Legal duties following the discharge of mental health patients

Madden, Bill & Cockburn, Tina (2015) Legal duties following the discharge of mental health patients. Journal of Bioethical Inquiry, 12(1), pp. 27-29.

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In the recent decision of Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon, the High Court of Australia held that a hospital and its medical staff owed no common law duty of care to third parties claiming for mental harm, against the background of statutory powers to detain mentally ill patients. This conclusion was based in part on the statutory framework and in part on the inconsistency which would arise if such a duty was imposed. If such a duty was imposed in these circumstances, the consequence may be that doctors would generally detain rather than discharge mentally ill persons to avoid the foreseeable risk of harm to others. Such an approach would be inconsistent with the policy of the mental health legislation , which favours personal liberty and discharge rather than detention unless no other care of a less restrictive kind is appropriate and reasonably available.

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ID Code: 89989
Item Type: Journal Article
Refereed: Yes
Keywords: mental health, medical law, health law, least restrictive approach, medical negligence
DOI: 10.1007/s11673-014-9592-6
ISSN: 1872-4353
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Australian Centre for Health Law Research
Current > Schools > School of Law
Copyright Owner: Copyright 2015 Journal of Bioethical Inquiry Pty Ltd.
Deposited On: 05 Nov 2015 03:56
Last Modified: 05 Nov 2015 22:54

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