Brumen v State of Queensland
[1999] QSC 238
•28 September 1999
IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS Writ No.14 of 1996
[Brumen v State Of Queensland]
BETWEEN: FRANK BRUMEN
Plaintiff
AND: STATE OF QUEENSLAND
Defendant
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE JONES
DELIVERED THE TWENTY-EIGHTH DAY OF SEPTEMBER, 1999
Introduction
On 10 June, 1993 the plaintiff sustained injuries when he jumped from an opened first floor verandah at the Mount Isa Hospital. He was at the time a regulated patient pursuant to s.18 of the Mental Health Act 1974 because he was suffering an acute psychotic episode.
The plaintiff was born on 6 September, 1960 and is therefore 39 years of age.
The plaintiff was first diagnosed as suffering from schizophrenia in 1988. He has, by and large, been stabilised on medication since that time. His psychotic condition had a religious focus. This was conveniently summarised by Dr. Bourke in her letter to Dr. Hayllar of 1 July, 1993 [1] -
“[The plaintiff] had been especially visited by God because he had a 3 week experience of seeing Christ crucified on the cross with the vision always with him. He had seen blood sprayed on Christ’s body from his hands and his feet, distributed over most of the body.”
On other occasions he heard multiple voices which he interpreted as good voices of Christ and female angels. He also heard voices of evil from which he had tried to escape. Even when his condition is controlled by medication the plaintiff still believes these events occurred and thereby indicates reduced insight on his part.
[1] See ex.4
Prior to the events with which this case is concerned, the plaintiff experienced three acute episodes in which he attempted suicide or self-harm or engaged in a life-threatening conduct. The first involved an overdose of medications (Rohypnol tablets) whilst he was working in Shepperton, Victoria. If it is accepted that he took the quantity of tablets he claims, the action followed a long period of stockpiling the drug. However, the attempt was unsuccessful and he returned from Victoria to Mount Isa by bus. He had suicidal ideations during the course of that trip. At Mount Isa he sought treatment from the hospital where Dr. Bourke diagnosed his condition and arranged for his admission to Ward 10B at the Townsville General Hospital on 20 June, 1988. He remained as an in-patient at Ward 10B until 12 July, 1988.
The second acute episode occurred in 1990 when he attempted to slash his wrists on one occasion and also overdosed on prescribed medications. Little is known of this particular conduct and it may not have been a genuine suicide attempt.
The third episode occurred in August, 1991 when the plaintiff was living at Mundingburra, having moved there from Mount Isa. He was hearing voices which he described as sometimes good, sometimes evil. On one occasion he filled a sink with water and placed in the sink the cord for an electric jug and turned on the current. Whether this was an intentional attempt to take his own life or a testing of divine will is not clear. But it was clearly due to his disturbed psychotic state. He later demonstrated this “miracle” again for the benefit of his parish priest. The priest advised the health authorities, and the plaintiff was again admitted to Ward 10B. On this occasion he was a regulated in-patient between 16 August, 1991 to 17 September, 1991.
He then returned to Mount Isa and was under the care of Dr. Bourke who controlled his condition by fortnightly injections of the drug modecate. From then until the end of 1992 the plaintiff remained free of psychotic symptoms. Throughout this period he was seen by Dr. Bourke, both at the Mount Isa Hospital and at his parent’s home where he lived and was cared for.
Dr. Bourke is a well qualified and experienced psychiatrist who has practised as a consultant in public medicine since 1984. She is highly respected by her peers and showed in her treatment of the plaintiff a caring nature and awareness of the difficulties faced by the plaintiff and his family.
The acute episode which led to the events in June, 1993 really had its origins in late 1992 when the plaintiff indicated he would no longer take his medication as he believed himself to be “cured”. The plaintiff suffers, and will always suffer, from chronic schizophrenia. This condition has what are described as positive and negative symptoms. The positive symptoms experienced by the plaintiff were hallucinations and delusions and impaired insight. The negative symptoms were flattening emotion, restriction in the range of expression and affect, less enthusiasm, apathy and lack of initiative.[2] The medication controlled the positive symptoms but did not have any effect on these negative symptoms.
[2] See Dr. Bourke – transcript 162/35
When the plaintiff indicated his intention not to receive the medication Dr. Bourke attempted to negotiate with him to visit her or a member of her team in the hope that he would submit. On 1 December, 1992 she arranged for him to return to the clinic in 6 weeks time but he said he would return in 6 months. He did not return on the 6 weeks date as Dr. Bourke had hoped. The effects of the last injection of modecate gradually wore off and with that there was an increase in psychotic symptoms and signs.
During the ensuing months, the plaintiff’s parents became increasingly concerned about this change in his behaviour and maintained contact with Dr. Bourke and her team. As appears from Dr. Bourke’s letter to Hayllar [3] -
“[The plaintiff] was wanting to give his money away and his parents had become aware of, first of all, his decision to buy a special statue for $3,000 from the church in Townsville, and then his ordering of multiple large expensive Bibles...he had been leaving the keys in his car because he wanted to share whatever he had and he was giving away his good clothes to people – he had begun to read the Bible for all of his waking hours. He could not be deflected from this.”
[3] Supra at p.
On 1 June, 1993 Dr. Bourke saw the plaintiff at her out-patients clinic. The notes of this visit record the plaintiff as being “quite psychotic but happily so and insightless”. Dr. Bourke noted that the plaintiff was certifiable but she did not proceed with this “as he is not dangerous to himself or others”. He continued to refuse medication. [4]
[4] Ex.4 – Out-patient notes
On 8 June, 1993 decisive action was necessary. The plaintiff’s behaviour continued to deteriorate and his parents became increasingly concerned. It was now the last day upon which Dr. Bourke could sign the document to have the plaintiff regulated relying on her previous consultation on 1 June. She took the step and with the further certificate signed by a psychiatric nurse caused the plaintiff to be detained and brought to the hospital. She took the precaution before detaining the plaintiff, of checking with Dr. Allen of the Townsville General Hospital Psychiatric Unit whether she would be able to transfer the plaintiff to that unit if necessary.
This certification permitted her to detain the plaintiff for only 3 days. For detention beyond that time another doctor would, within the 3 days, have to recommend that the plaintiff continue to be regulated.
At the time of his detaining on 8 June 1993, Dr. Bourke saw the plaintiff only briefly at the Accident and Emergency room and initiated a drug treatment regime, which was followed by the nursing staff over the ensuing days. This consisted of sedating doses of haloperidol and diazepam. The plaintiff was placed in a room by himself on the first evening at hospital and was kept under close observation. On the next day he was admitted to the general medical ward.
The Hospital facilities
At the Mount Isa Hospital there is no separate area in which patients with a psychiatric condition requiring hospitalisation could be treated. The arrangement was that the medical ward was used for both medical and psychiatric patients. Throughout the year the number of psychiatric patients cared for varied between “2 – 4 per day on average” [5].
[5] Dr. Bourke – transcript 135/2
The ward was located on the second floor of the building. The plaintiff prepared a sketch plan of the layout (ex.24) which identifies the room in which he spent the first night and the ward to which he was transferred. There was a nurses station at the entrance to the ward which also allowed observation along a passageway which provided access to a lift. As the nurses attended to various duties they would be temporarily absent from the desk. The routine physical observations of pulse, blood pressure and taking of medications were undertaken twice each shift. But other supervision of the plaintiff by nurses was of only a general nature throughout the day.
From the ward the plaintiff could gain access to a balcony via an unlocked screen door. The balcony was protected by a railing of the kind depicted in a photograph tendered as ex.25. This and the other photographs tendered were taken after modifications had been made to the building. In particular, ex. 25 shows that the doorway through which the plaintiff gained access to the balcony had been filled in, so as to make a complete wall. It is not known whether the balcony would have been observable from the nurses station but given the fact that the nurses had many other duties to attend to one would not expect there would be effective control over a patient’s use of the balcony. By contrast, at the psychiatric unit at Townsville, of which the plaintiff had experience, the windows were barred and the balconies enclosed by mesh. Similarly, at the Prince Albert Hospital in Brisbane, Dr. Varghese reported there were no open verandahs, though patients could, and sometimes did, walk out of the ward.
The balcony from which the plaintiff jumped was on the second floor of the building. He fell onto a concrete covered area. The potential for serious physical injury, or death, from a fall was obvious.
In the course of evidence there was discussion about prior demands by the medical staff at the Mount Isa Hospital for a secure area, termed a seclusion room, within a psychiatric unit. A seclusion room is a facility where a patient can be locked away and prevented from leaving that room. Had such a facility been available it would not have been used to detain the plaintiff in June, 1993. In fact it was suggested, and I accept as accurate, that that form of detention would be inimical to the hoped-for outcomes of the plaintiff’s treatment.
The incident
The plaintiff describes his actions in the following terms:-
“I attempted suicide because I was getting cramps in my legs, cramps in my arms and back and I could hardly walk, I could hardly walk from my chair to my bed. And when I walked to the bed I collapsed into it. A nurse saw me and she laughed, she laughed when she saw me trying to through [sic] my legs over the bed and then I saw from my bed where I was laying down, I saw there was a door there, a door – a screen door and I thought I’d go outside and have a look – go through a door. There were no signs on the door, it was just anyone could go in and out. And then I went through that door onto the balcony and that part of the – initial part of the balcony was screened off with gauze, fly net. And in this part there was an unscreened section with just the railing and I heaved myself – I looked over and I thought I was going to get away from the evil voices and I didn’t know what to do and I thought I’ll jump and that will be the end of it, they won’t have to worry anymore. So I jumped over the side, I heaved myself over the side, let go of the railing and I fell to the ground.” [6]
[6] Transcript 28/30-50
There was no challenge to this statement as to the ease with which the plaintiff gained access to the balcony. Questions such as the plaintiff’s condition as at 10 June, 1993, whether Dr. Bourke ought to have recognised his suicidal intent and the level of control to which he ought to have been subjected, did not give rise to much disagreement between the psychiatrists who gave evidence.
The plaintiff’s condition was being moderated at the time of the incident. He had been admitted to the hospital on the afternoon of 8 June, 1993 and placed on the medications referred to above. These drugs worked relatively quickly to reduce his psychotic symptoms. Throughout 9 June, the medications were continued. The plaintiff spent much of his time sitting in a chair in front of the lift where he was under observation by the nursing staff. The nursing notes for that day refer particularly to his being upset at having been admitted and was non-communicative, though compliant in obeying orders.
Dr. Bourke did not see the plaintiff this day because her duties required her to spend the day in Cloncurry.
On the morning of 10 June the plaintiff was examined by Dr. Bourke. He refused to talk to her about his psychotic symptoms but appeared to accept the fact that he had to resume taking the drug modecate. This refusal to discuss his symptoms indicated that he was still disturbed to some degree. Nonetheless, Dr. Bourke thought he was being sufficiently co-operative in his acceptance of the need to resume taking modecate that she thought maybe he could be discharged on the next day.
Underlying this decision was the fact that any further detention of the plaintiff would have to be based on an assessment by another practitioner that he was a danger to himself or others. Dr. Bourke’s assessment was that there was no such danger and she took the view that any other practitioner would come to the same view.
Such an assessment is not easy to make in circumstances where there are no overt signs of depression. Dr. Varghese explained this in the following terms:-
“If the action was a product of depression, then it is clinically much easier – much more easier to pick, because the person, even if he denies being depressed, you can actually observe the depression, and the depression has very characteristic symptoms that one can inquire into, that makes it very clear that a person is depressed. And further more, suicidal ideation which accompanies depression can also be assessed by the doctor. It is not a very complicated matter, assessing the degree of suicide risk in the presence of depression. Unfortunately in the absence of depression, and where self destructive behaviour is related to psychotic symptoms, they are impossible to assess unless the patient is willing to tell you about them. And moreover, even if the patient is willing to tell you about them on one occasion, the nature of psychotic symptoms can change very rapidly.” [7]
[7] Dr. Varghese – transcript 186/40
Each psychiatrist agreed that ultimately it is a matter of clinical judgment for the examining doctor. In circumstances where the plaintiff was so well known to Dr. Bourke who was in the position of seeing the plaintiff recently and being able to follow the effects of treatment, her assessment was not challenged by the other experts.
What remains however is the undoubted fact that for some sufferers of schizophrenia whilst they are in a disturbed state there is an unpredictability about suicidal ideations.
The plaintiff by reason of past suicide attempts was in a category where suicide whilst in a disturbed state was a real possibility. His refusal to speak of his psychotic symptoms on 10 June left Dr. Bourke less well informed than she otherwise may have been. So the risk of her assessment not being accurate was ever present. This is summed up by her comment in a letter to Dr. Allen of 16 June, 1993 [8] -
“I had not considered [the plaintiff] to be suicidal and once again have been reminded of the unpredictability of schizophrenic people in this regard.”
[8] Ex.35
That unpredictability in-patient suffering psychotic symptoms was commented upon by each of the three psychiatrists who gave evidence [9].
[9] Dr. Richards – transcript 114/23, 117/18; Dr. Varghese – transcript 191/35, 195/40; and Dr. Bourke 169/37, 175/20, 176/1.
Having regard to the plaintiff’s past history of suicidal attempts, the nature of his psychotic symptoms at the time of admission and his reluctance to speak about them on 10 June, I find that he was in the class of patients who could, in an unpredictable way, develop suicidal ideation.
The failure on the part of Dr. Bourke to perceive a suicidal intent in the plaintiff is not a criticism raised against her. Her professional judgment is not a matter for assessment in this case. The allegations of negligence go to the environment in which she worked and whether the shortcomings of that environment had foreseeable consequences for the plaintiff, who was the object of her professional judgment. Dr. Bourke was asked –
“Did you consider the proposition that a psychotic schizophrenic should not be kept in a place where he could have endangered himself by jumping over a rail for 2 storey’s down? – Of course I considered it, I considered it with every patient that was admitted
And if you were right there was no problem, but, if you were wrong the result was catastrophic for the patient, wasn’t it? -- Yes.” [10]
This exchange highlights the difficulty which the environment posed for someone in Dr. Bourke’s position.
[10] Transcript 170/22-30
The Mount Isa Hospital is probably the most remote psychiatric unit in the State of Queensland. Dr. Bourke gave evidence of its treating some 40 patients suffering from schizophrenia and no doubt additionally a number of patients who suffer from depression. The option of transferring a patient to Townsville or to other centres in the State is not always realistic and the option of having personal supervision of a patient for 24 hours a day likewise is a course that could be considered only when obviously necessary.
The option of transferring to a more secure and safer situation at the Townsville Psychiatric Unit had to be weighed against other factors as was discussed by Dr. Richards in the following terms:-
“The problem with psychotic patients in regional centres has always been a very difficult one. If you send them away, you send them hundreds of miles away from their family and their support systems. And if – if at the time you feel they are actively dangerous or suicidal, you could certainly send them away. But if – if a patient didn’t tell you or didn’t express any ideas of suicide and appeared to be fairly quiet you might attempt to nurse them in a situation like that. You might decide that the important things were for the patient to be fed, to get sleep and possibly to be near his family. Those would be things you’d consider. On the other hand you have to weigh that against the risk of them doing some desperate thing. So it would really depend on the judgment of the person at the time as to whether or not she placed the patient for a day or two, for a week or two, or not at all in the local hospital.” [11]
[11] Transcript 111/15-30
Dr. Bourke was well aware from her association with the plaintiff over a long period of time what would be the negative effects for him of sending him away from his family. She was aware too that the supervision by nursing staff of the plaintiff in the circumstances where they had to carry out general duties would be less than ideal. She had to balance the unpredictable risk of suicide against what was the most appropriate form of care to relieve the plaintiff of his symptoms. The hospital authority was not in that position. It is in the context of medical officers being under such pressures that the Court has to consider the steps which the hospital authority needed to take to satisfy the duty of care imposed on it.
Duty of care
The relationship between a person forcibly detained by a hospital authority and the authority clearly gives rise to a duty on it to take reasonable care. In Cassidy v Ministry of Health [12] Lord Denning said once a hospital authority accepts a patient for treatment “they come under a duty to use care in the doing of (the treatment), and that is so whether they do it for reward or not”.
[12] (1951) 2 KB 343/360
That duty is a “single comprehensive duty covering all the ways in which (the authority) is called upon to exercise its skill and judgment”. [13] The degree of care required was proportionate to the degree of risk and the magnitude of the mischief which might be occasioned to a particular patient in the absence of due care [14]. Due care requires the provision of premises which are reasonably safe for the purpose for which they are used.
Breach of Duty
[13] Sideway v Governors of Bethlehem Royal Hospital (1985) A.C. 871/893; Rogers v Whitaker (1992) 175 CLR 479/483
[14] Thorne v Northern Group Hospital Centre (1964) 108 SJ
In the present case the premises for the treatment of psychiatric patients was far from ideal. The risks to patients who were suicidal, or potentially suicidal, with access to unprotected balconies are obvious. Dr. Richards in his report [15] expressed the view –
“the psychiatric ward at that time was clearly unsuitable, inadequate and potentially unsafe for the management and treatment of acutely disturbed, dangerous, or potentially suicidal psychotic patients i.e., the sort of persons liable to be detained under the Act”.
Dr. Varghese said that “while it is possible to look after psychotic people in the general medical ward it is much preferable to have a designated area that is designed for the purpose”. [16]
[15] Ex. 3
[16] Transcript 194/30
In circumstances where there was no obvious sign that the plaintiff would act as he did, it is understandable that intensive supervision was not employed. Given the layout of the ward, the position of the nurses station and the fact that nursing duties would preclude anything other than casual nursing supervision, there was a need to ensure that the premises themselves did not give rise to risks which were reasonably preventable. The balcony appeared to be in a position where there would be less direct supervision than, for example, when the plaintiff was sitting in front of the lift.
The cost of erecting a barrier to prevent a person jumping from the balcony would be quite minor in relation to the type of maintenance works undertaken at a major regional hospital. The cost is relative also to the number of psychiatric patients cared for in the ward throughout the year and the lack of any nearby secure alternative.
There was an awareness of these shortcomings in the security of the premises in the minds of hospital management and Dr. Bourke. The safety of the plaintiff with a history of suicidal ideations should not have rested solely on the assessment by Dr. Bourke of his condition.
I accept the opinion expressed by Dr. Richards that the premises were unsafe for the management of potentially suicidal patients. I include the plaintiff in that category at the time of this incident.
The means were readily at hand to make the environment in which he was to be cared for safer.
In the circumstances, the failure to take steps to make secure the balcony to which the plaintiff was allowed access constituted a failure to take reasonable care of him. I find therefore that the defendant was negligent in each of the respects referred to in paragraph 18 of the Statement of Claim.
Quantum
Turning now to the quantum of damages. Many of the allowances have been the subject of agreement between the parties. In fact, only three of the usual allowances are left for my determination – pain, suffering and loss of amenities, economic loss and future care.
Pain and Suffering
The plaintiff was 32 years of age at the time of the incident. Though he was living away from home in a boarding house for a short period, this was because of his failure to medicate. He was in truth dependent on his parents. In the 5 years since his schizophrenia was diagnosed, his parents played a very significant supporting and caring role in his life.
Apart from the condition of schizophrenia the plaintiff was otherwise in good health.
As a result of the fall, he suffered the following injuries:-
i. Vertical shear injury to the left hemi-pelvis
ii. A blunt abdominal forma with shock, including needing a laparotomy
iii. A closed sub-trochanteric fracture of the femur
iv. A fracture of the left medial lateral malleous of the ankle.
v. A fracture to the left tarlis and left calcaneum.
The plaintiff underwent emergency surgery which relieved the bleeding in his abdomen. He was then transferred to the Townsville General Hospital where he remained until the 22 September, 1993. At Townsville he underwent a number of surgical procedures and required an external fixator to his fractured pelvis and internal fixation of the fracture of his left femur.
The leg fractures healed but the fracture to the pelvis resulted in non-union. No further surgical procedure will correct that non-union.
The plaintiff has been left with significant limitations of movement with pain and disability. He requires a walking stick to ambulate and faces a life with increasing disability and increasing pain.
Dr. Low has expressed the view that the plaintiff has a 75% loss of function in his left leg which amounts to a 30% loss of the whole person.
Such a disability with the likelihood of increasing symptoms is a serious blow to someone who has to contend with the socially disabling effects of chronic schizophrenia. These disabilities will make more difficult his interaction with others and reduce his ability to engage in therapeutic activity. He cannot walk for long distances, cannot drive a car nor even stand or sit for long periods. He cannot engage in household activities such as mowing the lawn which would have helped maintain his self-esteem.
I anticipate that these disabilities will make more difficult his obtaining assistance when his parents are no longer able to continue with their help to the degree that they now do.
I have had regard to the very significant disabilities which are referred to in the detailed quantum statement tendered before me (ex. 19).
I assess the allowance for these general damages at $90,000.00.
Economic Loss
At the time of this incident the plaintiff was not working and had not done so since 1991. After ceasing paid employment, the plaintiff attempted a biology course at the James Cook University but persisted for only 2 months in that course. His work history, since his schizophrenia was diagnosed, was intermittent and each employment was short lived.
The plaintiff’s failure to medicate from the end of 1992 brought to life the florid psychotic symptoms referred to above. Importantly the assessment made shortly before his fall showed a complete lack of insight in his condition.
There is no suggestion that at the time of this incident he was actively looking for work.
In the view of each of the psychiatrists who gave evidence, there is great difficulty for persons afflicted with schizophrenia maintaining employment. In the plaintiff’s case, where he lacks insight into his condition, the prospects of employment are further reduced. Even when the plaintiff’s schizophrenia was controlled by medication Dr. Richards thought that the plaintiff’s prospects of holding down some “fairly simple sort of job” would be “negligible”. This opinion is shared with Dr. Varghese who noted that schizophrenia invariably leads to deterioration in one’s functioning by increasing the degree of negative symptoms. He went on “if somebody has predominant negative symptoms and they have lack of insight, meaning that they have to have depot injections rather than the better modern medications, then they’re unlikely to be unable to seek employment in a competitive environment.” [17]
[17] Transcript 195/55
In the light of those opinions I have come to the view that the plaintiff was unlikely ever to have engaged in regular employment. However, the prospect remains that he may have been able to engage in some casual employment, such as being an offsider to a sympathetic employer. Also there was the prospect of special employment activities arranged by such organisations as the Integrated Mental Health Service.
Because of the plaintiff’s present young age and the fact that there are prospects of development of better medications to reduce the adverse effects of schizophrenia, one could not rule out entirely the chance that the plaintiff may have earned some minor income, notwithstanding his condition of chronic schizophrenia. In the light of all the evidence, however, I find that that chance of earning income was relatively slight.
By reason of his physical injuries the plaintiff is now of course totally unemployable.
I assess the allowance for the loss of his pre-accident economic capacity at $15,000.00, including interest.
Future Care
The parties agree that the future care requirements for the plaintiff are 12.5 hours per day and further agree that the value of such care should be $12.00 per hour. [18]
[18] Transcript 131/10
A male of the plaintiff’s present age has a life expectancy in excess of 36 years. Taking the cost of $210.00 per week and applying the 3% tables for a 36-year period yields a primary figure of $242,804.00. Some discounting needs to be made from this figure to take account of the fact that the plaintiff would have required some assistance in later years by way of supervision and other services even without the effects of this accident.
In the circumstances, an allowance of $220,000.00 seems to me to be appropriate to cover his future needs for assistance.
With the other heads of damages having been agreed the compilation of the plaintiff’s damages will take the following form:-
Pain, suffering and loss of amenities $ 90,000.00
Interest on past pain and suffering $ 3,600.00
Economic Loss $ 15,000.00
Future house modifications $ 50,000.00
Past care $ 52,500.00
Interest on past care $ 6,300.00
Future care $220,000.00
Future Aids and Equipment $ 20,000.00
Special Damages $ 915.30
Interest on Special Damages $ 270.00TOTAL $458,585.30
I give judgment for the plaintiff in the sum of $458,585.30.
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