The Duty of Care - A Recent NSW Supreme Court Decision

In a recent decision Walker v Sydney West Area Health Service (SWAHS) (2007) NSWSC 526, the Supreme Court found that the Area Health Service did not breach its duty of care to the patient. The patient was discharged from an inpatient psychiatric facility and 10 days later fell from a tree following an aborted suicide attempt. The injuries sustained left him quadriplegic.

Facts

The plaintiff was a 19 year old man with a history of serious psychiatric illness. On the 28th of February 2001, he attempted suicide by trying to stand in front of a moving train, but was pulled away by his brother. The train driver called the police and the plaintiff was taken to hospital. The hospital was under the administration of the defendant's area health service (SWAHS). At the time of the first incident, the plaintiff was admitted to the psychiatric unit as a voluntary patient. He was discharged on the 6th of March. He had not been given any medication during his admission or on discharge. Arrangements were made for follow up home visits by a mental health worker from SWAHS.

On the 17th of March 2001, after the plaintiff had been consuming alcohol with his brother and a friend, he stated that he intended to commit suicide. He climbed a tree with a makeshift noose. The plaintiff stated that he changed his mind and commenced climbing down from the tree. In the process he fell and suffered a spinal injury that rendered him quadriplegic.

Hearing

The plaintiff's expert psychiatric evidence indicated that he ought to have been prescribed antidepressant or antipsychotic medication and detained in a psychiatric facility under the provisions of the Mental Health Act 1990. Under cross examination the plaintiff's expert acknowledged there was a steady improvement in the plaintiff's mood from March 1st to 6th, and that the introduction of medication was not indicated. The expert also accepted that there was no reason not to discharge the patient.

The Court found that alleging that failure to comply with the provisions of the Mental Health Act:

• involves an allegation that the defendant, as a public authority, failed to exercise special statutory powers conferred upon it. Such a claim is subject to the strictures imposed by s 43A of the Civil Liability Act - it cannot succeed unless the plaintiff establishes that the failure to exercise the power was, in the circumstances, so unreasonable that no authority (Area Health Service) could properly consider not taking that course.

The claim is governed by the Civil Liability Act 2002; SWAHS relied on the Standard of Care for Professionals Section 50. The defendant's expert considered there would be no benefit in any of the alternatives for management, such as prolonging his admission, drug and alcohol programmes, antidepressant medication and psychotherapy. This was supported by the plaintiff's stated intention to continue to use alcohol - a contraindication to the prescription of any drugs.

Decision

This case demonstrates how the Supreme Court of NSW applies the peer acceptance defence and the evidence required to establish a breach of duty of care under the Civil Liabilities Act 2000 (NSW). The plaintiff's and the defendant's expert witnesses did not agree on the appropriate standard of care in particular circumstances. The Court found that this was not sufficient to establish a breach of duty of care against a professional. There must be evidence of a failure to act in a manner that was widely accepted by peer professional opinion as professionally competent.

The Court ordered a verdict for the defendant. The plaintiff was required to pay the defendant's costs.

Penny Johnston
Loss Prevention Manager, Invivo

Full judgement available at: http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2007/526.html