The Duty of Care Owed to a Mentally Ill Person in the Community Who May Require Involuntary Apprehension

Abstract

In Crowley v Commonwealth of Australia, ACT and Pitkethy [2011] ACTSC 89, a mental health service was found negligent for failing to pursue a recommendation to re-assess and arrange hospital admission of an acutely mentally ill man who was later injured after he was shot by police. The trial judge held that the mental health service was negligent for failing to exercise the statutory power of apprehension as provided for in the Mental Health (Treatment and Care) Act 1994 (ACT). The decision was overturned on appeal. In ACT v Crowley, Commonwealth of Australia and Pitkethy [2012] ACTCA 52, the ACT Court of Appeal held that the duty of care owed to the plaintiff was limited only to following up on the matters discussed with the person's family during a home visit on the previous evening. The Court of Appeal held that the scope of the duty of care owed by the mental health service did not include a duty to exercise the apprehension power. The High Court declined to grant special leave to appeal. All mental health legislation in Australia and New Zealand has provisions enabling mentally ill persons to be assessed and treated, even if the person is insightless and uncooperative. The appellate decision from the ACT is very relevant to the day-to-day operation of acute community mental health services.

Key words:

• mental illness
• involuntary apprehension
• assessment
• negligence

Notes

1. Crowley v The Commonwealth of Australia & Ors [2013] HCATrans 128 (6 June 2013). <http://www.austlii.edu.au/au/other/HCATrans/2013/128.html> accessed 9 July 2012.

2. Mental Health Act 1996 (Tas) s 15 (Power to take person into protective custody); Mental Health and Related Services Act 1998 (NT) s 34 (Recommendation for psychiatric examination).

3. Mental Health Act 2000 (Qld) s 13 (Assessment), s 25 (Taking person to authorised mental health service); Mental Health Act 2007 (NSW) s 18 (When a person may be detained in mental health facility), s 19 (Detention on certificate of medical practitioner or accredited person), s 21 (Police assistance); Mental Health Act 1986 (Vic) s 9 (Request and recommendation for involuntary treatment), s 9A (Authority to transport), s 9B (Taking a person to an approved mental health service), s 10 (Apprehension of mentally ill persons in certain circumstances); Mental Health Act 1996 (WA) s 26 (Persons who should be involuntary patients), s 29 (Referring potential involuntary patients for psychiatric examination), s 34 (Transport orders authorising police assistance, making of).

4. Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) s 9 (Assessment examination to be arranged and conducted), s 10 (Certificate of preliminary assessment), s 40 (Assistance in taking or returning proposed patient to place of assessment or treatment), s 41 (Police assistance).

5. See also I Freckelton, ‘Liability of Psychiatrists for Failure to Certify: Presland v Hunter Area Health Service and Dr Nazarian [2003] NSWSC 754’ (2003) 10 Psychiatry, Psychology and Law 397.

6. See also R Scott ‘Hunter Area Health Services v Presland: Liability of Mental Health Services for Failing to Admit or Detain a Patient with Mental Illness’ (2006) 13 Psychiatry, Psychology and Law 49; R Shrikkanth and B McSherry, ‘To Detain or Not to Detain: A Question of Public Duty?’ (2009) 16 Psychiatry, Psychology and Law 288.

7. See also I Freckelton, ‘Liability for Failure by Police to Detain Potentially Suicidal and Dangerous Persons: Kirkland-Veenstra v Stuart [2008] VSCA 32’ (2008) 15 Psychiatry, Psychology and Law175.

8. See also A Thalia and D Chappell, ‘Police Care for the Mentally Ill: The Restricted Vision of the High Court in Stuart v Kirkland-Veenstra’ (2009) 21 Current Issues in Criminal Justice 325; D Mendelson, ‘Prevention of Suicide: Police Powers, Parliamentary Intent and Judicial Interpretation’ (2009) 16 Journal of Law and Medicine 728; R Scott, ‘The Duty of Care Owed by Police to a Person at Risk of Suicide’ (2010) 17 Psychiatry, Psychology and Law 1.

9. B Green, A Carroll and A Brett, ‘Structured Risk Assessment in Community Forensic Mental Health Practice’ (2010) 18 Australasian Psychiatry 538; SH Allnutt, JR P Ogloff, J Adams, C O'Driscoll, M Daffern, A Carroll, V Nanayakkara, D Chaplow ‘Managing Aggression and Violence: The Clinician's Role in Contemporary Mental Health Care’ (2013) 47 Australian and New Zealand Journal of Psychiatry 728.

10. T Short, S Thomas, P Mullen and JRP Ogloff, ‘Comparing Violence in Schizophrenia Patients With and Without Comorbid Substance-use Disorders to Community Controls’ (2013) Acta Psychiatrica Scandinavica <DOI:10.1111/acps.12066> accessed 9 July 2013.

11. PE Mullen, ‘A Reassessment of the Link Between Mental Disorder and Violent Behaviour, and its Implications for Clinical Practice’ (1997) 31 Australian and New Zealand Journal of Psychiatry 3.

12. JW Swanson, M Swartz, RA Van Dorn, E B Elbogen, HR Wagner, RA Rosenheck, et al. ‘A National Study of Violent Behaviour in Persons With Schizophrenia’ (2006) 63 Archives of General Psychiatry 490.

13. O Nielssen, B Westmore, M Large and R Hayes, ‘Homicide During Psychotic Illness in New South Wales Between 1993 and 2002’ (2007) 186 Medical Journal of Australia 301.

14. O Nielssen and M Large, ‘Rates of Homicide During the First Episode of Psychosis and After Treatment: A Systematic Review and Meta-analysis’ (2010) 36 Schizophrenia Bulletin 702.

15. R Scott, ‘Interventions to Address Violence Associated With Mental Illness’ (2008) 16 Australasian Psychiatry 405.

16. R Scott, ‘Rights-based Mental Health Legislation and the Right to be Treated’ (2008) 15 Journal of Law and Medicine 681.

17. See also I Freckelton and S McGregor, ‘Human Rights and Review of the Involuntary Status of Patients with a Mental Illness: Kracke after Momcilovic: Kracke v Mental Health Review Board’ (2010) 17 Psychiatry, Psychology and Law 173; R Scott, ‘An Appeal from a Decision of the Queensland Mental Health Review Tribunal: An Abuse of Process Re WJA [2010] QMHC 1’ (2012) 19 Psychiatry, Psychology and Law 11; M Light, I Kerridge, C Ryan and M Robertson, ‘Out of Sight, Out of Mind: Making Involuntary Community Treatment Visible in the Mental Health System’ (2012) 196 Medical Journal of Australia 591.

18. G Groom, I Hickie and T Davenport, Out of Hospital, Out of Mind! A report detailing mental health services in Australia in 2002 and community priorities for national mental health policy for 2003–2008 (Mental Health Council of Australia 2003). <http://www.mhca.org.au/index.php/component/rsfiles/download?path = Publications/Out%20of% 20Hospital%20Out%20of%20Mind.pdf> accessed 9 July 2013.

19. Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia (Mental Health Council of Australia 2005). <http://www.mhca.org.au/index.php/component/rsfiles/download?path = Publications/Not%20For%20Service%20_Full%20Report.pdf> accessed 9 July 2013.

20. National Mental Health Report (Australian Government Department of Health and Ageing 2010). <http://www.health.gov.au/internet/main/publishing.nsf/content/mental-pubs-n-report10> accessed 9 July 2013.

21. A Training Framework for the National Outcomes and Casemix Collection (Australian Mental Health Outcomes and Classification Network 2011). <http://amhocn.org/static/files/assets/d7e9a83e/National_Training_Framework_110714.pdf> accessed 9 July 2013.

22. P Burgess, J Pirkis and T Coombs, ‘Do Adults in Contact with Australia's Public Sector Mental Health Services Get Better?’ (2006) 3 Australia and New Zealand Health Policy 9. <DOI:10.1186/1743-8462-3-9> accessed 9 July 2013.

23. ‘Bitter Tears over Waterlow Deaths’ <http://www.news.com.au/national-news/nsw-act/bitter-tears-over-waterlow-deaths/story-fndo4bst-1226581438915#ixzz2Y3ucmhEq> accessed 9 July 2013; P Burton, The Waterlow Killings: A Portrait of a Family (Victory Books, Melbourne University Publishing 2012).

24. R v Waterlow [2011] NSWSC 326.

25. Mental Health Act 1990 (NSW) s 9 and Mental Health Act 2007 (NSW) s 14. (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. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.

26. P Bartlett, ‘The Test of Compulsion in Mental Health Law: Capacity, Therapeutic Benefit and Dangerousness as Possible Criteria’ (2003) 11 Medical Law Review 326; J Dawson and G Szmukler, ‘Fusion of Mental Health and Incapacity Legislation’ (2006) 188 British Journal of Psychiatry 504; C Ryan, ‘Capacity as a Determinant of Non-consensual Treatment of the Mentally Ill in Australia’ (2011) 18 Psychiatry, Psychology and Law 248; S Callaghan and C Ryan, ‘Rising to the Human Rights Challenge in Compulsory Treatment – New Approaches to Mental Health Law in Australia’ (2012) 46 Australian and New Zealand Journal of Psychiatry 611; K Eagle and C Ryan, ‘Mind the Gap: The Potentially Incapable Patient Who Objects to Assessment’ (2012) 86 Australian Law Journal 685; C Ryan, S Callaghan and M Large, ‘Better Laws for Coercive Psychiatric Treatment: Lessons from the Waterlow Case’ (2012) 20 Australasian Psychiatry 283.

27. J Miller, Shoot and Demonise: The Death Of Roni Levi (Hardie Grant 2000); D Goodsir, Death at Bondi: Cops, Cocaine, Corruption and the Killing of Roni Levi (Pan Macmillan 2001); see also Jason Chapman (shot in Yarraville, Melbourne, 2004) ‘Call for Review of Police Procedures on Mental Illnesss’ <http://www.abc.net.au/news/2012-09-20/call-for-review-of-police-procedures-on-mental-illness/4271910> accessed 9 July 2013; Michael Capel (shot in Belmont, NSW, October 2008) ‘Police Shooting: Mentally Ill Michael's Death Could Have Been Prevented, Says Coroner’ <http://www.smh.com.au/nsw/police-shooting-mentally-ill-michaels-death-could-have-been-prevented-says-coroner-20100908-150t5.html> accessed 9 July 2013; Tyler Cassidy (shot in Northcote, Melbourne, December 2008) ‘Poor Training and Bad Tactics to Blame for Police Shootings’ <http://www.smh.com.au/opinion/society-and-culture/poor-training-and-bad-tactics-to-blame-for-police-shootings-20110322-1c54q.html> accessed 9 July 2013; Adam Salter (shot in Lakemba, Sydney, November 2009) ‘Shooting Deaths Spark Call for Mental Health Overhaul’ <http://www.abc.net.au/news/2012-03-05/shooting-deaths-spark-call-for-mental-health-overhaul/3868754> accessed 9 July 2013; Nathan Doherty (shot in Wanniassa, ACT, 2011) ‘Police Cleared Over Doherty Shooting’ <http://www.canberratimes.com.au/act-news/police-cleared-ove-doherty-shooting-20120625-20yas.html> accessed 9 July 2013.

28. Report to Parliament: Operation Saigon (NSW Police Integrity Commission 2001). <http://www.pic.nsw.gov.au/files/reports/Saigon%20Report.pdf> accessed 9 July 2013.

29. A Fry, D O’Riordan and R Geanellos, ‘Social Control Agents or Front-line Carers for People With Mental Health Problems: Police and Mental Health Services in Sydney, Australia’ (2002) 10 Health & Social Care in the Community 277.

30. J Godfredson, S Thomas, S Luebbers and J Ogloff, ‘Police Perceptions of Their Encounters With Individuals Experiencing Mental Illness: A Victorian Survey’ (2011) 44 Australian and New Zealand Journal of Criminology 180.

31. Police Shootings of People With a Mental Illness (Research in Practice No. 34, Australian Institute of Criminology 2013). <http://www.aic.gov.au/media_library/publications/rip/rip34.pdf> accessed 9 July 2013.

32. D Kesic, S Thomas and J Ogloff, ‘Mental Illness Among Police Fatalities in Victoria 1982 –2007: Case Linkage Study’ (2010) 44 Australian and New Zealand Journal of Psychiatry 463.

33. Policing People Who Appear to be Mentally Ill (Victorian Office of Police Integrity, Victorian Government Printer 2012). <http://www.parliament.vic.gov.au/file_uploads/Policing_people_who_appear_to_be_mentally_pyt8YbmN.pdf> accessed 9 July 2013.