Mental Health Case Update - Crowley v Commonwealth of Australia, ACT and Pitkethly
Alison Choy Flannigan, Partner
The recent case of Crowley v Commonwealth of Australia, Australian Capital Territory and Pitkethly [2011] ACTSC 89 is authority for the proposition that a mental health service provider can be held negligent in relation to, amongst other matters, failing to pursue a patient's admission to hospital, even if assessed at the time as no risk to themselves or others.
In that case Jonathan Crowley, a 34 year old man, suffered a psychotic episode. On Monday, 10 December 2001, family members (his sister who was a medical practitioner) made contact with ACT Mental Health Services (ACTMH), and an ACTMH psychologist visited the family home that night.
Jonathan believed he was Jesus and exhibited poor judgement.
He had used cannabis, apparently in fairly high quantities, for many years. Before the events in December, he had not been a patient of the ACTMH, nor had he had any psychiatric admissions, or been seen by any specialist psychiatrist. It was agreed that Jonathan needed assessment in hospital, and there were discussions as to how this would be arranged.
Mr Wells, clinician with ACTMH attended the home and ascertained that Jonathan was not a danger to anyone, or to himself. However, the Court held that there were some significant issues mentioned in the forms completed by Mr Wells.
These included:
• Jonathan's report of having met Judas who had subsequently hanged himself, and of having been "tussling with the devil who had crushed his hand";
• That Jonathan did not get on with the Police;
• That when Jonathan was coming off marijuana he was usually angry and aggressive and punched holes in the walls;
• That Jonathan's parents had assured Mr Wells that "they could manage him overnight";
• That Jonathan was tall (around 180cm and strongly built, with curly shoulder-length dark hair);
• That Jonathan was unlikely to agree to psychiatric treatment and that an involuntary admission would
• probably be required to assess and control risks and commence treatment;
• Mr Well's suggestion to the Crowley family that the Crisis Team could visit "after about 9am" on Tuesday "to see if we could get him to agree to come to hospital voluntarily for a psych reg assessment";
• Mr Well's advice that if Jonathan was unwilling to go voluntarily, "we would most likely leave and return with
• police to take him to hospital";
• The Crowley family's statement that they "would prefer that Police not be involved but were aware that they may be required."
• Jon Wells marked the risk assessment for "noncompliance/absconding" as "high" (an upgrade from the earlier "moderate" risk). He also wrote on the Crisis Team whiteboard the plan specifying that the Crisis Team should phone Keith Crowley to organise a visit to assess Jonathan early the next morning.
• Mr Crowley stayed with Jonathan that night until around 1:00 am or 2:00am, at which stage Jonathan seemed to be sleeping soundly.
Jason Morris, a rehabilitation office with the ACTMH co-incidentally attended the Crowley home on Tuesday
morning to take Mark Crowley, Jonathan's brother, to a rehabilitation activity. He thought Jonathan was "different to his usual self". Jason had observed Jonathan talking to himself and had with him a long black item which we waved around his head in a demonstrative rather than aggressive way. This was not reported for two hours.
No hospital admission was achieved before Jonathan left the family home on Tuesday morning carrying a kendo stick, an instrument consisting of several pieces of bamboo held together and covered. For some time, Jonathan wandered the streets near his home. He was reported to the police.
Police officers came upon Jonathan in Doyle Terrace, Chapman. Shortly thereafter Senior Constable Pitkethly shot Jonathan in the neck. He sustained injuries as a result of being shot that left him suffering quadriplegia.
Whilst the police officers were held to be negligent, this article concentrates on issues for the ACTMH.
The Court inferred that neither Mr Wells nor any other ACTMH staff member gave any member of the Crowley family clear advice that, until he could be admitted to hospital, Jonathan had to be supervised closely, rather, they encouraged the Crowleys to "just keep and eye on him", a very different message.
The claims against the ACTMH are summarised as follows:
• The ACTMH is said to have been negligent in its failure to provide information and training to the Australian
• Federal Police in how to deal with persons acting in an aberrant manner (in particular about the appropriate use of OC spray in dealing with persons acting in an aberrant manner);
• The ACTMH is said to have been negligent in the failure by its staff on the Tuesday to follow up and implement Jon Well's Monday night plan for further assessment and treatment of Jonathan, and the specific failure to facilitate Jonathan's admission to hospital on the Tuesday;
• Jason Morris's failures to pass on his observations of Jonathan to the Crowley family, and to pass on those observations to ACTMH colleagues until two hours after making them, are said to have been negligent;
• ACTMH is said to have been negligent in relation to its record-keep activities, particularly in relation to the recording of Jonathan's information, in its failure to connect the person being sought by police with its patient
• Jonathan Crowley, in its failure to give Police information about Jonathan that was in the ACTMH records and generally in failing to respond appropriately to policy inquiries about the person who was in fact Jonathan.
His Honour Penfold J held:
• From Monday night, when Jon Wells arrived to conduct a preliminary assessment on Jonathan, the ACTMH owed a common law doctor-patient duty of care to exercise reasonable care and skill in the provision of professional advice and treatment to Jonathan as its patient;
• Deciding whether to exercise the power of involuntary admission requires a careful balancing of the need to protect sufferers of mental illness from recognised forms of harm and the need to adopt the least restrictive approach to doing so.
• The ACTMH breached its duty of care to Jonathan in failing to pursue Jon Well's plan for Jonathan's admission to hospital and in failing to assess Jonathan again and facilitate his admission to hospital on the Tuesday morning, noting that facilitating does not necessarily imply achieving but only making easier or helping forward;
• Jason Morris breached ACTMH's duty of care to Jonathan in failing to pass on to the Crowley family the odd, unsupervised behaviour of a family member who to his knowledge was already the subject of an ACTMH plan for admission to hospital.
• The failure of the ACTMH staff to pursue the reasons for the police interest in the person the police had asked about, and to raise the possibility that Jonathan was the person police was interested in, with the police, either immediately or after pursuing that possibility with the Crowley family, was a breach of its duty of care to Jonathan as its patient.
• His Honour considered the High Court case of Stuart v Kirkland – Veenstra and stated that the case does not seem to be authority for a proposition that there could never be a duty of care on a mental health authority to exercise an available power to detain.
• Jonathan's injury was caused by the negligence of the police and the ACTMH breached its duty to Jonathan in several respects. The question was did the Police breach the chain of causation?
• His Honour applied the "but for" test and held that the acts of the ACTMH were genuine contributors to the situation in which the Police found themselves and the Police actions were not causally independent of ACTMH's actions.
• As a result, the breaches of ACTMH was causative of Jonathan's injuries. The amount of damages was to be agreed between the parties.
Alison Choy Flannigan
Partner
T: +61 2 9390 8338
E: alison.choyflannigan@holmanwebb.com.au