case Kirby P expressed the view that the civil rights of a patient should be given primacy over the perceived interests of the patient and society when interpreting the MHA, while Mahoney JA averred this approach. Santow JA considered that Harry highlighted a fundamental point about which there is unlikely to be dispute, that being the need for impartial decisionmaking. 34 Imposing a duty would exert a chilling effect on decision-making due to the threat of civil suit. 35 The idea of liability-conscious preventative detention has intuitive appeal. One of the key assumptions of this detrimentally defensive frame of mind argument is that imposing liability would favour involuntary admission. This view was expressed in the American decision of Williamson v Liptzin, 36 as cited by Sheller JA, where the court said: [i]mposing liability would encourage psychiatrists and other mental health providers to return to paternalistic practices, such as involuntary commitment, to protect themselves against possible medical malpractice liability few releases would ever be made and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated (references omitted) 37 There is, however, an element of circularity in this approach. First, it anticipates that officers negligently exercising a statutory power would, when faced with the prospect of civil liability, increase that misconduct by further marginalising the statutory framework they are meant to apply and act in fear of liability. This shows a concerning scepticism about the integrity of medical decision-making. Secondly, there is no reason to assume such a concern over liability would always favour detention. It is notable that Mr Presland sought to recover damages relating to a 32 Presland Court of Appeal, above n1 at (Sheller JA) at 112, 129 (Santow JA). 33 (1994) 33 NSWLR 315 (hereafter Harry). 34 Presland Court of Appeal, above n1 at Id at SE 2d 313 (2000) at Williamson v Liptzin, id at 323, cited in Presland Court of Appeal, above n1 at 101.

8 188 SYDNEY LAW REVIEW [VOL 28: 181 period of lawful detention as a forensic patient, following the killing of Ms Laws. In the Court of Appeal this was not expressly ruled out. 38 There are therefore grounds for suggesting that where a future patient was negligently admitted liability could arise relating to that compulsory admission, even if it was lawful under the MHA. Sheller JA s treatment of this issue is particularly unconvincing. After identifying the risk of defensive medicine, Sheller JA concludes: [t]here is no reason whatsoever to doubt that persons working in a psychiatric hospital would be applying their best endeavors to the care of those who come to the hospital. From time to time, things go wrong. 39 This misleadingly implies that good intentions are a defence to negligence and is, in truth, irrelevant. It is axiomatic that the tort of negligence judges the doing rather than the doer. 40 Regardless of these analytical reservations, one can also question the reality of defensive medicine by reference to the public policy responses to the first instance result in favour of Mr Presland. The most obvious consequence was the introduction of s54a into the Civil Liability Act 1990 (NSW) (hereafter Civil Liability Act). This was a direct and reactionary response to Presland s case. During his second reading speech of the relevant bill, the Special Minister of State, John Della Bosca, commented: [t]he community rightly was outraged about the court decision because it allowed Kevin Presland to benefit, even though he had caused the death of his brother s fiancée. 41 The section excludes recovery for loss of earnings and non-economic loss where liability arises out of the death, injury or damage to a person where the conduct would have constituted a serious offence if the person had not been experiencing mental illness at the time. Although clearly intended to address the Presland scenario, it is questionable whether liability in such cases arises out of the death, injury or damage to a person (here, Ms Laws). Rather, liability could be said to arise out of the negligent conduct of the medical staff. Either way, it is clear that Parliament does and can respond where judicial outcomes are considered socially unacceptable. In December 2003, approximately four months after the first instance decision, the NSW Mental Health Sentinel Events Review Committee published Tracking Tragedy, their first report providing systemic analysis of suicide and homicide deaths committed by patients in contact with mental health services in NSW. The report stated: 38 See discussion of damages, Presland Court of Appeal, above n1 at (Sheller JA). 39 Id at James Goudkamp, The Spurious Relationship between Moral Blameworthiness and Liability in Negligence (2004) Melbourne University Law Review 11. See for example the paradigm case of Vaughn v Menlove (1837) 3 Bing NC 467, 132 ER 490 (CP). 41 New South Wales Legislative Council Hansard, Civil Liability Amendment Bill, Second Reading, 4 December 2003.

9 2006] CASES AND COMMENTS 189 [c]linical judgment is relied on in every setting within mental health services [and w]hile the Committee recognizes that tragic events such as suicide deaths and homicides are not necessarily predictable amongst mental health patients under care a level of accountability nevertheless must be accepted. 42 The Committee s analysis runs contrary to Sheller JA s homily that from time to time, things go wrong. 43 Instead, the report describes systemic inadequacies and recurrent failures in psychiatric care that echo Mr Presland s experience poor communication, poor record keeping, a lack of risk management protocols, and poor assessment procedures. 44 While traced primarily to inadequate resources, the Committee provided a number of recommendations that are well adapted to managing legal risks. These include the development of assessment protocols identifying markers of heightened risk of violence, standardised risk management processes, and better record keeping. 45 In mid 2004, the New South Wales state government announced an additional $241 million to be spent on mental health, over four years, with an emphasis on creating three new Psychiatric Emergency Care Centres (PECCs) to improve assessment and treatment in the critical early period following admission, introducing new electronic medical record systems and building a new forensic psychiatric facility at Long Bay Gaol. Policy debates about mental health are outside the scope of this paper, however the policy responses identified do tend to present a more positive view of the impact of the threat of liability. Commenting on the first instance decision by Adams J, Freckleton took the following view: It may well be that the most significant result of the judgment of Adams J in Presland v Hunter Area Health Service will be that significant pressure will be placed upon psychiatrists and psychiatric hospitals to consider the foreseeable consequences to their patients and third persons if patients are released when acutely unwell and not yet ready to function within the community. If such is the result of the judgment, this may constitute Australia s most significant step thus far in according rights to adequate treatment for persons who are psychiatrically unwell. 46 There are genuine grounds for reiterating this hope and questioning the reasoning of the Court of Appeal. Individual civil remedies are not an ideal solution to systemic problems; however liability can act as a catalyst to reform where the system reveals a habit of failing vulnerable individuals. 6. Causation and Policy Mr Presland s conduct presented two queries as to causation. First, is an insane act voluntary and therefore a novus actus interveniens? This issue most commonly arises following acts of suicide. Secondly, is unlawful conduct a bar to recovery? 42 NSW Mental Health Sentinel Events Review Committee, Tracking Tragedy A systemic look at suicides and homicides amongst mental health patients (2003) at v. 43 Presland Court of Appeal, above n1 at Id at Ibid, see especially recommendations 3, 1 and Freckleton, above n9 at

10 190 SYDNEY LAW REVIEW [VOL 28: 181 Each judge tended to deal with these two questions as a compound issue, asking whether unlawful killing, divorced from criminal responsibility by virtue of mental illness, severed causation. The different conclusions on this question can be briefly stated. Santow JA refused recovery due to causal uncertainty and the legal policy preventing unlawful conduct from founding a cause of action. Sheller JA did not ultimately decide the issue but certainly had sympathy for this approach. Spigelman CJ dissented. It is appropriate to consider the reasoning behind each approach. A. Santow JA Santow JA refused recovery by reference to both policy and principle. First, there is a clear statement of policy. [I]t would be unjust for the common law to allow the respondent a remedy for the non-physical injuries he has suffered. 47 This conclusion was based on what I conceive legal policy, ultimately based on community values, would consider just in such a case. 48 This turned on the ideas of HLA Hart, and specifically that insanity is an excuse, not a justification for what remains an unlawful act. 49 The second concern was causal uncertainty. Specifically, had the alleged duty been performed and a period of compulsory admission followed, providing him access to treatment in that four weeks 50 does not mean that it could have been effectively imposed against his will or would have removed the risk of psychotic behaviour. 51 This view follows from Santow JA s approach to the duty question. For Santow JA, the Presland case could be distinguished from cases such as Chappel v Hart, 52 where it was known the plaintiff would not have proceeded with surgery if properly warned of the risk. Critically his honour held, if it be accepted that the risk of a psychotic episode leading to the death of some other third party if not Ms Laws, may have been reduced [following treatment], it certainly would not, on the evidence, have been eliminated. 53 One reservation about this approach concerns the level of certainty apparently required. It is not clear that causation should require that the negligent conduct be the only possible catalyst for a particular harmful event. Such an approach is illadapted to the episodic nature of psychotic mental illness, which may involve the same risk (in this case, of violent conduct) arising at regular intervals. On each occasion proper medical treatment may avert the risk. One must be careful to avoid the regrettable assumption that mental illness is for all time a marker of violent behaviour. The links between mental illness and violence are often misrepresented and overstated in a manner that unfairly cements the stigma of mental illness Presland Court of Appeal, above n1 at Ibid. 49 Id at The trial judge estimated that Mr Presland would have been detained for four to six weeks but for the negligent assessment. This estimate was based on expert evidence by psychiatrists; see Presland First Instance, above n7 at Presland Court of Appeal, above n1 at (1998) 195 CLR Presland Court of Appeal, above n1 at 107.

11 2006] CASES AND COMMENTS 191 B. Sheller JA Although engaging in an extensive review of relevant caselaw, Sheller JA ultimately sidelined the direct question of insanity and causation. This review did, however, yield certain key principles. First, a critical concern in this setting must be the potential clash between civil and criminal law. 55 Secondly, in cases where a civil remedy is refused, the focus is commonly on the rational and voluntary character of the plaintiff s conduct. Thirdly, however, where criminal conduct is said to negative causation, this position can be trumped by the plaintiff s showing that the defendant came under a duty of care to guard against the risk of injury arising from the plaintiff s deliberate or voluntary conduct and not to expose the plaintiff to that risk. 56 The decision of the Supreme Court of North Dakota in Champagne v United States 57 was particularly relevant. The court in that case held: when a patient s suicide is a foreseeable consequence of the medical provider s negligent care, the act of suicide cannot be deemed a superseding intervening cause. Drawing on Smith v Leurs, 58 Sheller JA considered the special type of case where A s duty of care extends to preventing B from causing damage to C. Smith v Leurs involved such a duty arising from the special relations between a parent and child (A and B). Sheller JA said: [i]n the present case, the duty to control or indeed the ability to control depended upon a decision to exercise the power of detention. Once that control was lost by the refusal to detain, it is difficult to see how a duty to control extended for some indeterminate time while the plaintiff was at large. 59 This statement is at odds with the trial judge s finding, which Sheller JA affirmed, that Dr Nazarian s negligence meant he had not even reached the stage of exercising the power to detain. This power was conditional on the medical practitioner assessing the patient. Sheller JA seems to speculate on a duty to cure Mr Presland stretching into the future, whereas the duty in question was simply to exercise reasonable care in providing treatment at the time of assessment. There was no ultimate conclusion from this review. On the one hand, Sheller JA commented by reference to R v Porter, 60 the plaintiff [Mr Presland] knew he was killing, knew how he was killing and knew why he was killing, but he was 54 For some interesting research on this link, see Jenny Shaw, Louise Appleby, Tim Amos, Ros McDonnell, Catherine Harris, Kerry McCann, Katy Kiernan, Sue Davies, Harriet Bickley & Rebecca Parsons, Mental Disorder and Clinical Care in People Convicted of Homicide: National Clinical Survey (1999) 318 British Medical Journal 1240 and Jenny Shaw, Tim Amos, Isabelle M Hunt, Sandra Flynn, Pauline Turnbull, Navneet Kapur & Louis Appleby, Mental Illness in People who Kill Strangers: Longtitudinal Study and National Clinical Survey (2004) 328 British Medical Journal Presland Court of Appeal, above n1 at Id at NW 2d 75 (1994). 58 (1945) 70 CLR Presland Court of Appeal, above n1 at (1933) 55 CLR 182.

12 192 SYDNEY LAW REVIEW [VOL 28: 181 quite incapable of appreciating the wrongness of the act. 61 On the other hand, Mr Presland s action in killing Ms Laws could not properly be regarded as voluntary. It was not the result of the exercise of a free choice. 62 This shows a lamentable hedging on the question of insanity and causation. Sheller JA then highlighted the unusual if not unique character of the case and shifted to the policy objection to finding liability, namely the fear of a consequent detrimentally defensive frame of mind in psychiatric medicine. 63 C. Spigelman CJ Spigelman CJ found for Mr Presland, however the facts involving unlawful conduct and insanity were aligned more with the question of the scope of the duty of care than a separate enquiry into causation. Spigelman CJ reasoned from the view that unlawful conduct does not determine liability, but, quoting Jacobs J in Progress & Properties Ltd v Craft, 64 simply adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed. Three considerations went to the weight to be given to the illegality in this assessment the closeness of the connection between the conduct and the alleged wrong, the seriousness of the unlawful conduct and the moral culpability that attaches to the conduct. 65 These factors did not generate bright line tests. 66 For Spigelman CJ, Australian, English and US cases involving unlawful conduct show that the significance of knowledge and intention has been frequently emphasised. 67 He also pointed to the dicta in two English 68 and two American 69 cases where recovery was denied following unlawful conduct and conviction for a mens rea offence. These were distinguished from the Presland scenario involving insanity. For example, in Clunis v Camden and Islington Health Authority, the plaintiff unsuccessfully alleged negligence against an outpatient mental health service and sought damages relating to his imprisonment for manslaughter on the basis of diminished responsibility. 70 The English Court of Appeal implied that the conclusion may have been different but for the fact that the plaintiff, who had been convicted on the basis of diminished capacity, must be taken to have known what he was doing and that it was wrong, notwithstanding that the degree of his culpability was reduced by reason of mental disorder. 71 Based on the principle that the act of an insane person is not in law his act, Presland Court of Appeal, above n1 at Id at Id at 100, , quoting Lord Keith in Hill, above n (1976) 135 CLR Presland Court of Appeal, above n1 at Id at Id at Clunis v Camden and Islington Health Authority [1998] 3 All ER 180 (hereafter Clunis) and Beresford v Royal Insurance Company Ltd [1937] 2 KB 197; [1938] AC Boruschewitz v Kirts 554 NE 2d 1112 (1990) and Rimert v Mortell 680 NE 2d 867 (1997). 70 Clunis, above n Id at Felstead v The King [1914] AC 534, cited in Beresford, above n68 at

13 2006] CASES AND COMMENTS 193 Spigelman CJ concluded that the unlawful conduct was not entitled to weight in the multifactorial analysis. The death of Ms Laws was just the serious physical harm identified in s9 and s10 of the MHA, and could not be classed a voluntary or extrinsic intervention. 73 Thus, her death did not break the chain of causation. D. An Alternative Approach Although s54a of the Civil Liability Act may now limit recovery by a person in Mr Presland s position, the question of causation and insanity may arise again. In Presland, Sheller and Santow JJA were both at pains to distinguish Mr Presland s claim from a potential claim by Ms Laws relatives, which would raise similar questions. Further, the 2003 Sentinel Events Review, mentioned above, indicates that between June 1999 and October 2003, there were eight cases of homicides by persons in contact with mental health services in NSW, and eight possible suicide deaths in care in This provides a rough indication of the potential pool of plaintiffs. It is unfortunate that the appeal decision in Presland provides little enduring guidance on how causation and insanity are to be analysed in the future. Indeed, Sheller JA seemed to anticipate this future difficulty when he asked, If responsibility is limited to a particular period of time, in this case six hours, or to harm done to persons with some relationship to the attacker, in this case the fiancee of the plaintiff s brother, or otherwise, where is the line to be drawn either in the case of a claim by the attacker for the consequences of his attack (the present case) or a claim by the victim or the victim s representatives? (emphasis added) 75 It is submitted that an appropriate starting point for this task is the two-stage causation test articulated by Jane Stapleton. 76 This involves the question of historical involvement of the defendant in actionable damage, followed by the normative inquiry into whether the consequence of the tort that C is complaining about should be judged to be within the appropriate scope of liability for consequences of the tortious conduct. 77 This separates insanity as a factual aspect of causation from insanity as a normative aspect of recovery where there is unlawful conduct. As a factual matter, the but for is the starting point for testing causation. It is now axiomatic that the test will be applied in a qualified manner where commonsense, public policy or value judgments demand such amendment. 78 What aspects of a factual scenario in a case alleging negligent psychiatric care may 73 Presland Court of Appeal, above n1 at Above n Presland Court of Appeal, aove n1 at Jane Stapleton, Cause-in-fact and the Scope of Liability for Consequences (2003) 119 LQR Id at See as illustration, March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at (Mason CJ).

14 194 SYDNEY LAW REVIEW [VOL 28: 181 be relevant? Factual scenarios arising in England and the US highlight three factors that provide a useful starting point. These judgments clearly involve normative considerations but are primarily indicators of factual causation. i. Did the patient comply with the care, treatment and/or advice provided? This is clearly relevant to whether the treatment remains a cause, in the sense of materially contributing to the loss. For example, in Burcina v City of Ketchikan 79 the Supreme Court of Alaska considered a negligence action where the patient had rejected recommended medication and had consumed illicit drugs against medical advice. In Clunis the scenario before the English Court of Appeal involved inadequate follow-up where a patient repeatedly failed to attend appointments made on his behalf. ii. What was the setting for the medical care, treatment and/or advice? As Santow JA emphasised, the ability to control the risk of psychosis is relevant both to the duty to be performed and the extent to which negligence is a causative factor. It will therefore be appropriate to distinguish between short and long term care, inpatient and outpatient treatment, and assessment as opposed to care and or treatment. The relevant authorities exhibit different combinations of such characteristics. In Clunis the patient had been hospitalised for approximately a month and then discharged under the supervision of another mental health provider. This second agency then failed to provide appropriate follow-up care. In Glazier v Lee, 80 the plaintiff had been seeing the defendant psychiatrist as an outpatient for only one month; whereas in Burcina the negligent outpatient treatment occurred over a two year period. In Burcina, the treatment involved a number of psychiatrists acting within one agency; whereas Clunis involved different geographic divisions within the same health system. Such distinctions may also be relevant to any question of apportionment, should liability be established. iii. Was causation broken by other changes in the mental state of the plaintiff? Mental illness is often episodic, and thus, the clinical character of the patient s illness is relevant to causation. This inquiry addresses Sheller JA s concern about the indeterminate temporal extent of liability. 81 The simple question of time passing is also relevant. For example in Williamson v Liptzin, 82 the pleadings relied on the chain of causation surviving the eight month period between the end of medical treatment and the murder of two people by the patient. This argument did not succeed. Even within a shorter time frame it may be relevant to distinguish acts committed during one psychotic episode, which the negligent treatment failed to address properly, and acts committed during subsequent episodes following periods of lucidity and rationality P 2d 817 (1995) (hereafter Burcina) NW 2d 857 (1988). 81 Presland Court of Appeal, above n1 at Above n36.

15 2006] CASES AND COMMENTS 195 When shifting to the second, normative stage of assessing recovery, legal policy may move to the forefront of analysis. However, Lord Salmon s caution that policy is an unruly steed that should be cautiously ridden should be borne in mind. 83 The Court of Appeal identified a number of policy concerns in this respect. The response of the pool of likely defendants is an issue. In the present case this became an assessment of the risk of defensive medicine. The Court of Appeal also implicitly concerned itself with a distinction between cognition and volition in respect of insanity, which has featured in some academic treatments of insanity in criminal cases. 84 In tort law the question is whether the conduct is an intentional act being the very kind of thing likely to happen or a voluntary act severing causation. In a clinical context this may parallel an impairment of volition as opposed to cognition. The policy argument against recovery will undoubtedly be strongest where recovery would result in conflict between the civil and criminal laws. This will be the case where a plaintiff is found criminally responsible for the unlawful conduct alleged to be caused by the negligent breach of duty. The much-maligned illustration of this conflict is Meah v McCreamer (No 1). 85 Sheller JA cited the decision, which has since been overruled, and quoted Banakas on the principle at stake in such cases: Although it is morally irrational to punish a person unable to account for his actions, it is even less rational to compensate such a person for his punishment following his unchallenged conviction for a mens rea offence; if the conviction stands, punishment is a lawful injury, if not, there should be no punishment at all and no injury of the kind compensated in this case [Meah]. Tort law has enough on its plate without having to play criminal law s conscience; besides, if lawful injury, inflicted by the courts themselves, starts being compensated in negligence, where will it end? 86 The same policy concern underwrites the collateral estoppel approach in the United States. In Burcina, Rabinowitz J considered that the plaintiff, who had been convicted of arson following a plea of nolo contendere was: collaterally estopped from relitigating the issue of his mental capacity [and] had Burcina wished to avoid these collateral consequences of his nolo contendere plea, he could have asserted the defences of either insanity or mental disease or defect Gray v Barr [1971] 2 QB 554 at 581 (Salmon LJ). 84 See Steven Yannoulidis Mental Illness, Rationality, and Criminal Responsibility (Tropes of Insanity and Related Defences) (2003) 25 Syd LR [1985] 1 All ER 367. In this case a convicted rapist who had suffered brain damage in a prior traffic accident recovered damages from the driver of the other vehicle involved. The accident resulted in a brain injury which affected the plaintiff personality and inhibitions, and it was held that this had causally contributed to the criminal conduct. 86 Presland Court of Appeal, above n1 at 80; E K Banakas, Tort Damages and the Decline of Fault Liability: Plato Overruled, But Full Marks to Aristotle! (1985) Cambridge Law Journal 195 at 197.

16 196 SYDNEY LAW REVIEW [VOL 28: Conclusion The golden thread of tort law is the protection of the vulnerable, 88 and there can be few groups more vulnerable that the mentally ill. Courts are asked to draw the line between responsibility and reliance, and between accountability and vulnerability. The protective purpose of tort law must underwrite this project, especially in negligence cases involving the mentally ill. The Mental Health Act 1990 (NSW) provides scope for concurrent common law responsibilities, although the boundaries of these duties are yet to be decided. The future development of this area of the law must show a trust in Parliament to respond as necessary as well as a trust in medical professionals to act properly when applying the MHA scheme. The resolution of the various policy objections to recovery is properly a matter for our courts, in the context of public debate. This is a project that must be informed by the growing recognition of systemic and habitual failures within the mental health system. Although the imperative of line-drawing in particular cases will inevitably be tempered by the incremental character of the common law, it is submitted that the two stage process described above offers a useful starting point for continuing analysis. The Court of Appeal has left much for us to ponder after Presland. Observing failures in the mental health system, eager commentators may urge definitive pronouncements and strict thresholds; but as ever, prudence guided by principle recommends itself. 87 Burcina, above n79 at See Jane Stapleton, The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable (2003) 24 Australian Bar Review 1.

17 Cases and Comments Where is the Line to be Drawn? Medical Negligence and Insanity in Hunter Area Health Service v Presland KATHRYN PETERSON * It sometimes happens that we are punished for our faults by incidents, in the causation of which these faults had no share. SAMUEL TAYLOR COLERIDGE, BIOGRAPHIA LITERARIA, SIBYLLINE LEAVES (1817) The frenzy of the brain may be redress d By med cine well applied, but without grace The Heart s insanity admits no cure. WILLIAM COWPER, THE TASK (1784) 1. Introduction Most actions in negligence raise the thorny policy question of personal responsibility. Where is the line to be drawn between individual accountability and reasonable reliance on the prudence and good sense of others? This common conundrum was amplified in the recent, and highly unusual case of Hunter Area Health Service & Anor v Presland. 1 The case involved a negligence action by a mentally-ill plaintiff against a public health service administering two hospitals where he was treated and an individual medical registrar. In July 1995 the plaintiff had arrived at hospital in clear psychiatric distress and medical staff decided not to compulsorily admit him. The plaintiff was quickly released from hospital and subsequently attacked and killed a young woman. The crux of the plaintiff s case was that liability could arise from a negligent failure to involuntarily detain. Under these circumstances, Sheller JA asked where is the line to be drawn either in the case of a claim by the attacker for the consequences of his attack (the present case) or a claim by the victim or the victim s representatives? 2 Any negligence action presents a number of outs for courts looking to deny liability. Even if a duty is established, a statute may intrude or the defendant s conduct may be found lax but reasonable, or causation may be untenable. Presland presents an example of such a web of hurdles and caveats. Such civil cases involving insanity and negligence are likely to be rare, if not unique; yet this field provides rich data for questioning whether we are drawing lines based on instinct 1 * Law Student University of Sydney. Many thanks to Barbara McDonald for her valuable insight and helpful advice. All errors or omissions are my own. 1 (2005) 63 NSWLR 22 (hereafter Presland Court of Appeal). 2 Presland Court of Appeal above n1 at 102.

18 182 SYDNEY LAW REVIEW [VOL 28: 181 or based on principle. The purpose of this paper is to review this decision and comment on the potential to draw a brighter line in cases involving insanity and medical negligence. 2. Statutory Context The Mental Health Act 1990 (NSW) (MHA) deals with the care, treatment and control of mentally ill and mentally disordered persons. The MHA permits involuntary admission. The statutory scheme commands a refusal to detain unless certain criteria are satisfied, in which case the medical practitioner is empowered to detain a patient. This remains a discretionary decision. Further, s 4(2) states the intention that mentally ill or disordered persons are to receive the best possible care and treatment in the least restrictive environment and interference with the liberty rights, dignity and self-respect of patients is to be kept to the minimum necessary in the circumstances. 3 The possibility of involuntary admission was the basis for Mr Presland s case. s21 of the MHA defines the scope for involuntary admission by a medical practitioner. The practitioner must have personally examined or observed the patient shortly before admitting them and must be satisfied that no other appropriate means for dealing with the person are reasonably available, and that involuntary admission and detention are necessary. 4 The terms mentally ill person and mentally disordered person are defined in sections 9 and The primary criterion in both cases is that there are reasonable grounds for believing that care, treatment or control of the person is necessary to protect the patient and others from serious physical harm The Facts On 3 July 1995 police officers took the plaintiff, Kevin Presland, to John Hunter Hospital following an episode of irrational and violent behaviour. 7 Mr Presland was suffering hallucinations and engaging in violent and threatening conduct. Mr Presland had head-butted walls, attacked a fence and threatened to kill his friend and a young child. This conduct was reported to medical staff both verbally and in writing by the police who accompanied Mr Presland to hospital. After general medical treatment, the plaintiff was transferred to James Fletcher Hospital (a public psychiatric hospital) and, in the early hours of 4 July 1995, was 3 Mental Health Act 1990 (NSW) s4(2)(a), (b) (hereafter MHA). 4 MHA s21(1). 5 Under section 9 a mentally ill person must exhibit a recognised mental illness, whereas a patient is defined as a mentally disordered person if the person s behaviour for the time being is so irrational as to justify on reasonable grounds the need for temporary involuntary admission to prevent harm under section These definitions were amended in The sections now turn on serious harm rather than serious physical harm. 7 Presland v Hunter Area Health Service & Anor [2003] NSWSC 754 at paras (Adams J) (hereafter Presland First Instance).

19 2006] CASES AND COMMENTS 183 admitted as a voluntary patient. Shortly afterwards, he was seen by a psychiatric nurse and the registrar on duty. The plaintiff was discharged mid-morning after an assessment by a psychiatric registrar, Dr Nazarian, who diagnosed no psychotic illness. Six hours later Mr Presland killed his brother s fiancée, Ms Laws, during a psychotic episode. Mr Presland was charged with murder. On 7 May 1996 he was found not guilty on the ground of mental illness. Newman J ordered Mr Presland to be detained as a forensic patient in a psychiatric ward under s39 of the Mental Health (Criminal Procedure) Act 1990 (NSW). Mr Presland was released on 8 December 1997 under the supervision of the NSW Mental Health Review Tribunal. 8 Mr Presland sued Dr Nazarian and the Hunter Area Health Service, which administered James Fletcher Hospital. The plaintiff argued that it was negligent for the Hunter Area Health Service (which ran both hospitals) and the doctor who discharged him not to have detained him as an involuntary patient. He submitted that this would have averted the death of Ms Laws and prevented his subsequent incarceration, psychological distress and economic loss. He sought damages relating to the trauma of his forensic detention and associated loss of income. Mr Presland succeeded before Adams J in the Supreme Court of New South Wales and was awarded $ general damages and $ for economic loss. 9 Adams J found numerous inadequacies in the care and treatment provided to Mr Presland and the administrative structures within the hospitals. These findings of fact were upheld unanimously on appeal. It is sufficient therefore to describe the key aspects of negligence identified. Dr Nazarian s diagnostic assessment was seriously inadequate. Key concerns included the brevity of the consultation, the inadequate notes taken, and the fact that Mr Presland s brother participated in the discussion. There were obvious omissions in Dr Nazarian s questioning of Mr Presland. 10 Adams J concluded [Dr Nazarian] did not see any psychotic illness or a psychiatric disorder, in my opinion, because he did not conscientiously look for them. I regret to say that I think that Dr Nazarian was merely going through the motions and, even then, only some of them An ABC radio report in June 2005 indicated that Mr Presland subsequently breached his conditions of release by using marijuana, and was returned to custody in late Mr Presland s Legal Aid lawyer, Robert Wheeler, stated in the interview that during the 18 months since his return to detention the Mental Health Review Tribunal twice recommended Mr Presland be conditionally released. The Minister refused both of those recommendations; ABC Radio National, The Law Report The Case of Kevin Presland (14 June 2005) <http:// (accessed 28 February 2006). 9 Presland First Instance, above n7 at For commentary on the decision at the time of judgment see Peter Crofts, Presland v Hunter Area Health Service duty to psychotic patient at risk of harming others (2003) 12(3) Australian Health Law Bulletin 29 and Ian Freckleton, Liability of Psychiatrists for Failure to Certify Presland v Hunter Area Health Service and Dr Nazarian [2003] NSWSC 754 (2003) 10(2) Psychiatry, Psychology and Law For example, Dr Nazarian did not explore what the patient s feelings were at the time of the fight prior to admission, why he had head-butted a door and attacked a fence, whether he thought he would die if he slept or closed his eyes (a feeling he had reported to medical staff repeatedly), nor what he thought about rats, the devil and death (all issues he had raised in disordered terms).

20 184 SYDNEY LAW REVIEW [VOL 28: 181 Further, Dr Nazarian proceeded on the basis that Mr Presland s brother wanted him discharged. This was factually incorrect. In any event, his brother s wishes were of marginal relevance at best to Mr Presland s mental state and suitability for admission. Mr Presland s hospital file was poorly maintained and key documents reporting his pre-admission episode were either misplaced or ignored. Communication between John Hunter Hospital and James Fletcher Hospital was poor and critical information was not recorded by staff at James Fletcher Hospital. 4. Issues The case raised a number of critical legal questions, namely: i. Could the applicable statutory scheme, the Mental Health Act 1990 (NSW) admit a concurrent common law duty of care? If so, what was the scope of this duty? ii. Did the plaintiff s unlawful attack while mentally ill prevent recovery? If so, was this because causation was untenable or because policy dictated that a remedy should be denied? At first instance, Adams J focused more on the first of these questions. In determining the scope of the relevant duty of care, given the framework of the MHA, Adams J applied the six-stage test set out by McHugh J in Crimmins v Stevedoring Industry Finance Committee. 12 He found there was a common law duty of care. The risk determining the scope of this duty was that the plaintiff, without appropriate treatment (that is, detention) might suffer harm by seriously injuring himself or another. 13 Adams J did not identify any obstacles to recovery either on the basis of foreseeability or causation. In April 2005, the New South Wales Court of Appeal overturned the trial decision (Spigelman CJ dissenting). On appeal, both of the issues listed above featured prominently. The factual findings of the trial judge were not disturbed, however, the legal conclusions of Adams J were reversed. As a side matter, the Court of Appeal also ruled that had the substantive appeal been unsuccessful, the damages awarded should have nonetheless been reduced. The figure of $ for general damages was held to be manifestly excessive. 14 The Court of Appeal would have substituted the amount of $ , attributable as 75 per cent for past damage and 25 per cent for the future. 15 This damage concerned the loss of amenities and intrusive supervision and restraint during confinement as a forensic 11 Presland First Instance, above n7 at (1999) 200 CLR 1 at 39 (hereafter Crimmins), applied in Presland First Instance, above n7 at para Presland First Instance, above n7 at para Presland Court of Appeal, above n1 at 41 (Spigelman CJ), at 123 (Santow JA), at (Sheller JA). 15 Id at 307.

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