590035 research-article2015
APY0010.1177/1039856215590035Australasian PsychiatryScott
Australasian
Psychiatry
Ethics
No duty owed to the relatives of a victim of a person with mental illness
Australasian Psychiatry 2015, Vol 23(4) 418–421 © The Royal Australian and New Zealand College of Psychiatrists 2015 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1039856215590035 apy.sagepub.com
Russ Scott Forensic Psychiatrist, High Security Inpatient Services, The Park Centre for Mental Health, Treatment and Research, Brisbane, QLD, Australia
Abstract Objective: To review the case of an acutely psychotic person who was discharged into the care of a friend whom he killed later the same day, and to consider the reasoning of the High Court in the subsequent negligence action of the victim’s relatives. Conclusions: By a narrow interpretation, the High Court found that the exercise of the powers and duties in relation to the involuntary detention of a mentally ill person as prescribed by the Mental Health Act were inconsistent with a common law duty of care to another person or the relatives of another person. Keywords: Mental Health Act, involuntary detention, least restrictive option
B
alancing the need for care and treatment of a mental illness and avoiding harm as opposed to depriving a person of their liberty may in some instances be challenging. In 2004, section 20 of the Mental Health Act 1990 (NSW) stipulated that a person must not be involuntarily detained or continue to be detained in a mental health facility unless “no other care of a less restrictive kind, is appropriate and reasonably available to the person” (see Box 1). Section 12 of the Mental Health Act 2007 (NSW) has a similarly worded provision (see Box 2). To succeed in a personal injuries action, a plaintiff must first satisfy a court that the defendant owed the plaintiff “a duty of care” and that the negligent act or omission of the defendant breached that duty of care (see Box 3).
The facts Mr Pettigrove had a 20-year history of chronic paranoid schizophrenia and at least five previous acute mental health admissions. In 2001, after two admissions to the Echuca Acute Psychiatric Unit in less than a month in the context of medication non-adherence, he was made subject to an involuntary treatment order and was commenced on fortnightly depot zuclopenthixol and oral risperidone. In October 2003, Mr Pettigrove had his last contact with mental health services in Victoria before travelling to NSW where he met his friend, Mr Rose, and began living in a caravan park. From late 2003, Mr Pettigrove had no further oral or depot medication.
In the early hours of 20 July 2004, Mr Rose became concerned about Mr Pettigrove’s mental state and arranged for him to be taken to the Manning Base Hospital, Taree, where Mr Pettigrove was compulsorily detained under the Mental Health Act 1990 (NSW) and accepted an injection of haloperidol, a short-acting anti-psychotic medication. Following a subsequent assessment and after the hospital psychiatrist reviewed medical records including discharge summaries obtained from the Echuca mental health service and had a brief phone conversation with Mr Pettigrove’s mother, the hospital psychiatrist decided that Mr Pettigrove could be discharged the following morning to enable him and Mr Rose to drive to Echuca where Mr Pettigrove’s mother lived. During the night on 21 July 2004, after driving over 600 km, Mr Rose had stopped the car off the highway when Mr Pettigrove attacked and killed Mr Rose. Mr Pettigrove later told police that he had acted on impulse or in response to auditory hallucinations, believing that Mr Rose had killed him in a “past life.” The late Mr Rose’s mother and sisters claimed damages for nervous shock. They claimed that the health service
Corresponding author: Russ Scott, High Security Inpatient Services, The Park Centre for Mental Health, Treatment and Research, Locked Bag 500, Archerfield, Brisbane, QLD 4108 Australia. Email: [email protected]
418 Downloaded from apy.sagepub.com at CAMBRIDGE UNIV LIBRARY on June 4, 2016
Scott
Box 1. Mental Health Act 1990 NSW s. 9 Mentally ill persons. (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person’s own protection from serious harm, or (b) for the protection of others from serious harm. s. 10 Mentally disordered persons. A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: (a) for the person’s own protection from serious physical harm, or (b) for the protection of others from serious physical harm. s. 20 Detention of persons generally. A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person.
Box 2. Mental Health Act 2007 NSW s. 12 General restrictions on detention of persons. (1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that: (a) the person is a mentally ill person or a mentally disordered person, and (b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.
and its employees owed them and Mr Rose a common law duty of care which was breached by discharging Mr Pettigrove into Mr Rose’s care.
professional opinion” as competent practice in Australia. Two experts disagreed.
Decision of the trial judge Expert evidence of psychiatrists Six psychiatrists produced a Joint Report and gave expert evidence. The three psychiatrists who provided reports for the plaintiffs opined that, because of Mr Pettigrove’s history of medication non-adherence, he should not have been discharged, and that if he was discharged, he would have been “under-medicated.” The three psychiatrists who provided reports for the health service disagreed. All of the experts agreed that a longer period of treatment with medication in hospital would have reduced the risk of Mr Pettigrove suffering an acute psychotic episode during the drive to Victoria, and that on 21 July 2004, Mr Pettigrove could not have been certified fit to fly to Victoria, even if escorted. Four of the experts opined that the conduct of the hospital psychiatrist did not fall below a standard widely accepted by “peer
Because Mr Pettigrove “continued to be mentally ill,” and the purpose of the discharge was not to transfer Mr Pettigrove to “other care of a less restrictive kind [which was] appropriate and reasonably available,” the trial judge held that the involuntary provisions of the Mental Health Act 1990 did not apply.1 The trial judge added that in any event, there was no evidence that Mr Pettigrove would not have co-operated and remained in the hospital voluntarily, with the consequence that there was no exercise of a statutory power to detain or not to detain. Although the trial judge found that it was “prima facie inappropriate” to discharge Mr Pettigrove after only one restless night in hospital and without a proper medication, the trial judge concluded that the risk to Mr Rose was “not foreseeable and was not so significant that a reasonable person would have taken precautions against it.” The trial judge found that the plaintiffs did not
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Australasian Psychiatry 23(4)
Box 3. Elements of a successful negligence claim Duty of care In the circumstances of the case, there must be a relationship of proximity between the plaintiff and defendant to impose upon the defendant a duty of care to act “reasonably” so as to not cause harm to the plaintiff. Breach A breach of the duty of care occurs when the defendant fails to take reasonable care and engages in conduct (an act or an omission) that posed an unreasonable risk to the plaintiff that actually resulted in harm to the plaintiff. Causation The harm to the plaintiff would not have occurred ‘but for’ the breach of the duty owed by the defendant and it was reasonably foreseeable that the plaintiff might suffer that harm. Damages The harm (injury or loss) to the plaintiff must be caused by the breach of the duty of care and must not be too “remote” and must be able to be quantified to assess damages to compensate the plaintiff for the harm.
establish that any negligence of the health service was causally related to Mr Rose’s death.
Macfarlan JA held that on the balance of probabilities, the continued detention of Mr Pettigrove in hospital “would have prevented the damage.”
Decision of the Court of Appeal On appeal, a majority of the New South Wales Court of Appeal held that the health service owed the patient’s friend (and his family members) a common law duty to take reasonable care to prevent the patient causing harm to the friend.2 Macfarlan JA summarised factors which indicated the existence of a duty of care to take reasonable care to prevent Mr Pettigrove causing harm to Mr Rose: •• the health service controlled the source of the foreseeable risk of harm to Mr Rose; •• there was an implicit assumption by the health service of responsibility to Mr Rose and an implicit reliance by Mr Rose on the hospital psychiatrist’s judgment concerning Mr Pettigrove’s fitness to make the road trip; •• Mr Rose was vulnerable in that his safety was dependent upon a careful exercise of judgment by the hospital psychiatrist. Mcfarlan JA held that there was a foreseeable and “not insignificant” risk of serious harm to Mr Rose and the health service did not respond to that risk by taking the precaution of continuing to detain Mr Pettigrove. Mcfarlan JA highlighted the “disjunct” between the hospital psychiatrist’s decision to complete the documentation to confirm Mr Pettigrove’s involuntary treatment order and, at the same time, facilitate his discharge the very next day. Macfarlan JA found that the road trip enabled Mr Pettigrove to attack Mr Rose in isolated circumstances where no-one was able to come to Mr Rose’s assistance.
Decision of the High Court On 12 November 2014, by a short, unanimous decision, the High Court overturned the decision of the Court of Appeal.3 The High Court observed that the provisions of the Mental Health Act raised two questions when deciding whether a person should be, or should continue to be, involuntarily detained: •• is the person mentally ill or mentally disordered?; •• if yes, is there no other care of a less restrictive kind which is appropriate and reasonably available (s. 20)? The High Court held that whilst each question required clinical assessment and judgment and had to be answered either yes or no, determining that a person was a “mentally ill person” did not necessarily entail that the person must also be involuntarily admitted or detained. The High Court highlighted that although the plaintiff relatives claimed they were injured because a decision was made not to continue to detain a mentally ill person, those who made that decision had other duties. The High Court held that the statutory powers and duties in respect of the involuntary admission and detention of a mentally ill person as prescribed by the Mental Health Act would not be consistent with a common law duty of care requiring regard to be had to the interests of those with whom the mentally ill person may come in contact when not detained. The High Court held that in some cases, perhaps many, the reasonable person in the position of the hospital
420 Downloaded from apy.sagepub.com at CAMBRIDGE UNIV LIBRARY on June 4, 2016
Scott
psychiatrist might respond to risks by continuing to detain a patient for so long as he or she remains mentally ill, thus avoiding the possibility of harm to others. However, the High Court emphasised that the Mental Health Act required the minimum interference with the liberty of a mentally ill person.
Discussion of the High Court decision Australia is a signatory to various international charters and agreements which acknowledge the rights of persons with mental illness. However, the right to dignity, respect and self-determination of persons with mental illness should not derogate from the more imperative right to proper care and treatment. Also, sections 9 and 10 of the Mental Health Act 1990 (NSW) included, as elements of the definitions of mentally ill persons, the existence of grounds for belief that care, treatment or control of the persons was “necessary for the protection of themselves or others from serious harm.” The discretionary statutory power to compulsorily detain a person with mental illness has a corollary that the health service also has a “not inconsistent” duty of care to treat that person to avoid harm to that person or others. In the subject case, a person with chronic schizophrenia and a history of unreliable adherence to medication presented with an acute psychosis and was made subject to an involuntary treatment order. The very next day, the person was discharged to travel over 1100 km into the night to another state. As was emphasised during the application for special leave to the High Court, when he was discharged from hospital, Mr Pettigrove was still psychotic and there was no evidence “of any sort” of the care to which Mr Pettigrove was going or whether he might require to be involuntarily detained under the Mental Health Act when he arrived in Victoria.4 The hospital psychiatrist did not envisage any treatment or management plan once Mr Pettigrove left with Mr Rose, and the hospital psychiatrist made no followup arrangements with any mental health service in NSW or Victoria. It can be argued that there was a range of alternative “less restrictive options” other than discharging Mr Pettigrove after only one day. His involuntary treatment order could have been revoked and he could have simply been encouraged to remain in hospital as a voluntary patient to have further treatment. Mr Pettigrove
could have been made subject to a community treatment order and discharged to suitable local supported accommodation, where his treatment could have continued with community mental health services. Mr Pettigrove could have been more safely transported with mental health nurse escorts to rendezvous at the state border with an acute care team from Victoria. Mr Pettigrove’s mother and others could have been involved in supporting Mr Pettigrove’s discharge planning. It can be argued that discharging Mr Pettigrove from hospital to some speculative but entirely unelaborated “less restrictive” care hundreds of kilometres away in Victoria was an overly simplistic interpretation of the relevant provisions of the Mental Health Act 1990 (NSW). That a purely “geographical solution” (driving un-medicated into the night to another state in the company of a friend) could be construed as properly deferring to the stipulations in the Mental Health Act is a very tenuous proposition. It is clearly never in a person’s interests to be discharged or be allowed to leave hospital when the person’s suboptimally treated illness puts the person at risk of harming him or herself or others. The narrow interpretation by the High Court of the general principles of “least restrictive option” could have the unintended consequence that psychiatrists may feel less obligated to consider the risks that the person may represent to the person or others if the person is discharged without a prudent treatment and follow-up plan. Disclosures The author reports no conflict of interest. The author alone is responsible for the content and writing of the paper.
Notes 1. Simon & Anor v Hunter & New England Local Health District. McKenna v Hunter & New England Local Health District [2012] NSWDC 19. 2. McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476. 3. Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44. 4. Hunter and New England Local Health District v McKenna [2014] HCATrans 137 (at line 170).
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APY0010.1177/1039856215590035Australasian PsychiatryScott
Australasian
Psychiatry
Ethics
No duty owed to the relatives of a victim of a person with mental illness
Australasian Psychiatry 2015, Vol 23(4) 418–421 © The Royal Australian and New Zealand College of Psychiatrists 2015 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1039856215590035 apy.sagepub.com
Russ Scott Forensic Psychiatrist, High Security Inpatient Services, The Park Centre for Mental Health, Treatment and Research, Brisbane, QLD, Australia
Abstract Objective: To review the case of an acutely psychotic person who was discharged into the care of a friend whom he killed later the same day, and to consider the reasoning of the High Court in the subsequent negligence action of the victim’s relatives. Conclusions: By a narrow interpretation, the High Court found that the exercise of the powers and duties in relation to the involuntary detention of a mentally ill person as prescribed by the Mental Health Act were inconsistent with a common law duty of care to another person or the relatives of another person. Keywords: Mental Health Act, involuntary detention, least restrictive option
B
alancing the need for care and treatment of a mental illness and avoiding harm as opposed to depriving a person of their liberty may in some instances be challenging. In 2004, section 20 of the Mental Health Act 1990 (NSW) stipulated that a person must not be involuntarily detained or continue to be detained in a mental health facility unless “no other care of a less restrictive kind, is appropriate and reasonably available to the person” (see Box 1). Section 12 of the Mental Health Act 2007 (NSW) has a similarly worded provision (see Box 2). To succeed in a personal injuries action, a plaintiff must first satisfy a court that the defendant owed the plaintiff “a duty of care” and that the negligent act or omission of the defendant breached that duty of care (see Box 3).
The facts Mr Pettigrove had a 20-year history of chronic paranoid schizophrenia and at least five previous acute mental health admissions. In 2001, after two admissions to the Echuca Acute Psychiatric Unit in less than a month in the context of medication non-adherence, he was made subject to an involuntary treatment order and was commenced on fortnightly depot zuclopenthixol and oral risperidone. In October 2003, Mr Pettigrove had his last contact with mental health services in Victoria before travelling to NSW where he met his friend, Mr Rose, and began living in a caravan park. From late 2003, Mr Pettigrove had no further oral or depot medication.
In the early hours of 20 July 2004, Mr Rose became concerned about Mr Pettigrove’s mental state and arranged for him to be taken to the Manning Base Hospital, Taree, where Mr Pettigrove was compulsorily detained under the Mental Health Act 1990 (NSW) and accepted an injection of haloperidol, a short-acting anti-psychotic medication. Following a subsequent assessment and after the hospital psychiatrist reviewed medical records including discharge summaries obtained from the Echuca mental health service and had a brief phone conversation with Mr Pettigrove’s mother, the hospital psychiatrist decided that Mr Pettigrove could be discharged the following morning to enable him and Mr Rose to drive to Echuca where Mr Pettigrove’s mother lived. During the night on 21 July 2004, after driving over 600 km, Mr Rose had stopped the car off the highway when Mr Pettigrove attacked and killed Mr Rose. Mr Pettigrove later told police that he had acted on impulse or in response to auditory hallucinations, believing that Mr Rose had killed him in a “past life.” The late Mr Rose’s mother and sisters claimed damages for nervous shock. They claimed that the health service
Corresponding author: Russ Scott, High Security Inpatient Services, The Park Centre for Mental Health, Treatment and Research, Locked Bag 500, Archerfield, Brisbane, QLD 4108 Australia. Email: [email protected]
418 Downloaded from apy.sagepub.com at CAMBRIDGE UNIV LIBRARY on June 4, 2016
Scott
Box 1. Mental Health Act 1990 NSW s. 9 Mentally ill persons. (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person’s own protection from serious harm, or (b) for the protection of others from serious harm. s. 10 Mentally disordered persons. A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: (a) for the person’s own protection from serious physical harm, or (b) for the protection of others from serious physical harm. s. 20 Detention of persons generally. A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person.
Box 2. Mental Health Act 2007 NSW s. 12 General restrictions on detention of persons. (1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that: (a) the person is a mentally ill person or a mentally disordered person, and (b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.
and its employees owed them and Mr Rose a common law duty of care which was breached by discharging Mr Pettigrove into Mr Rose’s care.
professional opinion” as competent practice in Australia. Two experts disagreed.
Decision of the trial judge Expert evidence of psychiatrists Six psychiatrists produced a Joint Report and gave expert evidence. The three psychiatrists who provided reports for the plaintiffs opined that, because of Mr Pettigrove’s history of medication non-adherence, he should not have been discharged, and that if he was discharged, he would have been “under-medicated.” The three psychiatrists who provided reports for the health service disagreed. All of the experts agreed that a longer period of treatment with medication in hospital would have reduced the risk of Mr Pettigrove suffering an acute psychotic episode during the drive to Victoria, and that on 21 July 2004, Mr Pettigrove could not have been certified fit to fly to Victoria, even if escorted. Four of the experts opined that the conduct of the hospital psychiatrist did not fall below a standard widely accepted by “peer
Because Mr Pettigrove “continued to be mentally ill,” and the purpose of the discharge was not to transfer Mr Pettigrove to “other care of a less restrictive kind [which was] appropriate and reasonably available,” the trial judge held that the involuntary provisions of the Mental Health Act 1990 did not apply.1 The trial judge added that in any event, there was no evidence that Mr Pettigrove would not have co-operated and remained in the hospital voluntarily, with the consequence that there was no exercise of a statutory power to detain or not to detain. Although the trial judge found that it was “prima facie inappropriate” to discharge Mr Pettigrove after only one restless night in hospital and without a proper medication, the trial judge concluded that the risk to Mr Rose was “not foreseeable and was not so significant that a reasonable person would have taken precautions against it.” The trial judge found that the plaintiffs did not
419 Downloaded from apy.sagepub.com at CAMBRIDGE UNIV LIBRARY on June 4, 2016
Australasian Psychiatry 23(4)
Box 3. Elements of a successful negligence claim Duty of care In the circumstances of the case, there must be a relationship of proximity between the plaintiff and defendant to impose upon the defendant a duty of care to act “reasonably” so as to not cause harm to the plaintiff. Breach A breach of the duty of care occurs when the defendant fails to take reasonable care and engages in conduct (an act or an omission) that posed an unreasonable risk to the plaintiff that actually resulted in harm to the plaintiff. Causation The harm to the plaintiff would not have occurred ‘but for’ the breach of the duty owed by the defendant and it was reasonably foreseeable that the plaintiff might suffer that harm. Damages The harm (injury or loss) to the plaintiff must be caused by the breach of the duty of care and must not be too “remote” and must be able to be quantified to assess damages to compensate the plaintiff for the harm.
establish that any negligence of the health service was causally related to Mr Rose’s death.
Macfarlan JA held that on the balance of probabilities, the continued detention of Mr Pettigrove in hospital “would have prevented the damage.”
Decision of the Court of Appeal On appeal, a majority of the New South Wales Court of Appeal held that the health service owed the patient’s friend (and his family members) a common law duty to take reasonable care to prevent the patient causing harm to the friend.2 Macfarlan JA summarised factors which indicated the existence of a duty of care to take reasonable care to prevent Mr Pettigrove causing harm to Mr Rose: •• the health service controlled the source of the foreseeable risk of harm to Mr Rose; •• there was an implicit assumption by the health service of responsibility to Mr Rose and an implicit reliance by Mr Rose on the hospital psychiatrist’s judgment concerning Mr Pettigrove’s fitness to make the road trip; •• Mr Rose was vulnerable in that his safety was dependent upon a careful exercise of judgment by the hospital psychiatrist. Mcfarlan JA held that there was a foreseeable and “not insignificant” risk of serious harm to Mr Rose and the health service did not respond to that risk by taking the precaution of continuing to detain Mr Pettigrove. Mcfarlan JA highlighted the “disjunct” between the hospital psychiatrist’s decision to complete the documentation to confirm Mr Pettigrove’s involuntary treatment order and, at the same time, facilitate his discharge the very next day. Macfarlan JA found that the road trip enabled Mr Pettigrove to attack Mr Rose in isolated circumstances where no-one was able to come to Mr Rose’s assistance.
Decision of the High Court On 12 November 2014, by a short, unanimous decision, the High Court overturned the decision of the Court of Appeal.3 The High Court observed that the provisions of the Mental Health Act raised two questions when deciding whether a person should be, or should continue to be, involuntarily detained: •• is the person mentally ill or mentally disordered?; •• if yes, is there no other care of a less restrictive kind which is appropriate and reasonably available (s. 20)? The High Court held that whilst each question required clinical assessment and judgment and had to be answered either yes or no, determining that a person was a “mentally ill person” did not necessarily entail that the person must also be involuntarily admitted or detained. The High Court highlighted that although the plaintiff relatives claimed they were injured because a decision was made not to continue to detain a mentally ill person, those who made that decision had other duties. The High Court held that the statutory powers and duties in respect of the involuntary admission and detention of a mentally ill person as prescribed by the Mental Health Act would not be consistent with a common law duty of care requiring regard to be had to the interests of those with whom the mentally ill person may come in contact when not detained. The High Court held that in some cases, perhaps many, the reasonable person in the position of the hospital
420 Downloaded from apy.sagepub.com at CAMBRIDGE UNIV LIBRARY on June 4, 2016
Scott
psychiatrist might respond to risks by continuing to detain a patient for so long as he or she remains mentally ill, thus avoiding the possibility of harm to others. However, the High Court emphasised that the Mental Health Act required the minimum interference with the liberty of a mentally ill person.
Discussion of the High Court decision Australia is a signatory to various international charters and agreements which acknowledge the rights of persons with mental illness. However, the right to dignity, respect and self-determination of persons with mental illness should not derogate from the more imperative right to proper care and treatment. Also, sections 9 and 10 of the Mental Health Act 1990 (NSW) included, as elements of the definitions of mentally ill persons, the existence of grounds for belief that care, treatment or control of the persons was “necessary for the protection of themselves or others from serious harm.” The discretionary statutory power to compulsorily detain a person with mental illness has a corollary that the health service also has a “not inconsistent” duty of care to treat that person to avoid harm to that person or others. In the subject case, a person with chronic schizophrenia and a history of unreliable adherence to medication presented with an acute psychosis and was made subject to an involuntary treatment order. The very next day, the person was discharged to travel over 1100 km into the night to another state. As was emphasised during the application for special leave to the High Court, when he was discharged from hospital, Mr Pettigrove was still psychotic and there was no evidence “of any sort” of the care to which Mr Pettigrove was going or whether he might require to be involuntarily detained under the Mental Health Act when he arrived in Victoria.4 The hospital psychiatrist did not envisage any treatment or management plan once Mr Pettigrove left with Mr Rose, and the hospital psychiatrist made no followup arrangements with any mental health service in NSW or Victoria. It can be argued that there was a range of alternative “less restrictive options” other than discharging Mr Pettigrove after only one day. His involuntary treatment order could have been revoked and he could have simply been encouraged to remain in hospital as a voluntary patient to have further treatment. Mr Pettigrove
could have been made subject to a community treatment order and discharged to suitable local supported accommodation, where his treatment could have continued with community mental health services. Mr Pettigrove could have been more safely transported with mental health nurse escorts to rendezvous at the state border with an acute care team from Victoria. Mr Pettigrove’s mother and others could have been involved in supporting Mr Pettigrove’s discharge planning. It can be argued that discharging Mr Pettigrove from hospital to some speculative but entirely unelaborated “less restrictive” care hundreds of kilometres away in Victoria was an overly simplistic interpretation of the relevant provisions of the Mental Health Act 1990 (NSW). That a purely “geographical solution” (driving un-medicated into the night to another state in the company of a friend) could be construed as properly deferring to the stipulations in the Mental Health Act is a very tenuous proposition. It is clearly never in a person’s interests to be discharged or be allowed to leave hospital when the person’s suboptimally treated illness puts the person at risk of harming him or herself or others. The narrow interpretation by the High Court of the general principles of “least restrictive option” could have the unintended consequence that psychiatrists may feel less obligated to consider the risks that the person may represent to the person or others if the person is discharged without a prudent treatment and follow-up plan. Disclosures The author reports no conflict of interest. The author alone is responsible for the content and writing of the paper.
Notes 1. Simon & Anor v Hunter & New England Local Health District. McKenna v Hunter & New England Local Health District [2012] NSWDC 19. 2. McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476. 3. Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44. 4. Hunter and New England Local Health District v McKenna [2014] HCATrans 137 (at line 170).
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