Walker v Sydney West Area Health Service - [2007] NSWSC 526

No judgment structure available for this case.

Reported Decision:
(2007) Aust Torts Reports 81-892

New South Wales

Supreme Court

CITATION: Walker v Sydney West Area Health Service [2007] NSWSC 526

HEARING DATE(S): 16 April 2007; 17 April 2007; 18 April 2007; 19 April 2007; 20 April 2007; 24 April 2007; 26 April 2007; 27 April 2007; 30 April 2007; 1 May 2007; 2 May 2007

JUDGMENT DATE :
25 May 2007

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: Verdict for the defendant. Plaintiff to pay the defendant's costs. Exhibits returned.

CATCHWORDS: TORT – NEGLIGENCE – professional negligence – attempted suicide – alcohol consumption – admission to psychiatric hospital – voluntary admission – psychiatric examination – medical and nursing records – discharge – whether discharge premature – intoxication – whether plaintiff ought to have been admitted as involuntary patient – whether plaintiff ought to have been prescribed medication – whether plaintiff mentally – whether plaintiff mentally disordered – exercise of statutory powers – no breach of duty of care

LEGISLATION CITED: Civil Liability Act 2002
Mental Health Act 1990

CASES CITED: Bolan v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118
Rogers v Whitaker [1992] HCA 58; 175 CLR 479
Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871

PARTIES: Timothy Walker (Plaintiff)
Sydney West Area Health Service (Defendant)

FILE NUMBER(S): SC 20072 of 2004

COUNSEL: DE Grieve QC/JH Reimer (Plaintiff)
PR Garling SC/JA Lonergan (Defendant)

SOLICITORS: Livingstone & Company (Plaintiff)
Frances Allpress (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

25 May 2007

20072/04 Timothy Walker v Sydney West Area Health Service
JUDGMENT

1 HER HONOUR: In these unusual, and quite tragic, proceedings, the plaintiff claims against the defendant damages for severe personal injury he sustained on 17 March 2001. During the evening of that day the plaintiff fell from a very high tree that he had climbed, in an emotionally disturbed and possibly intoxicated state, and suffered injury to his spine that resulted in quadriplegia. The plaintiff alleges that his conduct in climbing the tree, and the dire consequences thereof, are attributable to the negligence of the defendant in the manner in which it had earlier afforded him medical (psychiatric) treatment.

2 The plaintiff is a young man, now 25 years of age. The defendant is a statutory corporation which administers public health services in and around the Blue Mountains of NSW, where the plaintiff was, in 2001, resident. The plaintiff’s claim can be outlined briefly.

3 In 2000-2001, when he was 18 and 19 years of age, the plaintiff was deeply troubled, even disturbed, exhibiting serious psychiatric and/or psychological symptoms. These included suicidal ideas. On 28 February 2001, after a suicide attempt, he was taken by a police officer to the Nepean Hospital (one of the facilities administered by the defendant). There he was examined and admitted as a voluntary patient to the psychiatric ward of the hospital, known as Pialla. On 6 March 2001 he was discharged. On the evening of 17 March 2001, after consuming a (disputed) quantity of alcohol, he climbed the tree in the backyard of his mother’s home in Glenbrook (in the Blue Mountains), and, subsequently, fell, suffering the injury I have mentioned.

4 It will, of course, be necessary to say a good deal more about the factual circumstances. The foregoing is a sufficient sketch for present purposes.

5 The plaintiff alleges that, in a number of respects, the defendant, through its employees, failed to discharge the duty of care it undoubtedly owed to him. The claim is governed by the provisions of the Civil Liability Act 2002.

6 The defendant denies that it was negligent; its denies that the plaintiff’s injuries are causally related to the treatment he received from it; and it invokes several provisions of the Civil Liability Act, specifically s 5O (concerning the standard of care in cases where the practice of a profession gives rise to the cause of action), s 43A (concerning liability for the negligent exercise of special statutory powers), ss 48-49 (concerning the effect of alcohol consumption on the part of the plaintiff on the award of damages). The defendant asserts that the plaintiff was intoxicated at the time he climbed the tree, and that this constituted a break in any chain of causation the plaintiff might otherwise be able to establish. Finally, it asserts that, if it is found to be liable as alleged on behalf of the plaintiff, the plaintiff was in part at least responsible for his own injury and that it is entitled to a reduction in any damages awarded by reason of his contributory negligence.

7 The parties have agreed on the quantification of damages should the plaintiff be entitled to a verdict. (Although it was not explicitly so stated, I assume that this means a verdict unaffected by a finding of contributory negligence.) This judgment, therefore, is concerned only with the issue of liability, and, should the plaintiff be successful, with the issue (and quantification) of contributory negligence.

8 The area of factual dispute between the parties is relatively narrow. The contest primarily concerns the correct application of well established principles of tort law, and the provisions of the Civil Liability Act, to largely unchallenged facts, and will be decided on the acceptance or otherwise of expert medical opinion, based upon interpretation of comprehensive medical records. There is, however, one factual matter that is seriously in dispute. That concerns the quantity of alcohol consumed by the plaintiff on the day and/or evening of his fall, and the extent to which he was affected thereby.

9 This is relevant both to the issue of causation, and also to the application of ss 49 and 50 of the Civil Liability Act.

10 I turn now to a more comprehensive account of the relevant facts and circumstances.

11 The plaintiff was born on 26 July 1981. He lived with his parents and brother Ben, three and a half years older, in the Blue Mountains. When he was quite young his parents separated. Apart from a brief period after their separation when he lived with relatives in Sydney, he has lived all his life in the Blue Mountains.

12 The plaintiff’s history of psychiatric disturbance began early, at the latest when he was in his mid-teens. He had a troubled childhood and adolescence, exhibiting symptoms of psychiatric or psychological disturbance at least from that time. This included a suicidal gesture at about the age of 15, although this does not appear to have translated into a real attempt on his own life. Another such gesture occurred in early 2000, when an apparently trivial incident at a party precipitated him into an angry confrontation, followed by violence, and finally by his threatening or attempting to jump out of a window (from which he was restrained). He was affected by alcohol at the time.

13 In 1996, before his fifteenth birthday, he was registered with the Western Area Mental Health Service (which I take to be the mental health branch of the forerunner of the present defendant, the Sydney West Area Health Service) and was referred to a psychiatrist who prescribed anti-depressant medication (which the plaintiff soon ceased taking).

14 By 2000 his behaviour was of increasing concern to his mother (to whom I will refer by the name she has subsequently adopted, Ms Linda Pike) and Mr David Pike (now the plaintiff’s stepfather). He expressed disgust at what he perceived as the untrustworthiness of others, corruption and “rottenness” in the world, and a desire (which he recognised was unrealistic) to kill everybody in the world except himself, and, as an alternative, to kill himself. He abandoned his bedroom to sleep on a sofa in the living room, because he “need[ed] to watch the front door”. He sometimes slept with a knife concealed in the sofa cushions, because “I feel safer that way”. He neglected his appearance and his hygiene and sometimes dressed in an outlandish, and often unclean, fashion. At an early age he became a regular and heavy consumer of alcohol.

15 These behaviours clearly demonstrate that his parents’ concern about his mental health were soundly based.

16 At some stage (which is not clear, but may have been late 2000 or early 2001, since it followed the break up of the plaintiff’s relationship with a girlfriend) Ms Pike became sufficiently concerned to contact what she called the “Mountains Access Team”. Whether this was administered by the defendant (or its forerunner) is not clear, although I am prepared to infer that it was. After the plaintiff had been assessed by that organisation, Ms Pike had a conversation with a counsellor whose response created some alarm in her. The counsellor said that the plaintiff needed immediate help, and hinted that he may have been dangerous and/or suicidal.

17 The events immediately giving rise to the present proceedings began in mid-February 2001. Ms Pike, concerned at the plaintiff’s mental state, made an appointment for him to see the Area Health Service, and emphasised to him the importance of keeping the appointment. The plaintiff’s response was vehemently hostile. On 16 February Mr Pike telephoned the Service to inform it of the plaintiff’s state of mind, as Mr Pike perceived it. At that point he considered the plaintiff to be suicidal. Mr Pike was, however, unable to make contact with any individual and left a message expressing his concerns. He received no response.

18 On the evening of 28 February the plaintiff was in Glenbrook Park and at the Glenbrook Railway Station in company with his brother Ben and a friend, Joel Watson, who was then about 15 years of age. He argued with Ben. He said that he wished to commit suicide by jumping under a train. He jumped over a fence and made his way down an embankment to the railway tracks. A train was approaching. He told Mr Watson that he was going to stand in front of it. Mr Watson seized the plaintiff and threw him off the tracks and narrowly avoided being hit by the train himself. The train driver stopped the train and called police. The plaintiff was taken to the Nepean Hospital where he was seen, firstly, by a Dr Kethes, a senior Resident Medical Officer in the Emergency Department.

19 Inter alia, Dr Kethes recorded the following (for convenience, throughout this judgment I will quote from the records as they have been translated from the shorthand and abbreviations used by the various reporters):

“Depressed for more than one year

Multiple social problems

… heavy alcohol intake

No appetite

Weight loss

Loss of interest

Feels weak and no energy

Feels suicidal

- he can’t harm himself

- but someone to do the job like placing the head on railway track

tried to jump from three storey building last week

a friend stopped him

… past history? Depression

Never treated

…

20 The plaintiff was then seen by a Mr Keevers, a registered nurse with the Mental Health Team. Mr Keevers relevantly recorded:

“History of depressed mood since at least July 2000.

21 Mr Keevers then recorded a history he obtained from Ms Pike (who attended the hospital on being notified of her son’s presence there), to the effect that the plaintiff had been depressed for some time, and exhibiting “paranoid” and vigilant behaviour, peculiar thinking (that the world is “corrupt and horrible”).

22 Recording what appear to be his own observations, Mr Keevers noted:

“Young man, dishevelled and dirty, co-operative, but frequently flippant, minimising situation. Still alcohol affected.

…

Mood - depressed

Affect – irritable, shallow, brittle

…

Risk – 1. high risk behaviour? – provoking fights to be hurt

2. suicidal ideation most days.

3. attempted to jump off building on weekend.

4. laying on railway track tonight.

5. wants to die, not necessarily by own action.

Insight – partial.

23 The plaintiff was next assessed by Dr Panagiota Tsovolos, then a psychiatric registrar. This occurred some time before 4.30am, at which time Dr Tsovolos recorded her observations. She noted multiple stressors leading up to the suicide attempt that evening. The “multiple stressors” included “accommodation issues”, a break up of a relationship, and unemployment, the plaintiff having lost his job as a bartender two days previously. After recording what the plaintiff told her about the suicide attempt Dr Tsovolos wrote:

“NOW feels ‘numb’ re suicide attempt.

“I don’t think I could do it again, but it might happen’

“I might change my mind again’.

Depressive symptoms [which she itemised]

First suicide attempt at 14 years old as per tonight: train ‘but I missed the train … didn’t try again, I just went home and cried’.

…

Deliberate self-harm:

‘bash myself up all the time’

punches walls

burns cigarettes on skin

stabs himself with pens

24 Dr Tsovolos turned to “homicidal ideation”, quoting the plaintiff as saying:

“Better to end everyone else’s life not mine – I wish I could.”

“I just figure if I can’t have it my way, it’s easier to end it.”

“But that could change.”

25 Dr Tsovolos then noted her plan for the plaintiff’s treatment in the following terms:

“1. Lengthy discussion with patient re admission. I feel patient will not benefit from admission as his behaviour and problems are chronic and not amendable to correction/reversing with a hospital admission. Needs long term treatment.

26 She noted that she was unable to “collaborate” (sic) the history at that time with the plaintiff’s case manager who, she said, knew the plaintiff well. She noted that the plaintiff’s mother was “pushing for admission”. She then recorded:

voluntary

27 The hospital’s progress notes are in evidence. They contain entries by various registered nurses, and by a Dr Morell (another psychiatric registrar) and Dr Charles Stones (then a consultant psychiatrist employed at Pialla).

28 Dr Morell saw the plaintiff on 1 March. Her recorded notes do not throw any further light on the issues.

29 At 11.30 on that day the plaintiff was seen by Ms Susanne Willmott, a registered nurse employed as a drug and alcohol counsellor. Ms Willmott made a lengthy note recording the history she obtained from the plaintiff but noted that the plaintiff refused her offer of community counselling, and of contact numbers to a drug and alcohol counselling service. She therefore decided that no further follow up was required unless requested by the plaintiff.

30 On 2 March Dr Stones saw the plaintiff. Dr Stones also recorded the discussion he had with the plaintiff and observed:

“No real sign of depressive illness.”

“Once he has more concrete plans for the immediate future he can go. Brief nurse manager. Follow up on discharge. No treatment.”

31 A nursing note at 3.00pm on 2 March described the plaintiff as:

“Settled and appropriate. Bright and reactive.”

32 The following day, 3 March, he was recorded as again having been settled and to have slept well throughout the night (although disturbed twice by a fellow patient); and, later, to have been settled and pleasant throughout the day, and interacting with others.

33 That the plaintiff was “settled” is a recurring theme of the nursing notes thereafter.

34 The notes of 4 March record a complaint by the plaintiff of another patient having awakened him during the night, standing over him, and touching his leg. The plaintiff therefore requested transfer to another room. (The other patient is said to have denied the conduct alleged.)

35 A “Team meeting” took place on 6 March. It is apparent that this was directed to consideration of the plaintiff’s discharge, and follow up care.

36 Later that day, on two occasions, the plaintiff could not be found. At 4.00pm, however, he was seen by Dr Morell who recorded:

“ feeling ‘better’ and happier, accepting of his breakup with girlfriend

still uncertain re: goals

no formal thought disorder/hallucinations/delusion

speech (indecipherable)

mood: euthymic

Affect restricted

insight recovering

goals would like currently not suicidal

contacted case manager. Hugh [Barber] will see Tim at Tim’s home tomorrow at 1pm

For discharge

37 The plaintiff was critical of the care and treatment he was afforded in Pialla. He said that he made daily requests to see a doctor but was fobbed off by nursing staff. He said that he saw a doctor towards the end of his stay, just once.

38 In this respect the hospital notes demonstrate that the plaintiff’s recollection (perhaps not surprisingly) is faulty. He was seen by Dr Morrell on three occasions and Dr Stones on one, after his comprehensive assessment by Dr Tsovolos. The plaintiff also said that he made several requests for medication but was told this could not happen until he was seen by a doctor.

39 He said at this time he did not feel good and:

“I was feeling very depressed and lonely, scared, confused, frustrated, very frustrated and very angry.”

40 He recounted his version of the incident in which he said he had been molested by another patient. He said:

“After that I was stressing lots and trying to, yeah, think of – come up with some solution and I really didn’t want to go back to that room with that guy. And I thought that maybe if I had done something like if I break a window or if I, you know, I was thinking maybe hit the nurse in the thigh or something like that, just break something like a window or something like that, that they would put me in the lockup ward.”

41 He said that he came to the view that the hospital authorities were wasting his time and that there was no point in remaining. He said that, when they asked how he was, he told them:

“… I never felt better.”

42 When the plaintiff was discharged from the hospital his mother was not advised, and he left alone, going first into Penrith, and then to Glenbrook. He went to a park for a time, where he encountered his brother, and went to his mother’s home about midnight.

43 Mr Pike also offered considerable criticism of the manner in which the plaintiff was treated at Pialla. He said that Ms Pike (to whom he was not then married) was telephoned on the evening of 28 February or the early morning of 1 March and told that the plaintiff had been found on the railway tracks and taken to the hospital. They went immediately to the hospital. Mr Pike described him as follows:

“Well, he was – he was fully dressed but in a very – but his clothing was torn and filthy. He was actually in bed although he was fully dressed. But he was quite – his mental – his state was quite incoherent. He kept muttering – he kept getting out of bed and muttering as he walked up and down the ward, ‘There just aren’t enough bullets. There just aren’t enough bullets’.”

44 He said that he and Ms Pike spoke to a number of medical practitioners, seeking to impress upon them that the plaintiff had a psychiatric history, had possibly made other recent suicide attempts or gestures, and that he had a record with the Area Health Service which, they suggested, ought to be consulted before a decision on his treatment was made. They made it clear that they considered the plaintiff to be psychiatrically ill and that they wished to have him admitted to the psychiatric ward for treatment.

45 The response to this, he said, was that the plaintiff would be assessed and a decision then made about whether or where he would be admitted. They were told that probably no decision would be made until much later on the morning of 1 March, and that they might as well go home and get some sleep. This they did. They telephoned the hospital later on that day and were told that, about 5.30am, the plaintiff had been admitted to Pialla.

46 Thereafter Mr and Ms Pike visited the plaintiff daily. Mr Pike said that the plaintiff complained that there was nothing to do, that he was not receiving treatment, that there were no programmes, that he was allowed to wander around the hospital at will, and that the staff told him that they did not care how he filled his day as long as he presented himself for roll call.

47 A particular complaint concerned one staff member. Mr Pike said that he and Ms Pike approached her and asked who was the plaintiff’s “assigned nurse”. She replied that she did not know, but then consulted the record and said (apparently in tones of some surprise):

“Oh, it’s me.”

48 Mr Pike said that while in Pialla the plaintiff was always very unkempt, badly dressed, dirty, uncared for, barefooted. He said that the plaintiff repeated his complaint of inadequate treatment and added that he had asked, on a daily basis, to see a doctor but that he had not done so except on the day of his admission. He also continued to repeat his theme concerning the corruption in the world. Mr Pike and the plaintiff’s mother continued to press the nursing staff for information and consultation. They expressed the view that the plaintiff was not receiving appropriate treatment. They were told to make an appointment to see a psychiatrist but when they telephoned in an attempt to do so the call was not returned.

49 Mr Pike said that in the early evening of 6 March he and Ms Pike travelled to the hospital in order to visit the plaintiff. It was then that they were told, for the first time, that he been discharged earlier in the day. He said he was told:

“… well, we asked him if he was suicidal today and he said no so we discharged him.”

50 Mr Pike said that when the plaintiff arrived at his mother’s home, at about midnight, on 6 March, he was:

“… in a highly agitated, furious state. He – was abusive, he appeared to be almost out of control … He punched the walls, he tried to run up the wall on one occasion. He snarled at Linda and at me with a devilish sort of face.”

51 He attacked them for having him incarcerated in Pialla where he was almost “raped”. The following morning, however, his agitation had subsided and he seemed “very flat and depressed”. He apologised for his conduct saying:

“I’m sorry but I was pushed beyond my limit”

52 Of his activity during the next few days, the plaintiff said that he kept to himself and tried to be by himself; he spent a lot of time sitting in his car in the garage. He said that his emotional outlook became worse as days went by.

53 Mr Pike was more expansive. He said that the plaintiff appeared to be “extremely disturbed” and very angry but on occasions uncommunicative. Again, Ms Pike gave a similar account. She said that the plaintiff arrived at her home with his brother, both intoxicated. Of the plaintiff she said:

“… Tim was standing over me as I was sitting in my chair and Tim was frothing at the mouth, just, you know, ‘you put me in that mad house. I nearly got raped’.”

54 She described the plaintiff in the days following his discharge as:

“… worse after being in hospital than before … It was like walking on eggshells. He was very explosive, argumentative, he wanted to die. He was still talking about, ‘there’s not enough bullets to go around so there’s only one thing I can do’.”

55 The plaintiff said that he was visited by a member of the Mental Health Team once only. He had no recollection of the duration of the visit or the content of the conversation they had. Ms Pike also gave evidence of one visit by a member of the Mental Health Team, Mr Barber. She said that, in answer to her enquiry, Mr Barber said he could not discuss the plaintiff’s condition because of “the Secrecy Act”. She said that from that date until 17 March Mr Barber did not again visit, although she and the plaintiff lived at the home during the whole of that time.

56 Again, the records paint a different picture. The note of the “Team Meeting” prior to the plaintiff’s discharge on 6 March explicitly noted that the case manager, Hugh Barber, would “follow up after discharge”. They also noted that “old notes” would be obtained by facsimile from “Blue Mountains”. This was a reference to an earlier contact with the Child and Adolescent Team.

57 Mr Barber was a registered nurse with psychiatric training, which he completed in 1981. He had a little under 20 years’ experience in the practice of that profession. He was appointed as the plaintiff’s case manager. His notes confirm that the projected home visit on 7 March did take place. He noted that the plaintiff was “welcoming” and said that he was coping well and hoped to get work quickly. He was happy to be out of Pialla. He made a reference to the sexual advance by the other patient. He said that the plaintiff minimised his problems, particularly in respect of alcohol consumption. He noted that the plaintiff:

“… says he is depressed, with poor sleep and appetite. But he denied suicidal thoughts ‘at the moment’.”

58 He also recorded that the plaintiff was “very irritable and angry”, using quite violent language about Pialla staff, and that he did not think his anger was of proportion to the circumstances. Of some interest is the following note:

“Also disturbed by images of knifes (sic) flashing at him. Might happen 20 times in a day. Very real and upsetting causing him to move in fear.”

59 Mr Barber also recorded a meeting with Ms Pike who, he said, felt that the plaintiff was “very depressed” and that she was concerned about his “impulsivity” because he had attempted suicide when drunk.

60 The notes then record a “home visit” on 12 March, but that the plaintiff was not at home. Mr Barber said in evidence that this would have been arranged during the course of the visit of 7 March. He then made another visit on 13 March, this time unannounced, as he was unable to contact the plaintiff on the telephone (which was not working). The note is brief. It reads:

“Tim reports to be ok.”

61 He made another arrangement for a visit on 16 March. That visit took place, and the plaintiff was at home. Mr Barber recorded:

“Tim appears brighter.”

62 He noted difficulty in getting to sleep and that the plaintiff had been looking for work without success. He then noted that the plaintiff did not appear to have a major depression at that time “but was possibly depressed in 2000”. He noted that the plaintiff denied an alcohol problem, although a later note records that the plaintiff recognised that he needed to control his alcohol consumption.

63 Mr Barber’s final note of the consultation was:

“Also noted that he has not been bothered by images of knifes (sic) etc that he had complained of previously.”

64 His plan for the future included discussion of case review, short term case management with problem solving and goal setting and a meeting with the plaintiff’s mother.

The events of 17 March 2001

65 The plaintiff’s account of the events of 17 March is as follows. He had planned to go to a party in Woodford, by catching a train from Glenbrook. He missed the train, and wandered up to the shops to fill in time until the next train, which he also missed. He returned to the park where he knew there were some acquaintances, with his brother. At this point he was feeling depressed, angry and lonely. He had consumed one beer, and then bought himself another two 700ml bottles of full strength beer, which he thought he shared with others. He said that he was not then sober, but he had control over himself. His feelings towards himself were negative, particularly after missing the second train. He made a decision that he was going to kill himself by climbing a tree and hanging himself. He spoke about this decision to his brother Ben. He told Ben:

“Just that I hate my life, that I want to die, I’m going to kill myself.”

66 The two then returned to Ms Pike’s house, together with Joel Watson, the young acquaintance who had saved him from death on the railway on 28 February.

67 In the backyard he told his brother again that he was going to hang himself. His brother told him that he (Ben) would hang himself in order to teach the plaintiff a lesson, so that he would understand what he had been putting Ben and Ms Pike through. Ben then went a grabbed an extension cord and formed a noose. The plaintiff seized the noose and climbed the tree. The plaintiff attempted to loop the noose over a branch, but Ben prevented him from doing so. He tried to talk the plaintiff into coming down from the tree.

68 The plaintiff said:

“… something happened, I just, just had – my, yeah, just the fact that he wouldn't let go of the extension cord just, yeah, this wasn't, yeah, it wasn't happening then, and I don't know it just – it was just too much. I didn't want to talk to anyone, I didn't want anything, I just wanted to be, I don't know. I just couldn't cope. And seeing that I couldn't hang the noose up I just climbed up the tree.”

69 He let go of the noose. Ben remained on the ground, trying to coax him down out of the tree. The plaintiff said:

“And then just like everything went still and quiet and everything just seemed simple and, yeah, I don't know it didn't – things just didn't seem as hard as they did before … And just I felt better, better than I had for a long time and so I started climbing down.”

70 The plaintiff remained an inpatient at the Prince of Wales, or at Prince Henry Hospital, for some time. It is only necessary to note one aspect of the treatment he there received. A psychiatrist prescribed a combination of anti-depressant and anti-psychotic medications. This had a beneficial effect on the plaintiff’s mood, which was unsurprisingly, by then depressed.

71 The events of 17 March gave rise to the only real factual dispute in the proceedings, the quantity of alcohol the plaintiff had consumed on 17 March. I have already recorded the plaintiff’s account, given in evidence in chief, of his alcohol consumption on that night. In cross-examination he denied having drunk, in addition to two bottles of beer, half a bottle of whisky.

72 Mr Watson also gave evidence about the plaintiff’s alcohol consumption on that evening. He said that he first came across the plaintiff in Glenbrook Park some time after sunset. He himself had been drinking since about 10 or 10.30 in the morning of that day, in Glenbrook Park. He had drunk only cask wine and beer. He was very definite that he had not consumed any spirits. He said that he and the plaintiff had consumed “a couple of long necks together” and that he had not observed the plaintiff drinking any whisky that night. He said that the plaintiff had bought three “long necks” from a nearby bottle shop, of which Mr Watson drank one and the plaintiff drank two. Mr Watson also denied that the plaintiff had consumed any whisky.

73 Following his admission to the Prince of Wales Hospital the plaintiff was seen by a psychiatric registrar, Dr Farzaan Mehta, on 26 March. Dr Mehta took a history from the plaintiff which included the following:

· had been drinking ½ bottle of whisky and a couple of long necks of beer”

74 It is of some interest that other matters recorded by Dr Mehta in relation to the evening of 17 March are substantially in accord with the evidence given by the plaintiff. For example Dr Mehta noted that the plaintiff had been drinking with his brother, that he denied other drug use, that he “ended up” back at his mother’s house, that he had an argument with his brother and climbed the tree, that he calmed down in the tree and that after five minutes he started climbing down and that his brother called an ambulance. That is, it claims that, on 26 March, the plaintiff gave to Dr Mehta a generally accurate account of the events of 17 March, consistent with the evidence he gave six years later in this Court.

75 Two other matters, however, ought to be mentioned. Dr Mehta recorded that the plaintiff’s brother was climbing up the tree to get him down, and that while he was climbing down, the plaintiff stepped on a branch which snapped, causing him to fall. These assertions do not accord with the evidence given by the plaintiff.

76 I will return to these significance of the evidence concerning alcohol consumption.

The plaintiff’s claim of negligence

77 On behalf of the plaintiff it was pleaded that the defendant was negligent in the following respects:

“(a) failing to treat or properly treat the plaintiff whilst he was a patient at Pialla.

(b) discharging the plaintiff from Pialla when it was not appropriate to do so.

(c) failing to make any or any proper arrangements for the care of the plaintiff following his discharge.

(d) failing, on the part of the said mental heath worker from the Springwood Community Mental Health Team, to properly assess to treat the plaintiff.

(e) (abandoned)

(f) failing to appreciate, or adequately appreciate, the fact that the plaintiff was a high risk mental health client.

(g) failing, or failing adequately, to take into account the plaintiff’s high risk during each episode of medical triage in relation to the plaintiff.

(h) failing, or failing adequately, to take into account the plaintiff’s high risk when managing the plaintiff as both a community patient and during his periods of in hospital treatment.

(i) failing, or failing adequately, to appreciate the plaintiff’s psychopathology, both as to the longer term commencing from July 2000, and particularly during his period of in hospital treatment beginning on 1 March 2001.

(j) failing to treat the plaintiff with medication during his period in-hospital from 1 March 2001.

(k) misjudging the plaintiff’s level of psychopathology during the plaintiff’s period as a hospital inpatient at Pialla.

78 Counsel for the defendant grouped these particulars into four broad categories. They are:

(1) a claim that the plaintiff ought to have been detained as an involuntary patient for a period of at least two weeks for the purpose of the administration and monitoring of anti-depressant medication; and that, pursuant to the Mental Health Act 1990 the defendant ought to have sought a compulsory Community Treatment Order;

(2) a claim that the plaintiff ought, during the period of his hospitalisation and following his discharge, have been prescribed medication, or given a trial of medication, incorporating either anti-depressant or anti-psychotic medication, or both;

(3) a claim that the defendant failed, during the period of the plaintiff’s hospitalisation, to provide adequate counselling or other therapies;

(4) a claim that the defendant failed to provide adequate care for the plaintiff following his discharge.

Counsel for the plaintiff did not take issue with this categorisation.

The Civil Liability Act 2002

79 As I have indicated above, the claim is governed by the provisions of the Civil Liability Act. The relevant provisions are the following:

Division 3 Causation

5D General principles

factual causation

scope of liability

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) …
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

Division 6 Professional negligence

5O Standard of care for professionals
(1) A person practising a profession ( a professional ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

Division 8 Contributory negligence

5R

Standard of contributory negligence

5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

43A

Proceedings against public or other authorities for the exercise of special statutory powers

special statutory power

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
(4) …

Part 6 Intoxication

48 Definition of “intoxication”
A reference in this Part to a person being intoxicated is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).

49

Effect of intoxication on duty and standard of care

(2) …

50

No recovery where person intoxicated

Intoxication

80 It is convenient to dispose firstly of the issue of intoxication.

81 I accept that the plaintiff told Dr Mehta that, in addition to the two bottles of full strength beer he now admits he consumed during the evening of 17 March, he had also consumed half a bottle of whisky. In evidence, he denied that he had done so. He did, however, acknowledge that he was not sober by the time he arrived at his mother’s home and climbed the tree. That is sufficient to bring him within the definition of intoxication contained in s 48.

82 Contrary to the argument advanced on behalf of the defendant, I am satisfied that s 49 is irrelevant to the present proceedings. S 49(1)(a) is directed only to the effect of intoxication upon the determination of whether or not a duty of care arises. Here, there is no question, and no issue, that the defendant owed the plaintiff a duty of care. S 49(1)(a) can be put to one side. S 49(1)(b) is similarly concerned with whether or not a duty of care is owed. It does no more than state categorically that intoxication of itself does not give rise to a duty of care where such a duty does not otherwise exist. For the same reasons, s 49(1)(b) can be put to one side. S 49(1)(c) is concerned with the standard of care. It excludes any increase or other effect of the fact that the person to whom the duty of care is owed “is or may be intoxicated” upon the standard of care. I accept that neither the existence, nor the standard of the duty of care owed by the defendant to the plaintiff is in any way affected by his intoxication on the evening of 17 March. The standard of the care owed to him is precisely that owed to any other patient in his circumstances (absent intoxication).

83 Counsel for the defendant then made the following submission (in their written outline of submissions):

“7. Since the plaintiff’s injuries occurred whilst he was intoxicated (within the meaning of the CLA) the defendant owed him no duty of care with respect to that conduct.”

84 This is a distortion of the effect of s 49, or alternatively of s 50. S 49 does not exclude a duty of care which otherwise exists merely because the person to whom the duty of care is owed is intoxicated.

85 Part 6 of the Civil Liability Act has no bearing upon the assessment of the plaintiff’s claim that the defendant acted in breach of its duty of care to him. S 50 may well have a bearing upon the assessment of any damages to which the plaintiff would be entitled if he were to succeed in his claim that the defendant was negligent.

Professional services

86 Prior to the introduction of the Civil Liability Act the test to be applied where persons practising professions were alleged to have been negligent was well established. It was stated, inter alia, in Rogers v Whitaker [1992] HCA 58; 175 CLR 479 as follows:

“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment’ … In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill.”

87 The Court rejected the notion that the standard is determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. This was a version of the principle stated, firstly in Bolan v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118, and restated in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 as:

Bolan

88 The High Court held, for Australia, that Bolan no longer stated the law. It reserved to the court the determination of the standard of care and skill required in any individual case, recognising, of course, the need for guidance from the relevant profession (p 489).

89 Rogers was a case concerning the provision of relevant information to a patient. However, the principles concerning the determination of the standard of care are of general application.

90 The effect of the decision in Rogers has been modified by s 5O. Indeed, the section may be seen as reinstating the Bolan test.

The treatment given to the plaintiff: was it adequate?

91 I turn now to the evidence concerning the appropriateness or otherwise of the standard of care and treatment provided to the plaintiff. This emerges from a series of reports provided by Dr Jonathan Phillips, a consultant psychiatrist who advised and gave evidence on behalf of the plaintiff, and Dr James Telfer, also a specialist psychologist, who performed the same function on behalf of the defendant. Dr Phillips reviewed what he described as “a substantial file of documents” which are itemised in his letter of instruction dated 20 May 2004. Dr Phillips first reported on 23 June 2004. At that point, although he had read the documentation, he had not personally met or assessed the plaintiff. Dr Phillips acted on the basis that the material provided to him was factually accurate. He advised that, as he had not met the plaintiff, this report should be regarded as a “preliminary document”.

92 He approached his task on the basis that the plaintiff:

“… had always been a relatively high risk mental health client.”

93 Dr Phillips described the examination conducted by Dr Tsovolos as “first class” and her record as “comprehensive”. He then said:

“Unfortunately Dr Tsovolos appears to have made a significant error of judgment in electing to admit Mr Walker as a voluntary patient in a general ward and had put faith in the plaintiff ‘making adult and responsible decisions’ with regard to his welfare and the future. Additionally the registrar [Dr Tsovolos] may have made an error in not choosing to treat the plaintiff with psychotropic medication at that time.”

94 In Dr Phillips’ opinion, as expressed in the report, the plaintiff was “significantly disturbed” at the time of the examination and admission and was not in a state of mind to have been relied upon to make rational judgments or to have insight into the nature and/or depth of his psychological disturbance. This was a reference to Dr Tsovolos’ note that, in being admitted as a voluntary patient, the onus was on the plaintiff to make adult and responsible decisions concerning his welfare and future.

95 Dr Phillips considered that a second error of judgment occurred on 4 March 2001, at the time the plaintiff complained of the molestation or harassment by the other patient. Dr Phillips said:

“Given denial by the second person, there is probability that the patient was experiencing paranoid symptoms at the time, these becoming a further marker for the depth of his psychological disturbance.”

“In keeping with the above and irrespective of some evidence that [the plaintiff] was improving, the decision to discharge the plaintiff from hospital on 6 March 2001 was premature.”

96 Dr Phillips then said that, from the documents provided to him, he could not determine whether a proper follow up plan had been devised. He considered that “highly assertive follow up” should have been maintained and recorded, and that this should have been done in conjunction with the plaintiff’s mother.

97 He considered that “a case could have been made” for seeking a longer term Community Treatment Order (under the Mental Health Act). Dr Phillips returned to the question of “follow up”, saying:

“The issue of [the plaintiff’s] discharge planning is clear. There is no evidence that the medical and other personnel at Pialla provided a comprehensive documented discharge plan which ensured assertive community follow up. Further, Professor Boyce verified that the plaintiff had been discharged without involvement of his mother, into whose care he was being entrusted. Hospital personnel and the hospital generally must face significant criticism in this domain.”

98 He recognised and acknowledged the home visit of 7 March, but found no evidence of the further visits (to which I have referred above). He therefore considered the follow up care to have been inadequate. Subsequently Dr Phillips became aware of two later visits, and modified this position.

99 With respect to the medication issue, Dr Phillips said:

“The issue of whether [the plaintiff] required medication with psychotropic agents during his period of in hospital treatment beginning 1 March 2001 and following his discharge from hospital on 6 March 2001 is hard to resolve. On balance and given the extent of the plaintiff’s symptoms (across the depression spectrum, including his hazardous use of alcohol and the presence of at least transient psychotic symptoms) he almost certainly may have benefited from medication with a modern anti-depressant agent and/or an anti-psychotic agent (with the latter used only for a brief period).”

100 Dr Phillips summarised his opinion as follows:

“ · There was inadequate appreciation of the plaintiff’s psychopathology, both during his period of in-hospital treatment at Pialla beginning 1 March 2002, and with regard to the longer term.

· There is a reasonable case that the plaintiff should have received medication as part of his package of treatment during his period of in-hospital treatment at Pialla, beginning 1 March 2001.

· It is more likely than not that the plaintiff’s level of psychopathology was misjudged by personnel at Pialla and that his discharge form the hospital on 6 March 2002 was premature.

· There was inadequate attention to discharge planning in all its aspects, particularly with regard to consultation with [the plaintiff’s mother] and the provision of appropriate assertive follow-up by the community mental health team.

101 In February 2006 Dr Phillips was provided with a copy of a report prepared at the request of the defendant by Dr Telfer dated 1 August 2005. He was asked to comment upon this report. Dr Telfer’s opinion of the assessment and diagnosis made by Dr Tsovolos was that it was:

“… competent and adequate, soundly based on a direct examination of the patient and also on detailed background information from Mr Keevers who had seen the patient in October 2000, 27 February 2001 and again on 1 March 2001.”

102 With respect to the admission of the plaintiff as a voluntary patient, Dr Telfer said:

“In my opinion the patient had the capacity to make an informed consent at this time and could contract to be admitted voluntarily. He was so submitted. This is in accord with the principle of the Least Restrictive Form of Care.

103 Dr Telfer considered that, in the absence of a diagnosis of depression, it was to be expected that no medication would be prescribed. It was common ground between Dr Telfer and Dr Phillips that no major depression disorder existed; both accepted a diagnosis of adjustment disorder with depressed mood.

104 Dr Telfer considered that the follow up arrangements were “within accepted standards of practice”. He considered there were no reasonable grounds for the use of a Community Treatment Order, even if the admission had been involuntary. He therefore considered that the plaintiff’s treatment at Pialla was appropriate as were his discharge and planned aftercare.

105 Reading Dr Telfer’s report did not bring about any change in Dr Phillips’ views. Dr Phillips reported again on 13 July 2006. By this time he had interviewed the plaintiff on 19 August 2004. He had also been made aware of the visits and case notes made by the mental health worker on 12 March, 13 March and 16 March 2001. These, also, did not alter his opinion. Dr Phillips said [referring to his previous report of 23 June 2004]:

“… [the plaintiff] had a difficult combination of disorders: a depression spectrum disorder and a personality disorder and … the plaintiff used alcohol in a hazardous manner. In keeping with this, I rated the plaintiff as having been a person who, over an extended period, would be at risk of self-harming behaviour. All these matters should have alerted professional staff within the Wentworth Area Health Service (hospital staff, community staff) to the plaintiff’s need for close surveillance and assertive treatment …

Whilst the mental health worker carried out a satisfactory consultation at the time of the first home visit, he should have, on information given to him, reached the conclusion that [the plaintiff] was a young man of considerable risk for self-harm, and organised for either more assertive home visits (initially on a daily basis) and/or reviewed by more senior mental health personnel (psychiatrist, psychiatric registrar) or organised re-admission of the plaintiff to hospital (assuming the plaintiff would agree). I doubt, however, that the situation had reached the point where compulsory transfer to hospital under the New South Wales Mental Health Act 1990 was warranted.

…

Whilst there had been less room for concern by the mental health worker at the home visit on 16 March 2001, the mental health worker should have appreciated that one of the most dangerous times for self-harm occurs when a person is emerging from the depths of a depressive disorder and is becoming more active. The mental health worker should have appreciated that the plaintiff remained a person at substantial risk for self-harm.

…

I acknowledged the attempts by the case worker to maintain contact with [the plaintiff], beginning 7 March 2001. Notwithstanding his attempts, I hold to my previous opinion that if [the plaintiff’s] level of psychopathology had been better assessed by the treatment team and if he had been given greater protection during his period of in-hospital treatment beginning 1 March 2001 and had been provided with a longer period of hospitalisation and/or had assertive follow-up consistent with his need, the event leading to his permanent quadriplegia might have been avoided.

… the Wentworth Area Health Service will continue to face substantial criticism for not providing [the plaintiff], at a time of high level of psychological disturbance, greater safety whilst he was receiving treatment. It had been the plaintiff’s premature discharge from hospital which set in train events leading eventually to his permanent quadriplegia.

…

It is my firm opinion that, in the context of known facts at the time of [the plaintiff’s] admission and treatment at Pialla, professional staff at the psychiatric centre should have judged his psychopathology more seriously.

Specifically, on the basis of all material available to me, I hold that professional staff should have reached the conclusion that [the plaintiff] would require a reasonable period of hospitalisation (probably 2-3 weeks) to allow for comprehensive treatment (counselling, medication) and additionally that the plaintiff required high level protection (at least during his earlier period of in-hospital treatment).

… professional staff should have kept [the plaintiff] longer in hospital than they did.

… I do not believe it could be stated that professional staff provided a detailed discharge plan for [the plaintiff]. The final file entry (6 March 2001) was written by a nurse and merely states that the plaintiff was discharged after review by the treating team. The interim discharge summary is little more explicit. It notes merely that the plaintiff was to be followed by the Lower Mountains community team. No explicit discharge instruction or plan was provided.

Professional staff will face considerable criticism from colleagues of good standing for failing to provide a specific and comprehensive treatment plan for [the plaintiff] at the time when he was discharged from hospital, noting particularly the seriousness of his psychopathology at the time of his admission to hospital and during the period of his in-hospital treatment.

… On the information available to me, it would have been prudent to plan to keep the plaintiff in hospital for 2-3 weeks, but to review the situation on the basis of his progress.

… The patient’s safety should have been the dominant concern. There was ample evidence to verify that [the plaintiff] was not in a personally safe situation (and at risk for self-harm) at the time of his admission to Pialla, during his period of in-hospital treatment, and at the time of his initial follow-up visit.

…

…

Inadequate arrangements were made for outpatient follow-up. Daily assessment was required initially by the plaintiff.

Whilst I believe the mental health worker from the Springwood Mental Health Team made a clinical error at the time of his first assessment of the plaintiff at home, in failing to organise urgent further assessment by a more senior member of staff (psychiatrist, psychiatric registrar), that worker faced a difficult task in providing a comprehensive assessment in the setting.

…

Given the seriousness of the plaintiff’s psychopathology at the time of his admission to Pialla, and during his period of in-hospital treatment, and the time of his initial follow-up at home, it would have been prudent to have medicated the patient with a modern ant-depressant agent and/or an anti-psychotic agent …

New South Wales Mental Health Act 1990

106 Dr Phillips reported again on 8 September 2006. This report was made in response to a series of six specific questions posed to him by the solicitors for the plaintiff.

“It almost goes without stating that personnel within Wentworth Area Health Service should have appreciated [the plaintiff’s] psychological vulnerabilities and given proper consideration and weight to them on every occasion when he was assessed within the community, at times of triage when he presented at hospital, and during any period of in-hospital treatment.”

107 The specific questions asked of Dr Phillips included questions about the prescription of anti-depressant and anti-psychotic medication of the kind subsequently prescribed by Dr Mehta at Prince of Wales. Dr Phillips replied:

“Assuming that [the plaintiff] was suffering from a depression spectrum disorder at the time of his admission to Pialla … and noting his past history of mental health problems generally and his history of nihilistic thinking, he should have been medicated initially with a modern anti-depressant agent and/or a modern anti-psychotic agent. If the patient had failed to settle within one week of admission to hospital, or where there was evidence that he had or may have had psychotic symptoms, a modern anti-psychotic agent should have been added to his medication regime.

…

108 In response to a question whether it was within the defendant’s capacity to reduce the risk of any further suicide attempts by the plaintiff, Dr Phillips replied:

“The defendant had at least two major ways of reducing the risk of the plaintiff attempting suicide, at least in the short-term, and probably in the longer term.

109 In response to a further, specific, question concerning the length of time over which the plaintiff ought to have been admitted to Pialla, Dr Phillips declined to be categorical or offer a precise time frame, but said:

“Given what was known about [the plaintiff] at the time of his admission to Pialla, he required in-hospital treatment until such time as his treatment team considered that he was no longer a danger to himself and where he could be managed within the community.

… given what was known about the plaintiff at the time of admission to hospital, it would have been reasonable to anticipate a period of in-hospital care of at least two weeks duration.”

110 He restated his view that the plaintiff ought to have been offered “supportive/protective” counselling initially, followed by “more practical counselling” as he began to settle.

111 Dr Phillips’ final report is dated 21 February 2007. On this occasion he was asked to focus his attention upon the issue of intoxication, this having been raised by the defendant in an amendment, pursuant to the Civil Liability Act, to the defence filed.

112 Dr Phillips, acting on the material before him, accepted that the plaintiff had consumed alcohol on 17 March. He was unable to quantify the alcohol consumed, or assess his level of intoxication. He considered it unlikely that the plaintiff would have been able to climb the tree if he had been heavily intoxicated.

113 Dr Phillips noted various of the entries made by Dr Tsovolos in her notes, these being of acts of deliberate self-harm, including punching walls, inflicting cigarette burns on his skin and stabbing himself with pens; and he noted the entry in which the plaintiff appeared to be “ambivalent” about possible future suicide attempts, saying that he did not think he could do it again, but it might happen, he might change his mind again.

114 Dr Phillips thought the materials showed that, at the time of his hospitalisation, and (possibly) thereafter, that the plaintiff was “highly likely” to engage in further self-destructive or frankly suicidal acts. This was because of his past behaviour, which, Dr Phillips said, is the best predictor for future behaviour; because the plaintiff was suffering a chronic depression spectrum disorder; and because the plaintiff was young and of male gender, both factors linked to self-destructive and suicidal behaviour.

115 Dr Phillips then said:

“On the balance of probabilities, [the plaintiff] was going to again act in a self-destructive/frankly suicidal manner … whether or not he consumed alcohol and whether or not he became intoxicated secondary to the consumption of alcohol.”

116 He therefore considered it likely that the plaintiff would have acted in a self-destructive or suicidal manner on that day with or without the consumption of alcohol, but that it was possible (but unproven) that he may have become disinhibited as a consequence of his alcohol consumption. He expressed the “strong opinion” that the plaintiff’s alcohol use on that day was not the cause of his dangerous behaviour. He considered that, had the plaintiff received “timely, appropriate and comprehensive treatment” from the defendant he would suffered fewer or no symptoms of depression spectrum disorder. He would have been significantly less likely to use alcohol in a hazardous manner.

117 Dr Telfer took a different approach. He reported, firstly, on 1 August 2005, and commented on Dr Phillips’ reports (excluding the 8 September 2006 and February 2007 reports) on 15 May 2006. He endorsed Dr Phillips’ favourable view of the assessment and record taking by Dr Tsovolos.

118 Dr Telfer noted that Dr Tsovolos had initially determined not to admit the plaintiff to Pialla, but changed her mind upon the request of the plaintiff and his mother. In Dr Telfer’s view, the plaintiff had the capacity to give informed consent to this course and could contract to be admitted voluntarily, as, indeed, he was. This, according to Dr Telfer, was in accord with the principle of the Least Restrictive Form of Care – a principle which is read into, or derived from, the approach taken in the Mental Health Act.

119 Dr Telfer considered the issue of the diagnosis (or otherwise) of depression: he noted that Dr Tsovolos diagnosed depression or dysthymia (severe disturbance of mood); but that Dr Stones found no sign of depressive illness. The nursing care manager Mr Barker, who interviewed the plaintiff on 2 March, also noted some features of depressive illness; but other, subsequent, notes (including those of Dr Morrell) were to the contrary. On the whole, the notes did not support a diagnosis of depression, and it is to be recalled that Dr Phillips himself agreed that there was no evidence of “major depression”.

120 This meant that the decision not to treat the plaintiff with medication for major depression was appropriate. Dr Telfer considered that this decision was supportable on another basis, that is, the plaintiff’s history of heavy alcohol abuse, some substance abuse, risk taking behaviour, impulsivity and poor judgment. The prescription of psychoactive medication can be hazardous because of the interaction with alcohol and other drugs, with only a small chance of beneficial effect.

121 Dr Telfer considered that the attempts made to address the plaintiff’s alcohol consumption to have been “reasonable”. He also considered the follow up arrangements to be within accepted standards of practice. Dr Telfer considered that there were no reasonable grounds for the use of a Community Treatment Order. It is, he pointed out, essential to the making of such an order that the admission be involuntary, under the Mental Health Act (I will deal with this below). Moreover, given his view that it was appropriate not to prescribe medication, a Community Treatment Order, the purpose of which is to ensure compliance with prescribed medications, would have had no utility. The treatment for alcohol problems cannot be compulsory.

122 Dr Telfer could see no benefit in any of the alternatives for the management afforded to the plaintiff, such as more prolonged hospital admission, drug and alcohol programmes, medications for depression, and psychotherapy. Further hospital admission, he thought, would not achieve more than a respite. Compulsory admission to prevent alcohol consumption is not available under the Mental Health Act. Long term abstinence from alcohol would offer a chance of increased stability of mood and reduce suicidal preoccupations, but this could not be achieved without the commitment of the plaintiff to total abstinence, something which the plaintiff had rejected.

123 Dr Telfer thought that the management, post discharge, by the Community Health Team was appropriate and effective as possible given the severe limitations on effectiveness.

124 Overall, he concluded:

“The incident of 27 February 2001 in which the patient sustained multiple injuries in a fall from a tree was an outcome of alcohol abuse, risk taking behaviour, personality disorder and dysfunctional personal relationships. These were long standing, habitual difficulties that are not usually amenable to Mental Health interventions when they occur together. The assessments and care provided by the Mental Health Service were competent and met the standard of practice accepted in Australia by professional peers as appropriate. The incident was not the outcome of negligence but rather the result of the patient’s actions arising from conditions … not remediable by available forms of care …”

125 In his second report Dr Telfer analysed and commented upon Dr Phillips’ reports. Significantly, he said:

“In my opinion the plaintiff would have been unlikely to climb a tree and threaten suicide on 17 March 2001 had he not been under the influence of alcohol at the time. His heavy consumption of alcohol that night led to an altercation with his brother culminating in an impulsive action: climbing a pine tree while making suicide threats.”

126 Dr Telfer specifically commented then upon the failure of the defendant, through its Pialla employees, to consult the plaintiff’s mother before discharging him, or, at least, to notify her of the decision to do so. He considered that it would have been “proper and best practice” to discuss the proposed discharge with her, and that the failure to do so rendered the standard of care “suboptimal”. He did not consider, however, that the outcome would have been any different even if there had been a great deal of consultation with her. The plaintiff’s difficulties past and present were of a type not amenable to her interventions.

127 It will be seen, then, that there exists a conflict in the opinions, as expressed in the reports of the two experts. However, a good deal of that conflict evaporated when Dr Phillips gave oral evidence.

128 In cross-examination Dr Phillips’ expressed view about the need for medication to have been prescribed was approached from a number of different directions. He had, I think it is fair to say, extrapolated from the evidence that the combination of medications the plaintiff was prescribed at Prince of Wales had been successful, to posit that the same, or a similar, combination of medications ought to have been prescribed for him in Pialla. He agreed that this retrospective approach was not easy; in effect, although he did not use the words, his evidence may be interpreted as acknowledging that such an approach is unreliable. The fact that after the plaintiff’s injury he was prescribed a combination of drugs that was effective to combat his depression is not evidence that those drugs ought to have been prescribed whilst he was in Pialla; still less is it evidence that failure to prescribe that combination (or a similar one) of drugs amounted to a breach of duty on the part of the defendant.

129 Dr Phillips also accepted that, having regard to the plaintiff’s alcohol use, and his manifest intention not to abstain therefrom, called for caution in the prescription of drugs; particularly when the drug is likely to be used in combination with alcohol.

130 He also acknowledged that anti-depressant medication was associated with side effects such as anxiety, nervousness and insomnia and others in a not insignificant proportion of patients.

131 Dr Phillips’ final position on this was that although he himself would have taken a different course, the decision to admit the plaintiff to Pialla and to watch and observe him without immediate medication was “not unreasonable”. He said:

“… you're talking about standing back and looking from a distance and I accept that some people might say that at least for a short period of time to observe before you make a decision to medicate is not unfair.”

132 Finally, Dr Phillips was asked:

“… although you may hold a different view, you don't criticise the view that not prescribing anti-depressant medication was a reasonable one?”

133 This really concludes the case against the plaintiff in respect of the negligence particularised as the failure to administer appropriate medication. As Dr Phillips also acknowledged, the notes, taken as a whole, between 1 March and 6 March, showed a steady improvement in the plaintiff’s mood, not suggestive of a need to medicate where that need had not previously been identified.

134 Dr Phillips also accepted that, when due regard was had to the notes showing improvement, and to the assessment of Dr Morrell, there was no reason for the plaintiff not to be discharged at the time he was. He said:

“… I think there's two points that raise a caution but I'm not taking it much beyond that and that is the continuation of a restricted affect and the issue of the recovering insight. Certainly there's no suggestion there that the patient has total insight … It would lead me to ask the question whether it's now that the patient should be discharged or whether one should hang on somewhat longer, but that's one person's view.”

135 For similar reasons those particulars of negligence which assert inadequate counselling or therapy during the patient’s hospitalisation cannot be sustained. Nor, in the light of the recorded home visits, can the criticism that inadequate follow up was afforded to the plaintiff after his discharge.

136 That leaves only the question of whether the plaintiff ought to have been admitted as an involuntary patient under the provisions of the Mental Health Act.

Mental Health Act 1990

137 Dr Phillips’ view concerning the exercise of powers under the Mental Health Act was in two parts. Firstly, he considered that the plaintiff ought to have been detained as an involuntary patient. This, I take it, would, in Dr Phillips’ view, have facilitated a longer stay as an in-patient and have permitted whatever treatment those (medical) employees of the defendant considered necessary to be administered, whether with or without the concurrence and cooperation of the plaintiff.

138 A less drastic position was that the defendant’s employees ought to have exercised an option to ensure that a Community Treatment Order under s 131 of the Mental Health Act was operative. Properly characterised, each of these involves an allegation that the defendant, as a public authority, failed to exercise special statutory powers conferred upon it. Such a claim is subject to the strictures imposed by s 43A of the Civil Liability Act – it cannot succeed unless the plaintiff establishes that the failure to exercise the power was, in the circumstances, so unreasonable that no authority (Area Health Service) could properly consider not taking that course to be a reasonable exercise of the power.

139 Each of these requires analysis, in the context of specific provisions of the Mental Health Act. Given that the powers conferred by the Mental Health Act provide for detention, possibly against the will and even over the violent or strenuous opposition of the patient, it is hardly surprising that the procedures it lays down are highly circumscribed and quite rigid.

140 What follows should not be taken as a substitute for detailed analysis of the provisions of the Mental Health Act. It is not intended to be a comprehensive paraphrase of that legislation.

141 The starting point is s 20. S 20 provides:

20 Detention of persons generally

142 This is the statutory formulation of “the least restrictive option” to which reference was made in the evidence, and which is the philosophy underlying the procedures for which the Mental Health Act provides.

143 The Mental Health Act draws a distinction between two categories of persons: those who are “mentally ill” and those who are “mentally disordered”.

144 By s 9 a person is a mentally ill person if suffering from a mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control is necessary for the protection of that person, or others, from serious harm.

145 “Mental illness” is defined in the Dictionary as a condition which seriously impairs, either temporarily or permanently, the mental functioning of the person and is characterised by the presence of any one or more of five specified symptoms – delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood, or sustained or repeated irrational behaviour indicating the presence of any one or more of those symptoms.

146 By s 10 a mentally disordered person is a person whose behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment, or control is necessary for the protection of that person, or of others, from serious physical harm.

147 The Mental Health Act provides for a variety of ways by which a person considered to be mentally ill or mentally disordered may be subjected to involuntary detention in a hospital. These include: on the certificate of a medical practitioner or a person accredited for that purpose (s 21); at the request of a relative or friend of the person to the medical superintendent of the hospital (s 23); after apprehension by police (s 24); by order of a court under s 33 of the Mental Health (Criminal Procedure) Act 1990 (s 25); on information of a welfare officer (designated for that purpose under the Mental Health Act) (s 26); and by order of an “appropriate person” authorising medical examination or observation (s 27). However, the extent of the detention authorised following any of these scenarios is extremely limited. A person so detained is required to be examined as soon as practicable, and within no more than 12 hours, by the medical superintendent (or his or her medical nominee) (s 29). By s 28 the medical superintendent is obliged (“must”) to refuse to detain a person if of the opinion that the person is not mentally ill or mentally disordered.

148 Where the medical superintendent, under s 29, certifies that a person is mentally ill or mentally disordered, s 32 obliges him/her to arrange for examination by a second medical practitioner who is (if the medical superintendent is not) a psychiatrist; where the second medical practitioner is of the opinion that the person is not mentally ill or mentally disordered, sub-s (3) requires a third examination, again by a psychiatrist.

149 The Mental Health Act then provides different regimes in the case of persons who are found to be mentally ill, and those who are found to be mentally disordered.

150 By s 35 a mentally disordered person may not be detained in the hospital (involuntarily) for a continuous period of more than three days, and must be examined at least once every 24 hours. No more than three detentions, each of three days, are permitted in any one month (sub-s (4)). Even so, where the medical superintendent is of opinion that other care of a less restrictive kind is appropriate and reasonably available, the person must not be further detained in the hospital (sub-s (3)).

151 Special provisions are made for dealing with persons conveyed to the hospital (as was the plaintiff) pursuant to s 24, after apprehension by police (see ss 36, 37). These are designed, so far as I understand them, to ensure that any police action necessary in relation to the events that gave rise to the apprehension may be taken.

152 By s 38 the medical superintendent is obliged, after receiving advice that a person is mentally ill, to bring that person before a magistrate as soon as practicable. This is for the purpose of enabling the magistrate to hold an inquiry under s 41. By s 51, where, having held an inquiry, a magistrate is satisfied that, on the balance of probabilities, the person is mentally ill, the magistrate has one of two courses of action open. He or she may order the discharge of the person to the care of a relative or friend if satisfied of that person’s capacity properly to take care of the mentally ill person, or may take other actions which are considered appropriate, including (significantly for present purposes) making a Community Treatment Order. If of the opinion that no other care of a less restrictive kind is appropriate and reasonably available, or that for any reason it is not appropriate to take that course, the magistrate must direct that the person be detained in a specified hospital for further observation or treatment or both, as a temporary patient and for such periods (not exceeding three months) as the magistrate specifies.

153 From the foregoing analysis, it can be seen that the options available to the defendant’s employees depended upon whether the plaintiff was found to be mentally ill, mentally disordered, or neither. If mentally disordered, then, by reason of s 35, he could only be detained for three days. Although the section is not completely clear, it does not appear to envisage consecutive periods of involuntary detention in the circumstances.

154 If, after the implementation of the statutory procedures, the plaintiff had been found to be mentally ill, within the meaning of the Mental Health Act, then his involuntary detention by the defendant would have been authorised only until it became possible to bring him before a magistrate for the purpose of an inquiry under s 41. If at any time pending that inquiry the medical superintendent had formed the view that he was no longer mentally ill, but was mentally disordered, the effect of s 40(1A) is that he could only have been held for three days (excluding weekends and public holidays) pending that course.

155 From that time, the outcome would have been in the hands of the magistrate, and not the defendant’s employees. In other words, it was not open to the defendant’s employees to detain the plaintiff involuntarily, as suggested by Dr Phillips, for longer than three days. Nor would involuntary detention, in the light of his willingness to remain as an informal patient, have been in accord with the philosophy of, or, indeed the command, expressed in s 20, of the Mental Health Act. As a reading of s 131 of the Mental Health Act makes clear, a Community Treatment Order may only be made by the Mental Health Tribunal or a magistrate on the application of an authorised applicant. It was not open to any employee of the defendant to make such an order. The most that any such individual could do would be to apply to a magistrate: however, such an order may be made only by a magistrate in relation to a person in respect of whom the magistrate is holding an inquiry under s 41.

156 It is here that s 43A of the Civil Liability Act is relevant. The Mental Health Act confers only very limited powers upon individuals (such as Dr Tsovolos, or the medical superintendent of Pialla). What it confers upon them are powers that, in appropriate circumstances, if exercised, would result in the referral of the plaintiff to a magistrate for judicial consideration of the options available under s 51 of the Mental Health Act. The medical superintendent was exercising a “special statutory power” within the meaning of s 43A of the Civil Liability Act; but that special statutory power did not extend to detaining the plaintiff for more than three days, nor to making a Community Treatment Order. The course proposed by Dr Phillips was simply not open to any of the defendant’s employees. The most they could do was to take such action as would ensure that consideration was given by the person duly authorised to do so (the magistrate) to those courses of action.

157 Further, it is by no means plain, on the material, that, at relevant times, the plaintiff was either mentally ill or mentally disordered.

158 The definition of mental illness includes suffering from a condition which seriously impairs, either temporarily or permanently, mental functioning, and characterised by the presence, inter alia, of a severe disturbance of mood. I would be prepared to infer from the circumstances of his admission that, at the time he sought to throw himself under a train, the plaintiff did suffer from a severe disturbance of mood. However, that appears to have abated by the time he was examined by Dr Tsovolos, and to continue to abate throughout the duration of his period as an inpatient at Pialla. It is difficult to identify any time at which it would have been open to the medical practitioners to have certified the plaintiff as suffering from a mental illness – that is, as a mentally ill person. His disturbance was diminishing day by day.

159 In cross-examination Dr Phillips recognised this.

160 In one respect, Dr Phillips was misled by a misinterpretation of symbols used by Dr Tsovolos. Dr Tsovolos used a small, elevated open circular symbol to denote “no”. This, she noted:

“ ° FTD [formal thought disorder]

161 In applying the test contained in s 43A to the Civil Liability Act, it is necessary to examine the language used by Dr Phillips, even as early as in his first report. He regarded the election to admit the plaintiff as a voluntary patient in a general ward, putting faith in his capacity to make adult and responsible decisions with regard to his own welfare and future as “a significant error of judgment”; and that not choosing to treat him with psychotropic medication at the time “may” also have been an error. He identified a second error of judgment as having occurred on 4 March 2001, following the plaintiff’s complaint of harassment by another patient. However, Dr Phillips appears to have assumed, because the other patient denied the harassment, a “probability” that the plaintiff was experiencing paranoid symptoms, demonstrating further the depth of his psychological disturbance.

162 There were, as Dr Phillips acknowledged, other possibilities – the plaintiff’s account may have been correct, or at least a reasonable perception of what had occurred. In this case, the incident would be no indication of “paranoid symptoms”. The records do not contain any other such indications.

163 Dr Phillips then considered the decision to discharge the plaintiff on 6 March as “premature”, and expressed concern about the absence of evidence of a proper follow up plan. Follow up, he said, should have been “highly assertive” and should have been maintained in conjunction with the plaintiff’s mother.

164 Dr Phillips then considered that “A case could have been made at the time to seek a longer term community treatment order …”.

165 He thought that the plaintiff “almost certainly may have benefited from medication …” and that “there is a reasonable case” that the plaintiff should have received medication.

166 These observations are the high point of the plaintiff’s case in negligence against the defendant. They are not capable of establishing, in the language of s 5O, that any professional employee of the defendant failed to act:

“… in a manner that … was widely accepted in Australia by peer professional opinion as competent professional practice.”

167 S 5O is framed in such a way as to suggest that the onus of proving that a professional acted in a manner that was widely accepted by peer professional opinion as competent professional practice lies upon the person against whom the action is brought, or the allegation made. I recognise that what I have said above may give the appearance of reversing that onus. I have not done so. I am affirmatively satisfied, from the oral evidence of Dr Phillips, and the evidence of Dr Telfer, that Dr Tsovolos in particular, and the other medical staff of Pialla, acted in accordance with practice that was widely accepted in Australia by a peer professional opinion as competent professional practice. It is insufficient to say, as Dr Phillips did, that he would have made different decisions. It is, particularly, insufficient to say, on the basis of after-acquired intelligence, that a particular combination of medications ought then to have been prescribed for the plaintiff. The plaintiff’s stated intention to continue to use alcohol was a contra indication to the prescription of any drugs.

168 Even less are the observations capable of establishing, in the language of s 43A, that the failure to exercise the powers conferred by the Mental Health Act was so unreasonable that no Area Health Service could have regarded it as a reasonable exercise of power.

169 No separate argument was addressed to the asserted failure to provide “counselling or other therapies”. That allegation must also fail.

170 That is sufficient to dispose of this matter. The only order I can make is that there be a verdict for the defendant. Plaintiff to pay the defendant's costs. Exhibits returned.

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Citations

Walker v Sydney West Area Health Service [2007] NSWSC 526

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Rogers v Whitaker [1992] HCA 58

CITATION:	Walker v Sydney West Area Health Service [2007] NSWSC 526
HEARING DATE(S):	16 April 2007; 17 April 2007; 18 April 2007; 19 April 2007; 20 April 2007; 24 April 2007; 26 April 2007; 27 April 2007; 30 April 2007; 1 May 2007; 2 May 2007
JUDGMENT DATE :	25 May 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Simpson J
DECISION:	Verdict for the defendant. Plaintiff to pay the defendant's costs. Exhibits returned.
CATCHWORDS:	TORT – NEGLIGENCE – professional negligence – attempted suicide – alcohol consumption – admission to psychiatric hospital – voluntary admission – psychiatric examination – medical and nursing records – discharge – whether discharge premature – intoxication – whether plaintiff ought to have been admitted as involuntary patient – whether plaintiff ought to have been prescribed medication – whether plaintiff mentally – whether plaintiff mentally disordered – exercise of statutory powers – no breach of duty of care
LEGISLATION CITED:	Civil Liability Act 2002 Mental Health Act 1990
CASES CITED:	Bolan v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871
PARTIES:	Timothy Walker (Plaintiff) Sydney West Area Health Service (Defendant)
FILE NUMBER(S):	SC 20072 of 2004
COUNSEL:	DE Grieve QC/JH Reimer (Plaintiff) PR Garling SC/JA Lonergan (Defendant)
SOLICITORS:	Livingstone & Company (Plaintiff) Frances Allpress (Defendant)