Martin Olszynski

Assistant Professor

Faculty of Law, University of Calgary

2500 University Drive NW

Calgary AB T2N 1N4

Office: MFH 4314

Phone: (403) 220-3816

View my research on my SSRN Author page:

http://ssrn.com/author=1687308

Dear Colleagues;

In Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44 (12 November 2014) http://www.austlii.edu.au/au/cases/cth/HCA/2014/44.html the High Court of Australia unanimously overturned a 2-1 decision of the NSW Court of Appeal, by holding that a hospital which had detained a patient as mentally ill, did not owe a duty of care to the relatives of a person killed by that patient when released.

The plausibility of a possible duty was that the person killed was known to the hospital, as the one into whose custody the patient had been discharged in order to allow him to travel back to his home. But the basis for the High Court’s decision was that it would be inconsistent with the specific statutory powers under which the relevant medical practitioner was operating, for that person to have to have in mind persons who might be harmed by the patient when deciding whether or not to release him from detention. The relevant Act set up a strong presumption, as one would expect, in favour of personal liberty of mentally ill persons, and the power to continue to detain could only be exercised "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.” The court said that it would be inconsistent with the statutory scheme favouring liberty for a doctor to owe a duty under that provision to persons who might be harmed by the released patient; partly relying on the argument that if there were such a duty, then the “breach” analysis would normally mean that the doctor would be obliged to detain, as there would in most cases be a “not insignificant” risk of harm to others. This, the court said, would create inconsistent duties- see [31]-[33].

The decision is surprisingly brief, mostly because the court identifies a range of posssible issues that it is not dealing with. It says, for example, that it will not comment on the assumption made by at least one of the CA judges that establishing a duty owed to the deceased person would automatically have meant there was a duty not to cause psychological harm to the deceased’s relative (while implying that is a dubious proposition)- paras [14]-[15]; it says that it will not comment on issues of “indeterminacy” as a reason for denying a duty (again while noting that it was an issue, since of course a released patient may have posed a potential threat to a huge range of members of the public)- para [16]. Nor would it offer comments on the operation of key aspects of the Civil Liability Act 2002 concerning breach (ss 5C, 5O) or liability of public bodies (s 43A)- see [12].(See also para [19] where the court says that a number of other issues raised by Sullivan v Moody were of potential relevance, even if only one of them, the nature of the statutory obligation, was held to be determinative here.)

By resolving the lack of duty it precluded the need to discuss the other points, as much as some of us would like to have seen some more guidance! 

Regards

Neil