LC by his litigation guardian KS v Australian Capital Territory
[2017] ACTSC 324
•3 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | LC by his litigation guardian KS v Australian Capital Territory |
Citation: | [2017] ACTSC 324 |
Hearing Dates: | 11-12 September 2017 |
DecisionDate: | 3 November 2017 |
Before: | Burns J |
Decision: | See [59] and [66]-[67] |
Catchwords: | NEGLIGENCE – defendant responsible for management of hospital – whether defendant failed to put in place procedures to prevent plaintiff from harming himself – defendant denied liability – expert evidence – Mental Health (Treatment and Care) Act 1994 (ACT) – obligation to ensure examination by doctor – assessment for involuntary detention – plaintiff apparently willing to comply – interpretation of Mental Health (Treatment and Care) Act 1994 (ACT) s 41(1)(b) – constructive refusal of treatment – balance of probabilities – failure to have the plaintiff assessed by a medical practitioner within the timeframe mandated by the Act and the consequent failure to obtain authorisation for involuntary detention under the Act – breach of duty of care – causal nexus between the breach of duty and the damage sustained by the plaintiff DAMAGES - no claim for either past or future economic loss –General damages – Past out-of-pocket – Future out-of-pocket – Gratuitous services – Interest |
Legislation Cited: | Legislation Act 2001 (ACT) Dictionary, Pt 1 Mental Health (Treatment and Care) Act 1994 (ACT) ss 7, 9, 37, 38, 39(1), 40, 41, 43, 44 |
Cases Cited: | Fatur v IC Formwork Pty Ltdand Others [2000] ACTSC 14; 155 FLR 70 |
Texts Cited: | Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009) The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) vol IV |
Parties: | LC by his litigation guardian KS (Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel Mr A Muller (Plaintiff) Mr G Stretton SC (Defendant) |
| Solicitors Maurice Blackburn Lawyers (Plaintiff) Australian Capital Territory Government Solicitor (Defendant) | |
File Number: | SC 523 of 2009 |
BURNS J:
These proceedings are a claim for damages for injuries sustained by the plaintiff when he jumped from a building in the Canberra Hospital complex. The central facts are not in dispute. On the morning of 12 September 2007 the plaintiff was taken to Canberra Hospital by police after an unsuccessful suicide attempt. He was taken into the Emergency Department and placed in a bed in a ward with a number of other emergency patients. Some hours later he absconded from the ward, and was chased by a security guard. He ran up the stairs in a multi-storey car park, before jumping from one of the above ground levels of the car park, resulting in fractures to both of his legs.
The plaintiff claims that he sustained his injuries as a result of the negligence of the defendant, which was responsible for management of Canberra Hospital. The plaintiff claims that the defendant knew or ought to have known that he was suffering from a delusional psychosis and had a tendency towards self-harm, but it nevertheless failed to put in place procedures to prevent him from harming himself. Specifically, the plaintiff alleged that the defendant was negligent in:
(a)failing to properly monitor him;
(b)failing to prevent him from harming himself;
(c)failing to respond adequately to the knowledge that he was delusional and prone to self-harm;
(d)failing to conduct enquiries in a timely manner to determine whether the plaintiff presented a further risk of self-harm; and
(e)failing to seek authorisation for involuntary detention in a timely manner.
The defendant denied liability. In its amended defence filed 16 March 2017 the defendant pleaded:
(a)the plaintiff was registered as a patient of the Emergency Department of the Canberra Hospital at about 4:30 am on 12 September 2007;
(b)at the time of registration the plaintiff was subject to an order under s 37(1) of the Mental Health (Treatment and Care) Act 1994 (ACT) (the order);
(c)the Canberra Hospital was at all times an approved health facility under the Mental Health (Treatment and Care) Act 1994 (ACT) (the Act);
(d)the order had been made by one or more members of the Australian Federal Police;
(e)on registration, the plaintiff had lacerations to both forearms;
(f)the plaintiff was examined by a doctor at the Canberra Hospital no later than about 7 am on 12 September 2007;
(g)between 4:30 am and 8:30 am on 12 September 2007, no doctor or mental health officer had grounds to involuntarily detain the plaintiff under s 37(2) or s 41(1) of the Act;
(h)the order ceased to have effect at about 8:30 am on 12 September 2007;
(i)after about 8:30 am and prior to about 1:15 pm, no doctor or mental health officer had grounds to make an order under s 37(2) of the Act; and
(j)at/or about 1:15 pm on 12 September 2007 the plaintiff walked from the Emergency Department and shortly later jumped from a roof of a Canberra Hospital Building.
The plaintiff gave evidence, although, unusually, he was not the first witness called in his case. The first witness called was the plaintiff’s mother. I will consider her evidence shortly, but it is convenient to initially consider the plaintiff’s evidence. It became clear during the course of his evidence that he is still mentally unwell, and accordingly his evidence has to be approached with a degree of caution. He remembered that in the earlier part of 2007 he was having trouble with depression while living in Sydney. He moved to Canberra to live with his mother. He said that he had been afraid in Sydney because “there was still a lot of stuff going on on the streets”, which he said was a reference to bikie wars, and he was afraid that he would become a target. He agreed that before coming to Canberra he had been involved in drug use, including the use of marijuana. He did not recall much of the period from when he returned to Canberra until he ended up at Canberra Hospital in September 2007. He remembered that he was suicidal and was “jumping off rooftops” and “sometimes even flipping and landing on my head”. He said “they eventually found me on a neighbour’s rooftop… and talked me down”. He said that the police then took him to hospital. He was also able to recall that he had cut his wrists in front of his mother.
At the hospital they treated his cuts and other injuries. He stayed in the hospital for “a few hours”, and said:
They left me by the - they left me in my bed unattended in the Emergency room and I wasn’t able to calm down there because of all the beeping and people - people who were dying. I just felt like a selfish prick being there so once again I worked myself into a tailspin and I left through the security doors - I mean through the Emergency doors and they heard - they must have heard the alarm go off but no one noticed me leave.
The plaintiff said that his intention in leaving was to kill himself. He said that he made his way to a rooftop. He gave the following evidence as to how he came to jump from the rooftop:
I was trying to calm myself down. I wasn’t having much success. I sat down on a - the skylight, or whatever it’s called. The thing that lets a bit of sun into the building, and I sat on it and it sort of caved in. I was worried that I might have injured some people. Then I kept trying to calm down and not long after that they knew where I was and this security guard was starting to chase me. He looked a bit - looked like a bit of a grim situation, so that was the inspiration I needed to jump off the building and it wasn’t a good decision.
The plaintiff said that he suffered significant injuries to his ankles through jumping off the building. When he landed he picked up a rock and used it to hit his head, until people took hold of him and put him on a hospital bed and wheeled him back into the Emergency ward. He said that the staff could not calm him down enough to put restraints on him and he was saying things like “[j]ust let me die of euthanasia”. He said that he was struggling and trying to push them away. They managed to restrain him and return him to the hospital. He was there given medication and he passed out. When he woke up he was in bed with boots on his feet and he was fully restrained. When staff saw that he was calm, they removed the restraints.
The plaintiff testified that in the period between him arriving at Canberra Hospital and him absconding from the Emergency ward he had not had any discussions with any doctors about his mental health. A doctor and a nurse had attended to his lacerations, but no one had spoken to him about his mental health.
The plaintiff said that after he sustained the injuries to his ankles he was in hospital for “maybe a couple of weeks” and then stayed at Samaritan House. He was taking medication and was confined to a wheelchair. By the time that he left Samaritan house he was out of the wheelchair. He used crutches for a short period before he was able to walk normally. He also said that he needed a skin graft on the top of his head where he had hit himself with the rock. As a consequence of the injury to his ankles, the plaintiff said that he had not been able to return to the type of work that he had done before, such as carpet laying and tyre fitting. He said that he can’t stand up all day, or walk and move around all day. He said that he worked at Woolworths for a while and could only stay on his feet for about five hours. He said that he has subsequently been doing “plenty of walking” and his bones crack and creak a little bit. He believed that as long as he keeps his ankles active, it won’t be a huge problem, but staying on his feet for a whole day is a problem.
When asked whether he recalled having problems with his back at any time, the plaintiff responded that he had had problems with his back since he was a child. He said that he used to get a lot of lower back strains when he was playing football and he had also once been assaulted in Sydney during which his spine had been stomped on.
In cross-examination he said that that he had become paranoid while in Sydney. He said that he was smoking cannabis, but also used heroin, ice and morphine. The plaintiff gave evidence of clearly delusional beliefs which I will not set out here. He said that when he arrived at the hospital with police, he was taken to the Emergency Department. He believed that his mother arrived a few minutes after he did. When asked whether he was happy to see her at the hospital, he said “I was too distressed to even notice too much that she was trying to be there for me. I was just caught up in my own world and it didn’t - it wasn’t settling me down much”. The plaintiff then gave the following evidence:
And having found yourself in the Emergency Department were you told that you were going to be seen by a doctor?--- They were telling me that the psychiatrists are busy, they don’t have time to see me right now, and I was waiting not very patiently. It seemed like hours, but it was probably only one hour; maybe an hour and a half.
Yes. And did you indicate to the hospital staff that you were happy to stay there to be treated by the psychiatrist, or whoever doctor was nominated?--- I was insistent on being taken to a room and not being left there in the Emergency room because it was making me very distressed. I don’t recall making any promises to see a psychiatrist, but that was my intention.
But if you wanted to go to a treatment room then obviously you want to get some treatment for yourself?--- Yes. I just wanted somewhere that was locked and could…
Yes?--- Could- - -
Thank you?--- I could cause no further harm to myself.
The first witness in fact called in the plaintiff’s case was his mother, KS. She testified that the plaintiff attended boarding school in Sydney for years 9 and 10, in 2002 and 2003 respectively. He did very well academically and socially. He took up football and was in the Cadets. She described these as being the two best years of his life. In 2004 he attended Kinross Wolaroi school at Orange as a boarder. It was at this time that she first became aware of any disciplinary issues with the plaintiff. He began using alcohol, and was asked to leave the school. He transferred to The Scots College at Bathurst and finished year 11 there. During this period she became aware that he was using marijuana. In 2005 he studied at Bradfield College at North Sydney, undertaking year 12. At that time he was living with KS. He contracted glandular fever in 2005, resulting in him being absent from school for about three months, so that he was not awarded his HSC.
At the beginning of 2005, KS moved to Gulgong in New South Wales, while the plaintiff remained in Sydney. He got a job carpet laying, and lived in a number of places, including a shared house at Chatswood. KS was aware that he continued to use drugs in 2005. In July 2006, KS moved to Canberra, and about the middle of 2007 the plaintiff joined her in Canberra. In August 2007, the plaintiff had some of his wisdom teeth removed, and KS observed that while he was recovering from the anaesthetic he became disoriented, agitated and paranoid. He apparently referred to voices and being observed.
KS gave evidence that she had undertaken training as a Lifeline counsellor, and had been given some training about the warning signs of suicide. She became concerned that the plaintiff was saying things that could be an indication of an intention to self-harm. She recollected one incident in which the plaintiff had obtained work as a carpet layer, in which he had been left alone in a building to rip up the carpet. The plaintiff left the building because he said there were ghosts in the building and he was really paranoid. She said that he subsequently settled down.
KS travelled to Narrabri on 6 September 2007 to visit another son. While she was away, a third son, Ewan, was to stay with the plaintiff. While she was in Narrabri she received a telephone call from Ewan telling her that the plaintiff was very delusional and that Ewan thought that he needed medication. Ewan asked the plaintiff’s mother to return from Narrabri as soon as possible. On the drive back from Narrabri she said that there were constant telephone calls from the plaintiff asking how much longer before she arrived home. When she arrived home on 10 September 2007, the plaintiff was really agitated, really upset and crying. She said that he was very, very emotional. KS said that the plaintiff kept saying that he was a bad person and of no use, which alarmed her. He continued to be delusional. She telephoned the Canberra Hospital, and they told her to bring the plaintiff to the hospital.
At the hospital the plaintiff was assessed by a psychiatric registrar, who suggested that they come back the next morning when there were more staff on duty. They returned home, but the plaintiff was reticent to return to the hospital the next morning (11 September 2007) as he felt that he had not received much help the night before. KS said that at this stage the plaintiff was convinced that he had a sexually transmitted disease (STD) and AIDS, and also had an obsession that another man had crushed his testicles. KS was able to convince him to return to the hospital on the basis that they would undertake blood tests. At the hospital there was a further assessment at which they kept asking the plaintiff whether he was suicidal and he kept telling them that he was not, and that he was only concerned about his STD. They were sent home and were advised that the Crisis Assessment and Treatment Team (CAT Team) would visit them later that day to administer medication to the plaintiff. The CAT Team arrived at KS’s home sometime around 8 pm or 9 pm and spoke with the plaintiff and gave him medication. The members of the team told KS that she would be contacted by City Mental Health for the plaintiff to see a psychiatrist. In the meantime, they would be administering medication to the plaintiff daily.
At about 3 am on 12 September 2007, KS was awoken by the plaintiff. He was very agitated and said that there were voices talking to him in his head, that the medication hadn’t helped him to sleep and that the voices were very loud. KS offered to sit with the plaintiff and watch DVDs with him. She got out of bed, put on a dressing down and used the toilet. She then heard noises in the kitchen, and when she entered the kitchen she saw that the plaintiff had a large knife and had slashed one wrist, from which there was blood spurting. She tried to get the knife from him and he pushed her out of the way and slashed his other wrist and his neck. KS then grabbed the phone to ring 000, and the plaintiff said “don’t call”. KS got through to the emergency operator and police arrived shortly thereafter. In the meantime, the plaintiff had absconded. The police left KS and went to search for the plaintiff. One of the police officers returned later and said that they had found the plaintiff on the roof of a neighbouring house and he was trying to jump off, but that they had got him down and were taking him to hospital. They suggested that she have a cup of tea and calm down before she went to the hospital.
KS cleaned up the blood in the kitchen and attempted to sleep. She headed into the hospital at about 10 am on 12 September 2007. When she arrived she was taken into what she described as the Emergency room. She described this as a bay of beds around a nurses/doctors’ station in the middle of the room. The plaintiff was in a bed on the other side of the room away from the entrance. She said that were about 10 or 12 beds in the room. She sat with the plaintiff for about two, or two and a half hours. His wrists were bandaged, and she was told by a nurse that his wounds had been sutured. She said that the plaintiff was disoriented and was sitting up in the bed; he would not lie down and relax. She said that he was sitting up and agitated the whole time. He was talking about the voices, and he was convinced that the hospital staff were trying to poison him with the sandwiches and cups of tea they offered him. KS asked the nursing staff when a psychiatrist was going to see the plaintiff, and she was told that the psychiatric unit had been notified and that someone would be coming. During the time that she was there, no one who identified themselves as part of the psychiatric team spoke to the plaintiff. At one point a woman came and sat with her, and KS asked the woman whether she was part of the psychiatric team. The woman said “[n]o. I’m just here to observe”. KS said that this woman was present when the delusional behaviours of the plaintiff were evident. At no point during the period that KS was present in the hospital with the plaintiff was he in any way restrained.
When the plaintiff complained of being hungry, but was not prepared to eat the food provided by the hospital because he believed it was contaminated, KS offered to go and buy him some food. The plaintiff asked her to buy some food from Subway because he believed that would not be contaminated. KS also decided to get some clean clothes for the plaintiff, because the clothes he was wearing were covered in blood. She left the hospital, having advised nursing staff where she was going.
KS left the Emergency room and walked out through the main entrance and over to the car park. She said that there was no restriction on leaving the ward, although when entering the ward the nursing staff had to open the exterior doors. She drove home and obtained a change of clothes and was driving to buy some food for the plaintiff when she received a telephone call on her mobile phone from staff at the hospital, advising her that the plaintiff had managed to abscond and had jumped off one of the levels of the car park. KS then drove straight back to the hospital. She testified that in total she had been gone from the hospital for about half an hour to three quarters of an hour.
When KS returned to the hospital the plaintiff was again in the Emergency Department, but at this time his hands were restrained by straps and there were two security guards by his bed. She noticed that the bandages on his wrists were disarranged and he was bleeding. He was thrashing around and was very angry. The plaintiff was taken for x‑rays and then was brought back to the Emergency room. KS stayed with him until about 9 pm or 10 pm. During the period that she was there somebody from the Psychiatric Unit attended and said that the plaintiff could not be admitted to the Psychiatric Unit whilst wearing fabric bandages. Somebody from the Orthopaedic Unit came and fitted “moon boots” to the plaintiff’s feet. She did not recollect whether the plaintiff’s wrists were still strapped to the bed when she left that evening, but she could recall security guards being around the plaintiff’s bed.
When she returned to the hospital the next morning, KS found that the plaintiff had been moved to the Orthopaedic Ward. There was a nurse beside his bed who told KS that arrangements had been made so that a nurse would be with the plaintiff 24 hours a day. While in the Orthopaedic Ward, the plaintiff was still very delusional. He believed that his former employer in Sydney had sexually assaulted him. KS said that the plaintiff was not complaining of his physical injuries, but that the “psychiatric stuff” was overwhelming. After a period, the plaintiff was moved to the Psychiatric Ward. Whilst in that ward he was not able to come and go as he pleased. KS described that ward as being secure. On 24 September 2017, a psychiatric registrar contacted KS and advised her that they were planning on moving the plaintiff into a residential facility at the hospital, which was usually used to provide accommodation for relatives of patients and to house staff when necessary. This facility was called The Residence. KS described this facility as having corridors with single rooms, and the psychiatric registrar asked her to supervise the plaintiff at that facility. KS said that the facility was not well set up for somebody in a wheelchair. The plaintiff became very paranoid and disoriented, wanting to go down the corridor and peer out the window because he believed people were going to come in with guns. As a consequence, KS wheeled him back to the Psychiatric Unit. The following day he was moved to a rehabilitation unit, but following a further psychotic episode he was returned to the Psychiatric Unit. From that point he remained in the Psychiatric Unit until 17 October 2007. At that time he moved to Samaritan House. At the time that he moved to Samaritan House he was still in a wheelchair, and still wearing the boots. He remained in Samaritan House until 6 December 2007, at which time he returned to the rehabilitation unit for about a week. He was then discharged and entered into a group home arrangement in Watson. By this time he was out of the wheelchair and walking around.
KS said that initially the plaintiff was relieved to be out of the wheelchair and the moon boots, but he became shocked at the pain he suffered when walking and at his limitations. The group home that he was living in included two other young men with mental health problems. Staff at the group home took care of ensuring that he got his medication, and making doctors’ appointments for him. There was also a house manager who would drop in to check on the residence. KS said that the plaintiff did not have a very good capacity to care for himself at this time. Some of the plaintiff’s problems in that regard were because of a lack of skills in cooking and fending for himself, but some were because of his disability in his legs. KS had to assist the plaintiff with some of his assigned duties because of the problems with his legs. She estimated that in the beginning she attended the group house for an hour or two every day, but this tapered off until it was an hour or two a week towards the end of the 10 months that he stayed in the group house. He continued to have problems with his legs if he walked too much, sometimes being laid up for a couple of days and having to take painkillers.
While the plaintiff was living in the group house he obtained employment stacking shelves at Woolworths. Because of the problems with his legs, he could only stack shelves at a height of 3 foot and above. Stacking the lower shelves required squatting which he could not do. KS said that in the 12 months after leaving Samaritan House there were times when the plaintiff complained to her about difficulty with his legs or ankles. He had also complained about back pain as well, but she could not remember when he first complained about back pain. She thought that it may have been three or four years after he suffered the injuries to his legs.
In cross-examination, KS agreed that her presence usually had a calming effect on the plaintiff. However she could not remember him specifically being calmed by her presence at the hospital on 12 September 2007 because he was very agitated over his belief that the hospital staff were trying to poison him. It was suggested to her that at the hospital the plaintiff wanted to be treated, but she said that she did not know whether that was the case. She said that the plaintiff was happy to stay there when she left on 12 September 2007. KS agreed that it had been explained that a psychiatric registrar would be speaking to the plaintiff, and that he would have to wait in the Emergency Department for that to occur, but she could not remember the plaintiff saying that he was willing to wait. She testified that the plaintiff had not said that he would not wait, and he was happy for her to leave him in the Emergency Department while she went to get him food. KS could also not recall whether a doctor or a member of the nursing staff asked the plaintiff about his intentions in relation to suicide. KS agreed that in the period that she was at the hospital on 12 September 2007 until she left to get food and a change of clothing for the plaintiff, there were medical staff in the Emergency room keeping the plaintiff under observation at all times. She agreed that there was nothing in his behaviour while she was at the hospital which suggested to her, as his mother, that the plaintiff needed to be locked up or restrained. KS did not accept the proposition that when he was at the hospital the plaintiff had an understanding that he was suffering from delusions. She said that the plaintiff really believed that that the hospital was poisoning him and the voices were talking to him.
KS agreed with the suggestion that prior to his hospitalisation in September 2007 she had cooked meals for the plaintiff, and performed other duties such as shopping for groceries and doing the household washing. She said that what changed after he was hospitalised was that he was no longer living under the same roof as her. She said that after the plaintiff was discharged from Samaritan House and went into a group house she had to assist him with shopping, cooking, cleaning and general duties because he was not physically up to it.
In cross-examination, KS said that she had felt the plaintiff was safe when he was in the Emergency room. In re-examination, she explained her answer as follows:
Well, I felt that while he was in that emergency room with the staff there that if anything had happened, like happened to me at 3 o’clock in the morning with him jumping up and grabbing the knife, there would have been somebody there if I yelled or somebody yelled to assist and I felt that I had gotten him somewhere where we could get help.
At the end of 10 months the plaintiff left the group house and moved in with his brother Ewan. At that point, Ewan took over the duties that KS had previously performed.
Expert evidence
On behalf of the plaintiff, expert evidence relevant to liability was given by Associate Professor John Raftos, a specialist in emergency medicine. Dr Raftos is a fellow of the Australasian College for Emergency Medicine, having held that position since 1983. He has practised as a specialist in emergency medicine since 1983. Since 1997, he has been a senior specialist in emergency medicine at St Vincent’s Hospital, Darlinghurst, and was also a senior specialist in emergency medicine at Sydney Hospital since 2004 he was employed as Director of Emergency Services at Sutherland Hospital from 1984 to 2006. He has been a Conjoint Associate Professor of Medicine at the University of New South Wales since 2010.
In his first report dated 22 July 2016, Dr Raftos reviewed the medical records from the Canberra Hospital and mental health clinical records relating to the plaintiff. He noted the following records relating to the period prior to the plaintiff’s attendance at the Canberra Hospital on 12 September 2007:
(a)on the evening of 10 September 2007, the plaintiff was assessed by the ACT Mental Health Crisis Assessment and Treatment Team (CAT Team) after receiving a telephone call from KS stating that the plaintiff was delusional. KS told them that the plaintiff had said that he didn’t see the point in living as he was going to die anyway. The CAT Team conducted a mental state examination, noting paranoid ideation. The plaintiff reported visual hallucinations and auditory hallucinations saying that they wanted him to die. They also noted a history of drug use. The notes of the assessment raised the possibility of a drug induced psychosis, although another mental health worker raised the possibility of the plaintiff experiencing a first episode of psychosis. The plaintiff was discharged home with his mother to support him;
(b)on 11 October 2007 the plaintiff was reviewed by a psychiatric registrar, Dr Butterfield. She noted that it was reported that for the last 3 to 4 months the plaintiff had been suffering from unusual beliefs such as a belief that people were following him and talking about him, a belief that his mother was not his real mother, a belief that his friends had been lacing his drinks with “ice”, a belief that a person called “Sammy” had given him AIDS, a belief that he had lost his right testicle when he was 14 years old, that a person named “Patrick” crushed his remaining testicle, and a belief that he may have lung cancer and testicular cancer. Dr Butterfield noted that on examination both of the plaintiff’s testicles were present and non-tender. She believed that he was suffering from somatic and paranoid ideations, but probably had partial insight and judgement. Her impression was of a first episode psychosis;
(c)a home visit was conducted on the evening of 11 September 2007, where KS told the CAT Team that the plaintiff had been reasonably settled until about 5 pm, after which he became restless and agitated. He had been given temazapam shortly before the visit and appeared drowsy. He denied any thoughts of self-harm. He accepted medication from the team.
Dr Raftos noted that at about 4:15 am on 12 September 2007 the plaintiff was apprehended by police “under the Mental Health Act” because he had cut both forearms and his throat and had to be coaxed down from a roof. The police conveyed the plaintiff to the Emergency Department at the Canberra Hospital. Dr Raftos then referred to the following hospital records:
(a)at 8:48 am on 12 September 2007 a mental health worker wrote that the plaintiff was currently being treated for physical injuries in the Emergency Department, and they were to call Mental Health when the plaintiff was medically cleared;
(b)at 11:09 am a mental health worker noted that the plaintiff had been brought in by police at about 4:15 am after lacerating both of his forearms and attempting to lacerate his throat. It was noted that the plaintiff was found by police on a neighbour’s roof near his home. Emergency Department staff informed the mental health worker that the plaintiff had settled and was cooperative and compliant. It was noted that the plaintiff was currently extremely delusional, but said that he would not try to kill himself any more. The worker informed KS that he or she would consult with a psychiatric registrar and an assessment would be made. The note indicates that it was explained to the plaintiff that he would need to remain in the Emergency Department to await the psychiatric registrar, and he said that he was willing to do that. The worker noted that when KS arrived, the plaintiff visibly relaxed. He denied any intention or plan to self-harm. She considered that he had poor insight and poor judgement. The note records that the mental health worker consulted a psychiatric registrar at approximately 11 am, however the registrar was unable to attend because he was attending another assessment. It was noted that the psychiatric registrar would attend as soon as possible. At 1 pm a further attempt was made to contact the psychiatric registrar. At 1:35 pm the mental health worker was informed by Dr Das that there had been a change of shift and that Dr Das Gupta would now be on shift. The mental health worker informed Dr Gupta that the patient had absconded “and a code 8 had been called”.
These entries were the relevant entries for the period after the plaintiff’s arrival at Canberra Hospital on 12 September 2007 until he absconded from the Emergency Department. The next record concerning the plaintiff’s mental health was at 7:28 pm on 12 September 2007 when a mental health worker wrote that a psychiatric review was to be arranged. At 8:50 pm that day a psychiatric registrar assessed the plaintiff.
Dr Raftos noted that the power to detain individuals under mental health legislation is to prevent them from harming themselves or others. Mentally ill or disordered patients usually lack the ability to make reasoned decisions and so, Dr Raftos said, will often attempt to escape from the hospital if opportunity allows. For that reason, he suggested, hospitals must ensure that individuals who are detained under mental health legislation are treated in areas where they are constantly observed by hospital staff and from which they cannot abscond. In his opinion, manual or electronic locking of doors in areas where such patients are detained should ensure that the patient cannot abscond. He went on to observe that individuals with paranoid ideation are at markedly increased risk of self-harm because of the impulsive behaviour which may prompt them to attempt to escape from imaginary threats. Given that the plaintiff was clearly mentally ill, suffering from delusions and thought disorder, and had just attempted suicide, Dr Raftos was of the opinion that Emergency Department doctors and mental health workers were obliged to continue the plaintiff’s detention under mental health legislation and, as part of that detention, to ensure that he was constantly observed and treated in an area from which he could not escape. In conclusion, Dr Raftos wrote:
The hospital’s failure to ensure that [LC], who was clearly mentally ill and at risk of harm from either suicidal or irrational behaviour, was continuously observed in an area from which he could not escape represents a departure from what would have been widely accepted by peer professional opinion in Australia in 2007 to be competent professional practice and a departure from an acceptable standard of care. If [LC] had been observed continuously by hospital staff in an area from which he could not escape, as should have been the case, he would not, on the balance of probabilities, have jumped from the roof of the Emergency Department and fractured the bones in both of his feet and ankles.
Dr Raftos prepared a second report dated 14 June 2017 in response to reports obtained by the defendant from Dr David Spain dated 20 January 2015 and 8 March 2017. In his first report Dr Spain, who is a specialist in emergency medicine, examined the medical records from The Canberra Hospital, including notes of phone and face-to-face assessments with the plaintiff and his mother from 10 September 2007 until he absconded from the Emergency Department on 12 September 2007. In summary, Dr Spain said, these records indicate that the plaintiff was suffering from psychosis, possibly new onset, likely related to drug use but possibly schizophrenia. He had been appropriately medicated in the days leading up to 12 September 2007. He had been subjected to several safety assessments, including by the CAT Team, which indicated that he was not a risk to himself or to others. With regard to the morning of 12 September 2007, Dr Spain noted that the plaintiff was assessed by Nicole Daly, a mental health clinician, after he arrived at Canberra Hospital that morning. I will digress momentarily to note that the mental health assessment undertaken at the Canberra hospital on the morning of 12 September 2007 was not undertaken by Nicole Daly, but was in fact undertaken by a different mental health clinician, Jenny Fothergill. Dr Spain noted that in the notes of this assessment, Ms Fothergill stated “[the plaintiff] reports that he will not try to kill himself anymore and he stated that he wants to make peace with everyone”. In addition, it was noted that the plaintiff had stated that he was willing to wait to be reviewed by a psychiatric registrar.
Having reviewed the medical records, Dr Spain provided comments regarding the allegations of negligence pleaded in the plaintiff’s statement of claim. He acknowledged that on the morning of 12 September 2007 the plaintiff had self-harmed with apparent suicidal intent, and had been brought by police under an emergency action to the Emergency Department for medical treatment and psychiatric assessment. Dr Spain believed, on the basis of the records, that after receiving medical treatment the plaintiff remained in the Emergency Department “under close intermittent observation”. He further noted that the psychiatric assessment undertaken by Ms Fothergill established that the plaintiff was psychotic. It was also of significance, in Dr Spain’s opinion, that the presence of the plaintiff’s mother would have assisted in calming the plaintiff. On the basis of hospital notes of conversations with the plaintiff after he had been injured Dr Spain concluded that the plaintiff’s action in jumping from the building had not been an attempt at suicide, but had been an attempt by him to escape from shadows which the plaintiff believed were following him. Dr Spain believed that that these shadows were probably hallucinations.
With regard to the allegation in the plaintiff’s statement of claim that the defendant had failed to properly monitor the plaintiff in the Emergency Department, Dr Spain said that the plaintiff had been monitored intermittently throughout his stay in the Department, and that additional monitoring had been provided by his mother. He considered that the level of monitoring was appropriate for the plaintiff’s status as at 1:35 pm, which was that of a voluntary patient. Dr Spain considered that there was no evidence of a failure to monitor the plaintiff.
With respect to the allegation that the defendant had failed to prevent the plaintiff from harming himself, Dr Spain noted that the relevant mental health legislation in the ACT stipulated that the least restrictive method should be used in treating the plaintiff wherever possible. He noted that the plaintiff had been compliant with assessment and treatment on 10 and 11 September 2007, and had been compliant on 12 September 2007 until such time as he absconded. He further noted that after 8:30 am the plaintiff was a voluntary patient awaiting treatment. He believed that there was no indication that the plaintiff required any actual physical restraint, or sedation. He believed that the plaintiff would not have met the requirements for detention or physical restraint under the relevant legislation in the ACT at that time, as he was not stating or expressing any actual wish of further self-harm. He was also voluntarily accepting treatment, which, Dr Spain said, indicated that he had some insight. He believed that it was likely that the plaintiff could have been treated, but for him absconding from the Emergency Department and suffering his injuries, as an outpatient at home or as a voluntary inpatient.
The third allegation made by the plaintiff in his statement of claim was that the defendant had been negligent by failing to respond adequately to the knowledge that he was delusional and self-harming. Dr Spain noted that the plaintiff was under therapy for his psychotic delusions, and expressed the opinion that his episode of self-harming on 12 September 2007 appeared impulsive, and he did not express any ongoing intention of self-harm during the assessment on 12 September 2007. It was his belief that the hospital was in the normal process of assessing the plaintiff when the plaintiff absconded from the Emergency Department, and as such the hospital was responding in an adequate and appropriate fashion.
With regard to the allegation that the defendant failed to conduct enquiries resulting in the conclusion that the plaintiff presented a further risk of self-harm in a timely manner, Dr Spain expressed the opinion that the hospital records show that enquiries regarding the risk of further self-harm did occur. These enquiries elicited a negative response from the plaintiff. Dr Spain considered that the delay in having the plaintiff undergo a psychiatric assessment was consistent with the need to treat his initial medical issues. He noted that formal psychiatric assessments can take several hours. Priority, he said, is given to uncooperative or high risk clients.
With regard to the plaintiff’s allegation that the defendant had failed to seek authorisation for involuntary detention in a timely manner, Dr Spain noted the requirements that must be established before involuntary detention could be authorised. He did not believe that there was evidence of a significant risk presented by the plaintiff to himself on the morning of 12 September 2007, as at the time of his assessment by Ms Fothergill the plaintiff denied any suicidal ideation. He further noted that the plaintiff was voluntarily agreeing to treatment and assessment so that involuntary detention was not required. In concluding that the care provided to the plaintiff was consistent with widely accepted peer professional opinion in Australia in 2007, and that there had been no departure from expected standards of care, Dr Spain said:
It should be noted that his impulsive act around 1:30pm on the 12/9/2007 was not predicted or predictable from his prior assessments. That impulsive act and the reasons behind it, namely hallucinations with lack of insight from psychosis causing harm then warranted use of powers under the Mental Health Act (sic). That was not the situation prior to that time.
In preparing his initial report of 22 July 2016, Dr Raftos did not have the benefit of a copy of Dr Spain’s report of 20 January 2015. The defendant, however, sent a copy of Dr Raftos’ report to Dr Spain for comment. Dr Spain’s second report is dated 8 March 2017. Dr Spain was critical of what he perceived to be the failure by Dr Raftos to acknowledge that the plaintiff had been assessed by a psychiatric clinician in the Emergency Department on the morning of 12 September 2007. That assessment, Dr Spain said, had indicated that the plaintiff was not suicidal. In addition, a mental state examination did not produce evidence of ongoing hallucinations or other perceptual abnormality. In addition, Dr Spain was critical of what he saw to be the failure of Dr Raftos to acknowledge that there had been protective factors, namely the presence of the plaintiff’s mother, when the plaintiff was in the Emergency Department. Dr Spain reiterated his belief that it was not appropriate for the plaintiff to be held in a secure confined environment as he had not been assessed as actively suicidal, and was expressing a willingness to accept treatment. Dr Spain concluded:
Therefore in summary there have been numerous safety assessments performed on [the plaintiff] in days prior to 12th September 2007 and again on the day of his injury. He did not disclose or display concerning matters despite adequate enquiries so there have not been major safety concerns evident from those assessments by skilled psychiatric practitioners. Psychiatric clinicians are highly trained to make those assessments. His impulsive act was not a predictable event and therefore the opinion of Dr Raftos that [the plaintiff] should have been physically or environmentally detained or restrained presumably under an Involuntary Detention Order of the Mental Health Act (sic) are not appropriate. His opinion by my understanding of the relevant mental health act does not reflect normal peer accepted medical practice. Dr Raftos’s recommendation only makes sense when he uses hindsight bias from information not available to the treating clinicians. Thus, I would have a strong and firm opinion that the actions at The Canberra Hospital by staff caring for [the plaintiff] were entirely consistent with widely accepted peer professional opinion in Australia in 2007 of competent medical practice.
A copy of Dr Spain’s report of 8 March 2017 was provided to Dr Raftos, who provided a supplementary report dated 14 June 2017. Dr Raftos stated that there was nothing in Dr Spain’s report that caused him to alter the opinions expressed in his report dated 22 July 2016. I will set out a large part of Dr Raftos’s supplementary report because of its importance to the outcome of these proceedings:
In his report Dr Spain suggests that [the plaintiff] was not suicidal and not at risk of harming himself despite the fact that Police had taken him to the Emergency Department because he had cut both his forearms and his throat and had to be coaxed down from a roof and that he was clearly psychotic. The fallacy of Dr Spain’s suggestion that [the plaintiff] was not at immediate risk of harming himself again should not require comment. [The plaintiff’s] acute psychosis meant that he was not capable of rational thought. He had cut his wrist and throat in a suicide attempt. Whilst he remained psychotic, and therefore unable to reason, he remained at considerable ongoing risk of harming himself. Hospital staff were obliged to mitigate that risk by ensuring that he was detained in the Emergency Department under the Mental Health Act (sic) and by ensuring that he was not able to leave the Emergency Department to harm himself. They should have discharged this obligation by either continuously observing [the plaintiff] or placing him in a physical space from which unobserved exit was not possible.
Dr Spain has suggested that [the plaintiff] was not actively suicidal despite the fact that he had cut both his forearms and his throat and had to be coaxed down from a roof and that he was clearly psychotic. This comment defies logic. A psychotic patient is not capable of rational thought and so is not able to provide an assurance that they are not suicidal or contemplating self-harm. Individuals with acute paranoid psychosis, as was the case with [the plaintiff] at the time, are at particular risk of coming to harm whilst attempting to escape apparent threats and often do not disclose their paranoia.
Dr Spain has indicated that the CATT [CAT Team] assessment that [the plaintiff] was not actively suicidal meant that he did not require detention under the Mental Health Act (sic) or close observation and supervision. [The plaintiff] had cut both his forearms and his throat and had to be coaxed down from a roof and was clearly psychotic. In these circumstances, the only appropriate mental health assessment would have been that he was at significant risk of harming himself again, should be detained against his will under the Mental Health Act (sic) as a mentally ill person, and required close supervision to prevent him from absconding and harming himself.
Both Dr Raftos and Dr Span were subject to cross-examination. The following occurred in the cross-examination of Dr Raftos:
And you'd agree, wouldn't you, that if he's sitting there quietly and he's prepared to accept treatment that there's no occasion for extending the detention order?---No, I don't agree with that.
I see?---And I don't agree because it's clear from the history over the previous couple of days that this young man was quite psychotic and that he was having paranoid delusions and he'd just tried to kill himself and the standard of care in those circumstances is that he should have - that he should have been clear that he was detained against his will for treatment, whether he was sitting quietly or not. Just the fact that he was sitting quietly doesn’t mean that he wasn’t having paranoid delusions and thinking of hurting himself. People don’t express those – those thoughts, and you know, clearly the police order had expired but no – no valid (indistinct) assessment had been made, as is necessary at the end of the expiration of that order.
I want you to assume that he is sitting there, with his mother and that he is an area where there is a nurse’s station, such that he is under observation at all times. That would assist you to say that there was no reason, in those circumstances, to involuntarily detain him. Correct?---No, I disagree with that completely. In fact, it’s an abrogation of the staff’s duty. The staff had an obligation to assess this young man and to make an examination of his safety, relevant to his mental health condition and the only appropriate response would be firstly a period of psychotic (indistinct) himself, he needed to be detained against his will and all of the staff needed to be aware that if he tried to leave, he was to be detained.
If he – withdraw that. Is it your view that where a person is awaiting treatment in a hospital, that the – any confinement or restraint to which that person is subjected, should be the minimum necessary to prevent any immediate and substantial risk to the person detained?---Yes, I agree with that.
And do you agree that it is important to provide treatment and care and protection for mentally dysfunctional people, in a manner which is least restrictive of their human rights?---As a matter of general principle, yes.
Yes?---But it’s often necessary to detain those people against their will, if there is a risk that they might harm themselves or other people.
Yes. And - - -?---So a balance. There needs to be a balance between maintaining their human rights and protecting them from harm.
In cross-examination Dr Spain agreed that when the plaintiff was at his mother’s home armed with a knife in the early hours of 12 September 2007 he presented a risk to himself and to others, in particular his mother. It became clear in cross-examination that Dr Spain had made assumptions about the qualifications and experience of Ms Fothergill, who assessed the plaintiff at 11:09 am on 12 September 2007. Based upon his experience in hospitals, he made assumptions about the level of training and experience she possessed, as well as her formal role in assessing the plaintiff. It may be that those assumptions are correct, but there is no evidence to that effect. It also became clear that Dr Spain had made assumptions about the level of supervision the plaintiff was subject to in the Emergency Department before he absconded, but fortuitously on this occasion the evidence of the plaintiff’s mother would generally support the assumptions that he made.
In cross-examination, Dr Spain observed that the fact that a person is psychotic does not mean that they present a danger to themselves or to others. He believed that a safety assessment was undertaken by Ms Fothergill, which concluded that the plaintiff was “safe to wait”, as he was not expressing any ongoing suicidality and was prepared to voluntarily wait for treatment.
Dr Spain was taken to the written Authorisation/Notification Voluntary Detention completed by a doctor in the Emergency Department on 12 September 2007 authorising the involuntary detention of the plaintiff. It is curious that this document purports to state that the plaintiff was examined by a doctor for the purpose of determining whether to authorise involuntary detention at 1:15 pm on 12 September 2007. The authorisation itself purports to authorise detention from 1:15 pm. This, of course, was before the plaintiff absconded from the Emergency Department. It is clear from the terms of the authorisation, however, that it was completed after the plaintiff absconded, so that I concluded that the time recorded for the examination by the doctor is incorrect. Dr Spain expressed the view that it was appropriate to impose involuntary detention after the plaintiff absconded, because that demonstrated that he was “no longer co-operating in an appropriate manner”. Dr Spain suggested that as long as the plaintiff was co-operative, it was inappropriate to impose involuntary detention. He went on to say that if a co-operative patient attempted to leave the ward before they could be properly assessed “then you would have to make a rapid decision as to whether it [i.e. detention] needs to be extended”. When it was suggested to Dr Spain that this may be too late, he said:
You can put - you can actually put it on the patient even if they leave, so that it is - it’s not too late. And most people that leave don’t come to great harm. They get found and brought back and they usually don’t come to any harm---
Relevant legislation
The following provisions of the Mental Health (Treatment and Care) Act 1994 (ACT) (the Act), which was the relevant legislation as at 12 September 2007, are relevant:
Objectives of Act
7. This Act has the following objectives:
(a) to provide treatment, care, rehabilitation and protection for mentally dysfunctional persons in a manner that is least restrictive of their human rights;
(b) to provide for mentally dysfunctional persons to receive treatment, care, rehabilitation and protection voluntarily and, in certain circumstances, involuntarily;
(c) to protect the dignity and self-respect of mentally dysfunctional persons;
(d) to ensure that mentally dysfunctional persons have the right to receive treatment, care, rehabilitation and protection in an environment that is the least restrictive and intrusive, having regard to their needs and the need to protect other persons from physical and emotional harm;
(e) to facilitate access by mentally dysfunctional persons to services and facilities appropriate for the provision of treatment, care, rehabilitation and protection.
Maintenance of freedom, dignity and self-respect
9. A person performing a function or exercising a power under this Act, or pursuant to an order of the Tribunal, in relation to a mentally dysfunctional person shall endeavour to ensure that any restrictions on that person’s personal freedom and any derogation of that person’s dignity and self-respect are kept to the minimum necessary for the proper care and protection of the person and the protection of the public.
Apprehension
37. (1) Where a police officer believes on reasonable grounds that—
(a) a person is mentally dysfunctional and, as a consequence, requires immediate treatment or care;
(b) the person has refused to receive that treatment or care; and
(c) detention is necessary for the person’s own health or safety or for the protection of members of the public;
the police officer may apprehend the person and take him or her to an approved health facility.
(2) Where a doctor or Mental Health Officer believes on reasonable grounds that—
(a) a person is mentally dysfunctional and, as a consequence, requires immediate treatment or care;
(b) the person has refused to receive that treatment or care;
(c) detention is necessary for the person’s own health or safety or for the protection of members of the public; and
(d) adequate treatment or care cannot be provided in a less restrictive environment;
the doctor or Mental Health Officer may apprehend the person and take him or her to an approved health facility.
(3) For the purposes of subsections (1) and (2), a police officer, doctor or Mental Health Officer—
(a) may use such force and assistance as is necessary and reasonable to apprehend the person and take him or her to the facility; and
(b) if there are reasonable grounds for believing that the person is at certain premises, may enter those premises using such force and with such assistance as is necessary and reasonable.
Detention
38. Where a person is taken to an approved health facility under
section 37, the person in charge of the facility shall detain the person at the
facility and while the person is so detained—
(a) may keep the person in such custody as the person in charge thinks
appropriate;
(b) may subject the person to such confinement as is necessary and
reasonable—
(i) to prevent the person from causing harm to himself or
herself or to another person; or
(ii) to ensure that the person remains in custody; and
(c) may subject the person to such restraint (other than confinement) as
is necessary and reasonable—
(i) to prevent the person from causing harm to himself or
herself or to another person; or(ii) to ensure that the person remains in custody.
Examination by doctor
40. The person in charge of an approved health facility shall ensure that a person taken to the facility under section 37 is examined by a doctor employed at the facility within 4 hours of the person arriving at the facility.
Involuntary detention may be authorised
41. (1) Where the doctor who examines a person under section 40 has reasonable grounds for believing that—
(a) the person is mentally dysfunctional and, as a consequence, requires immediate treatment or care;
(b) the person has refused to receive that treatment or care;
(c) detention is necessary for the person’s own health or safety or for the protection of members of the public; and
(d) adequate treatment or care cannot be provided in a less restrictive environment;
the doctor may authorise the involuntary detention and care of the person at an approved mental health facility for a period not exceeding 3 days.
(2) Where—
(a) a person is detained under subsection (1); and
(b) an application for further detention is made before the period of detention expires;
the Tribunal may order that, on the expiration of that period, the person be so detained for the further period (not exceeding 7 days) specified in the order.
Psychiatric examination
43. The person in charge of an approved mental health facility shall ensure that a doctor conducts a physical and psychiatric examination of a person detained at the facility under subsection 41 (1) within 24 hours of the person being so detained.
Treatment during detention
44. The person in charge of a mental health facility at which a person is detained under section 41 shall ensure that during the period of detention—
(a) any custody under which the person detained is kept;
(b) any confinement or other restraint to which the person detained is subjected; and
(c) any treatment administered to the person detained;
is the minimum necessary to prevent any immediate and substantial risk of the person detained causing harm to himself or herself or to another person.
Consideration - liability
The plaintiff’s claim is pleaded in negligence and not as a breach of a statutory duty of care. The reference to statutory obligations imposed by the Act and not complied with by the defendant is not intended to suggest that the plaintiff’s claim simply turns upon the established breach of an obligation created by the Act. The defendant’s failure to comply with the provisions of the Act is relied upon by the plaintiff as a particular of negligence. As Miles CJ said in Fatur v IC Formwork Pty Ltdand Others [2000] ACTSC 14; 155 FLR 70 at [19]: “However, such a breach does not constitute negligence unless it involves conduct which can be condemned as unreasonable…”.
As I earlier observed, the essential facts are not in dispute. In the days leading up to 12 September 2007 the plaintiff exhibited clear signs of mental illness, and, in particular, psychosis. Prior to 12 September 2007, however, he disavowed any intention to self-harm. In the early hours of 12 September 2007 the plaintiff attempted suicide by slashing his wrists and neck with a knife at his mother’s house. When his mother telephoned the police, he ran away. He was later found by police on the roof of a neighbouring house, threatening to jump off. Police negotiated the plaintiff down from the roof and apprehended him and took him to the Canberra Hospital. In doing so, the police were exercising power under s 37 of the Act. No criticism has, or could be, directed towards the police and their actions.
It appears that the plaintiff arrived at the Emergency Department of the Canberra Hospital at about 4.30 am on 12 September 2007. As required by s 39(1) of the Act, the police who apprehended the plaintiff provided hospital staff with a written statement which set out a description of the plaintiff’s acts of, and attempts of, self-harm which occurred that morning. Hospital staff treated the plaintiff’s physical injuries, including suturing the lacerations to his wrists. I am satisfied beyond any doubt that those treating the plaintiff on the morning of 12 September 2007 were well aware that he had self‑harmed by cutting his wrists, and had threatened self-harm while on his neighbour’s roof, earlier in the morning of that day.
The obligation of the person in charge of the hospital, as an approved facility for the purposes of the Act, was to detain the plaintiff: s 38. The Act does not define the word “detain”, and nor is it defined for the purposes of ACT legislation in Part 1 of the Dictionary to the Legislation Act 2001 (ACT). As such, the word is to be given its usual meaning. The Oxford English Dictionary relevantly defines “detain” as meaning to “keep in confinement or under restraint”, and the word is relevantly defined in the Macquarie Dictionary, 5th edition, as meaning “to keep under restraint or in custody.” It is true that s 9 of the Act required those charged with detaining the plaintiff to do so in such a way as to maintain his freedom, dignity and self-respect to the extent that this was possible while detaining him. The provisions of s 9 may speak to the conditions of detention, but they do not change the fundamental obligation imposed by s 38, being to detain the plaintiff. I very much doubt whether the actions taken by those in charge of the plaintiff after he arrived at the Canberra Hospital at about 4:30 am on 12 September 2007 complied with the obligation to detain him. For the reasons that follow, however, this was not a critical failure by hospital staff.
There was an obligation to ensure that the plaintiff was examined by a doctor employed at the hospital within 4 hours of his arrival: s 40. The Act does not specifically say so, but it is clear that the purpose of this examination is to determine whether the involuntary detention of the plaintiff was to be authorised under s 41. The evidence establishes that at some time before 8:40 am on 12 September 2007 the plaintiff was seen by Dr Pathak in the Emergency Department for the purpose of attending to the plaintiff’s wounds. The first time that the plaintiff was subject to a mental health assessment was 11:09 am when he was seen by a mental health nurse, Jenny Fothergill. There was a clear failure on the part of those responsible for the plaintiff’s care as a person detained pursuant to s 38 of the Act to ensure that he was assessed by a medical practitioner as mandated by s 40.
Although the Act does not in terms say that the period of four hours from the time of arrival at hospital of a person taken to the hospital under s 37 is the maximum period that a person may be detained by virtue of s 38, unless involuntary detention is authorised pursuant to s 41, the scheme of the legislation makes it clear that this is the case. The authority granted to police to apprehend a person under s 37 is a power to interfere with the liberty of a person who will frequently not have committed any criminal offence. It authorises police to do acts that otherwise may carry tortious or criminal liability. Similarly, the requirement imposed by s 38 to detain a person apprehended pursuant to s 37, pending assessment for involuntary detention, mandates action by authorities that would otherwise involve the commission of a tort. The detention authorised (indeed, mandated) by s 38 is for the sole purpose of having the detained person assessed for involuntary detention, and the Act provides that this must be undertaken within four hours of the detained person arriving at the hospital. It follows from this that the maximum period of detention permitted pending an examination under s 40 is four hours from the time of the person’s arrival at the hospital. In the present case that period of four hours expired at 8:30 am on 12 September 2007, by which time the plaintiff had not been examined by a medical practitioner to determine whether involuntary detention should be authorised.
After 8:30 am the plaintiff could no longer be detained at the hospital, absent involuntary detention being authorised. After 8:30 am he became a voluntary patient and was entitled to leave the hospital at any time. Once the plaintiff left the hospital (or that part of it which was an approved health facility for the purposes of the Act) it may have been theoretically possible for a doctor or Mental Health Officer as defined in the Act to have further apprehended the plaintiff pursuant to s 37(2) and returned him to the hospital, but it would appear that after 8:30 am hospital staff had no authority to detain the plaintiff or stop him from leaving the Emergency Department.
It is in this context that the opinion of Dr Raftos quoted at [33] above must be considered. It was the opinion of Dr Raftos that the failure of the hospital staff to place the plaintiff in an area from which he could not escape was a departure from an acceptable standard of care. This opinion was premised on the assumption that the hospital staff were entitled to detain the plaintiff of the time he left the Emergency Department on 12 September 2007. For the reasons I have given, they were not entitled to detain him at that time.
The evidence establishes beyond any doubt that the plaintiff was psychotic on the morning of 12 September 2007. This psychosis was, I am satisfied, manifest when he was in the Emergency Department. It was also beyond any doubt that the plaintiff had, before he attended the hospital on 12 September 2007, behaved unpredictably in engaging in self-harm. I use the term “unpredictably”, because his actions were contrary to the assurances that he gave to doctors and mental health workers on 10 and 11 September 2007, that he would not harm himself. It simply does not accord with common sense to suggest that a medical practitioner conducting an assessment of the plaintiff under s 40 of the Act would place significance on assurances by a patient such as the plaintiff that he would not engage in further acts of self-harm, particularly when the plaintiff was yet to be assessed by a psychiatrist and the nature and extent of his delusions remained uninvestigated. The only assessment of the plaintiff’s mental health undertaken before he absconded was conducted by Ms Fothergill. This was not consistent with the defendant’s obligations under the Act. In any event, Ms Fothergill has not recorded any finding she may have made about the risk of self-harm by the plaintiff, instead simply noting that he was to be seen by the psychiatric registrar. This suggests that Ms Fothergill was deferring the question of risk assessment until the examination by the psychiatric registrar.
I prefer the evidence given by Dr Raftos to that given by Dr Spain because the evidence given by Dr Raftos accords with logic and commonsense, and, with respect, aspects of the evidence of Dr Spain do not. For example, I find Dr Spain’s reliance on the assurances given by the plaintiff in the Emergency Department mystifying in the circumstances demonstrated by the evidence. His assertion that the plaintiff displayed insight into his illness in the Emergency Department (see [37] above), is also completely contrary to the observation of Ms Fothergill that the plaintiff displayed no insight and poor judgement.
The defendant placed great weight on hospital records which, along with the evidence of KS, suggested that from 4.30 am until he absconded at 1.15 pm, the plaintiff was apparently willing to await the attendance of the psychiatric registrar. The defendant appeared to suggest that the plaintiff’s apparent compliance meant that a doctor examining the plaintiff pursuant to s 40 of the Act could not, during that period, have made an order for involuntary detention pursuant to s 41 because the requirement of s 41(1)(b) was not satisfied, that is, that the plaintiff had refused to receive treatment and care which the examining doctor believed was necessary. There are two answers to this proposition. First, no examination of the plaintiff occurred as required by s 40, so no doctor actually turned their mind to whether the plaintiff required immediate treatment and, if so, the nature of that treatment. Such treatment may, for example, have included inpatient treatment. Secondly, and more importantly, the defendant’s submission is based upon the premise that s 41(1)(b) required active refusal of treatment or care before an involuntary detention order could be made. If that were the case a patient who simply declined to say anything to a medical practitioner conducting an examination under s 40, or was catatonic, could not be made subject to an involuntary detention order because they had not, in terms, refused treatment or care. This could not have been the intention of the legislature, bearing in mind the objectives of the Act as set out in s 7. A failure of a patient to say anything during an examination under s 40 would, in my view, constitute a constructive refusal to accept treatment. A person whose mind is deranged by psychosis such that no weight could be attributed to their assertions, as was the case with the plaintiff, could be in no different position to one who fails to speak. The inability of the plaintiff to understand the nature of suggested treatment and to make a rational decision to accept or reject it, meant that the plaintiff was to have been taken to have constructively refused treatment.
I accept the evidence of Dr Raftos that a mental health assessment of the plaintiff properly conducted by a medical practitioner within four hours of the plaintiff’s arrival at the hospital would, on the balance of probabilities, have resulted in an order for involuntary detention being made under s 41 of the Act. Had that occurred it is probable that the plaintiff would not have been able to abscond and would not have suffered the injuries that he did. There was a failure by the defendant to respond adequately to the knowledge that the plaintiff was delusional and prone to self-harm, in part evidenced by its failure to have the plaintiff assessed by a medical practitioner within the timeframe mandated by the Act and the consequent failure to obtain authorisation for involuntary detention under the Act. On the basis of the evidence of Dr Raftos I am satisfied that competent authority in charge of the management of the plaintiff in 2007 would have complied with the requirements of the Act and, as such, I am satisfied that there was a breach of the duty of care that the defendant owed the plaintiff. I am further satisfied that there is a sufficient causal nexus between the breach of duty and the damage sustained by the plaintiff to found an action in negligence.
I will now turn to the issue of damages.
Damages
There was no dispute about the nature of the injuries sustained by the plaintiff. In a report dated 6 September 2013, Dr Anthony Cairns, a consultant orthopaedic surgeon, stated that the plaintiff had sustained the following injuries:
(i)a comminuted, intra-articular fracture of the right distal tibia/ankle;
(ii)a comminuted fracture of the posterior aspect of the right talus;
(iii)a comminuted fracture of the posterior aspect of the right calcaneus with posterolateral displacement;
(iv)a comminuted, intra-articular fracture of the left distal tibia/ankle; and
(v)a comminuted fracture involving the posterior aspect of the left talus.
Dr Cairns stated that in the medium to long-term the plaintiff was likely to develop post‑traumatic osteoarthrosis involving both ankles, which will initially require conservative treatment such as the use of oral non-steroidal anti-inflammatory medication. In the medium to long-term, should any osteoarthrosis progress to that extent, he could present as a candidate for ankle arthroplasty surgery, or arthrodesis. Dr Cairns did, however, note that it was encouraging that in recent x-rays of the plaintiff’s ankles, performed almost 6 years post injury, there appeared to be no finding suggesting the development of post-traumatic osteoarthrosis.
In a subsequent report dated 31 October 2013, Dr Cairns expressed the opinion that complaints of backpain made by the plaintiff, commencing some four and a half years following his injuries, were probably not connected to the incident of 12 September 2007.
The plaintiff made no claim for either past or future economic loss. His claim for past out‑of‑pocket expenses was limited to the sum of $2598.10, being the Medicare recovery figure. The plaintiff claimed a sum of $10,000.00 by way of a buffer for future out‑of‑pocket expenses, including the possibility of surgery to his ankles by reason of osteoarthrosis. I accept that it is probable that the plaintiff will, at some time in the future, develop osteoarthrosis in his ankles as a consequence of the injuries he sustained. It is difficult to determine when this will occur, and the extent of the condition. It is probable that he will require medication to assist in dealing with that condition. Whether he will require surgery is much less certain. In my opinion, doing the best that I can with the evidence before me, I would allow a buffer of $5,000.00. The plaintiff made a modest claim for gratuitous services provided by his mother. The calculation of the amount claimed by him was based upon $35.00 an hour, for 43 weeks at an average of six hours per week, totalling $9,030.00. In addition, the plaintiff claimed interest on this sum at 4 per cent for 10 years, totalling $3,612.00. In my opinion these modest claims should be allowed.
I would assess general damages at $95,000.00, of which 80 per cent would be attributable to the past and 20 per cent to the future. I allow interest at 2 per cent on the past component of the general damages for a period of 10 years, totalling $15,200.00.
I therefore assess damages as follows:
General damages $95,000.00
Interest $15,200.00
Past out-of-pocket $2,598.10
Future out-of-pocket $5,000.00
Gratuitous services $9,030.00
Interest $3,612.00
Total $130,440.10
The parties are to draw up formal orders consistent with these reasons, in particular dealing with payment into Court of the judgment sum, and payment out to the Public Trustee or otherwise as required. Unless some different order is sought within 14 days of publication of these reasons, I order the defendant to pay the plaintiff’s costs of the proceedings.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 3 November 2017 |
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