LC by his guardian KS v Australian Capital Territory [2017] ACTSC 324 (3 November 2017), a recent decision of the Supreme Court of Australian Capital Territory, is a reminder of the duty of care owed by hospitals and medical practices to patients at risk of self-harm. While the patient in this case was cooperative and willingly accepting treatment, the hospital’s failure to authorise and implement involuntary detention rendered it liable to compensate the patient when he escaped from the ward and jumped off a multi-storey car park.
Background
The Plaintiff (LC) was apprehended by police at 4.15am on 12 September 2007, and taken to Canberra Hospital. LC had slashed his forearms and throat and had to be coaxed down from a roof.
LC’s physical wounds were attended to by the hospital. LC’s mother (KS) arrived at the hospital at 10.00am and was with him for two hours. KS stated that LC was disoriented, agitated and had delusions that the hospital staff were trying to poison him.
At 11.09am, LC was examined by a mental health nurse. It was recorded that LC was in a state of psychosis and had poor insight and judgment, but he denied any suicidal intention and was voluntarily agreeing to treatment. The nurse assessed LC as being ‘safe to wait’ in that there was no intention of self-harm. A psychiatric registrar was contacted but was delayed as they were conducting another assessment at the time.
At 1.15pm, LC absconded from the ward and jumped off the hospital’s multi-storey car park, fracturing both his legs. At no time was involuntary detention authorised or put into practise.
Claim
LC, through his guardian KS, brought an action in negligence against the operator of the hospital, the Australian Capital Territory (ACT). LC alleged that the hospital knew or ought to have known that he was suffering from a delusional psychosis and had a tendency towards self-harm, but failed to conduct timely enquiries and put in place procedures to prevent him from harming himself.
The Legislation
The Mental Health (Treatment and Care) Act 1994 (ACT) (the Act) authorises a police officer to apprehend a person and take them to an approved health facility where the officer believes on reasonable grounds that a person is mentally dysfunctional, requires treatment or care, the person has refused treatment and detention is necessary for the person’s own health or safety.
Once at the facility, the Act requires that the person be examined within four hours of arrival. A doctor may authorise the involuntary detention of the person if he or she has reasonable grounds for believing that:
- The person is mentally dysfunctional and requires treatment or care;
- The person has refused treatment;
- Detention is necessary for the own health or safety of themselves or others; and
- Adequate treatment or care cannot be provided in a less restrictive environment.
Expert opinion
The Court had regard to expert evidence given by Dr Raftos and Dr Spain. Dr Raftos stated that given LC was mentally ill, delusional and had just attempted suicide, hospital staff were obliged to detain him and ensure constant observation and treatment in an area from which he could not escape (such as where the doors were locked). Dr Raftos stated that the failure to do so was a departure from an acceptable standard of care.
In contrast, Dr Spain noted the calming effect of the presence of KS, and the fact that LC was voluntarily accepting treatment and not expressing any wish of self-harm. He stated that while in the emergency ward, LC was under close intermittent observation. Dr Spain further considered that the delay in undergoing a psychiatric assessment was consistent with the need to treat higher-risk patients.
Dr Raftos criticised Dr Spain’s evidence, stating that LC’s acute psychosis meant that he was not capable of rational thought or providing an assurance that he was not suicidal. Dr Raftos further considered that it was not reasonable to suggest that LC was not actively suicidal, given that LC was found on a roof with self-inflicted wounds that very morning.
The Decision
The Court preferred Dr Raftos’ evidence and found that the hospital was obliged to keep LC in confinement or under restraint but had not adequately done so. The court rejected ACT’s submission that as the refusal of treatment by a patient was a prerequisite under the Act to the implementation of involuntary detention, and LC was voluntarily accepting treatment, there was no obligation to implement voluntary detention. The court stated that there was no requirement for active refusal, and LC’s delusional psychosis could constitute constructive refusal given that he was not capable of rational thought.
The court considered that the scheme of the Act required LC to be examined within 4 hours of arrival, and that the purpose of this examination was to assess whether authorisation for involuntary detention was necessary.
The court found that a mental health assessment properly conducted within 4 hours of arrival would, on the balance of probabilities, have resulted in an order for involuntary detention being made which would have prevented LC from absconding and suffering the injuries.
Key Takeaways
The decision is relevant to the duty owed by mental health care providers to patients. It illustrates the importance of ensuring prompt examination by psychiatric specialists of patients with a potential for self-harm in order to assess whether authorisation for involuntary detention or treatment is to be granted.
The decision also illustrates that when assessing the appropriate response by treatment providers to patients who may be at risk of self-harm, little or no weight should be placed upon a patient’s apparent acquiescence to treatment or assurances that they have no intention of self-harm.
This article was written by David Muir, Partner, James McIntyre, Special Counsel and Luke Gallant, Law Graduate.