McKenna v Hunter & New England Local Health District

This case concerned an appeal to the Court of Appeal of New South Wales by the family of a deceased man, who claimed damages for mental harm suffered as a result of the shock of learning of his death. The deceased had been a patient at a hospital operated by the Hunter & New England Local Health District, where he was detained as a mentally ill person. He was discharged the following day into the care of a friend, who was to drive him home to Victoria. During this journey, the deceased experienced a psychotic episode and killed his friend. The family alleged that the hospital owed a duty of care to the deceased, and that its breach of this duty led to his death and their subsequent mental harm.

The central legal issues before the Court of Appeal were whether the hospital owed a duty of care to the deceased, and if so, whether the discharge decision was negligent. The court was required to consider whether such a duty of care would be inconsistent with the requirements of the *Mental Health Act 1990* (NSW), particularly section 35(3), which stipulated that a mentally ill person should not be detained if no longer mentally ill or if care of a less restrictive kind was available and appropriate. Furthermore, the court had to determine whether imposing such a duty would lead to indeterminate liability, and whether the hospital's conduct conformed with a widely accepted practice for the purposes of section 5O of the *Civil Liability Act 2002* (NSW). The court also had to assess whether the hospital's negligence caused the deceased's death, and if the scope of liability extended to the harm suffered by the family, pursuant to section 5D of the *Civil Liability Act 2002* (NSW).

The Court of Appeal found that the hospital did owe a duty of care to the deceased and that the decision to discharge him was negligent. The court reasoned that the potential for harm to the deceased and others, including the friend driving him, was foreseeable. It was held that the discharge decision was not made in accordance with the requirements of section 35(3) of the *Mental Health Act 1990* (NSW), as the psychiatrist had not adequately considered the risks associated with the discharge. The court distinguished the present case from *Hunter Area Health Service v Presland* (63 NSWLR 22), finding that the circumstances here did not involve the exercise of a special statutory power under section 43A of the *Civil Liability Act 2002* (NSW). The court concluded that the hospital's negligence caused the deceased's death and that it was appropriate for the scope of the hospital's liability to extend to the harm suffered by the family.

Consequently, the Court of Appeal allowed the appeal, set aside the judgments entered at first instance in favour of the respondent (the Local Health District), and ordered that judgments be entered in favour of the appellants (the family members) in specified sums, together with interest. The respondent was ordered to pay the costs of the appellants incurred at first instance and on appeal.