Weekend leave and involuntary detention under the Mental Health Act: can a hospital be held liable for a patient self-harming whilst on weekend leave?
Daniel Smith v Pennington and South Western Sydney Local Health Network  NSWCA 1168, 28 August 2015
Justice Garling found in favour of a Local Health District, represented by TressCox Lawyers, in a recent case which considered whether a NSW public hospital was liable for an involuntary patient’s act of self-harm during a period when he was granted weekend leave from the sub-acute ward of the Hospital’s Mental Health Unit.
The plaintiff had two prior suicide attempts, the second of which was an attempt at suicide by hanging. Both attempts arose in the context of the plaintiff consuming alcohol and having contact with his former girlfriend. The plaintiff was 25 years old at the time.
Following his second suicide attempt, the plaintiff was transferred to the sub-acute ward of the Mental Health Unit at Campbelltown Hospital. He was detained as an involuntary patient as a mentally disordered person. During his admission, the plaintiff denied suicidal ideation. He told staff that he regretted his suicide attempts and he wanted to be discharged as soon as possible so that he could return to work (he had mounting financial concerns) and to ‘get on with his life’.
A psychiatric registrar met with the plaintiff’s parents on 12 November 2008. They discussed his condition and consideration was given to whether the plaintiff could be granted weekend leave. They discussed the plaintiff’s stressors.
On 13 November 2008 the plaintiff was assessed by the psychiatric registrar and a consultant psychiatrist, who confirmed weekend leave was appropriate. The psychiatrist did not propose that formal conditions should imposed upon any grant of leave (pursuant to the Mental Health Act), such as restricting the plaintiff’s access to alcohol, contact with his former girlfriend, or access to the garage at the family home, where he had made his earlier attempt at suicide by hanging. The plaintiff was collected by his parents, and taken to see his general practitioner.
On the Sunday before he was scheduled to return to hospital the plaintiff went out on a 4-wheel driving expedition with his friends, and then to the local tavern for a drink. Before going out, his mother had asked his friends to ensure that the plaintiff would only have a couple of beers. On his return he appeared to his mother to be relaxed and happy. He had dinner with his parents, and went to bed at around 10.00 pm.
At around 10.30 pm (the precise time was not clear from the evidence) the plaintiff went to the garage, and made a further attempt to commit suicide by hanging. He was found at 10.45 pm. This time he suffered permanent brain damage.
The plaintiff claimed damages for the brain damage which he suffered following the suicide attempt.
Justice Garling found that the decision to grant the plaintiff weekend leave was not negligent, and that there was no requirement for the plaintiff to return after one day of leave for further assessment. He found there was also no requirement for the hospital to impose conditions on the plaintiff’s leave, such as banning alcohol consumption or restricting his access to the garage where he had previously attempted hanging.
Justice Garling did find that a further conference should have been held with the plaintiff’s parents after the decision had been made to allow the plaintiff leave, so that the plaintiff’s parents could have been properly informed as to the decision, the basis for it, and the precautions which were necessary to assist the plaintiff to minimise the risk of any attempt at suicide.
Justice Garling confirmed that whilst the decision to grant leave or provide conditions were decisions made pursuant to the Mental Health Act and so the defendant could engage a defence pursuant to section 43A of the Civil Liability Act about that decision, the failure to give certain advice to the parents did not attract that defence.
However, Justice Garling found that the plaintiff did not establish a causal link between any deficiency in the communications with the plaintiff’s parents and the plaintiff’s suicide attempt.
His Honour found there was nothing in the evidence which would enable a conclusion to be drawn that any warnings about alcohol consumption or communication with the plaintiff’s ex-girlfriend would have prevented the plaintiff’s decision in the privacy of his room to take his own life. There was no connection between the alcohol consumption and the plaintiff’s actions, given the time that passed. Even if the plaintiff’s parents had received different warnings or information, there was nothing more they could have done to protect the plaintiff from self harm.
Natalie Meadows, Partner