Case Study; Hunter and New England Local Health District v McKenna

Hunter and New England Local Health District V McKenna[ 2014 ] HCA 44


The instance ofHunter and New England Local Health District V McKenna[ 1 ] concerned the primary issue of whether a common jurisprudence responsibility of attention owed to 3rd parties by wellness governments and their employees were consistent with the appellants’ statutory duties in relation to confining and dispatching mentally sick individuals [ 2 ] , under theMental Health Act1990( NSW ) ( MHA ) . [ 3 ] The High Court of Australia nem con held in favor of the plaintiff in errors. An aim of the MHA, nevertheless, was the ‘control’ of mentally sick patients. [ 4 ] On this footing, the determination of the High Court is questionable, as the Court failed to measure a least restrictive environment enabling attention and intervention against the necessity for ‘control’ . Such a demand for control was required in these fortunes, and consequently gave rise to a responsibility of attention which was breached through the discharge of the patient.


Mr Pettigrove, who suffered from a history of mental unwellness, was involuntarily admitted to, and detained in infirmary, upon his friend, Mr Rose, being concerned about the mental province of Mr Pettigrove. Following an appraisal by a head-shrinker, he was discharged into the detention of Mr Rose to enable them to go to Victoria where Mr Pettigrove’s female parent lived. During the auto thrust, Mr Pettigrove killed Mr Rose. Before ulterior perpetrating self-destruction, Mr Pettigrove told constabularies that he had acted on urge, believing that Mr Rose had killed him in a past life. Mr Rose’s household brought an action against the wellness authorization claiming carelessness on its portion. The respondents alleged that the plaintiff in errors owed Mr Rose and his relations a responsibility to forestall Mr Pettigrove doing injury to Mr Rose, which it failed to make and as a effect, they suffered nervous daze brought about by Mr- Rose’s decease. [ 5 ]

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Procedural History

At first case, Elkaim DCJ, the test justice of the New South Wales District Court found that there was no breach of responsibility of attention as the respondents had failed to set up, that the hazard was moderately foreseeable and ‘not insignificant’ that a sensible individual would hold taken safeguards against it. [ 6 ] On entreaty, the New South Wales Court of Appeal ( dwelling of Beazley P, Macfarlan JA, and Garling J dissenting ) held that ‘ [ T ] he Hospital owed Mr Rose a common jurisprudence responsibility to take sensible attention to forestall Mr Pettigrove doing physical injury to Mr Rose’ , [ 7 ] and that that responsibility had been breached by the mode of discharge. By particular leave, the plaintiff in errors appealed to the High Court of Australia.

Decision and Judicial Reasoning

On the 12th of November 2014, the High Court ( dwelling of French CJ, Hayne, Bell, Gageler and Keane JJ ) nem con allowed the entreaty. The Court held that the plaintiff in errors did non owe the alleged common jurisprudence responsibility of attention to Mr Rose and the respondents as this responsibility was inconsistent with the statutory duties prescribed by the MHA.

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Mentioning to the opinion inSullivan V Moody, [ 8 ] the High Court highlighted the trouble in finding the being and nature and range of a responsibility of attention. The troubles included where ( a ) the nature of the injury suffered is caused by condemnable behavior ; ( B ) the suspect has a specific discretion or duty under the being of a statutory power ; ( degree Celsius ) the category of individuals to which a responsibility is owed to is hard to restrict and ( vitamin D ) there is a demand to continue legal rules, or a statutory strategy. [ 9 ]

Although each of these countries were observed to be relevant to the instance, the Court concentrated on the 2nd point in peculiar when making its determination. The Court concluded that the commissariats of the MHA, which prohibited the detainment or the continued detainment of an single unless no other less restrictive attention was available, was inconsistent with a common jurisprudence responsibility of attention necessitating respect for the safety and public assistance of those whom a mentally sick individual may come into contact — with — when — not—detained.

Emphasis on ‘Control’

The MHA manifested the demand for mentally sick patients to ‘receive the best possible attention and intervention in the least restrictive environment’ [ 10 ] which, inherently favoured Mr Pettigrove’s discharge. However, the aims of the MHA, were every bit concerned with the ‘control’ of mentally sick individuals including control intended to protect and forestall such individuals, and others, from serious injury.

Mr Pettigrove was admitted with chief diagnosing of aggravation of chronic paranoiac schizophrenic disorder. He was certified by the medical overseer to be mentally sick and nonvoluntary admittance and detainment was found to be required. [ 11 ]

During the early hours of the forenoon in the infirmary, a nurse documented Mr Pettigrove to be ‘clearly sing psychotic phenomenon’ , ‘pre-occupied and agitated’ and holding admitted to ‘voices that bother him’ . [ 12 ] On the forenoon of the thrust to Victoria, a head-shrinker assessed Mr Pettigrove and said that he did non hold any distressful ideas during the dark. However, this was inconsistent with the nurses’ notes. Furthermore, it is hard to accept that the observations of that forenoon formed a sufficient footing to reason the symptoms for which Mr Pettigrove had been admitted to hospital had disappeared.

It may be argued that Mr Rose volunteered to drive Mr Pettigrove to Victoria and hence he was adequately placed to exert his ain judgement about his ability to protect himself from injury. [ 13 ] However, Mr Rose’s offer was to drive Mr Pettigrove when he was ‘well enough’ [ 14 ] which clearly implied that Mr Rose relied on the infirmary organizing the position that, before he was discharged, Mr Pettigrove was fit to go with him to Victoria. Therefore, Mr Rose’s safety was dependent upon an sharp judgement by the plaintiff in errors.

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In visible radiation of these observations, there was a demand for control of Mr Pettigrove by continued detainment. For the intents of following with statutory duties, Mr Pettigrove’s nonvoluntary intervention order could hold been revoked and he could hold merely been encouraged to stay in infirmary as a voluntary patient to undergo farther intervention.

Further, these observations suggest that there was a ‘reasonably foreseeable risk’ that was ‘not insignificant’ that without appropriate intervention, Mr Pettigrove might do injury to himself or a 3rd party. Mentioning to the present instance, the High Court stated that:

‘ [ For ] … a mentally sick individual, the hazard of that individual moving irrationally will frequently non be undistinguished, far?fetched or notional. And, in such instances, there will frequently be a hazard that the irrational action will hold inauspicious consequences’ . [ 15 ]

These observations would hold led a sensible head-shrinker in the appellants’ place, to go on to confine Mr Pettigrove and non consign him into the attention of Mr Rose for a long route trip on their ain. A sensible head-shrinker would hold asserted that Mr Pettigrove’s symptoms were apt to fluctuate and that there was no warrant of recovery from a psychotic episode. [ 16 ] Therefore, a responsibility of attention was owed to 3rd parties and that responsibility was later breached by the wellness authorization in dispatching Mr Pettigrove into the detention of Mr Rose. As a consequence, the plaintiff in errors failed to continue the facet of ‘control’ pursuant to the MHA.

A Questionof Public Policy

Section 20 of the MHA finally promotes the civil rights of mentally sick individuals by necessitating minimal intervention with their autonomy. InCarrier V Bonham,[ 17 ] McPherson J referred to ‘more humanist methods of treatment’for mental wellness patients, enabling ‘greater autonomy of movement’ . [ 18 ] However, the right to self-respect, liberty and regard of mentally sick individuals should non take away from the more imperative right to proper attention and intervention, including protection. This precedence assumes even greater significance when the person’s penetration into his or her mental unwellness is impaired and their decision-making capacity is affected. [ 19 ] Such was the state of affairs of Mr Pettigrove and hence, the necessity for control through detainment, should hold outweighed the demand for ‘least restrictive’ attention and intervention.


The determination of this instance creates a high degree of unsusceptibility for head-shrinkers and the establishments through which they provide services, from tortious liability for violent behavior of patients upon failure to enforce nonvoluntary detainment or maintain nonvoluntary detainment. [ 20 ] This determination besides reinforces the opinion ofSullivan V Moody, that when finding the nature and range of a responsibility of attention in peculiar fortunes, respect must be had to statutory duties, which may function to circumscribe or overrule the responsibility otherwise owed. [ 21 ]


The plaintiff in errors owed, and breached a responsibility of attention to Mr Rose and the respondents by dispatching Mr Pettigrove. Such an act involved an imprudent exercising of the statutory responsibility under the MHA as the Act was every bit concerned about the ‘control’ of mentally sick patients as with their autonomy. The High Court failed to measure this necessity of control against a least restrictive environment. Nevertheless, the determination of the instance heightens the tenseness environing both the balance between the autonomy of mental wellness patients, and the protection of such patients and the wider community, every bit good as the coexistence of statutory powers and common jurisprudence liability.

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Freckelton, Ian, ‘Legal Liability for Psychiatrists’ Decisions about Involuntary Inpatient Status for Mental Health Patients’ ( 2014 ) 22 ( 2 ) ,Journal of Law and Medicine280-289

Freckelton, Ian, ‘L iabilityofPsychiatristsforFailuretoCertify’ ( 2003 ) 10 ( 2 )Psychiatry, Psychology and Law397-404

Peterso, Kathryn, ‘Where is the line to be drawn? Medical Negligence and Insanity in Hunter Area Health Service V Presland’ ( 2006 ) 28 ( 1 ) ,Sydney Law Review181-196

Rangarajan, Shrikkanth and Bernadette McSherry, ‘To Detain or Not to Confine: A Question of Public Duty? ’ ( 2009 ) 16 ( 2 ) ,Psychiatry, Psychology and Law288-302

Scott, Russ, ‘ Hunter Area Health Services V Presland: Liability of Mental Health Services for Failing to Admit or Confine a Patient With Mental Illness ’ ( 2006 ) 13 ( 1 ) ,Psychiatry, Psychology and Law49-59

Scott, Russ, ‘ LiabilityforHealthServices for non Involuntarily Detaining and Treating a Mentally Ill Person’ ( 2015 ) 22 ( 1 ) ,Psychiatry, Psychology and Law1-31

Scott, Russ, ‘Liability of Psychiatrists and Mental Health Services for Failing to Admit or Detain Patients with Mental Illness’ ( 2006 ) 14 ( 3 ) ,Australasian Psychiatry256-262


Carrier V Bonham[ 2001 ] QCA 234

Hunter and New England Local Health District V McKenna[ 2014 ] HCA 44

McKenna v Hunter & A ; New England Local Health District ; Simon v Hunter & A ; New England Local Health District[ 2013 ] NSWCA 476

Presland V Hunter Area Health Service[ 2003 ] NSWSC 754

Sullivan V Moody( 2007 ) 207 CLR 562


Mental Health Act1990( NSW )

Civil Liability Act 2002( NSW )


Blacker, Wendy, and Tejas Thete, ‘Detention or Release: The Common Law and Statutory Dichotomy’ ( 2014 )Gadens & lt ;hypertext transfer protocol: // & gt ; at 4ThursdayApril 2015

Leaver, Cameron, ‘ Hunter and New England Local Health District V Merryn Elizabeth McKenna [ 2014 ] HCA 44 ; Hunter and New England Local Health District V Sheila Mary Simon & A ; Anor [ 2014 ] HCA44 ’ on Cameron Leaver,Hicksons Health Law Blog( 13 November 2014 ) & lt ; hypertext transfer protocol: // & gt ; at 3rdApril 2015

Merryn Elizabeth McKenna, ‘Appellant’s Chronology’ , Submission inHunter and New England Local Health Services V McKenna,S142/2014, 25 July 2014

Hunter and New England Local Health District, ‘Appellant’s Submissions’ , Submission inHunter and New England Local Health Services V McKenna,S143/2014, 25 July 2014

Van de Poll, John and Vahini Chetty, ‘Is a Hospital Liable for the Criminal Acts of Its Mental Health Patients? ’ ( May 2014 )Holman Webb Lawyers& lt ; hypertext transfer protocol: // & gt ; at 3rdApril 2015