Timely mental health assessments and flight risks

A recent decision in the Supreme Court of ACT considered whether the Hospital was negligent in failing to ensure that the appropriate procedures were put in place to prevent a patient from self-harm.

The plaintiff had attempted suicide by slashing his wrists and neck with a knife and was taken by police to the Hospital for assessment. Some hours later, he absconded from the emergency department before jumping from the multilevel car park resulting in fractures to both of his legs. The plaintiff alleged that the Hospital knew, or ought to have known, that he had a tendency towards self-harm and was negligent by failing to put in place procedures to prevent him from harming himself. In making the claim in negligence, the plaintiff asserted that one ground of negligence related to the Hospital’s failure to comply with the requirements of the Mental Health Act.

Under the Mental Health Act in the ACT there was an obligation to ensure that the plaintiff was examined by a doctor within four hours of his arrival at the Hospital to determine whether the continuing involuntary detention of him was to be authorised.  The plaintiff’s first mental health assessment did not take place until over six and a half hours after his arrival. This assessment was performed by a mental health nurse. This assessment did not consider his risk of self-harm as the nurse noted he was to be assessed by the psychiatric registrar. As the plaintiff was not assessed by a medical practitioner within four hours of his arrival, the Court concluded that he became a voluntary patient four hours after his arrival at the Hospital and was free to leave, absent any further apprehension for assessment under the Mental Health Act.

The Court was satisfied that there had been a failure by the Hospital to properly respond to the risk of self-harm and assess the plaintiff within the required timeframe, resulting in a failure to further detain the plaintiff as an involuntary patient. The failure to comply with the statutory obligations of the Mental Health Act represented a breach of duty of care. The Court accepted the plaintiff’s evidence of Dr Raftos that had a mental health assessment of the plaintiff been properly conducted by a medical practitioner within four hours of his arrival at the Hospital, then on the balance of probabilities, this would have resulted in an order for involuntary detention being made under the Mental Health Act. Had that occurred it is probable that the plaintiff would not have been able to abscond and would not have suffered the injuries that he did.

The plaintiff in this case chose to base his claim in negligence and not allege a breach of the Hospital’s statutory duty. The Court noted that where a statutory breach has occurred this does not necessarily constitute negligence, unless it involves conduct which is unreasonable. In this case however, the Court was satisfied that the failure to assess the plaintiff within the four hours was unreasonable and therefore the statutory breach resulting in the injury to the plaintiff, was sufficient to find the Hospital negligent. As a result the Hospital was held liable for the plaintiff’s injuries.

LC by his litigation guardian KS v Australian Capital Territory [2017] ACTSC 324

Post by Monica Pecker and Karen Kumar 

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