McWhinney v Melbourne Health

120

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
DAMAGES AND COMPENSATION
MEDICAL DIVISION

Case No. CI-07-04685

SHANE WILLIAM McWHINNEY

MELBOURNE HEALTH

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21 and 22 May 2012
DATE OF JUDGMENT:	30 May 2012
CASE MAY BE CITED AS:	McWhinney v Melbourne Health
MEDIUM NEUTRAL CITATION:	[2012] VCC 660

JUDGMENT

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SUBJECT – Medical Negligence
CATCHWORDS – Wrongful admission and detention of patient for involuntary treatment by Approved Mental Health Service – standard of medical treatment reasonably expected – reliability of evidence of witness
LEGISLATION CITED – Mental Health Act 1986; Wrongs Act 1958
CASES CITED – Watson v Marshall (1971) 124 CLR 621.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self Represented
For the Defendant	Mr John Noonan SC with Mr John Constable	DLA Piper Australia

HIS HONOUR:

1 In this matter, the plaintiff brings a proceeding against the defendant claiming damages by reason of the alleged wrongful admission of the plaintiff as an involuntary patient to the Royal Melbourne Hospital (the Hospital) on 3 September 2006.

2 On 3 September 2006, as the result of an assessment by members of the Melbourne Health Crises Assessment Treatment Team (“CATT Team”), namely Mr Brendon Bolger and Ms Kerryn Devenish, the plaintiff was involuntarily transported by members of the Victoria Police to the Hospital.

3 Upon arriving at the Hospital, which was an approved mental health service within the meaning of the Mental Health Act 1986[1] (“the Act”), the plaintiff was examined by psychiatric registrar Dr Natasha Williams, was assessed as meeting the criteria for involuntary treatment pursuant to s.8 of the Act, and was admitted as an involuntary patient to the Hospital (“the admission”).

[1]CB 410, Exhibit1

4 During his admission, Professor Peter Doherty, a psychiatrist employed by the Hospital:

(i)examined the plaintiff and assessed him as falling within the criteria for involuntary treatment pursuant to s.8 of the Act; and
(ii)prescribed medication including an anti psychotic drug, Acuphase, which was administered to the plaintiff as part of his treatment regime.

The Issues

5 In this proceeding, it is asserted by the plaintiff that:

(i)at no time did he meet the criteria established by the Act as a pre-requisite for his involuntary admission and treatment by the Hospital;
(ii)the administration to him of intra muscular medication in the form of Acuphase was undertaken “in an inhumane manner” and was not supported by ECG monitoring;

and that this conduct by the defendant gave rise to a breach of the duty of care owed to the plaintiff by the defendant.

6 In the proceeding, the plaintiff claims both compensatory and punitive damages against the defendant.

7 The plaintiff represents himself in the proceeding. His assertion that at no times did he fulfil the criteria established by s.8 of the Act so as to justify his:

(i)involuntary transport to the Hospital on 3 September 2006; and
(ii)involuntary admission to the Hospital on 3 September 2006

is not supported by expert evidence from medical or like practitioners who were called to give evidence on the plaintiff’s behalf.

8 The same may be said for each of the allegations made by the plaintiff that the treatment which he received during his admission was inappropriate, or was administered to him in a way which did not accord with appropriate medical standards.

9 In asserting his case, the plaintiff relies upon his viva voce evidence, the evidence of a number of witnesses called by the defendant who were cross-examined by the plaintiff, and a number of documents tendered by the plaintiff.

10 I am satisfied, having regard to the conflict which arises in the evidence given by the plaintiff which involves allegations that:

· Mr Brendon Bolger and Ms Kerryn Devenish, members of the defendant’s Crisis Assessment Treatment Team;

· Dr Natasha Williams a medical registrar employed by the defendant;

· Associate Professor Peter Doherty, a psychiatrist employed by the defendant;

· The defendant’s psychiatric nursing staff who were involved in the administration to the plaintiff of Acuphase on 4 September 2006;

· Ms Anne Meijerink, a member of the defendant’s psychiatric nursing staff;

each failed to act appropriately in their treatment of the plaintiff and the management of his presentation, and evidence given by of each of the above witnesses in defence of the adequacy of that management, that the respective positions of the parties on each of the issues raised by the plaintiff cannot be reconciled.

11 It follows that issues of both credit and reliability arise in respect of the evidence of the plaintiff and the evidence of each of the servants and agents of the defendant against whom the plaintiff levels his allegations of impropriety,[2] and that the findings which I make as to the credit and reliability of both the plaintiff and the defendant’s witness will largely determine whether the plaintiff has made good his onus of establishing his case on the balance of probabilities.

[2]The evidence of each of these witnesses tends to support that of the other members of the group and the evidence given by each of this group of witnesses is generally consistent with that of the other where their evidence overlaps.

12 For the reasons set out in my judgment to follow, I am not satisfied that the plaintiff has established any of the allegations which he makes against the defendant in this proceeding. It follows that in making this finding, I do not accept, for the reasons which I will subsequently set out, the assertions by the plaintiff in the evidence given by him that the behaviour of any servant or agent of the defendant who was involved in the plaintiff’s:

(i)assessment and involuntary transfer to the Hospital on 3 September 2006;
(ii)assessment and admission to the Hospital on 3 September 2006; and
(iii)assessment and treatment during the period of the plaintiff’s admission to the hospital during September 2006;

was such that it did not accord with the relevant provisions of the Act or with an appropriate standard of medical treatment or care.

13 In making that statement, I consider it appropriate that I indicate at this point in my judgment that my reason for not accepting the plaintiff’s evidence is primarily that I find the plaintiff’s evidence to be unreliable notwithstanding that I am satisfied that the plaintiff, in giving his evidence, possessed an honest belief both in the truth and in the accuracy of the evidence given by him in the proceeding.

The Relevant Legal Principles

14 It is not in issue that the defendant owed to the plaintiff, as its patient, a duty of care in relation to the treatment which was administered to the plaintiff.

15 The duty of care which the defendant owed to the plaintiff in respect to any treatment administered by it is defined by s.58 of the Wrongs Act 1958, which provides:

“In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is, subject to this Division, to be determined by reference to—
(a)what could reasonably be expected of a person possessing that skill; and
(b)the relevant circumstances as at the date of the alleged negligence and not a later date.”

16 Further in:

· transporting the plaintiff to the Hospital against his will;

· admitting the plaintiff, and administering involuntary treatment to the plaintiff;

the defendant was obliged to comply with the provisions of the Act, the provisions of which establish a statutory regime for the involuntary treatment of persons whose presentation meets each of the five criteria set out in s.8 of the Act.

Analysis as to the Defendant’s compliance with the Statutory regime of the Mental Health Act

17 The following sections of the Act are relevant to the plaintiff’s transport and admission to the Hospital and his treatment whilst a patient of the Hospital.

18 Section 8 of the Act provides:

“Criteria for involuntary treatment
(1) The criteria for the involuntary treatment of a person under this Act are that-
(a) the person appears to be mentally ill; and
(b)the person's mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an involuntary treatment order; and
(c)because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and
(d)the person has refused or is unable to consent to the necessary treatment for the mental illness; and
(e)the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.
(1A) Subject to subsection (2), a person is mentally ill if he or she has a mental illness, being a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.
(2) A person is not to be considered to be mentally ill by reason only of any one or more of the following-
(a)that the person expresses or refuses or fails to express a particular political opinion or belief;
(b)that the person expresses or refuses or fails to express a particular religious opinion or belief;
(c)that the person expresses or refuses or fails to express a particular philosophy;
(d)that the person expresses or refuses or fails to express a particular sexual preference or sexual orientation;
(e)that the person engages in or refuses or fails to engage in a particular political activity;
(f)that the person engages in or refuses or fails to engage in a particular religious activity;
(g)that the person engages in sexual promiscuity;
(h) that the person engages in immoral conduct;

(i)     that the person engages in illegal conduct;
(j)     that the person is intellectually disabled;
(k)    that the person takes drugs or alcohol;
(l)     that the person has an antisocial personality;
(m)that the person has a particular economic or social status or is a member of a particular cultural or racial group.
(3)Subsection (2)(k) does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of drug or alcohol taking from being regarded as an indication that a person is mentally ill.”

19 Section 9 of the Act provides:

“Request and recommendation for involuntary treatment
(1) The documents required to initiate the involuntary treatment of a person are-
(a)a request in the prescribed form and containing the prescribed particulars; and
(b)a recommendation in the prescribed form by a registered medical practitioner following a personal examination of the person.
(2) A request may be signed before or after a recommendation is made.
(3) A registered medical practitioner must not make a recommendation under subsection (1) unless he or she considers that-

(a) the criteria in section 8(1) apply to the person; and
(b)an involuntary treatment order should be made for the person.
(4) A request and recommendation have effect for 72 hours following the examination of the person by the registered medical practitioner who made the recommendation.
(5) While they have effect, a request and recommendation made in accordance with this section are sufficient authority for a person referred to in subsection (6) to-
(a)arrange for the assessment of the person to whom the recommendation relates by a registered medical practitioner employed by an approved mental health service or a mental health practitioner; or
(b)take the person to whom the recommendation relates to an appropriate approved mental health service.

(6)      The persons who may take action under subsection (5) are-
(a)     the person making the request; or
(b)    a person authorised by the person making the request; or
(c)    a prescribed person.”

20 Section 9A of the Act provides:

“Authority to transport
(1) Despite anything to the contrary in section 9, a person in respect of whom a request is made in accordance with section 9(1)(a) may be taken to an appropriate approved mental health service without a recommendation being made under section 9(1)(b) if-
(a)a registered medical practitioner is not available within a reasonable period to consider making a recommendation despite all reasonable steps having been taken to secure the attendance of one; and
(b)a mental health practitioner considers that-
(i)the criteria in section 8(1) apply to the person; and
(ii) the person should be taken to an approved mental health service for examination by a registered medical practitioner for the purpose of making a recommendation; and

(c)the mental health practitioner completes an authority to transport in the prescribed form containing the prescribed particulars.

(2) A person who has made a request under section 9(1)(a) in respect of a person must not complete an authority to transport that person under subsection (1)(c).”

21 Section 12AA of the Act provides:

“Involuntary treatment orders-persons in approved mental health services
(1) This section applies if-
(a)a request and recommendation have been made for a person; and
(b)the person has been taken to, or is in, an approved mental health service.
(2) A registered medical practitioner employed by the approved mental health service or a mental health practitioner must make an involuntary treatment order for the person.
(3) An involuntary treatment order under this section must be in the prescribed form and contain the prescribed particulars.
(4) An involuntary treatment order made for a person in accordance with this section is sufficient authority for the detention of the person in an approved mental health service.
(5) A registered medical practitioner employed by the approved mental health service or a mental health practitioner may release a person from detention under subsection (4) to await the examination by the authorised psychiatrist under section 12AC if the practitioner has-

(a) had regard to the criteria in section 8(1); and
(b) consulted with the authorised psychiatrist.
(6) If the practitioner makes an involuntary treatment order for a person but does not consider that-

(a) the criteria in section 8(1) apply to the person; or
(b) an involuntary treatment order should be made for the person-
the practitioner must notify the authorised psychiatrist of the appropriate approved mental health service as soon as practicable.
(7) At any time after an involuntary treatment order is made for a person under this section for a person who is not detained in an approved mental health service, but before the authorised psychiatrist examines the person under section 12AC, a registered medical practitioner employed by an approved mental health service or a mental health practitioner may take the person, or arrange for the person to be taken, to an appropriate approved mental health service if the practitioner considers it necessary to do so.
(8) If a person is taken to an approved mental health service under subsection (7) the involuntary treatment order is sufficient authority for the detention of the person in the approved mental health service until the authorised psychiatrist examines him or her under section 12AC.”

22 Section AB of the Act provides:

“Interim treatment under involuntary treatment order
(1) This section applies to a person who is subject to an involuntary treatment order at any time before he or she is examined by the authorised psychiatrist under section 12AC.
(2) If a registered medical practitioner employed by the approved mental health service considers that-
(a) the person requires any treatment immediately; and
(b) the person is unable to consent to that treatment; and
(c)the treatment required is of such a nature that it would not be in the best interests of the person to await examination by the authorised psychiatrist under section 12AC-
the practitioner may on behalf of the person consent to the treatment being carried out until the authorised psychiatrist examines the person under section 12AC.”

23 Section 12 AC of the Act provides:

“Examination by authorised psychiatrist
(1) If an involuntary treatment order is made for a person, the authorised psychiatrist must examine the person-
(a)if section 12(5) or 12AA(6) applies
-as soon as practicable after the order is made, but in any case within 24 hours after the order is made; or

(b)otherwise
-within 24 hours after the order is made.

(2) On examining the person under subsection (1)-
(a)if the authorised psychiatrist considers that the criteria in section 8(1) do not apply to the person-the authorised psychiatrist must discharge the person from the order;
(b)if the authorised psychiatrist is satisfied that the criteria in section 8(1) apply to the person-the authorised psychiatrist must confirm the order.
(3) If the authorised psychiatrist confirms an involuntary treatment order under subsection (2)(b), he or she may make a community treatment order under section 14 for the person.

(4) If the authorised psychiatrist confirms the involuntary treatment order under subsection (2)(b) but does not make a community treatment order under subsection (3)-
(a)the person is to be detained in the approved mental health service; and
(b)if the person is not currently in the approved mental health service, the authorised psychiatrist may take the person, or arrange for the person to be taken, to the approved mental health service.
(5) The authorised psychiatrist may confirm an involuntary treatment order without making a community treatment order only if he or she is satisfied that the treatment required for the person cannot be obtained through the making of a community treatment order.
(6) A registered medical practitioner who has made a recommendation under section 9 in respect of a person must not examine the person under this section.”

24 It can be seen that the provisions of the Act authorise:

· The involuntary transport of a patient to an approved mental health service to allow an examination by a registered medical practitioner for the purpose of making a recommendation in the form prescribed by the Act for the initiation of the involuntary treatment of a person, if a request which complies with the provisions of s.9(1)(a) is made and the provisions of s.9A(1) and (2) are complied with; and

· The subsequent making of an order for involuntary treatment which will result in the involuntary admission to an approved medical facility of a person the subject of the order and the involuntary treatment of that person.[3]

(i) Did the Involuntary Transport of the Plaintiff to the Hospital comply with the provisions of the Act?

[3]I am satisfied that upon the documentation with respect to each of these processes being completed in compliance with the provisions of the Act, that the prerequisites under the Act authorising the relevant activity have been met; See Watson V Marshall (1971) 124 CLR 621.

25 On the evening of 3 September 2006, Mr Bolger, in his capacity as a member of the defendant’s CATT Team, completed a request to initiate the involuntary treatment of the plaintiff. I am satisfied that the request which appears at Court Book 278 of exhibit 1 complied in its form and substance with the provisions of s.9(1)(a) of the Act and that this request by Mr Bolger was both reasonable and proper.[4]

[4]My reasons for making this finding are set out in my Judgment and appear under the headings:

‘The Assessment on 31 August’

‘The Request to Transport the plaintiff to the Hospital’

26 On the same evening, Ms Devenish, who was also a member of the defendant’s CATT team, completed an “authority to transport without recommendation” which applied to the plaintiff. I am satisfied that this authority as drawn up by Ms Devenish, who was a mental health practitioner within the meaning of the Act,[5] complied with the provisions of s.9A of the Act in that Ms Devenish:
[5]The evidence of Ms Devenish to this effect at CB 390 – Exhibit 13 is not in issue.

(i) Held the opinion that the plaintiff’s presentation was such that it met all of the criteria set out in s.8(1) of the Act; [6] and

(ii) Confirmed that each of the requirements of s.9A(1)(a) and (b) and (c) were met. [7]

[6]See the evidence of Ms Devenish at CB 393 and 394 – Exhibit 13

[7]CB 271, Exhibit 1

27 Further, I am satisfied that:

(i) The Authority completed by Ms Devenish complied in its form and substance with the provisions of s.9A (1) of the Act;[8]
[8]CB 271, Exhibit 1

(ii) That the request was both reasonable and appropriate;[9] and

(iii) The completion of the authority to transport without recommendation by Ms Devenish complied with the provisions of s.9A(2) in that it was Mr Bolger who had initiated the initial request pursuant to s.9(1)(a) of the Act.

[9]My reasons for making this finding are set out in my Judgment and appear under the heading:

‘The Request to Transport the plaintiff to the Hospital’

28 In the circumstances, I am satisfied that the provisions of the Act which governed the involuntary transport of the plaintiff to the Hospital were satisfied and accordingly that the plaintiff’s transport to the Hospital on 3 September 2006 was undertaken in accordance with the provisions of the Act.

(ii) Did the involuntary admission, retention and treatment of the Plaintiff by the Defendant comply with the Statutory regime of the Act?

29 In order for the plaintiff’s admission for involuntary treatment to the Hospital to comply with the provisions of s.9 of the Act, it is necessary that a recommendation which complies with the provisions of s.9(1)(b) is made by a registered medical practitioner following a “personal examination” of the plaintiff. This examination was undertaken at the Hospital by Dr Natasha Williams. Following that examination, Dr Williams completed a recommendation that the plaintiff receive involuntary treatment [10] and an involuntary treatment order.[11] I am satisfied that each of these documents contain the requisite statements and certifications to make the plaintiff’s admission to the Hospital comply with the provisions of the s12AA of the Act.

[10]CB 173, Exhibit 1

[11]CB 270, Exhibit 1

30 In the course of her evidence, Dr Williams described her findings upon examining the plaintiff [12] and said that her examination, when combined with the plaintiff’s history and the hand over which she had been given by the members of the CATT team upon the plaintiff’s arrival at the Hospital, caused her to diagnose the plaintiff as suffering from a relapse of his psychosis,[13] and to be satisfied that the plaintiff’s presentation complied with each of the provisions of s.8 of the Act.

[12]PCB 231, Exhibit 1

[13]PCB 232-233, Exhibit 1

31 I am satisfied on the basis of this evidence that the examination of the plaintiff by Dr Williams and the order made by her that the plaintiff be admitted for involuntary treatment, complied with the provisions of s.9(1)(b), s.12 and s.12AA of the Act, and as such that the plaintiff’s initial admission and detention for treatment against his will at the Hospital complied with the provisions of the Act.

32 Professor Peter Doherty, a consultant psychiatrist, examined the plaintiff on the morning of 4 September 2006 whilst the plaintiff remained an inpatient of the Hospital. There is no issue as to whether Professor Doherty’s examination of the plaintiff complied with the provisions of s.12AC of the Act in that Professor Doherty was a delegate of the authorised psychiatrist under the Act[14] and that this examination was undertaken within 24 hours of the making of the involuntary treatment order by Dr Williams.

[14]CB 210, Exhibit 1

33 Having examined the plaintiff, Professor Doherty found the plaintiff to be paranoid, psychotic, not insightful and in need of immediate care and treatment,[15] and he confirmed that the plaintiff’s presentation was such that it met each of the criteria for involuntary treatment as set out in s.8 of the Act,[16] and he confirmed the involuntary treatment order made by Dr Williams[17]. In confirming that order I am satisfied that Professor Doherty did so in compliance with the provisions of the Act.

[15]CB 267, Exhibit 1

[16]See the evidence of Professor Doherty at CB 401, Exhibit 11 and his record of examination at CB 267, Exhibit 1

[17]CB 267, Exhibit 1

34 I am satisfied in these circumstances that the plaintiff’s continued detention within the Hospital following his admission on 3 September 2006 satisfied the relevant provisions of the Act and that the plaintiff’s assertion that his involuntary transportation, admission and detention within the Hospital was unlawful and constituted a wrongful detention is not made out.

The claim by the Plaintiff that the Defendant was in breach of the Duty of Care which it owed to the Plaintiff by reason of the manner in which his transport, admission and treatment by the Defendant was managed
The Plaintiff’s Evidence

35 The plaintiff’s evidence-in-chief is contained in Exhibit A, an affidavit sworn by the plaintiff on 31 July 2011. In that affidavit, the plaintiff described:

(i)a medical history of five involuntary admissions to a number of Hospitals between 1995 and 2003 by reason of diagnoses variously described by him as including “paranoid schizophrenia, relapse of paranoid schizophrenia, schizoeffective disorder and on two occasions situational crises due to misconceived family referrals;
(ii)the receipt of a disability support pension since 2003 (during the course of viva voce evidence the plaintiff confirmed that this pension was paid primarily by reason of his diagnosed psychiatric illness);
(iii)being the victim of repeated acts unauthorised access to the unit in which he lived by unknown third parties in which:
·the cold water tap handle of his shower had been interfered with so as to cause it come free from its spindle;
·a CD was stolen from, and was subsequently returned to, the unit;
·a maroon folder containing documents was stolen having been removed from a filing cabinet, and was subsequently returned to the flat in an unaltered state;
·his heater was turned on and lights were turned on in his unit during his absence;
·holes were made in his clothing;

(iv)that he considered the above activities to constitute “community based harassment or stalking which he described as being … “a common strategy employed by people to destroy the lives of targeted individuals. Harassment targets who have reported experiences have been routinely judged as being delusional.”
(v)that in July and August 2006, he had made reports to the Flemington Police Station of the “petty sabotage” to which he was being subjected by reason of the pattern of break ins to his unit which reports were not appropriately managed or followed up;
(vi)that on 26 August 2006, he was assaulted whilst attending the Firey Stone Bar Restaurant at 87 Flinders Lane, Melbourne and that this assault was reported to the police who refused to take any action in the matter;
(viii)that in August 2006, he had met with members of the Victorian Government Department of Housing for the purpose of enquiring as to whether a master key existed for his unit which allowed unauthorised persons to gain access to the unit, and that by reason of the fact that at that meeting he presented with facial injuries which had been caused by his assault on 25 August 2006, “the Ascot Vale housing staff reported that I had caused facial bruising to my face”;[18]
(ix)that on 31 August 2006, he received a telephone message form Mr Bolger informing him “that Constable Shane Davies from the Flemington Police had seen me with two black eyes and that they were concerned for my welfare”, that he was incensed by this message having regard to the lack of support which he had received from the Flemington Police and “as the result of this ridiculous message, I walked to the Waratah Clinic, asked to speak with Brendon Bolger and told him in no uncertain terms that I did not want to see him and that I would be seeing a solicitor”;
(x)that on 2 September 2006 he voluntarily attended The Royal Melbourne Hospital having received a telephone message “from the ECATT clinician, Brendon Beaston, at the Royal Melbourne Hospital. Brendon’s message threatened that if I didn’t come into the Hospital the CAT Team would come and get me” and upon being asked by Mr Beaston to remain at the Hospital and wait for the CAT Team to arrive, “I calmly handed him my business card and informed him I would be open to further discussion if carried out in a civil manner, in other words no threats”;
(xi)that on 3 September 2006 as the result of an arrangement made between the plaintiff and Mr Bolger, Mr Bolger together with Ms Devenish, together with two police officers from the Flemington Police Station, attended the plaintiff’s unit where “a short discussion ensued and I agreed to travel with police to The Royal Melbourne Hospital for assessment”;
(xii)that on arriving at The Royal Melbourne Hospital on the evening of 3 September 2006 he was taken to the John Cade Psychiatric Unit where upon being assessed by Dr Natasha Williams, “I was informed that I was to remain in Hospital involuntarily. At this point I became slightly angry, walked from the room, but returned shortly after knowing that I could not do anything because recent events had told me that I had been stripped of all basic human rights”;
(xiii)that on 4 September 2006 he was assessed by Associate Professor Peter Doherty and was advised that he would remain in Hospital as an involuntary patient;
(xiv)that “sometime between 3 and 4 September 2006 I was given three injections. The manner by which I was administered these injections was one of the most frightening experiences of my life. It began when I was surrounded by code grey and nursing staff and was told I needed to go somewhere. I was then aggressively marshalled into a small white stark, sterile room with a small, white single bed. At this point I did not have any idea what was going to happen. I was then told to pull down my trousers and kneel before a small white bed. Following this, one of the people in the room told me in a malicious tone of voice that he was going to give me three injections. Not before long I got the feeling I was becoming the subject of some type of execution ritual. Soon after the injections, I lost consciousness and came in and out of consciousness over the next two days.”
(xv)That on 5 September 2006, “I can vaguely remember asking nursing staff why I was given the injections. Further to this I can recall a heated verbal exchange between myself and Nurse Meijerink which was quickly resolved when Nurse Meijerink threatened that I would get another injection if I did not behave. At this point it became evident that for me to continue with any type of antagonism towards staff would be fraught with danger. I concluded their attitude towards me was not consistent with treatment expected in a place of healing, care and dignity.”

[18]It is clear from the plaintiff’s evidence that this report was made to the Waratah Clinic, a division of Melbourne Health which administers and operates the Hospital and was subsequently passed on to be dealt with by Brendon Bolger.

36 At face value, even before the plaintiff’s evidence was tested by cross‑examination, I am of the opinion that some of the statements made by the plaintiff in his evidence-in-chief raised issues as to the plaintiff’s reliability if those statements were not adequately explained and justified. In particular, I am of the opinion that:

(i) The statements made by the plaintiff in paragraph 9 of his affidavit that “someone had unimpeded access to my unit” and had employed that access for the purpose of “community based harassment or stalking” which the plaintiff described as being “a common strategy employed by people to destroy the lives of targeted individuals. Harassment targets who have reported experiences have been routinely judged as being delusional”; and

(ii) The description by the plaintiff of the manner in which the injection referred to in paragraph 23 of his affidavit was administered, by reason of the extreme and florid nature of position which it presents

fall into that category.

The Plaintiff’s Cross-examination

37 In the course of his cross-examination:

(i) The plaintiff agreed that he had been an in-patient at the Footscray Psychiatric Hospital in 1995 where he had been admitted following the failure of his business and where he had been treated an involuntary patient on the basis of a diagnosis that he presented with paranoid schizophrenia.[19]
[19]T 132

(ii) The plaintiff agreed that in May 1997, he had been admitted to the Lakeside Psychiatric Hospital at which time he was “fighting with his wife”, and that he remained as in-patient at the Lakeside Hospital between 26 April and 2 May 1997 at which time he was discharged.

(iii) The plaintiff accepted that in 1997 he believed that the Mafia may have had an interest in him and that people with whom he was interacting may have been associated with the Mafia.

Q:“Why did you think the Mafia were after you?---
A:Because I was involved in this software project maybe, you know. I'm not quite sure.”[20]
[20]T 143

·When asked as to his reason for thinking that people with whom he was dealing may have been associated with the Mafia, the plaintiff said:
Q:“What was the basis for that belief?---
A:What’s the basis for that belief, that maybe they were?
Q:Don’t make it up. What was the basis for the belief?---
A:No, I'm not making it up. They were from Southern European descent.

Q:I see – right?---
A: No, that’s all I can say. I mean, you know.”[21]
[21]T 147

(iv) The plaintiff agreed that in May 1997 he had reported to members of a CATT team that he was concerned about his contact with the Mafia and at that time that he may have said that the Mafia were blackmailing him.[22] He agreed that he had expressed concerns to the members of that Team that strangers in the street might have been following him, that his telephone had been bugged, that his father-in-law was capable of controlling his mind and had the ability to place thoughts into his head through the process of “astral travel”, and he said that at this time his concerns about the Mafia were in his view real and not part of any symptom of mental illness, and that he held the belief as at May 1997 that there was nothing wrong with him and he was not in need of medication.[23]
[22]T 156
[23]T 156-157

(v) The plaintiff said that in 1997 he held the view that his wife had manipulated his admission to Hospital (where he had been an inpatient between 26 April and 2 May 1997), and that it was likely that his view as to his mental state at that time would have been that there was no basis for his admission to Hospital because he was psychiatrically well.[24] He described his belief that his wife’s motivation in acting in this manner involved an attitude “’to put it simply, I'll fix him. I'll ring the CATT team and say he’s gone off his head again’, so that was my position”.[25]
[24]T 160
[25]T 161

(vi) The plaintiff agreed that in 2000 he had been assessed by the CATT team attached to the Waratah Area Mental Health Service (the Waratah CATT Team). He said that this assessment occurred following a report by his father that the plaintiff’s mental state had been deteriorating and that he had “manhandled his wife … who had taken out an intervention order”.[26] He agreed that at that time he had denied having any problems and did not feel the need to see anyone.[27] He said that he advised the members of the CATT team that the Mafia might be after him at that time[28] and that it was his belief that he at that time did not require medication and that exercise and food were enough to keep him healthy and fit.[29]
[26]T 174
[27]T 175
[28]T 175
[29]T 176

(vii) The plaintiff agreed that in March 2000, he had been admitted as an involuntary patient to the Hospital, having provided a history at that time that “Mafia or other evil persons were creating situations in his life that are causing problems for him”, that he believed people had mental powers that could make these things happen to him and that he believed that his supervisor at work had been affecting him with bad thoughts telepathically.[30] The plaintiff explained that he would replace the word “thoughts” with the word “feelings” or something like that.[31]
[30]T 178
[31]T 178

(viii) At that time, the plaintiff said that he had been transferred from The Royal Melbourne Hospital to the Ballarat Base Hospital where he was an inpatient between 8 March and 20 March 2000 and that at the time of his discharge from the Hospital he had been diagnosed as suffering from a “situational crisis, there was no mention of mental illness by Dr Varma”.[32] The plaintiff said that four days after his discharge from the Ballarat Base Hospital, he had been taken by his brother to The Royal Melbourne Hospital. Whilst the plaintiff had no recollection of this presentation to the Hospital, he agreed that the medical record recorded the fact that he had described feeling an inability to relax, feeling “racey” and agitated. Whilst the medical record at that time contains a diagnosis of “paranoid schizophrenia”,[33] the plaintiff accepted that it was likely that he had denied the presence of any illness at that time and that he did not believe that he required medication.
[32]T 240
[33]CB 250, Exhibit 1

(ix) The plaintiff agreed that in June 2000, he attended the Goulburn Valley Mental Health Service, having been taken to the Hospital by the police, where he was admitted as an involuntary patient. He agreed that he was an inpatient at that service for a period of nine days and said that at the time of his attendance at this Hospital, he did not have any mental illness.[34]
[34]T 252-253

(x) The plaintiff said that in January 2002, he had presented at The Royal Melbourne Hospital at the suggestion of his general practitioner, Dr Ng, where he was assessed by the ECATT Team,[35] at which time he had been assessed as not being currently psychotic.
[35]The Emergency CATT team of The Royal Melbourne Hospital

(xi) The plaintiff accepted that in February 2003, he had been admitted to the Broadmeadows Psychiatric Hospital, after having “chopped up a car with an axe”.

(xii) The plaintiff said that this incident had occurred in circumstances in which he had lost his job with a courier firm after having complained about the inappropriate system employed by the firm in allocating courier work, and that the car which he had attacked was his own vehicle which was, at that time, the subject of a hire purchase arrangement.[36] He said at the same time, he had been involved in “a very unpleasant experience with police in terms of the break-in” in which he described involving the following:
[36]T 272-273

· someone had entered the plaintiff’s unit and had removed the spare keys of his car;

· having parked his car in a car park at the back of Puckle Street, the plaintiff had returned to the car park to find this car to be missing;

· the plaintiff had been advised by the police a few days later that his car was parked in Puckle Street and that at about the same time he had found his keys to have been returned to the place where he normally kept them, namely within a red tartan pencil case. The plaintiff said that he had concluded at that time “without doubt, someone had taken these keys and put them back”,[37] explaining that at the time he found the whole circumstances to be very confusing.[38]
[37]T 280
[38]T 280

(xiii) The plaintiff agreed that at around 2002, he had come to the conclusion that perhaps he did suffer from a mental illness, explaining:

A:“You know, I became a bit more accepting of the fact that I had a mental illness. That was my thought process around this time or maybe a bit later, I think.
Q:A bit later than April ’03 you were beginning to accept that there might be a psychiatric problem?---

A: Yes.”[39]
[39]T 284

(xiv)The plaintiff said that in May 2003, he had been prescribed psychotropic medication and as at May 2004, he was complying with his medication regime.
(xv)The plaintiff said that in December 2003, he had enrolled in the Wing Chung Academy to commence training to become an instructor in the martial art of Wing Chung.[40] He said that in December 2005, as the result of a physical altercation between himself and another student, the plaintiff had been suspended from that academy and the plaintiff accepted that this suspension had occasioned a significant blow to his establishment of a business using the Wing Chung name.[41]
[40]Which the plaintiff explained was a form of Martial Arts in the style of Kung Fu and which involved both physical and spiritual elements
[41]T 284
(xvi)The plaintiff said that during 2006, he had developed a business plan which involved pursuing a business in instructing in the art of “Wing Chung Kung Fu”,[42] that he had approached the Victorian Department of Justice for the purpose of the Department considering whether it would adopt the business plan which he had developed, namely the utilisation of the martial art of Wing Chung in the rehabilitation of offenders. The plaintiff said that he regarded the way in which the Department of Justice had assessed his proposal as involving discrimination against him and accordingly that he had made a formal complaint about this to the Equal Opportunity Commission in January 2006. He said that this complaint had ended in him making a further complaint against the Commission as to the way in which his initial complaint had been processed by the Commission.[43]
[42]T 289
[43]T 290
(xvii)The plaintiff said that in July 2006, he had made a report to Constable Sorbian at the Flemington Police Station that an unknown person or persons had entered his apartment and had removed a maroon coloured folder from the bottom drawer of a filing cabinet, which folder had subsequently been returned by unknown means a few days later. The plaintiff said that he had reported to Constable Sorbian that, at the time at which the folder had been returned, nothing further had been stolen from his apartment but that a heater within his apartment had been turned on.[44] He said that he had also reported that on 26 July in the absence of any signs of forced entry, unknown persons had gained entry to his vehicle and had stolen a copy of a CD from the passenger seat of the vehicle[45]
[44]T 291-292
[45]T292
(xviii)The plaintiff agreed that he was unable to explain the method by which the unknown persons had entered his flat or his vehicle and that on 27 July 2006, there had been a further entry into his flat which involved nothing being stolen but a light having been turned on.[46] The plaintiff agreed that, whilst Constable Sorbian had suggested to him that aspects of his report were unusual, he had refused to acknowledge that fact.[47] The plaintiff also agreed that Constable Sorbian had advised him that he did not consider a crime had been committed.
[46]T 292
[47]T 293
(xix)It was put to the plaintiff that on 27 July 2006, he had attended a friend’s restaurant and had been verbally abusive to the owner of the restaurant. Whilst the plaintiff said that he could not remember the date upon which that incident occurred, he accepted that an incident of this type had occurred, but described the incident as being a trivial one which involved nothing serious.[48]
[48]T 296
(xx)The plaintiff said that as July 2006, he had formed the view that someone must have been in a position to gain access to his flat via a key, and that this belief had led him to make enquiries of the Ministry of Housing as to whether a master key existed which allowed access to his flat. He said that on 8 August 2006, he had written a letter to the Minster for Housing enquiring as to whether a master key was available for his flat[49] and that he had advised the Minister that he was waiting upon a modification to his tenancy agreement which would enable him to change the locks on the flat, and that the feeling of insecurity which he was experiencing had caused him undue stress and had occasioned the loss of time which had meant he had been unable to “carry out the business development activities”.
[49]Exhibit 5
(xxi)The plaintiff agreed that on 8 August 2006, he had telephoned the Flemington Police Station and had reported to Constable O’Brien that a burglary had occurred on that day at his premises in the course of which a number of documents had been stolen from the flat. He said that at the time of the burglary, there had been no signs of forced entry and that all doors and windows of the flat were locked. The plaintiff accepted that at the time at which he made this report he had been asked by Constable O’Brien whether it was possible that he had lost the documents and that in the course of his conversation with Constable O’Brien:
Q:     “What you do recall is that you screamed down the phone at Constable O’Brien using the following words, ‘I'm gonna come down there and grab you by the throat’?---
A:     Yes.
Q:     Why did you say that to him?---
A:     Because I was angry.
Q:     Why were you angry?---
A:     Because of the service that I had received from Flemington Police up until that point which was ---
Q:     Up until the point you made the report of the burglary?---
A:     Yes.
Q:     And the Constable said to you, ‘Are you sure you didn’t misplace it’?---
A:     Yes.
Q:     And you responded that you thought a burglary had occurred?---
A:     Yes.
Q:     At that point in time did you scream down the phone at O’Brien saying that you’re going to come down there and grab him by the throat?---
A:     Yes, but.
Q:     Why was that an appropriate reaction in the circumstances we have just discussed, Mr McWhinney?---
A:     Because I hadn’t received any service from Flemington Police whatsoever.”[50]
[50]T 301 – 303

(xxii) The plaintiff agreed that the time at which he had made this statement he was furious[51] and that he had subsequently attended the police station and, as he walked in, had said to Constable O’Brien, “Nick O’Brien. I've come here to grab you by the throat”.
[51]T 305

(xxiii)The plaintiff explained that in making this statement, “I was trying to be humorous about it”, but accepted that at the time he was upset and angry.[52]
[52]T 307

(xxiv) It was put to the plaintiff:

Q:     “Constable O’Brien went inside and came out with the sergeant of the police station?---
A:     Yes.
Q:     … the sergeant that came out was Sergeant Trainor?---
A:     That’s correct.
Q:     He went over the details of what you’d reported?---
A:     Yes.
Q:     At that time, when you were interacting with Sergeant Trainor, you were in an agitated state?---
A:     Yes.
Q:     You were fixated on Constable O’Brien, weren’t you?---
A:     Yes.
Q:     What does that mean, Mr McWhinney?---
A:     I was looking at him in a manner that one would look at a bludger.
Q:     I missed what you said?---
A:     I was looking at him in a manner that one would look at a bludger.
Q:     So you were staring at him?---
A:     Yes.
Q:     And constantly staring at him?---
A:     Well, yes.”[53]
[53]T307-308

(xxv) The plaintiff said that having made this report, Sergeant Trainor had advised him that the police were not satisfied that an offence had been committed.[54]
[54]T 309

(xxvi) The plaintiff said that on 8 August having spoken with Constable O’Brien and Sergeant Trainor, he had attended the police watch house either at Moonee Ponds or at Essendon (the watch house) to register the fact that his flat had been broken into. It was put to the plaintiff that the police report as to this attendance suggested that he appeared intoxicated to which the responded, “Yes, I'd had a few beers.”[55]
[55]T 323; I interpret this response by the plaintiff to suggest that he was similarly affected at the time he confronted Constable O’Brien and I note that Sergeant Trainor described the plaintiff as being agitated erratic and unstable at that time. Exhibit S

(xxvii) The plaintiff said that two days later, he had returned to the watch house to follow up the investigation of the burglary at which time an arrangement was made for a police officer to attend his unit. He described this attendance as occurring on 11 August at which time he advised the officer that there had been a number of burglaries at his unit between 26 July and 8 August 2006 in which documents had been removed from his filing cabinet, a tap handle had been removed from its spindle, and a number of faxed documents had been removed from a couch in the lounge but at that time nothing else had been disturbed. He agreed that he told the investigating officer that he suffered from a mental illness and that he may have mentioned he was suffering from schizophrenia.[56]
[56]T 319-324

(xxviii) The plaintiff agreed that on 25 August 2006, he was involved in an incident in which he was assaulted whilst at the Firey Stone Bar in Flinders Street. The plaintiff’s position with respect of this incident was that a crowd controller at the bar asked him to leave and that the next thing he could remember was, “being out on the footpath”.[57] It was put to the plaintiff that the incident arose by reason of the plaintiff being ejected from the premises by reason of the fact that he had stolen a drink from another patron’s table, and that the plaintiff had taken “the first swing” at the crowd controller who had responded in self-defence. The plaintiff agreed that allegations of this type had been made by the manager of the bar in question but the plaintiff denied these allegations.
[57]T 328

(xxix) The plaintiff said that following the incident in the Firey Stone Bar, he had attended the Melbourne East Police Station for the purpose of reporting the incident. He agreed that at that time, he was argumentative and aggressive towards the police and that he had been affected by intoxicating liquor.[58]
[58]T 329

(xxx) The plaintiff agreed that on 13 September 2006, he was advised by Senior Constable Toohey:

Q:     “… that the police would not proceed with the prosecution of the people who you claimed had assaulted you?---
A:     Yes.
Q:     You said this to him. You stated that you would be willing to embellish any part of your statement to ensure that a prosecution was proceeded with?---
A:     Embellish? I did use the word embellish, yes, but not to ensure that a prosecution was proceeded with, that – yes, I.
Q:     You agree with that, do you?---
A:     I could embellish the details that I provided, Mr – Constable Toohey with.”

It was put to the plaintiff:
Q:     “Well you know embellish means, don’t you?---
A:     Well – to beautify, I mean to.
Q:     Mr McWhinney, you know it means to exaggerate – exaggerate. Overstate the facts?---
A:     Yes.
Q:     For the purposes?---
A:     Yes. But this business for the purposes to ensure a prosecution, they are not my words and that was not my intention to use that word to create, to ensure a prosecution.”[59]
[59]T 336 – 338

(xxxi) The plaintiff subsequently explained that it had not been his intention to mislead Constable Toohey by not necessarily telling the truth but rather that it had been his intention to “provide more information about exactly what happened”, explaining: “Well, at that point in time I don’t think I was saying I was prepared to make up a whole lot of stuff about what went on”. The plaintiff agreed, however, that one application of the word “embellishment” was to say something which was not accurate.[60]
[60]T 342

(xxxii) The plaintiff said that at the end of August 2006, he remained very concerned about his belief that people had broken into his unit on a number of occasions[61] and that on 29 August he had attended an interview with representatives of the Ministry of Housing to discuss the issue as to whether a master key existed which would have allowed unknown persons to gain entry to his flat. The plaintiff said that at the time at which he attended this meeting, he was feeling pretty low[62] and he accepted that whilst the Ministry of Housing people advised him that if he wished to, he could arrange for new locks to be fitted to his door, he had declined that proposition, indicating that he wished to conduct his own investigation as to who could be entering his premises.[63]
[61]T 344
[62]T 348
[63]T 349

(xxxiii) The plaintiff accepted that at the time at which he had attended the above meeting he was affected by facial bruising caused by the incident which had occurred at the Firey Stone Bar. In describing his response to the enquiry made by the representatives of the Ministry of Housing as to how he had come to sustain his facial injuries, the plaintiff said “I think I said something along the lines that it was my business or my concern and I wasn’t there to talk about that issue. I was there to talk about the security of my unit.”[64]
[64]T350

As to this meeting, it was put to the plaintiff:

Q:     “As at 29 August 2006, you had received no response to your letter to the Minister dated 8 August 2006, had you?---
A:     That’s correct.
Q:     You had made an inquiry in that letter about whether there was a master key which provided access to your flat?---
A:     Yes.
Q:     As at 29 August 2006, you still wanted to know the answer to that question, didn’t you?---
A:     I was feeling pretty low at that point and I was more concerned about the security of my flat.”[65]
[65]T 351

As to his behaviour during the meeting, the plaintiff was asked:

Q:     “Were you agitated, Mr McWhinney, because you had a strong belief at the time of the meeting that the office of housing was indeed using a master key system and that was the way in which people were gaining access to your premises?---
A:     No.
Q:     Did you have any belief that that might be the case?---
A:     No.
Q:     Did you have a belief that the Ministry of Housing people were utilising a master key system?---
A:     No. As I mentioned earlier on, I went there to establish whether there was a master key system in operation for the block. That was the first step.
Q:     I suggest to you that in the course of the meeting you kept on insisting that the office of housing was using a master key so that unknown people were entering your premises?---
A:     I do not accept that.”[66]
[66]T349 This evidence is not challenged by the plaintiff – notwithstanding the conflict between this evidence and that of the plaintiff’s evidence on this issue not to be persuasive given the serious nature of the problem which he was investigating about which no satisfactory explanation had by that stage emerged

The plaintiff’s evidence in this regard is disputed by both Marilyn Graver and Rachel O’Brien, who were part of the group from the Ministry of Housing who met with the plaintiff on 29 August 2009, and who comment:

“Mr McWhinney’s demeanour during the interview was very agitated and he kept on insisting that the office of housing was issuing a master key to unknown people to enter his premises and remove his personal documents”[67]

Analysis as to the evidence relevant to the Plaintiff’s medical history and general behaviour during the period 1995 to 29 August 2006

[67]CB 56, Exhibit V

38 There is no issue that during the period in question the plaintiff was the subject of a number involuntary admissions to various Hospitals on psychiatric grounds and that for most part during the period in question the plaintiff did not accept that he was suffering from a psychiatric condition.

39 Neither is it in issue that:

(i) The plaintiff held a genuine belief at the various points in time that his behaviour was being monitored by the Mafia and that his wife and other members of his family were making unjustified reports to various Hospitals as to the stability of the plaintiff’s mental state;

(ii) On a number of occasions during 2006 the plaintiff had made reports to the police of what could only, in my opinion, be described as a bizarre pattern of repeated unlawful entries into his flat which involved the removal and then subsequent replacement of various items and the interference with the plaintiff’s property in a trifling manner;

(iii) The plaintiff had in August 2006 been involved in a physical altercation at a bar, in the course of which he had sustained facial injuries and had shortly thereafter attended a police station where he had been argumentative and aggressive towards the police. [68]

(iv) The plaintiff had in August 2006 verbally threatened a police officer and had within a short period after making the threat personally attended the police station and repeated the threat;

[68] In my opinion this pattern of behaviour by the plaintiff during 2006 could not be regarded as indicating that his mental state was settled during this period.

40 It is put by the plaintiff that for most of the period in question, he did not consider himself to be suffering from any form of psychiatric condition and that his pattern of behaviour following his taking up of Wing Chung karate should be seen in a more favourable light to his pattern of behaviour prior to that time.

41 Not withstanding the plaintiff’s position that his medical history involved him in being exposed at various times to the misdiagnosis of the fact that he was suffering from the effects of a psychotic illness which required management by inpatient treatment on an involuntary basis, I am of the opinion that the plaintiff’s medical history when considered in context of the report of Dr Alan Jager dated 1 November 1008 in which Dr Jager opines:

“The plaintiff’s pre-existing and continuing condition is one of Bipolar I Disorder with a differential diagnosis of Schizoaffective Disorder, a similar illness but with a worse diagnosis with more psychotic features than Bipolar I Disorder. His current condition is not due to any effects of the admission of September 2006.

The plaintiff has untreated Bipolar I Disorder which is a serious mental illness. It carries with it an elevated risk of suicide and moderately severe psychosocial problems. Whilst he remains untreated he is at risk of episodic periods of mania and depression and Hospitalisation”[69]

presents a compelling case in support of the fact that the plaintiff suffers from an ongoing serious psychiatric disorder which at times is exacerbated so as to require intensive management in the from of hospitalization.

[69]PCB 25-26 Exhibit I

42 I am satisfied that the evidence establishes that it is likely that, from at least October 2003 (when the plaintiff reported the theft of the spare keys of his car and the subsequent theft of his vehicle), and continuing through to the time at which the plaintiff makes his claim against the defendant in this proceeding the cause of:

(i) The plaintiff’s genuinely held beliefs that he was the victim of repeated break-ins, together with

(ii) the plaintiff’s pattern of erratic behaviour during 2006;

arose by reason of the plaintiff suffering from a continuing mental illness, a significant feature of which involved paranoid and delusional thoughts, which I am satisfied most likely involved the plaintiff holding a genuine belief that he was the victim of actions by third parties which in fact were not occurring.

43 In making this finding, I take into account:

(i) the plaintiff’s pattern of behaviour during the period in question;

(ii) the unchallenged evidence of Dr Jager to which I have referred;

(iii) the evidence of Dr Lester Walton, a consulting psychiatrist, who in the course of his viva voce evidence opined:

“Persons with psychotic illnesses, particularly schizophrenia, are more susceptible to interpersonal stress, conflict in the home, that sort of thing, but any type of stress can be a relevant triggering factor of future episodes;[70] that paranoia involved the distrust of others was a condition which could wax and wane over time;[71] and that a person presenting with paranoid delusions involved:
[70]T 823
[71]T 823-824
A:     … not necessarily a belief with bizarre content, though sometimes the beliefs are odd, but the hallmark feature of a delusion is the fixity with which it is held.
Q:     Sorry, the ________[indistinct]?---
A:     The strength of the belief. It is virtually impossible to engage a person who is deluded in rational discussion about, say, whether they might be wrong about it. It doesn’t matter what you say, they will still believe it.
Q:     So it’s possible that they could be functioning quite normally in every aspect of their lives?---
A:     Well, paranoid psychosis is a serious disorder and would usually be accompanied by at a minimum distress on the part of the sufferer …
Q:     Is it possible for somebody to have this paranoid psychosis and still continue to function in a reasonable manner in their everyday life?---
A:     That’s possible. The way I would put it is that there may well be areas of psychological functioning which are relatively preserved and normal.”[72]

(iv) the fact that the plaintiff asserts that he continues to be the victim of a pattern of repeated unlawful entries into his unit which occur on a weekly basis, which involve events such as his pumice stone being relocated from its usual position or holes being made in various items of clothing [73].

[72]T 789-799; Dr Walton’s opinion in this regard is consistent with the assessment of Dr Jager which describes the plaintiff as suffering from a serious illness which manifests itself in fixed false beliefs and moderately severe deficits in judgments See CB 26, Exhibit I

[73]T455-462

44 It follows that the plaintiff’s mental state as at 2006 clearly raises questions as to the reliability of the plaintiff as a witness in recounting his perception of the way in which his involuntary transfer and admission to the Hospital was managed in September 2006 and the way in which he was treated and assessed, both immediately prior to and during that admission.

45 Equally, it is my opinion that my findings as to the plaintiff’s mental state in 2006 support the accuracy of the assessments made by the various doctors and nursing staff employed by the defendant during this period as to the fact that the plaintiff was presenting with a serious mental disorder which was responsible for a pattern of deterioration in the plaintiff’s behaviour.

46 For these reasons:

(i) I am satisfied that, whilst the plaintiff has a strong belief in both the veracity and accuracy of the evidence given by him as to the inadequacy and inappropriateness of his assessment and management by the servants and agents of the Hospital during the period between 31 August 2006 and 11 September 2006,[74] the reliability of the evidence given by the plaintiff as to the events which occurred during this period is extremely questionable having regard to the fact that it is likely, in my opinion, to be influenced by perceptions which are clouded and by the paranoia from which he was suffering.

(ii) I am of the opinion that I should give little weight to the views expressed by the plaintiff as to his management by the medical and nursing staff of the Hospital or to the evidence given by the plaintiff as to his experiences during that management when I assess the adequacy of that management, particularly if the plaintiff’s evidence is in dispute, or is not the subject of corroboration to some degree, or is such that it seems unlikely when considered on the basis of common life experience.

[74]The date upon which the plaintiff was discharged as an involuntary patient of the defendant;

CB 264, Exhibit 1

47 Adopting that approach, I now turn to the analysis as to whether in its management of the plaintiff’s:

(i) transport to the Hospital;

(ii) admission to the Hospital; and

(iii) treatment within the Hospital;

the defendant was in breach of the duty of care which it owed to the plaintiff.

The evidence as to his assessment, admission and management by the defendant during the period between 31 August 2006 and 10 September 2007
(1) The assessment on 31 August 2006

48 It is not in issue that the message from Mr Bolger which had resulted in the plaintiff’s attendance at the Waratah Clinic on 31 August 2006 had been preceded by a report made by the plaintiff’s brother on 27 July 2006 that he was concerned that the plaintiff was unwell, as he had called into a friend’s restaurant, verbally abused the friend and was irritable and dishevelled.[75]

[75]CB 175,Exhibit 1

49 It follows, in my opinion, given this report made by the plaintiff’s brother, that the clinic was justified in seeking to make contact with the plaintiff to assess the state of his mental health at that time.

50 Given the nature of the report received by the clinic on 29 August, stating;

(i) that the plaintiff had presented to police on a number of occasions making reports of thefts which the police believed were not justified; and

(ii) that there was a suspicion that the plaintiff was presenting with self inflicted injuries;[76]

I am of the opinion that Mr Bolger was clearly justified in seeking to assess the plaintiff to determine the state of his mental health at that time regardless of whether the report of 29 August was accurate in respect of the statement made that the plaintiff’s injuries were self inflicted.

[76]CB 173, Exhibit 1

51 In his closing submission the plaintiff asserted that there was an obligation imposed upon the defendant to verify the information which had been provided to it by the members of police force and the employees of Ministry of Housing. To impose such an obligation would in my opinion be unreasonable given the work load which would be involved and the limited means available to conduct the enquiries which the process of verification would necessarily require. In the absence of some expert support for such a proposition I do not find the plaintiff’s position as to this issue to be persuasive.

52 It is the plaintiff’s evidence that on 31 August 2006 he received a telephone message from Mr Bolger to the effect that Constable Shane Davies from the Flemington Police had seen the plaintiff presenting with two black eyes, that the police were concerned for his welfare, and that the plaintiff should return Mr Bolger’s call:[77] (see also the plaintiff’s evidence-in-chief[78]). The plaintiff said that whilst he was reliant on his memory for the purpose of giving evidence as to what Mr Bolger said in the course of his recorded message, his memory was corroborated by a diary note as to the conversation with Mr Bolger.

[77]T 354

[78]CB 13, Exhibit A

53 It is the plaintiff’s position that the message left by Mr Bolger incensed him, having regard to its total lack of credibility, given the plaintiff’s perception that there had been a complete failure by Constable Davies and the Flemington Police to act appropriately upon his repeated complaints as to the break-ins which were occurring at his unit. It is the plaintiff’s position and that it was his understandable reaction to this message which was responsible for his behaviour when he attended the Waratah Clinic which involved anger, his pacing around the clinic, his speaking in a raised voice and his advising Mr Bolger that he did not wish to speak to him and he intended to seek legal advice.[79]

[79]T 354-356

54 There is no real issue between the plaintiff and Mr Bolger as to the plaintiff’s presentation to the Clinic on 31 August 2006.

55 Mr Bolger described receiving a phone call on 31 August 2006 from the receptionist at the Waratah Centre that “a gentleman in an agitated state was demanding to see me”[80] and that on arriving in the foyer, the plaintiff confronted him in an agitated manner:
[80]T 645

A:“… demanding to know why I'd rung him and when I suggested it was the police”, ‘So it was the police who dobbed me in’ and I asked if he would speak to me and he said under no circumstances and he left the building straight away.
Q:You say he was agitated?---
A:Yes.
Q:Was there anything else about him that you noticed?---
A:He was red faced. He – I mean, the agitation he was pacing and he was shouting. His voice was quite raised and I took it – I took – I was anxious about when he left the building in such a hurry, I was anxious about what his intentions were then and given that I had nominated the police were the informants, my immediate concern was that he might be making a bee line for the police.”[81]

[81]CB 380, Exhibit 10

56 Mr Bolger said that the leaving of a message of the type about which the plaintiff complained he had received from Mr Bolger was both unnecessary and probably counter productive, explaining

“They’re receiving a phone message, they’re already mistrustful of the world, they’re already mistrustful of probably even identifying yourself simply as a member of a CATT team. They may not have believed such a thing. So to mention a person’s name, to mention specific detail, would almost certainly cause the person to lose their grip on reality even more. It would be the very last thing in the world you would do would be leave such a message.”[82]

[82]T 672

57 The evidence given by Mr Bolger on this issue makes good sense, and I can see no reason why Mr Bolger would have adopted the approach contended for by the plaintiff in leaving his message that the plaintiff should contact him. Given my findings as to the lack of reliability in the plaintiff’s evidence I am not satisfied on the balance of probabilities that the plaintiff has made out the position for which he contends that he received a phone call from Mr Bolger which contained information which was inappropriate, that he was incensed by that message, or that it was the content of that message which was responsible for his aggressive behaviour at the Waratah Clinic on 31 August 2006.

58 Equally, given the two reports which predated the plaintiff’s presentation at the Clinic, and his behaviour at the time of that presentation, I am satisfied that Mr Bolger was justified in being concerned that the plaintiff had ”seriously relapsed in his Illness.[83]

[83]CB380, Exhibit 9

(2) The request to Transport the plaintiff to the Hospital

59 There is no issue that on 2 September, the plaintiff attended the Hospital having received a message from Mr Brendon Beaston. It is the plaintiff’s position that at the time of this attendance he considered:

·that there was nothing wrong with his psychiatric state of health;
·that he did not require any form of assessment;
·that he did not require any form of treatment.[84]

[84]T 362

60 Neither is there any issue that upon attending at the Hospital, the plaintiff was asked to remain at the Hospital to allow members of the CATT team to speak to him but that he left the Hospital before that process had taken place.

61 Whilst an issue arises as to the content of the message left by Mr Bolger on the plaintiff’s phone on 3 September 2006, given that the plaintiff makes no allegation that the content of the message which he alleges was left for him by Mr Bolger in any way influenced his behaviour at the time at which he was assessed by Mr Bolger and Ms Devenish on the evening of 3 September 2006, it is not necessary for me to make findings as to the content of that message.

62 There is no issue that as the result of a message from Mr Bolger the plaintiff contacted the Hospital and was subsequently rung by Ms Devenish. Neither is it in issue that in the course of the latter telephone conversation the plaintiff:

(i) disclosed that he had thoughts that people were entering his flat and removing things from under his pillow;[85]
[85]T 371 – 373

(ii) made reference to the fact that he knew Kung Fu And that that he “could use it”; [86]

and that at this time the plaintiff was agitated because he was concerned that he may be admitted to the Hospital against his will notwithstanding that there was nothing wrong with him and that there was no basis for such an admission.[87]

[86]T 381

[87]T 374

63 Nor is there any issue that at approximately 7.00 pm on the evening of 3 September, Mr Bolger and Ms Devenish, in the company of two police officers, attended the plaintiff’s flat for the purpose of assessing him and that a conversation took place within the plaintiff’s flat during which the plaintiff was mildly agitated.[88]

[88]T 378

64 Whilst there is a dispute between the plaintiff and Mr Bolger and Ms Devenish as to where within the plaintiff’s flat this conversation took place, the plaintiff accepts:

(i) that he probably advised Mr Bolger that he would not speak to the CATT team in any circumstances; and

(ii) that he may have told Mr Bolger that he was not suffering from any form of psychiatric illness.[89]

[89]T 380

65 It is not in dispute that during the conversation between the plaintiff and Mr Bolger at his flat on the evening of 3 September 2006, the plaintiff was making a note of the names of his visitors for the purpose of recording the event of his expected involuntary admission. Given the plaintiff’s belief that there was no justification for him being taken to Hospital,[90] I have no hesitation in accepting as probable the description by Mr Bolger and Ms Devinish of the plaintiff’s behaviour at this time.

[90]T 382

66 In the context of:

(i) The report by the plaintiff’s brother on 27 July 2006 which raised a concern that the plaintiff was relapsing in his illness;[91]
[91]CB 379, Exhibit 9

(ii) The plaintiff’s behaviour when he presented at the Waratah Clinic on 31 August 2006 which raised concerns for Mr Bolger that the plaintiff had seriously relapsed in his illness;[92]

I find it to be perfectly reasonable that Mr Bolger should have formed the view on the evening of 3 September that it was necessary to assess the plaintiff and that for the purpose of this assessment, in order to ensure everyone’s safety, the assessment be undertaken in the presence of police officers.[93]

[92]CB 380, Exhibit 8

[93]CB 381, Exhibit 8

67 I also accept that it was a reasonable and appropriate decision, given the plaintiff’s refusal to in any way cooperate with Mr Bolger or Ms Devenish during their attendance at his unit, for Mr Bolger to have initiated a request for the transfer of the plaintiff to the Hospital under s.9(A) of the Act.

68 Equally, I accept the evidence of Mr Bolger that it was reasonable for Mr Bolger to assess the plaintiff as meeting the five requirements for involuntary treatment under s.8 of the Act, [94]given the plaintiff’s behaviour on the evening of 3 September when Mr Bolger and Ms Devenish attended the plaintiff’s unit and the information available to Mr Bolger as to the plaintiff’s recent history and behaviour.

[94]See the evidence of Mr Bolger at CB 385-386, Exhibit 8

69 Further, I accept the evidence of Ms Devenish that, having regard to her earlier telephone contact with the plaintiff and his presentation at the time of his attendance at the plaintiff’s unit on the evening of 3 September, the plaintiff presented as being paranoid, agitated, insightless, uncooperative and refusing of any treatment and that he met each of the criteria for involuntary treatment set out in s.8 of the Act.

70 In his closing submission the plaintiff pointed to the time at which the Authority to Transport was completed namely 18. 55 on the evening of 3 September, [95] and the time at which the visit to the plaintiff’s unit was documented as having occurred on that evening namely 19.00. It was put by the plaintiff that these documents suggested a short assessment process had been undertaken.

[95]CB 271, Exhibit 1

71 Ms Devenish said that her note, in which she recorded the time of the home visit in the Hospital continuation sheets as occurring at 19.00, [96] would have been made upon her return to the Hospital and must have involved an error by her. I find the explanation as to this discrepancy by Ms Devenish to be reasonable and I accept it.

[96]CB 257, Exhibit 1

72 It follows from my reasons above, that I am not satisfied that either Mr Bolger or Ms Devenish were in breach of any duty of care which each of them owed to the plaintiff in their assessment and management of the plaintiff.

(3) The Assessment by Dr Williams

73 During cross-examination, the plaintiff accepted that in the course of his assessment by Dr Williams:

(i)He told Dr Williams that he felt that the police were making up bullshit about him as had been the case in his other admissions to Hospital;[97]
(ii)He may have advised Dr Williams that he felt someone had keys to his house and had been breaking into his house;[98]
(iii)He may have told Dr Williams that he felt he did not have a mental illness;[99]
(iv)It was probable that he told Dr Williams that there had been two other instances in which people had broken into his house;[100]
(v)He may have mentioned his ability to break someone’s leg in the context that he practised Wing Chung kung fu and had the ability to break someone’s leg if he needed to;[101]
(vi)He became angry in the course of the interview;[102]

and he agreed that the examination by Dr Williams was detailed both physiologically and in respect of the questions he was asked with respect to his thought processes.[103]

[97]T 386

[98]T 387. I am satisfied that this occurred given the plaintiff’s answer and the fact that it is documented in the Hospital record.

[99]T 388. I am satisfied that this occurred given the plaintiff’s answer and the fact that it is documented in the Hospital record.

[100]T 388

[101]T 390. I am satisfied that this occurred given the plaintiff’s answer and the fact that it is documented in the Hospital record.

[102]T 390

[103]T 391

74 Dr Williams recorded the following information about the plaintiff’s presentation:

(i)He was brought in by police and the CATT team from home under s.9 of the Act because of a deterioration in his mental state;
(ii)He had been off his medication for several months and felt that he did not need his medication as he was not mentally unwell;
(iii)He had presented four times in the last month to the Flemington Police Station wanting to report a theft and was reported as presenting to the police as being very suspicious and paranoid of his neighbours and police officers;
(iv)He had been seen by Ministry of Housing workers with bruising to his face and there was a concern that this bruising was self-inflicted;
(v)He had been seen by members of the CATT team on 31 August at which time he was pacing, agitated, in fright and probably acutely unwell – this being the assessment of the CATT team;
(vi)He had absconded from the Emergency Department of the Hospital the day before;
(vii)Earlier in the evening, he had been assessed by the CATT team as being acutely unwell and had been making threats to protect himself.[104]

[104]CB 412, Exhibit 1

75 Dr Williams said that when assessing the plaintiff, she had access to:

(i) A handover by the CATT team:

(ii) The plaintiff’s medical record, which gave her access to the plaintiff’s history of five Hospital admissions between 1995 and 2003 and his previous use of anti-psychotic prescription medications and the history that he had ceased taking oral Risperidone earlier in the year because he felt he did not need the medication;

and she said that she had recorded that “there were past charges for property damage in 2003 prior to his admission to Broadmeadows.”[105]

[105]CB 411-414, Exhibit 20

76 Dr Williams said she assessed the plaintiff to have poor judgment and poor insight[106] and arrived at a diagnosis that it was likely that the plaintiff had had a relapse of his psychosis not knowing at that time whether the plaintiff presented with a history of schizophrenia or a schizo-effective disorder.[107] Dr Williams said she formed the opinion that the plaintiff needed to be admitted to the high dependency unit of the Hospital under s.9 of the Act and that he should be reviewed within 24 hours and subject to that review, should recommence on Risperidone. She commented that a collateral history should be obtained from the plaintiff’s family and a liaison should be established with Moreland Community Care team for access to the plaintiff’s past notes.[108]

[106]CB 415, Exhibit 20

[107]CB 416, Exhibit 20

[108]CB 411-414, Exhibit 20

77 In undertaking a risk assessment with respect of the plaintiff, Dr Williams said she took into account the assessment by the CATT team that the plaintiff had made threats to protect himself, the plaintiff’s past history that he had damaged property when previously unwell and that he was trained in martial arts. Dr Williams recorded that plaintiff presented as irritable, expressing paranoid ideas that people had been breaking into his house and stealing documents, and that he was a risk of harm to others and at risk of further deterioration in his mental state.[109]

[109]CB 417-418, Exhibit 20

78 Dr Williams said that in completing an order for involuntary treatment, she was satisfied that the plaintiff met the five criteria under s.8 of the Act.[110]

[110]CB 419, Exhibit 20

79 It is clear that in the course of her notation of the plaintiff’s relevant history, Dr Williams incorrectly recorded the fact that the plaintiff had previously been charged with property damage. The evidence by Dr Williams that the relevance of this note related to the fact that property had been damaged and not that charges had been laid (as the activity of damaging property indicated the presence of an increased risk of violence and raised concerns about the safety of others),[111] was an explanation which, in my opinion, was logical and persuasive. I accept the evidence of Dr Williams that the mistake in this regard was made without malice and had no impact upon her assessment as to whether the plaintiff met the criteria established by s.8 of the Act for involuntary admission.

[111]T 962

80 In taking into account my findings as to the reasonableness of the opinions formed by Mr Bolger and Ms Devenish that at the time of their assessment of the plaintiff, he met the s.8 criteria for the reasons I have previously given. I am satisfied that the assessment by Dr Williams that the plaintiff’s presentation continued to satisfy the s.8 criteria at the time at which she undertook an assessment of the plaintiff was a reasonable and appropriate and, accordingly, that the order by Dr Williams that the plaintiff be admitted to the Hospital for involuntary treatment was appropriate.

81 It follows that I am not satisfied that Dr Williams was in breach of any duty of care which she owed to the plaintiff in her assessment and management of the plaintiff’s presentation.

(4) The Assessment by Professor Peter Doherty

82 No issue was raised during the course of the evidence given in the trial to suggest that each of the matters of history recorded by Professor Doherty during his examination of the plaintiff were not obtained either from the plaintiff, in the form of volunteered history, or from the plaintiff’s medical record. Accordingly there is little dispute between the evidence given by Professor Doherty as to the history which Professor Doherty obtained from the plaintiff in the course of this assessment[112] or the evidence of the plaintiff as to the accuracy of that history.[113]

[112]CB 399-400, Exhibit 11

[113]T 396-398; T 400

83 Further, no issue arises in the proceeding as to the fact that Professor Doherty assessed the plaintiff well within the 24 hour period required by the provisions of the Act.

84 Professor Doherty described his findings as to the plaintiff’s mental state in the following terms:

“Barely cooperative, mild hesitancy in giving history. He appears to be suspicious and mistrustful. He is not insightful, alert, oriented and without mannerisms, not threatening tense during this interview and prescribed a regime of treatment for the plaintiff in the following terms:
(i)involuntary patient continue with High Dependency Unit at significant absconder risk
(ii)needs regular treatment
(iii)no investigations
(iv)requests a second opinion
(v)needs social work assistance re Ministry of Housing are unhappy with payments of rent
(vi)Acuphase due to intense persecutory anxiety, non compliance with treatment and potential for aggression.”[114]

[114]PCB 400-401, Exhibit 11; PCB 335-336 Medical record 335-336, Exhibit 1

85 I am of the opinion that the assessment by Professor Doherty of the plaintiff was comprehensive and in the absence of any expert evidence adduced by the plaintiff to suggest otherwise, I am not satisfied that the plaintiff has made out any ground upon which that assessment or the orders made by Professor Doherty with respect to the plaintiff’s management which, included a regime of medication and his continued detention as an involuntary patient, should be criticised.

(5) The Administration of Acuphase

86 Acuphase was described by Professor Doherty as an anti-psychotic medication with two particular effects: firstly, the treatment of psychosis; and secondly, a sedating and tranquilising effect (the latter being efficacious in assisting with the management of patients as it reduces the incidence of violence and assault).[115]

[115]CB 402, Exhibit 10

87 The dose rate of Acuphase prescribed for the plaintiff of 150 milligrams was described by Dr Walton as being relatively conservative,[116] and by Professor Doherty as being just above the mid range.[117]

[116]T 802

[117]T 703

88 There is no issue that the dosage range for the drug as recommended by the manufacturer in 2006, was between 100 and 150 milligrams.

89 Taking into account these matters, I am satisfied that it is inappropriate to describe the level of the dose of Acuphase prescribed for the plaintiff as being high, and that the description employed by Dr Walton is largely appropriate.

90 Both Dr Walton and Professor Doherty expressed the opinion that the prescription of Acuphase was warranted. There is no expert evidence to the contrary and there is no reason not to accept the opinions of Professor Doherty and Dr Walton in this respect.

91 The evidence by the plaintiff as to the circumstances in which one intramuscular injection of Acuphase was administered to the plaintiff on 4 September 2006 was as follows:

Q:“Shortly after the assessment by Professor Doherty the position was that you became verbally abusive to staff, didn’t you?---
A:I could have let off a bit of steam at that point, yes.
Q:Yes, so you did become verbally abusive in letting off steam?---
A:Yes.
Q:Were you pacing around the High Dependency Unit?---
A:Well, I may have been while I was letting off a bit of steam.
Q:Were you carrying out kick boxing activities within the High Dependency Unit?---
A:No … I was undertaking activities that the staff on the ward categorised as kick boxing.
Q:What do you categorise them as?---
A:Traditional Wing Chung.
Q:You were doing traditional Wing Chung?---
A:Yes.
Q:For those people who are uneducated like me in relation to the exercises that traditional Wing Chung involves, would a person like me watching you do the exercises readily assume that you be kick boxing?
A:Depending on the person and their knowledge.
Q:The physical activity would be to kick your legs out in a lateral fashion from your body?---
A:Correct, that is one of the movements that I would have been practising.”[118]

[118]T 103

92 The plaintiff described the movements which he would have been undertaking as involving both slow and fast movements together with movements undertaken with some vigour involving “kicking a leg out with some vigour and force”.[119]

[119]T 403

93 The plaintiff accepted that at about this time he was administered 10 milligrams of Diazepam and 10 milligrams of Olanzapine.[120] It was put to the plaintiff that this medication had little effect upon him as recorded in the medical record, to which the plaintiff responded, “I can’t recall”.[121]

[120]T 404

[121]T 404

94 I am of the opinion that there is no reason not to accept the validity of this entry in the medical record and I do so.

95 The plaintiff accepted that it was probable that, notwithstanding that he had received the Diazepam and Olanzapine:

(i) He made threats to the doctors and nursing staff and that in making those threats it was highly likely that he employed the words “I will get you” and that he was not settling down.[122]

(ii) He had been told by nursing staff that he had to settle down, that he was not cooperative in that regard.[123]

[122]T 404-405

[123]T 405

96 There is no issue in the case that at about this time, the code grey was called which involved the attendance of a number of security personnel.

97 Having regard to the evidence given by the plaintiff as to his behaviour immediately prior to the calling of the code grey, which behaviour is documented in the medical record and was confirmed by Ms Bissett,[124] I am satisfied that the calling of the code grey was justified.

[124]Paragraph 7 of her statement of evidence-in-chief at CB 136, Exhibit 18

98 Further, given the plaintiff’s verbal threats, the failure of the Diazepam and Olanzapine which the plaintiff had received to cause a modification of his behaviour, and his performance of Wing Chung movements which the plaintiff concedes may have been interpreted as the plaintiff engaging in “kick boxing”, I am of the opinion that it was not inappropriate that the nursing staff managing the plaintiff at that time interpreted the situation as giving rise to a potential threat to them and accordingly that the decision to administer to the plaintiff one dose of intramuscular Acuphase was made. Further, I am satisfied that in all the circumstances that decision was both reasonable and appropriate.

99 The circumstances in which the plaintiff’s single intramuscular administration of Acuphase was undertaken is a matter of considerable dispute. The plaintiff described the process in the following terms:

“I was then aggressively marshalled into a small white stark, sterile room with a small white single bed. At that point I did not have any idea what was going to happen. I was then told to pull down my trousers and kneel before a small white bed. Following this one of the people in the room told me in a malicious tone of voice that he was going to give me three injections. Not before long I got the feeling I was becoming the subject of some type of execution ritual.”

100 It is clear that the plaintiff’s position in this regard conflicts with the evidence of Mr Hussey.[125] Although Mr Hussey had no memory of being present at the time at which the plaintiff was injected with Acuphase. He described the chance of his being present at that time as being very good,[126] and said that he would not have allowed an injection to have been administered in the manner described by the plaintiff.[127]

[125]T 230

[126]T 229

[127]T 231

101 Further, while Ms Bissett described the need for security personnel to prevent the plaintiff from moving whilst the injection was administered, her description of the administration of that injection[128] in no way accords with that of the plaintiff.

[128]T 909

102 Ms Bissett also described the warning given to the plaintiff as to the possible side affects associated with the administration of the drug[129] and I there is no evidence to suggest that this warning given by her was in any way deficient.

[129]T 908

103 At face value, I find the plaintiff’s description as to the circumstances in which his injection of Acuphase was administered to be unlikely in the extreme and I find that:

(i) The evidence of Mr Hussey that he would not have allowed the plaintiff to be treated in such a manner; and

(ii) The evidence of Ms Bissett as to the circumstances in which the injection was administered to be a more likely statement of what occurred.

104 For these reasons I am not satisfied that the plaintiff has established on the balance of probabilities that the administration to him of an intramuscular injection of Acuphase was undertaken in a way which did not accord with appropriate medical practice.

(6) The plaintiff’s position that he was inadequately monitored following the administration of Acuphase

105 The plaintiff asserts that having been administered an intramuscular injection of Acuphase, the defendant should have instituted ECG monitoring of the plaintiff’s condition. In making this assertion, the plaintiff relies upon the Royal Australian & New Zealand College of Psychiatrists Clinical Practice Guideline which are Exhibits E and D.

106 At page 24 of Exhibit D, a recommendation is made by the College for the implementation of ECG monitoring in circumstances in which parenteral tranquilisation has been initiated and where higher doses of tranquilisers are used.

107 I am not satisfied on the basis of the evidence to which I have referred previously that it is appropriate to describe the dose of Acuphase which was administered to the plaintiff as being a “higher” dose.

108 Further, there is a total absence of any expert opinion in the case to support the plaintiff’s assertion that ECG monitoring should have been undertaken, and clear and persuasive evidence to the contrary.[130]

[130]See the evidence of Professor Doherty at T 703

109 Finally, given the monitoring conducted by Ms Bissett after the administration to the plaintiff of Acuphase[131] and the evidence by Ms Bissett as to the outcome of that monitoring, namely:
[131]CB 353, Exhibit 1

“In the first entry at 12.30 the blood pressure is fractionally low. So the blood pressure shows that Mr McWhinney’s blood pressure was 90/70, which is not – is not out of the normal range, but fractionally low. The blood pressure at 1.00 pm, 100/10 is very good blood pressure is a normal blood pressure. The temperature for both of these entries are normal. The pulse for both entries is as in medical terms.”[132]

It is my opinion that there was nothing about the plaintiffs physical response to the administration of Acuphase which warranted the implementation of CTG monitoring

[132]T 831

110 For these reasons I am not satisfied that the plaintiff has established on the balance of probabilities that the failure by the defendant to employ a ECG monitoring of his condition following the administration to him of Acuphase in any way gave rise to a breach by the defendant of the duty of care owed by it to the plaintiff.

(7) The alleged threat made by Nurse Meijerink

111 The plaintiff gave evidence that on the morning of 5 September he asked Ms Meijerink why he had been administered Acuphase the previous day, and received the response that the reason for the administration of the medication had been explained to him on the previous day.

112 The plaintiff said that this response made him feel quite agitated; angry; upset; and that he was probably furious.[133]

[133]T 426

113 The plaintiff did not take issue with the evidence of Ms Meijerink that shortly after this verbal exchange he had asked Ms Meijerink to light a cigarette butt so that he could smoke it, and explained the reason for that request as follows:

“Well, I was probably being a little antagonistic towards Nurse Meijerink if that had occurred. I can’t remember. I do not have a vivid memory of the event.”

114 The plaintiff was asked:

Q:“Was it the position that after the nurse had denied your request for a cigarette butt that you became verbally abusive towards her?---
A:Yes.
Q:By verbally abusive, did you call her a slut?---
A:Yes.
Q: Did you call her a snob?---
A:Yes.
Q:Did the nurse suggest to you that you ought quieten down?---
A:Yes.
Q:That you ought to change your behavioural pattern?---
A:Yes.
Q:She offered you the oral medication that had been prescribed for you to assist you to settle down, didn’t she?---
A:I can’t remember.
Q:There was oral medication available for your use on the ward, wasn’t there?---
A:Yes. I mean it’s in Nurse Meijerink’s notes.
Q:It is answer, yes, all right?---
A:Yes, may have done, yes she probably would have done that …
Q:She then explained to you and I suggest she explained in a measured tone that if you continued to behave unacceptably you might end up having another injection to assist you to settle?---
A:I can’t remember whether it was in a measured tone, but I can certainly remember that quite vividly.
Q:You have no memory of the time one way or another, but you recall the words?---
A:Well, yes.
Q:Nurse Meijerink did not shout at you when she said those words?---

A:I can’t recall the tone, Mr Noonan.
Q:You’ve got no memory of the tone, so the likelihood is you can’t recall that she shouted?---
A:That’s correct, sorry.
Q:After she spoke to you, you settled down, didn’t you?---
A:Yes.
Q:Is it the position that Nurse Meijerink spoke to you in a stern tone when she suggested to you that you ought change your behavioural pattern, didn’t she, or you’re not in a position to comment one way or the other?---
A:Ah, yes, I can’t recall, Mr Noonan.
Q:You can’t recall the tone that she – ?---
A:I mean, no, I just remember that if I don’t behave I'd be getting another injection. I think it’s written in the notes.
Q:Well, Mr McWhinney, she advised - - -
A:Explained if he continued to behave unacceptably he might end up having another injection.
Q:Good?
A:Yes. Now, I can’t recall the exact words that Nurse Meijerink conveyed that message to me but I can remember vividly that it occurred.
Q:That it - - -?---
A:I can remember vividly that it occurred.
Q:That the conversation occurred?---
A:Yes, that I, if I didn’t settle down, I was going to get another injection.
Q:No, if you didn’t settle down you might receive another injection?---
A:Well, I took it that if didn’t shut up that was what was going to happen.
Q:Those words weren’t used, were they?---
A:No, that’s the message I got.
Q:You’ve got no recollection of the tone used, you’ve told us that?---
A:That’s correct.
Q:You’ve got no recollection of the words actually used by Nurse Meijerink?---
A:That’s correct.
Q:I suggest to you that you were told by Nurse Meijerink in a stern tone that you ought to change your behavioural pattern but you’re not in a position to comment about that either, are you, regarding the tone?---
A:That’s correct.”[134]

[134]T 429-430

115 In her evidence, Ms Meijerink described the verbal exchange that took place between herself and the plaintiff in the following terms:

“I do not now have a specific recall of the plaintiff making an enquiry as to why he had previously been given an injection.
I do have a specific recollection of the interaction between myself and the plaintiff in the events surrounding his request that a cigarette butt be lit and his reactions thereafter.
Patients in the High Dependency Unit were not allowed to have cigarette lighters on their person. Accordingly, nursing staff were required to stay with them when they smoked.
Another patient who was present within the High Dependency Unit had a habit of collecting cigarette butts which had been discarded by others. Who would then request that the cigarette butts be lit to allow him to smoke the residue of the cigarette. A request was made by the patient of me to light the cigarette. This was done in the presence of the plaintiff.
I denied the request and said it was not hygienic. The plaintiff, having finished his cigarette, then made a similar request. I denied Mr McWhinney’s request for the same. I also added that it would be inappropriate to allow Mr McWhinney to be allowed to have a cigarette but when the other patient had been denied the same privilege.
My recollection is that Mr McWhinney did not accept the decision that he not be allowed to have a cigarette butt lit. He became verbally aggressive towards me, calling me a slut and a snob. I was concerned about his behavioural pattern.
I cannot now recall the precise words which I used in my interaction with Mr McWhinney. However, adopting my usual practice, I would have said words to the effect that he ought to stop his verbal abuse and change his behaviour. The plaintiff did not respond to my direction. I offered the plaintiff his oral medication which would assist him to settle, but he refused this.
In light of the plaintiff’s behavioural pattern, verbal abuse and his refusal to accept oral medication which would have assisted him to settle, I then explained to the plaintiff that if he continued in his behavioural pattern and verbal aggression towards staff, then this might result in him being administered medication by injection in order to assist him to settle. The explanation was given to the plaintiff in a measured fashion to advise the plaintiff of the consequences of his actions in the event that he did not settle.
I am well aware of the fact that medication ought not be administered to a patient as a form of punishment or as a threat to punish. The explanation was not given as a form of threat to inflict punishment on the plaintiff. It was simply an explanation of the possible consequences which might ensue in the event that he did not settle.
The plaintiff’s behaviour demonstrated he was unwell. The explanation which was given to the plaintiff is often perceived by individuals who are psychiatrically unwell as a threat to punish as they often perceive the administration of medication as a form of punishment for their behaviour.
I understand that the plaintiff asserts that the interchange between myself and the plaintiff was a ‘heated verbal exchange’. I did not at any point in my interaction with Mr McWhinney yell or scream at him. I would however, spoken sternly to him in giving a direction to him to change his behaviour.”[135]

[135]PCB 138.1, Exhibit 15

116 I had the opportunity of observing Ms Meijerink as she gave evidence. There was nothing about her demeanour in the witness box or her evidence which suggested that she had a disposition towards aggression. Further, in my opinion when tested, the plaintiff’s evidence as to the incident which he described in paragraph 24 of his statement of evidence[136] took on a much less sinister appearance than that described by the plaintiff in his statement.[137] Equally I note that at the time of the exchange between the plaintiff and Ms Meijerink, the plaintiff described himself as still being affected by the administration of the medication for the best of 24 to 48 hours.[138]

[136]PCB 16, Exhibit A

[137]T 429-430

[138]T 421

117 Taking into account these matters and having further regard to:

(i) the mental illness from which the plaintiff was suffering at the time of his admission to the Hospital on 3 September 2006;

(ii) my previous findings as to the questionable reliability of the plaintiff’s evidence; and

(iii) the conflict which arises between the evidence given by the plaintiff and that of Ms Meijerink;

I prefer the evidence of Ms Meijerink on this issue and I am not satisfied that the plaintiff has established that the behaviour of Ms Meijerink in her management of the plaintiff on the morning of 5 September was in any way inappropriate, taking into account the onus which the plaintiff has of establishing that position on the balance of probabilities.

(8) The Plaintiff’s involuntary treatment between 5 September and his Discharge on 11 September

118 There is no evidence that the management of the plaintiff during this period, including his discharge, did not comply with provisions of the Act. Neither is there any evidence that the treatment administered to the plaintiff was inappropriate given my findings as to the validity of the plaintiff’s admission to the hospital for the purpose of receiving involuntary treatment.

Conclusion

119 Having made the findings to which I have referred, I am not satisfied that the plaintiff has met his obligation to establish on the balance of probabilities any of the matters which he contends give rise to a breach by the defendant of any duty of care owed to him by the defendant. Neither am I satisfied that the plaintiff has made out any aspect of his case that the defendant’s management involved any impropriety, wrongful detention or any breach of the Act. It follows that the plaintiff’s case against the defendant must fail and that in these circumstances it is not necessary for me to consider the claim made by the plaintiff with respect to damages.

120 I will hear the defendant as to the orders which should be made in this matter given my findings.

- - -

[2012] VCC 660

30 May 2012