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Failure to arrange a timely psychiatric assessment

10 February 2020 | Harry McCay, BComm, LLB, Senior Solicitor, Avant Law, ACT and Dr Peter Henderson, MB, Ch B., FRANZCOG, FRCOG, General Manager, Medico-legal Advisory Service, ACT, Avant

A hospital has been ordered to pay over $130,000 to a patient who was prone to self-harm, after being found negligent for failing to prevent their injuries.

The Supreme Court case highlights the obligation of hospitals (a responsibility which may fall to Emergency Department doctors, psychiatrists and psychiatric registrars) to perform psychiatric assessments within statutory time-frames, to determine whether involuntary detention is necessary.

Patient attempts suicide

A man with a history of drug use, paranoid ideation and psychosis attempted suicide at his mother’s house by slashing his wrists and throat with a knife. The police were called and he was found threatening to jump off a neighbour’s roof. After negotiating him down, police apprehended him under the Mental Health (Treatment and Care) Act 1994 (ACT) (the Act).

He arrived at the hospital around 4.30am and was treated for lacerations on his wrists. While in the Emergency Department, he was not restrained and observed by staff and his mother.

A psychiatric registrar was consulted around 11am, however he was unable to attend straight away because he was performing another assessment. At 11.09am, a mental health nurse assessed the patient and noted he was delusional with poor insight and judgement. The records indicated he agreed to wait to be reviewed by a psychiatric registrar and denied any wish to further self-harm.

At 1pm another attempt was made to contact the psychiatric registrar. Due to a change in the registrar’s shift, the patient had still not been assessed, when his mother advised nursing staff she was leaving the hospital to get him some food and clothes.

Patient absconds from hospital

Around 1.15pm, the patient absconded from the Emergency Department and jumped off a hospital building, resulting in fractures to both his legs.

He was re-admitted to hospital and treated. Hospital notes indicated he jumped off the building to escape from a hallucination of shadows, which he believed were following him, not as a suicide attempt.

Due to his injuries, he was no longer able to work as a carpet layer. He obtained a job stacking shelves in a supermarket, however he couldn’t stack shelves below three feet because of the squatting required.

Allegations against hospital

Expert evidence was presented on behalf of the hospital in response to the allegations they had failed to:

  • properly monitor him
  • prevent him from harming himself
  • respond adequately to the knowledge he was delusional and prone to self-harm
  • conduct enquiries in a timely manner to determine whether he presented a further risk of self-harm
  • seek authorisation for involuntary detention in a timely manner.

The expert believed the patient did not meet the requirement for involuntary detention under the Act1 because he was not actively suicidal and voluntarily agreed to treatment and assessment.

Evidence presented on behalf of the hospital, noted he had been under therapy for his psychotic delusions and his episode of self-harm appeared impulsive and could not have been predicted from prior assessments. Furthermore, the hospital was in the “normal process” of assessing the patient when he absconded.

Hospital’s liability considered

The court considered whether the hospital was negligent based on a range of evidence from the hospital, witnesses, experts and medical notes.

The court noted the hospital, as an approved health facility under the Act, had an obligation to detain the patient. The court also highlighted that under the legislation, an assessment must be undertaken by a medical practitioner within four hours of the patient’s arrival to hospital.

“… it is clear that the purpose of this examination is to determine whether the involuntary detention of the plaintiff was to be authorised …” the court said.

The court found the four-hour period had expired at 8.30am, by which time a psychiatric assessment had not been performed and he became a voluntary patient.

On balance, the court preferred expert evidence presented on behalf of the patient. The expert opined that in circumstances where the patient was clearly psychotic and at significant risk of further self-harm, the hospital was obliged to continue his involuntary detention under the Act. Secondly, the hospital had an obligation to closely monitor him in an area from which he could not abscond.

The court dismissed the hospital’s argument that under the Act, a patient must actively refuse treatment and care, before an order for involuntary detention can be made.

“If that were the case, a patient who simply declined to say anything to a medical practitioner conducting an examination under section 40, or was catatonic, could not be made subject to an involuntary detention order because they had not, in terms, refused treatment or care. This could not have been the intention of the legislature …” the court said.

Court findings

Ultimately, the court accepted that had a “properly conducted” mental health assessment occurred within four-hours of the patient’s arrival at hospital, an order for involuntary detention would have followed. Therefore, the patient would not have absconded or suffered the injuries he did.

The court found the hospital failed to respond adequately to the knowledge the patient was delusional and prone to self-harm.

The hospital was found negligent in breaching their duty of care owed to the patient and was ordered to pay the patient $130,440 in general damages, plus the costs of the proceedings.

Key lessons

  • Patients who are detained under mental health legislation should be treated in areas where they are closely monitored by hospital staff and from which they cannot abscond. These patients should be detained until it has been decided whether an involuntary treatment order should either be extended or made.
  • Hospitals are obliged to perform psychiatric assessments on patients who are detained under mental health legislation, within statutory time-frames. This is to ensure involuntary detention can be authorised in a timely manner, if the patient presents a risk of harm to themselves or others.
  • Doctors working in hospitals, particularly senior Emergency Department doctors, psychiatric registrars and consultants, may have a responsibility on behalf of the hospital to arrange and conduct such assessments.
  • Courts expect hospital staff to heed previous recent psychiatric history, so apparent compliance by a patient at the time has to be assessed based on recent psychotic or delusional behaviour.

More information

If you receive a complaint, contact us on 1800 128 268 for expert advice on how to respond, available 24/7 in emergencies.


1The Act stated Where the doctor who examines a person under section 40 has reasonable grounds for believing that—

(a) the person is mentally dysfunctional and, as a consequence, requires immediate treatment or care;

(b) the person has refused to receive that treatment or care;

(c) detention is necessary for the person’s own health or safety or for the protection of members of the public; and

(d) adequate treatment or care cannot be provided in a less restrictive environment;

The doctor may authorise the involuntary detention and care of the person at an approved mental health facility for a period not exceeding 3 days.

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