Case Note: Treatment of the Compliant Mental Health Patient

Treatment of the compliant mental health patient

LC by his Litigation Guardian KS v Australian Capital Territory [2017] ACTSC 324

Reproduced article, originally published in Health Law Bulletin, Issue 26.2, a publication by LexisNexis Australia.

In the case of LC by his Litigation Guardian KS v Australian Capital Territory, the plaintiff brought a claim for damages in negligence for the injuries he sustained when he absconded from his bed in the emergency department (ED) of the Canberra Hospital (the defendant) and jumped from a building in the hospital complex. The plaintiff’s claim was pleaded in negligence rather than as a breach of a statutory duty. Consequently, a breach of the legislation alone would not constitute negligence unless it involved conduct which could be condemned as unreasonable. The plaintiff claimed that the defendant knew, or ought to have known, that he was suffering from a delusional psychosis and had a tendency to self-harm, but nevertheless failed to put in place procedures to prevent him from harming himself. Burns J of the ACT Supreme Court found that the defendant was negligent because:

  • it had breached the Mental Health (Treatment and Care) Act 1994 (ACT)
  • it failed to respond adequately to the knowledge that the plaintiff was delusional and prone to self-harm
  • had the defendant responded adequately to that knowledge it is likely the plaintiff would not have suffered the injuries he did
  • a competent authority would have complied with the requirements of the Act and as a result the defendant had breached its duty of care.

Background

The central facts were not in dispute. On 10 September 2007, the plaintiff had been taken to the hospital by his mother because he was suffering from delusions. At the hospital, he was assessed by a registrar who suggested that they return the next day when they
had more staff on duty. On 11 September 2007, due to continued delusions, the plaintiff returned to the hospital. and was assessed. The plaintiff was repeatedly asked whether he was suicidal and he told them he was not. The plaintiff and his mother were sent home and advised that the Crisis Assessment and Treatment Team (CAT Team) would visit them later that day to administer medication to the plaintiff.

On 12 September at around 3 am the plaintiff, at his home, attempted suicide by slashing both his wrists and neck. By the time police had arrived, the plaintiff had run away. He was later found attempting to jump off a neighbour’s roof. The police apprehended the plaintiff under the Act and took him to the hospital.

The plaintiff arrived at the hospital at about 4.30 am. The plaintiff’s wounds were treated at some time after 8.40 am. The plaintiff was then assessed at 11.09 am by a mental health nurse. During this assessment, the plaintiff again reported that he would not try to kill himself anymore and was willing to wait to be reviewed by a psychiatric registrar. At this time, an attempt was made to consult with a psychiatric registrar, however the registrar was busy assessing another patient. Another unsuccessful attempt to contact the registrar was made at 1 pm.

At about 1.15 pm the plaintiff left his bed in the ED and made his way to the roof of a multi-storey car park. He was chased by a security guard and then jumped off the roof of the car park. The plaintiff sustained fractures to both of his legs.

Pleadings

The plaintiff’s claim was pleaded in negligence and not as a breach of a statutory duty of care. However, the defendant’s failure to comply with the provisions of the Act was relied upon by the plaintiff as a particular of negligence. The defendant denied liability on the grounds that, because the patient presented no risk of self-harm, no doctor or mental health officer had grounds to involuntarily detain the plaintiff under the Act.

Relevant provisions of the Act

Section 37 of the Act allows police or certain health professionals to apprehend a person if:

  • the person is mentally dysfunctional and requires immediate treatment or care
  • they have refused this treatment or care
  • detention is necessary for either their own or the public’s safety
  • adequate treatment cannot be provided without apprehension.

Section 38 of the Act creates an obligation for the hospital to detain a person subject to an order under s 37. Section 40 of the Act creates an obligation for the hospital to ensure that the plaintiff is examined by a doctor within 4 hours of his arrival, to determine whether the involuntary detention of the plaintiff should be extended under s 41 of the Act. Section 41 allows doctors to extend the involuntary detention and care of a patient for up to 3 days if they believe the criteria, as set out above in reference to s 37, are met when they examine the patient.

Application of the Act

The evidence established that the plaintiff arrived at the hospital at 4.30 am under a s 37 order, having been detained by police. Pursuant to s 38 of the Act, the hospital was obliged to detain the plaintiff because he met the s 37 criteria. His Honour did not consider that the plaintiff was detained as required by this section of the Act, however this was not the failure of the hospital that ultimately resulted in the negligence finding.

The expiry of the 4-hour period mandated by s 40 occurred at 8.30 am. It was established that at some time before 8.40 am, the plaintiff was seen by a doctor for the purposes of treating the plaintiff’s wounds, but not for a mental health assessment.15 His Honour held that although s 40 does not specifically state that the examination must be a mental health assessment, by operation of s 41, it is clear that the examination is for the purpose of determining whether involuntary detention would be authorised.

The first time the plaintiff was subjected to a mental health assessment was at 11.09 am by a mental health nurse. His Honour held that the fact the plaintiff was not assessed within the 4-hour window pursuant to s 40 of the Act was a clear failure by those responsible for the plaintiff’s care.

As a result of this failure, the plaintiff, without an assessment concluding that his involuntary detention should be extended under s 40, could no longer be detained at the hospital and he was therefore a voluntary patient. The plaintiff was free to leave the hospital, which he did at about 1.15 pm.

Expert evidence and decision

The court’s decision turned upon the expert evidence. His Honour preferred the evidence given by Dr Raftos (for the plaintiff) over that given by Dr Spain (for the defendant).

Dr Raftos’s evidence established that the plaintiff was psychotic prior to his arrival at the hospital and that this psychosis was manifest in the ED. His Honour accepted that, if a mental health assessment of the plaintiff had been properly conducted, it would have resulted in an order for involuntary detention being made under s 41 of the Act. Had this occurred, it is likely that the plaintiff would not have absconded and suffered the injuries that he did.

It was of note that his Honour rejected the following evidence given by Dr Spain on behalf of the defendant. Dr Spain’s opinion that the plaintiff had not met the requirements set out under s 41 of the Act and could therefore not be further detained relied upon the facts that:

  • the plaintiff had repeatedly assured employees that he was not suicidal or contemplating self-harm
  • the plaintiff was compliant and did not refuse treatment

His Honour found such a conclusion illogical. The plaintiff’s assurances that he would not self-harm could not be given any weight considering the circumstances. The plaintiff was yet to be assessed by a psychiatrist and was in hospital after attempting to take his own life.

Further, his Honour stated that, just because the plaintiff was compliant and did not actively refuse medication did not mean detention under the Act could not be ordered for two reasons. First, no weight can be given to the assurances of a psychotic patient’s compliant assertions. Secondly, this submission was based on the premise that s 41 of the Act required active refusal of treatment or care. If this were so, a catatonic patient or one who declined to speak during an assessment could not be subjected to an involuntary detention order.

At [58] his Honour stated:

A person whose mind is deranged by psychosis such that no weight could be attributed to their assertions, as was the case with the plaintiff, could be in no different position to one who fails to speak. The inability of the plaintiff to understand the nature of suggested treatment and to make a rational decision to accept or reject it, meant that the plaintiff was to have been taken to have constructively refused treatment.

Conclusion

Although this decision was based on the now repealed Act, the legal issues considered in this case are not unique. Each Australian jurisdiction has comparable mental health legislation facilitating the detention of involuntary patients and imposing time requirements surrounding the assessment of patients. This decision demonstrates that if these obligations are not strictly adhered to, there is a risk that this will constitute a breach of a duty of care where these omissions are also unreasonable.

A common theme of the mental health legislation in Australia is that the least restrictive method of treatment should be used wherever possible. This point was raised by the defendant in asserting that the plaintiff could not have been detained when he was compliant with treatment. His Honour acknowledged the objects of the Act but held that there was a failure by the defendant under the Act.

This decision highlights the duties of those responsible for undertaking mental health assessments of patients and considering what type of treatment should be used in circumstances where the patient appears to be compliant. It raises questions about the weight that should be attributed to a patient’s professed intention to receive treatment (and the need to respect their autonomy) in light of surrounding circumstances, which suggest the patient may require involuntary treatment. This case would suggest that practitioners responsible for mental health assessments should, regardless of a patient’s behaviour at a hospital (and their professed intention to receive treatment), take into account and give appropriate weight to the circumstances leading up to their admission when considering whether or not to exercise powers under the Mental Health Acts.

Reproduced article, originally published in Health Law Bulletin, Issue 26.2, a publication by LexisNexis Australia.

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