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Hirsch, David --- "McKenna in the High Court" [2015] PrecedentAULA 27; (2015) 127 Precedent 53


By David Hirsch

In a far-reaching yet disappointingly short judgment in the case of Hunter and New England Local Health District v McKenna (McKenna)[1], the High Court held that doctors and hospitals do not owe a duty of care to third parties harmed by the actions of mentally ill people who are discharged from involuntary detention in a mental health facility.

The decision is disappointing for what it does not decide – and far-reaching for what it does.


The plaintiffs were the mother and sisters of Stephen Rose, who was killed by William Pettigrove, a psychiatric patient who they alleged had been negligently discharged from Manning Base Hospital (the hospital) where he had been compulsorily detained the day before under the (now repealed) Mental Health Act 1990 (NSW) (the MHA).

In McKenna, the High Court allowed the hospital’s appeal. The plaintiffs had been successful in the NSW Court of Appeal,[2] which had allowed an appeal from the trial judge’s decision rejecting their claims for ‘nervous shock’.[3]


Pettigrove had a 20-year history of psychiatric illness that included periods of involuntary detention at a psychiatric facility in Echuca, Victoria, where he lived. In July 2004, Pettigrove was camping with his friend, Rose, near Byron Bay. Rose became concerned about Pettigrove’s erratic behaviour and talk of suicide and called an ambulance. This led to Pettigrove’s involuntary detention at the hospital under the MHA.

Pettigrove was assessed by hospital psychiatrist, Dr Coombes, found to be mentally ill within the meaning of the MHA[4] and compulsorily detained.[5] The records from Echuca were accessed, so the hospital was aware of the longstanding psychiatric history. After a telephone call with his mother, it was decided that Pettigrove would be discharged the following day into the care of Rose and the two would share driving from Taree to Echuca (1,200km away) so that Pettigrove could be treated closer to home.[6]

Dr Coombes considered that there was no foreseeable risk of Pettigrove inflicting harm on himself or others – but he could not exclude hallucinations or delusions because Pettigrove was not saying much. He was sufficiently concerned that Pettigrove might deteriorate on the long drive home, though, that he strongly recommended to Rose that they travel a route that had a number of psychiatric services along it.[7]

Nursing notes recorded that overnight Pettigrove was restless, pacing and talking to himself. Those notes were not seen by Dr Coombes, who discharged Pettigrove into Rose’s care the next morning, as planned.

That evening, just outside Dubbo and in a delusional state, Pettigrove killed Rose. He told police that he acted on impulse, believing that Rose had killed him in a previous life and he was seeking revenge.

Pettigrove later committed suicide in Long Bay Prison.


The hospital accepted that the plaintiffs suffered ‘nervous shock’. The hospital also accepted that if a common law duty of care to Rose had been breached and was found to be the cause of the killing, the plaintiffs had a right to compensation.

The plaintiffs argued that it was foreseeable that Rose could suffer physical harm by the actions of Pettigrove who, it was accepted, remained a mentally ill person at the time of his discharge. Fundamentally, the allegation was that the hospital was negligent in discharging Pettigrove into Rose’s care or, put differently, the hospital had a duty to continue to involuntarily detain him.

Central to the result was the operation of s20 of the MHA, which states:

‘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.’

In other words, if there was any appropriate care of a less restrictive kind reasonably available the hospital had to discharge the patient – even if the person was still mentally ill.

Another key provision was s9(1) of the MHA, which defined a mentally ill person as one:

‘(1) ... 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.’


Elkaim DCJ heard evidence from Dr Coombes and six psychiatric experts (three for each side). He found the discharge to be prima facie inappropriate.[8]

His Honour was unimpressed by Dr Coombes and found a persistent theme in his evidence that he wanted to convey a presentation of normality of contact with Pettigrove that was not borne out by the evidence. He said that Dr Coombes should have been informed of the nursing notes that Pettigrove had been pacing around, restless and talking to himself overnight because this evidenced deterioration in Pettigrove’s condition. He was also critical of the failure to properly medicate Pettigrove, saying that he should have been kept in the hospital in order to administer depot injections.[9]

But his Honour decided that despite these failings and with regret the plaintiffs’ claims had to be dismissed.[10]

Duties of care

There was no dispute at trial that the hospital owed Rose a common law duty of care to prevent him suffering foreseeable harm at the hands of Pettigrove, and that the plaintiffs’ entitlement to ‘nervous shock’ damages derived from s30(2)(b) of the Civil Liability Act 2002 (the CLA) being close family members of the victim.

The Civil Liability Act

Elkaim DCJ felt constrained to dismiss the plaintiffs’ otherwise meritorious claim, as he believed that the CLA compelled such a result. He observed that the CLA was designed to limit and not expand liability – thus the burden is greater than existed under the common law.[11]

Section 5B (Duty of care)

The risk of Pettigrove killing Rose in a delusional state was found to be so low as to be unforeseeable.[12] Accordingly, it was not unreasonable to fail to take steps to prevent this.

Section 5D (Causation)

Neither the road trip itself nor the failure to properly medicate Pettigrove were causally relevant (necessary conditions) to Rose’s death, as the killing could have occurred anywhere and the lack of medication did not cause the hallucinations.[13]

Section 5O (Standard of care of professionals)

While the decision to discharge Pettigrove was dubious, it was a decision that some of the psychiatric experts in the case would have endorsed and for this reason could not be said to have been irrational. Accordingly, the protection of s5O was available.[14]

Sections 43 and 43A (Exercise of statutory powers)

The hospital was not entitled to the protection of these sections because there was no evidence that the decision to discharge Pettigrove was made in order to transfer him to other care of less restrictive kind [which] is appropriate and reasonably available. If the discharge was made for that purpose, however, it could have constituted an exercise of a special statutory power.[15]


The majority comprehensively rejected Elkaim DCJ’s restrictive reading of the CLA. It found that the hospital breached its duty of care to Rose, that this breach was the cause in law of his death, and that the plaintiffs were entitled to compensation for their ‘nervous shock’.

Duties of care

Justice Beazley made the (then) uncontroversial observation that:

‘in the normal course, the duty of care owed to a person whose entitlement to recover damages derives from s30(2)(b) [of the CLA] is of the same scope and content as that owed to the victim’.[16]

That is, if a defendant was responsible for a person’s death, mental harm to close family members is foreseeable and hence compensable.

On appeal, the hospital filed a Notice of Contention arguing that it did not owe Rose a common law duty of care. It relied on Hunter Area Health Service v Presland,[17] a case where a psychiatric patient killed someone six hours after having been negligently discharged from a psychiatric hospital. The patient was acquitted of murder on the ground of mental illness but ended up being detained as a forensic patient. The Court of Appeal (by majority) found that the hospital owed no duty of care entitling the patient to damages for his own loss of liberty.

Macfarlan JA distinguished Presland, finding that hospitals did owe a common law duty of care to third parties to prevent serious physical harm. Importantly, he explained how such a duty was consistent with the objects of the MHA,[18] noting that the objects of that Act included the need to control mentally ill persons who, by definition, posed a risk of serious harm to themselves or others.[19]

The Civil Liability Act

The majority found that the trial judge erred in his narrow approach to the CLA.

Section 5B (Duty of care)

The question was whether Pettigrove’s negligent discharge posed a foreseeable risk of some harm to Rose; it was not necessary to foresee (as held at trial) what actually happened, namely homicide.

Further, negligence under s5B did not require (as held at trial) a conclusion that it was foreseeable that harm to the plaintiff would probably occur if the defendant did not take care.[20] It was sufficient that there was a high risk of minor harm and a lower but not insignificant risk of serious harm.[21]

Section 5D (Causation)

The road trip was not a neutral background circumstance unrelated to the hospital’s negligence (as held at trial). On the contrary, the hospital’s decision put Rose in a position where he would have been helpless had Pettigrove’s delusions overtook him, as they did. Also, detention in hospital to ensure proper medication would have prevented the killing.[22]

Section 5O (Standard of care of professionals)

The majority[23] cited the Court’s decision in Dobler v Halverson[24] that s5O was a defence and not the test of negligence. That section, it said, applied only to a medical practice widely accepted in Australia at the relevant time, not to medical opinion that may have been held. The section required an otherwise negligent doctor to demonstrate that he or she acted in accordance with such a practice and that the practice was widely accepted as competent professional practice.[25]

In this case, whether some psychiatrists might have considered Pettigrove’s discharge to be defensible is not to the point. Given the many factors to be weighed up in making the decision (like his condition on admission, overnight and the next morning; his particular history; etc) it could not be said that there was a practice concerning the situation.[26]

Sections 43 and 43A (exercise of special statutory powers)

Pettigrove’s discharge was not an exercise of a special statutory power under the MHA. That power to discharge[27] arose where the medical superintendant found that the person was no longer mentally ill or, if still mentally ill, there was another less restrictive option available for the person to receive appropriate care. Pettigrove was clearly still mentally ill, so the issue became whether he could or should continue to be detained.

In this case, the decision to discharge (or not further detain) was made by Dr Coombes, who was not the hospital’s medical superintendent. More importantly, the decision was not made after having weighed up continued detention against transfer to Victoria as the less restrictive option to provide appropriate care that was reasonably available. Dr Coombes never turned his mind to this issue.[28]


It is fair to say that all personal injury lawyers in Australia were anxious to see how the High Court would interpret the civil liability legislation provisions in this case.

Would the High Court favour the restrictive reading of s5B (duty of care) and 5D (causation) adopted, with great misgivings, by the trial judge; or would it endorse the expansive reading favoured by the majority in the Court of Appeal?

Would the High Court agree that s5O (duty of care of professionals) was a defence and not a formulation of the Bolam test of negligence?[29] And would it also agree that the defence applied only to medical practices and not medical opinions?

Would the High Court protect hospitals under s43 or 43A from negligent decisions made under the MHA by finding them exercises of special statutory powers, thus insulating them from liability?


Expectations of a guiding light on these pressing issues were dashed by the High Court’s unanimous and very short decision.

The Court found that the hospital did not owe Rose a duty of care and so the plaintiffs’ nervous shock claims were dismissed. Because the case fell at the first hurdle of duty of care, the Court would not address any of the CLA issues, leaving these for another case on another day.[30]

Not only would the Court not address the CLA issues, it would not even endorse the widely accepted view that the duty of care owed to the plaintiff in a nervous shock claim was the same duty as that owed by the defendant to the deceased victim.[31]

Difficulties in determining duty of care

The Court referred to its decision in Sullivan v Moody,[32] in which four areas of difficulty were identified in determining the existence of a duty of care:

1. Where the harm is suffered because of criminal conduct;

2. Where the defendant has certain statutory powers or discretions;

3. Where the class of potential plaintiffs is difficult to confine; and

4. Where the coherence of other legal principles or statutory schemes needs to be preserved.

In Sullivan, the issue was whether doctors, social workers and departmental officers involved in the investigation and reporting of allegations of child sexual abuse owed a duty of care to suspects. The Court held that no such duty existed, because it would conflict with the statutory obligation to treat the interests of the child as paramount.

In McKenna, the Court found that all of the above difficulties were relevant to the existence of a duty of care owed by the hospital to Rose. The controlling consideration was the second: that to owe Rose a duty of care would conflict with the statutory obligations imposed on the hospital by the MHA.

The Court referred to the objects of the legislation as set out in s4, noting that:

‘every function, discretion and jurisdiction conferred or imposed’ by the Act [must] be, as far as practicable, performed or exercised, so that (among other things) ‘any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances’.[33]

It followed that in exercising the power of detention or continued detention under the MHA, a medical superintendent was presented with two questions:

‘First, is the person a mentally ill person or a mentally disordered person? Second, if yes, is there no other care of a less restrictive kind which is appropriate and reasonably available to the person?’[34] (Emphasis in original)

Pettigrove clearly remained a mentally ill person at the time of his discharge. The only question was whether there was no other care of a less restrictive kind which [was] appropriate and reasonably available to manage him. Obviously enough, it was considered that allowing Pettigrove to leave with Rose and drive 1,200km to Echuca where he might be treated closer to home was accepted as being care of a less restrictive kind than continued involuntary detention at the hospital.

Whatever might be said about what was or was not taken into consideration in the decision to discharge Pettigrove into Rose’s care, the heart of the Court’s reasoning had nothing to do with the facts of the case; it was based on the language of the MHA and the problem of conflicting duties:

‘If a person is a mentally ill person, the risk of that person acting irrationally will often not be insignificant, far-fetched or fanciful. And, in such cases, there will often be a risk that the irrational action will have adverse consequences. In some cases, there will be a risk that the mentally ill person will engage in conduct that may have adverse physical consequences for others, whether because the conduct is directed at another or because it otherwise causes adverse physical consequences. In some cases, perhaps many, the reasonable person in the position of the hospital or doctor would respond to those risks by continuing to detain the patient for so long as he or she remains a mentally ill person, thus avoiding the possibility that the risk of harm to others will eventuate. But that is not what the Mental Health Act required. It required the minimum interference with the liberty of a mentally ill person.’[35]

It is the inevitable conflict between the statutory duty to respect the liberty of the mentally ill person on the one hand and a common law duty to protect third parties from foreseeable harm by the exercise of that liberty on the other that led to the conclusion in this case.

If a conflict existed, the common law duty had to yield. The Court found an irreconcilable conflict and so concluded that no common law duty of care could exist.


Hospitals and psychiatrists would be relieved by the decision in McKenna. It means that they do not have to consider the risks posed to third parties by the release from involuntary detention of people who are mentally ill.[36] All that is required, it seems, is a determination that some less restrictive form of care exists that is appropriate and reasonably available.

At the level of policy, this is understandable. If health professionals had to weigh up the small risk of serious harm to the general public in discharging a detained psychiatric patient, the default position could well be to continue detention; and this would be contrary to the spirit and intent of the legislation.

But in McKenna, I think it is open to question whether in releasing Pettigrove so that Rose could drive him home to Echuca, the hospital was delivering him any kind of care at all. On the facts, the hospital made no arrangements for his continued medical treatment once he got home; there was only a vague expectation that he might get some treatment somewhere by someone.

Further, the appropriateness of any care needed to be assessed, I think, against Pettigrove’s mental health needs. In this case, his condition deteriorated overnight, although Dr Coombes was not made aware of this. Expert evidence supported the view that in those circumstances it was not appropriate care to discharge him at all.

One practical way of finessing the problem would be to ask the mentally ill person to consent to remaining in hospital. In McKenna, nobody asked Pettigrove if he would stay for a few more days to ensure that he was properly medicated before driving home. In the Court of Appeal, Garling JA said there was no evidence to support a finding that if asked, Pettigrove would have remained in hospital voluntarily.[37] If he would have stayed voluntarily, of course, the whole issue of continuing involuntary detention would never have arisen.

In the end, this case was not decided on its facts but on arid statutory interpretation.

It is true, of course, that the MHA could have required a hospital to have regard to the risk posed to others when deciding whether to continue to detain a mentally ill person. Mental health legislation in Victoria, for example, included such a provision.[38] But in the MHA, the definition of a mentally ill person included that there were reasonable grounds to believe that treatment and control was necessary to protect others from serious harm. In the Victorian legislation, the need to consider the risk posed to others was separate from the definition of mental illness; it arose only in connection with the grounds for involuntary detention.

It could be said that the problem with the MHA was a problem of internal logical coherence rather than conflicting duties. To be a mentally ill person for the purposes of the MHA, the hospital must have already decided that the person had a mental illness and – for that reason – posed a risk of serious harm to self or others. But when it came to deciding whether to continue the detention of such a person, the MHA required the hospital to look only to the issue of the least restrictive option for appropriate care. Appropriate care, it seems, is a separate issue from the risk posed to others. But how, it might be asked, could the hospital sensibly turn its mind to appropriate care of the mentally ill person without considering the continuing risk posed to others?

The High Court did not address this conundrum and did not comment on the reasoning of the majority in the Court of Appeal that did.[39] The Court decided the case on the basis that to consider the position of others would conflict with the objects of the MHA, which required it to be interpreted in such a way as to prioritise the liberty of the mentally ill person.

The decision fails to provide any of the hoped-for guidance on the CLA and renders the Court of Appeal decision, which many would have thought encouraging, to the status of obiter dicta. We will have to wait for other cases to wend their way through the courts before clarity is achieved.

What the High Court has emphasised, though, is the importance of carefully analysing issues of duty of care – even in cases where one may have thought no issue exists – and especially in cases involving statutory duties.

David Hirsch is a barrister at Second Floor Selborne Chambers, Sydney. PHONE (02) 9233 2206 EMAIL

[1] [2014] HCA 44 (12 November 2014) (French CJ, Hayne, Bell, Gageler and Keane JJ).

[2] McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 (23 December 2013) (Beazley P and MacFarlan JA; Garling J dissenting).

[3] Simon & Anor v Hunter & New England Local Health District; McKenna v Hunter & New England Local Health District [2012] NSWDC 19 (Elkaim DCJ).

[4] Under s9 of the MHA.

[5] Under s21 of the MHA.

[6] No actual plan for treatment in Echuca was made – the real reason for allowing Pettigrove to leave was that his mother wanted him home.

[7] Note, 3, at [22].

[8] Ibid, at [13].

[9]“I do not think Mr Pettigrove should have been discharged after only one restless night in hospital and without a proper medical plan having been implemented.” Note 3 at [91]. A ‘depot injection’ delivers long-lasting medication but can take days to take effect.

[10] Note 3 at [85].

[11] Ibid, at [89].

[12] Ibid, at [90].

[13] Ibid, at [98] to [105].

[14] Ibid, at [97].

[15] Ibid, at [64].

[16] Note 2 at [3].

[17] [2005] NSWCA 33; (2005) 63 NSWLR 22 (Sheller and Santow JJA; Spigelman CJ dissenting).

[18] Note 2 at [95].

[19] Section 9(1) of the MHA referred to above.

[20] Note 2 at [124].

[21] Ibid, at [149].

[22] Ibid, at [181]-[189].

[23] Justice Garling, in dissent, did not address the s5O issue.

[24] [2007] NSWCA 335.

[25] Note 2 at [160].

[26] Ibid, at [165].

[27] A corollary of the prohibition against further detention in the absence of a less restrictive option – s35(3) of the MHA. There was a live issue in this case whether the hospital had a power to discharge or rather only a negative duty not to further detain.

[28] Note 2 at [175].

[29] Defendant lawyers (and some uninformed plaintiff lawyers) routinely put the Bolam test as the test of negligence to their experts.

[30] Note 1 at [12].

[31] Ibid, at [15].

[32] (2001) 207 CLR 562 at [50].

[33] Note 1 at [24].

[34] Ibid, at [27].

[35] Ibid, at [31].

[36] At least in cases where the Mental Health Act 1990 applied. The Act was replaced by the Mental Health Act 2007, although many of the provisions are similar. An analysis of the new Act is beyond the scope of this article.

[37] Note 2 at [293].

[38] In the now repealed Mental Health Act 1986 (Vic), s8. See discussion in XX v WW and Middle South Area Mental Health Service [2014] VSC 564 (17 December 2014).

[39] These issues were fully ventilated in argument before the High Court but the decision does not explore them.

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