Hunter Area Health Service & v Presland

(2005) 63 NSWLR 22; [2005] NSWCA 33

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Duty of care
3. › Scope of duty
4. › Psychiatric patients
5. › Statutory powers of compulsory detention
6. › Whether duty extends to exercise of statutory power to detain
7. › Whether duty encompasses non-physical injury from loss of liberty
8. › Mental Health Act 1990 (NSW), ss 9, 10, 18, 20, 21, 28
1. Negligence
2. › Duty of care
3. › Statutory authorities
4. › Salient features analysis
5. › Control
6. › Vulnerability
7. › Coherence with statutory scheme
8. › Whether imposition of duty would distort exercise of statutory discretion
1. Negligence
2. › Causation
3. › Normative aspects
4. › Unlawful conduct by plaintiff
5. › Insanity
6. › Whether unlawful act committed while insane breaks chain of causation
7. › Whether moral culpability relevant to causation analysis
1. Negligence
2. › Illegality
3. › Ex turpi causa non oritur actio
4. › Whether defence applies where plaintiff acquitted on grounds of mental illness
5. › Significance of moral culpability

Quick Take

The duty of care owed by a psychiatrist to a voluntary psychiatric patient does not extend to the exercise of statutory powers of compulsory detention so as to permit recovery for non-physical injury (primarily loss of liberty). Imposing such a duty would distort the impartiality of the exercise of discretion under the Mental Health Act 1990 (NSW) by promoting a bias towards detention. The question whether a third party physically injured by a person negligently not detained can recover remains open.