Liability Of Psychiatrists

Liability of psychiatrists...

Tuesday, 09 January 2007

Article Index:

Dr Russ Scott’s career has oscillated between Medicine and Law. A practising barrister at one time, Russ recently completed his Advanced Training in Forensic Psychiatry and received his Fellowship in November.

A session to discuss the ramifications of this case for current Psychiatric Registrars may be held at the dedicated Trainee Day at College Congress. Further details to follow.

Liability of psychiatrists and mental health services for failing to admit or detain patients with mental illness.

By Dr Russ Scott

In a highly controversial and sometimes misreported decision, the NSW Supreme Court in August 2003 awarded substantial damages against the Hunter Area Health Service and a third year psychiatry registrar for negligently failing to care for a patient (Kevin Presland) and, in particular, for failing to detain him in hospital under provisions of the Mental Health Act (NSW) before he committed a murder.

However, by a majority, the NSW Court of Appeal overturned the decision in April 2005. The appeal decision confirmed that a successful litigant suing for negligence will not recover damages for pain and suffering and economic loss caused as a result of not being admitted for treatment of a mental illness before committing a violent offence.

History Prior to Presentation

In 1995, Kevin Presland was a 36 year old self-employed single man with no previous documented psychiatric history.

Presland had no known family psychiatric history and no past forensic history. However, he did have a substantial substance use history. Although it was never reliably established, accounts in evidence suggested that Presland consumed between 30 – 200 gms of alcohol and six cones of cannabis daily.

On Monday 3 July 1995 (the day before the murder), Presland finished work and consumed alcohol and cannabis before visiting the home of an employee (Blake). During the evening, Presland suddenly said to Blake “I have to kill you” before he grabbed Blake by the throat with both hands, pushed Blake over before also grabbing Blake’s three year old son by the throat, head-butted a hole in a door and yelled “the rats must die”. There followed a violent struggle during which Blake struck Presland on the head with a cricket bat to prevent him re-entering his property .

John Hunter Hospital – Emergency Department Management

Police who later restrained Presland described him as agitated and aggressive and yelling at one stage that rats were “eating” his eyes and toes. Presland was taken by ambulance to John Hunter Hospital, Newcastle. After a CT head scan, he was interviewed at 2320 hours by a social worker of the Crisis Assessment Team who, in her referral sheet, wrote inter alia:

“Relationship break-up over 12 months ago... Appeared to be psychotic from effects of alcohol. Relates long history of alcohol [semble, abuse]...Main presenting problem: alcohol psychosis.”

The social worker later testified at trial that when she interviewed him, Presland said that he had been drinking heavily the previous day (Sunday). At trial, the social worker was emphatic that she was not informed that Presland had attacked a young child or had made threats to kill Blake’s family. The social worker also did not recall discussing illicit drugs.

However, at trial, both policemen who had originally subdued Presland at Blake’s house testified that they had told the social worker how Presland screamed about “rats” eating his eyes and toes, about his references to “killing the children” and “the devil”, the change in his behaviour from “passivity” when he was handcuffed and the renewed violence when the handcuffs were removed. One policeman testified that he had tried to fully describe what had happened to ensure that Presland was admitted to a psychiatric hospital.

Notes made by a doctor in the emergency ward included the following entries:

“Apparently head-butted door down. Householder defended himself with cricket bat. Spoke of ‘rats eating his eyes’... Possible ETOH [alcohol]. Drug ingestion…”

Presland agreed to a voluntary overnight hospital admission and it was decided that he should be admitted for further assessment to the James Fletcher Hospital, a mental health facility operated by the Hunter Area Health Service. The social worker later testified that Presland was “more than willing” to go to James Fletcher Hospital and she never considered that he might need to be made an involuntary patient.

The trial judge found that although the emergency doctor spoke to the psychiatry registrar on duty that night at James Fletcher Hospital and sent a brief referral, the John Hunter Hospital notes and ambulance report were not sent to James Fletcher Hospital. The trial judge also found that the required police escort assessment form was not given to the psychiatry registrar at James Fletcher Hospital.

James Fletcher Hospital - Psychiatric Admission Process

At about midnight on Monday 3 July 1995, a psychiatric nurse at John Fletcher Hospital made the following notes:

“Brought by ambulance… with two escorting police following erratic aggressive behaviour…head-butted a friend’s (employee) door down and exhibited some psychotic features [emergency doctor] thinks is due to acute alcoholic psychosis. Patient denies ETOH. However, admits to smoking a small amount of THC …Unusual or bizarre behaviour: aggressive outburst at mate’s house... Patient perceives the problem as ‘battle between the devil and the good fella’. Patient’s attitude to hospitalization: feels he needs to be here… ”.

The admitting psychiatry registrar notes record the following:

“ …transferred voluntarily from JHH in ambulance with police escort… Split up not long ago … used 2 cones of THC and went round to Bill’s with a six pack, they started talking and then Kevin snapped…started making threats… Bill has pet rats … Kevin threatened to kill the rats and Bill’s family today… also experienced auditory hallucinations low voices, barely audible which sounded like his parents… Drug Alcohol: 30-200 g ETOH/daily smokes cigarettes THC daily- 6 cones average …Has tried magic mushrooms once …Has tried LSD twice… MSE…no delusions no suicidal/violent ideation… Insight - wants brief admission… impression: brief reactive psychosis DDX- drug induced psychosis? Organic psychosis- schizophrenia unlikely…”

The admitting registrar did not record whether Presland was asked about or denied using any stimulant substances like amphetamines, MDA (Methylenedioxyamphetamine, “ecstacy”) or cocaine and no request for a urine drug screen was recorded. Presland was admitted as a voluntary (informal) patient to an open ward. Subsequent ward nursing staff entries in the medical records referred to Presland stating he was “going to do away with himself”, being awake “praying” at 0200 hrs on Tuesday 4 July 1995 and Presland saying he was afraid to go asleep because he had “seen the devil” and would “die” if he closed his eyes.

Referring to the nursing notes made overnight, the admitting registrar made a further entry at some time later in the early morning:

“… apparently still exhibiting some psychotic features…”

The registrar ordered a statum dose of oral chlorpromazine. The admitting registrar gave no verbal hand-over to the ward registrar who came on duty later in the morning. The court judgements did not record whether Presland received any medication during his overnight admission.

James Fletcher Hospital – Next Day Ward Management

The ward registrar was an overseas medical graduate who had undertaken studies in psychiatry in his own country and had worked as a psychiatry registrar before migrating to Australia in 1991 and commencing accredited training with the Royal Australian and New Zealand College of Psychiatrists. In 1995, he was employed as a third year training registrar at James Fletcher Hospital.

At trial, the ward registrar testified that after commencing his shift at 830 hrs on the morning of Tuesday 4 July 1995, he was approached by nursing staff who told him Presland and his brother wanted to leave the hospital. Although the registrar later suggested in evidence at trial that this was a major, indeed the major influence on character of the consultation, the notes of the consultation show no reference to any request or suggestion that Presland wished to leave.

After reading the available hospital notes (including notes made by the admitting registrar and the subsequent nursing entries made over night), the ward registrar interviewed Presland with his brother. The registrar’s notes from 1030 hrs record inter alia:

“I saw Kevin with his brother, brother stated initially that Kevin had a accident which Kevin approved, but later on enquiry about what type of accident, Kevin claimed he was hit on the head by a bat. He admitted drinking alcohol 12-15 schooners and smoking 10-20 cones/day when stressed out. He got separated from his girlfriend recently… he had a fight with one of his colleagues at work … His family are supportive, they’re aware of his drug and alcohol problem so they’ll offer him support. He agreed to go to Kirkwood House and other D&A services to seek help. Diagnosis - no psychotic illness – no major depressive illness. Mainly drug and alcohol abuse and personal problems. No need for follow-ups”.

The trial judge noted that even if Presland and his brother had indicated however strongly a desire to the leave the hospital, they had consented to seeing the registrar before doing so and permitting him access to Presland. The trial judge was satisfied that in fact Presland’s brother was anxious for Presland to stay in hospital.

The trial judge found that even if Presland wished to leave the hospital, this was not the decisive of the ultimate issue at trial since it was Presland’s case that, whatever his wishes, it was negligent for the Hunter Area Health Service to have released him, in other words, it was negligent not to have kept him as a voluntary patient or an involuntary patient under the Mental Health Act.

Events after Discharge

Presland was taken by his brother to his brother’s home.

Some time within the next six hours, after his brother left to gather some clothes and personal articles for him, Presland murdered his brother’s fiancée with a kitchen knife.

Police who arrived at the scene reported hearing loud smashing noises from inside the house and a male voice screaming unintelligibly. After the door was broken down, police disarmed Presland who was naked, holding a knife and apparently covered in blood.

Epilogue

After his arrest, Presland was taken by police to John Hunter Hospital. He had multiple lacerations including a large laceration to his scalp which required suturing and a blood transfusion. He was later assessed by a consultant psychiatrist who concluded that his symptoms were consistent with “a psychotic illness, possibly paranoid schizophrenia”.

Presland was transferred to the psychiatric ward at Long Bay Gaol where he remained for some five weeks. He was discharged to remand on 3 August 1995 and was transferred to Maitland Gaol when he was required to attend court and would stay for several weeks at a time where conditions were filthy and overcrowded and where he witnessed bashings of other inmates. Presland later testified that he came to understand what had happened and became very depressed and ashamed.

Expert Reports Presented at trial

The surgical registrar who first saw Presland on the previous night and had arranged for the CT scan had also arranged for some pathology tests, but no results were ever reported or described.

The trial judge referred to one of the police as saying that Presland had been “… breath tested with negative result” when he was first detained on the Monday night. Other than this cursory observation, there was no reference in any of the written judgements to any psychiatric opinion commenting upon any result of a blood alcohol estimation or urine drug screen taken from Presland at any time.

In a report written in August 1995, (a month after the offence), a consultant psychiatrist wrote that Presland had committed the murder whilst “experiencing a florid alcohol withdrawal syndrome”.

Although Presland gave no previous history of alcohol withdrawal symptoms and had consumed alcohol on the day of the offence, another consultant psychaitrist reported in March 1996 that, at the time of the offence, Presland was suffering from “an acute, severe psychotic illness”…”likely precipitated by alcohol withdrawal”. The opinion was qualified by the comment that the presence of delusional beliefs in particular suggested “other possible causes”. Describing Presland’s recovery after he was admitted to the prison hospital two days after the homicide, the psychiatrist reported:

“The withdrawal symptoms had abated by the time he reached the ward and he gave a reasonable account of the events. There was no evidence of alcoholic brain damage. He was treated with diazepam (Valium), vitamins and physical care. At subsequent interviews he was coherent and showed no evidence [of] mental illness or brain damage.”

Presland was subsequently tried for murder before Newman J sitting without a jury. On 7 May 1996, Presland was found not guilty on the grounds of mental illness and was ordered to be detailed in strict custody in a psychiatric hospital. On 26 November 1997, he was conditionally released following the recommendation of the Mental Health Review Tribunal and required to live in the community in accommodation administered by the Salvation Army. On 25 March 1998, Presland was released from detention under the Act by an Order in Council.

DECISION OF THE SUPREME COURT OF NSW

At trial, on behalf of Presland, it was argued that when he was seen on the morning of the homicide, the psychiatry registrar should have concluded that Presland was not only mentally ill or mentally disordered but that he needed to be detained for his own safety or the safety of others. It was asserted that had he been detained, it was most improbable that Presland would have killed Ms Laws.

Duty of care

It is established law that a common law duty of care is imposed upon a statutory public authority where the conduct of the public authority may place the authority in such a position that others rely on it to take care for their safety. The principle is that if statutory powers are conferred, they must be exercised with reasonable care. If those who exercise the statutory powers could, by reasonable precaution, have prevented an injury which occurs, and the injury was likely to have been occasioned by the exercise of the powers, damages for negligence may be recovered by the injured person.

The trial judge (Adams J) noted that a feature of the case was that Presland claimed that there was statutory duty on the part of the Hunter Area Medical Service to detain him against his will to prevent him doing harm to others or himself. Adams J was satisfied that such a duty existed “… where a person refuses treatment because they are mentally ill or mentally disordered person and would otherwise suffer or cause serious injury. The administration of medicine or even surgery that is necessary to avoid this consequence is not only permitted, but required....”

Mental Health Act (NSW)

Rejecting the proposition suggested by an expert witness that when deciding whether to detain a patient in hospital for further assessment under the NSW Mental Health Act, a doctor will be particularly influenced by regard to the patient’s right to liberty, his Honour said:

The Act cannot be so interpreted. It is designed to provide a means for the care, treatment or control of mentally ill or mentally disordered persons for the safety of the public or for their safety. It might be fair to say that the Act is so structured that persons who do not need to be detained should not be detained but the obverse is also clearly the case, that persons who need to be detained should be detained…

Of course, the extent of compulsory care, treatment or control that is necessary must also be carefully weighed and only the least restrictive appropriate and available compulsion can be used. It is only at this point that the issue of the patient’s liberty becomes a material consideration and, even then, it is subordinated to the requirement of protection.

Findings of negligence

Adams J made a number of adverse findings against the registrar who assessed Presland on the morning after his admission to John Fletcher Hospital. Although His Honour found it probable that a number of documents containing crucial collateral information were not available in the John Fletcher Hospital file, the registrar’s consultation was, in a number of respects “seriously inadequate”.

Adams J held that the psychiatry registrar was obliged to take into account the whole clinical presentation (including the possibility that Presland’s symptoms might fluctuate or that Presland’s account was self-censored) and make reasonable inquiries as to available collateral information.

Adams J held that the most useful predictor of dangerousness is past dangerousness especially in the context of a patient who has been violent in the immediate previous hours. His Honour found that there was sufficient information available in the Presland’s hospital record to alert the registrar to the risk that there had been serious violence in the previous twelve hours which should have alerted him to the necessity to ensure that apparently irrational elements of Presland’s history were explored to see if they were still present and whether they represented a risk of serious injury to Presland or others.

His Honour held that Presland’s care had been negligent and that it was foreseeable that without appropriate treatment (namely detention), Presland might suffer harm by seriously injuring himself or another.

Adams J concluded that Presland’s killing of his victim and the adverse personal and legal consequences which followed were both foreseeable and caused by the negligence of the psychiatry registrar (and vicariously the Hunter Area Health Service) who discharged him on the morning of the homicide.

“Releasing the plaintiff into the care of his brother was completely inappropriate, even if the doctor had given him guidance as to how his care could be managed and amounted to an abdication of his responsibility as a doctor” …

Obviously, no psychiatrist of ordinary skill, applying the standard of reasonable care and skill required of such a specialist, would have failed to detain the plaintiff. Even assuming that there was some slightly lesser standard applicable to … a third year psychiatric registrar, this conclusion would be the same.”

Whilst concluding that it was difficult to predict whether Presland’s symptoms would have recurred, His Honour found that were it not for the homicide, Presland would probably have been detained in hospital for approximately four weeks. Presland was awarded $225,000 damages for pain and suffering (incurred in his incarceration and prolonged hospitalisation) and in excess of $100,000 for loss of income.

Decision of the Nsw Court of decision of the NSW Court of Appeal

The Hunter Area Health Services appealed the trial judge’s decision.

The substantive issues for determination by the Court of Appeal included:

On appeal (by a majority, Spigelman CJ dissenting), the decision of the the Supreme Court was overturned. The Court of Appeal also held incidentally that the award of general damages of $225,000 was too high, saying that an appropriate award would have been $100,000.

The Court of Appeal held that both defendants (the registrar and the Hunter Area Health authority) accepted that they each owed the plaintiff a general duty of care at common law. This concession inevitably recognised that if the plaintiff should have been detained because he was mentally ill and there were grounds for believing that his detention was necessary to protect others from serious harm, the defendants could scarcely argue that they could not have foreseen the risk of injury of the kind that in fact occurred.

Further, the Court of Appeal emphasised that it was obvious that a person charged with the care of another person who is mentally ill to a degree that he may cause serious harm to others, owes a duty to the patient to take reasonable care to ensure that the patient does not do serious harm to others.

The Court of Appeal held that although Presland’s claim for damages was to compensate him for the results of his actions in killing his victim, Presland’s losses could be traced back to the negligence of the Hunter Area Health Service and the psychiatry registrar for not detaining him in hospital.

However, the Court of Appeal found that two considerations stood in the way of Presland’s case suceeding. Although he was acquitted on the grounds of mental illness, Presland’s act was an unlawful act. Presland’s crime was not a justifiable homicide but was an unlawful homicide for which he was not criminally responsible.

The damages Presland sought were for the consequences of that act of killing. The result of that act was that Presland was lawfully detained in a psychiatric hospital until released by the due process of law (in contrast to the case of Cornelia Rau who is claiming compensation based on her illegal detention).

The Court of Appeal also found that the Mental Health Act was directed to enabling detention only as a last resort and it was doubtful whether the policy behind the legislation envisaged an aggrieved person recovering damages because a doctor refused to admit the person as a voluntary patient (even though that the decision to refuse to admit was a negligent decision). The Court of Appeal held that to interpret the Mental Health Act in that way would have the tendency to discourage the proper performance by the statutory authority and its servant doctors of duties and responsibilities under the Act ? in particular, the fundamental principle of providing the least restrictive treatment.

The Court of Appeal held that to impose an extended and more onerous duty on doctors would distort the impartiality of the exercise of discretion under the Mental Health Act by introducing a detrimentally defensive frame of mind and promote a bias toward detention when that should be an impartial decision taken only when fully justified if not as a last resort.

As a corollary, the Court of Appeal found that if the exercise of the discretion not to detain a person gave rise to legal liability in negligence, it must follow that in other circumstances legal liability in negligence would attach to the decision to detain compulsorily which would further distort the discretion in a way that would be contrary to the purpose of the Mental Health Act

The Court of Appeal also referred to the legal maxim which requires that a court should refuse to assist a litigant who brings an action predicated upon an immoral or illegal act or who seeks to profit from illegal conduct.

The Court of Appeal held that it would be unjust to hold the health authority and registrar legally responsible for a non-physical injury traced back to Presland’s unlawful but not criminal conduct. Presland’s act of killing his victim was an unjustified action which lacked moral culpability because Presland was insane at the time of the killing.

DISCUSSION – what does it mean for my practise?

The NSW Court of Appeal decision in Presland’s case confirms that a litigant suing for negligence will not recover damages for pain and suffering and economic loss caused as a result of not being admitted for treatment of a mental illness before committing a violent offence.

However, whilst there is no Australian authority directly on point, it can be accepted that a health authority owes a general duty of care for loss derived from serious physical injury to a mentally ill person who is harmed as a result of injuries (including presumably self-inflicted injuries) and to third parties who suffer harm at the hands of a mentally ill person where it can be shown that the health authority was negligent in failing to admit or detain in hospital that mentally ill person.

The facts of Presland’s case are a salutary reminder. In the context of a patient with a recent history of violence and possible mental illness, health professionals need to take a detailed history having regard to all available collateral information. If collateral information is not immediately available, it will always be prudent to delay making a decision until all reasonable attempts have been made to obtain such collateral. Mental health professionals must always be alert to the probability that patients who are being assessed in the context of allegations of recent violence may self-censor there accounts of the incident or be unco-operative or otherwise unreliable historians.

Documentation and risk assessments

A comprehensive mental state examination and a careful risk assessment must be performed and the decision process and alternative management plan must be clearly documented before deciding to not admit or discharge that patient. The best documentation of the management decision will include an attempt to balance the risks and benefits of any decision.

It is now accepted good practice to combine clinical assessment with adaptations of actuarial tools when assessing particularly the risk of violence for an individual patient. Formal assessments of the risk of violence are designed to inform the intensity of intervention and management, rather than simply predict future occurrence of violent behaviour. The Historical Clinical Risk - 20 (HCR-20) for example is used to increase the validity of assessments, reduce clinician bias and anchor clinical opinion in respect of ongoing risk management. The HCR 20 is designed to promote the consistent and reliable identification of 20 risk factors for violence which have been derived from the empirical literature, whilst also allowing flexibility for case specific issues.

Whilst it is always difficult to eliminate hindsight bias, particularly when the base rate of extreme violence is so low, it is reasonable to acknowledge that on weighted historical risk factors alone, Presland would have scored highly in the domains of “previous violence” and “substance use problems” on the morning of his discharge from hospital.

It is a truism that even the best intentioned and most careful health professionals will make mistakes or errors of judgement and some of those mistakes may result in harm to patients or others (‘To err is to be human’). However, where that mistake or error of judgement is made as a result of carelessness or indifference to what is established as prudent, good practice, it can be expected that the documentation (such as it is) will be pored over by plaintiff lawyers and attract criticism in court or from a coroner.

The facts of Presland’s case also raises issues relating to service provision and supervision of junior doctors. Psychiatry registrars should always keep in mind that the RANZCP emphasises the requirement for supervision in training and the support of trainees by consultants. Important decisions (including whether to discharge or not detain patients when there is a significant risk of adverse outcomes) ought be discussed with the on-call consultant and the deliberations of the discussion and the treatment plan should be clearly documented at least in dot point form.

Russ Scott

Forensic PsychiatristDecember 2006

A session to discuss the ramifications of this case for current Psychiatric Registrars may be held at the dedicated Trainee Day at College Congress. Further details to follow. Ed.....