His family are supportive, they're aware of his alcohol and drug 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 & Alcohol abuse and personal problems.
No need for follow-ups.
88 My conclusion that neither the plaintiff nor Allan Presland requested discharge is strengthened by the omission from Dr Nazarian's notes of any suggestion that they did so. There were a number of other matters which were relevant to be considered in the doctor's assessment to which no reference is made in his notes. It was argued that I should not place much weight on the omission of any mention of those matters since notes are made in the course of an interview when it may not be desirable to write down a number of matters, either because it is necessary to concentrate on the consultation or because that might indicate to the patient that the matter is of particular importance or both of these reasons and, perhaps, others also. Of course, the purpose of making such notes is to create a record of the consultation, not only for future treatment by the psychiatric registrar but for reference by future carers or doctors and against failures of recollection which, in the course of any busy practice, are likely. This is so obvious that I accept Dr Nazarian's own evidence to the effect that he made a note of all matters of importance. I should also make the observation, at this point, that of itself the fact - if it were the fact - that the plaintiff wished to leave the hospital is not decisive of the ultimate issue in this trial, since the plaintiff's case is that, whatever his wishes, it was negligent for the defendants to have released him, in other words, not to have kept him as an involuntary patient in accordance with the Act, whether as a mentally ill or a mentally disordered person. To my mind, the significance of the finding that the plaintiff did not express a desire to leave the hospital is that this renders a number of explanations given by Dr Nazarian as to why relevant and important matters were not either raised or explored with the plaintiff unlikely to be accurate; the finding that Allan Presland did not seek the immediate release of his brother similarly removes that explanation for not raising or exploring matters with the plaintiff. At all events, the desires of Allan Presland, however strongly expressed, were only of the most marginal relevance and should have been disregarded. The risk - in the circumstances as described by the nurses and Dr Nazarian himself - that he was overbearing his brother is obvious. It is important to note that, even if the plaintiff and his brother had indicated - however strongly - a desire to leave the hospital, they had consented to seeing Dr Nazarian before doing so and permitted him to assess the plaintiff. The notion that they would have dismissed any opinion that Dr Nazarian expressed concerning the desirability for the plaintiff to remain in the hospital for a short time - perhaps a few days - to enable his condition to be explored and to obtain some explanation for his bizarre behaviour and fearful thoughts is, in my view, fanciful. The significance of these considerations will become more evident as I deal with Dr Nazarian's evidence and the opinions of the defendants' experts. Dr Nazarian also said, and I accept, that he had the plaintiff's hospital file with him during the consultation. That file should have contained the ambulance report, the JHH admission note and the police escort report setting out the details of the events that led to the plaintiff's admission to the hospital. Had they been in the file and had Dr Nazarian given them appropriate consideration, I think it likely that both the consultation and its outcome would have been quite different. However, I think it probable that these documents were not, for some reason, in the file at this point. This, however, is not the end of the matter so far as Dr Nazarian is concerned since I am persuaded that his consultation was, in a number of respects, at all events seriously inadequate.
89 Dr Nazarian said that, after he had introduced himself, he asked the plaintiff how he ended up in hospital and what had happened. He said that Allan Presland told him that it was an accident and the plaintiff agreed with this. These answers, in all the circumstances, are so much at odds with any reasonable view of the probabilities that I have concluded that, somehow or other, Dr Nazarian has misunderstood what was said or else Allan and the plaintiff had misunderstood the question. Allan knew that there had not been any accident. He had no reason to suggest that there had been or to omit mention of his fear about his brother's threat to kill himself. Dr Nazarian said that he "confronted him gently by saying 'Are you sure?' and then when they noticed that I didn't believe it, well, they backed off and said 'Well, I was hit on the head by a bat'". (This indicates, at least, that neither plaintiff nor Allan reacted angrily or inappropriately to an implicit contradiction.) Dr Nazarian then noted an account which is significantly at odds with what the plaintiff now says - although, I accept that he may well have been confabulating - but which certainly seems to me to be unlikely to have been said. Dr Nazarian said that he verified this account with Allan Presland. Since Allan was not present at any relevant time, and did not claim to have been present, I do not see how this so-called verification could have occurred. It was obviously inappropriate for Dr Nazarian to simply accept Allan's "verification" without exploring its basis and, unless he did so, the "verification" was useless. If Dr Nazarian had read Dr Sheng's notes with any attention, he would have noticed that Allan Presland's presence at the relevant events was not suggested. Dr Nazarian ascertained that the plaintiff had been drinking heavily and also abusing marijuana. It was this conduct which led to Dr Nazarian proposing that he should undertake drug and alcohol counselling. Dr Nazarian asked about the relationship problem but did not, as it seems to me, explore the significance of the issue. However, he said that the plaintiff's demeanour at this time was such that he was not prepared to discuss the matter further and that he decided that he ought not to press it. There was discussion about the plaintiff's plans in which the plaintiff said that he was going to take a few days' leave and go back to work. Dr Nazarian queried this since he understood that the plaintiff had problems in the workplace and asked him whether he would be safe working with his colleagues. Dr Nazarian said the plaintiff said that it would be okay and they would accept him back at work. Dr Nazarian asked the plaintiff about his mood and whether he felt safe about going home. He said that the plaintiff said that he was feeling tired and was "a bit upset" from the events of the night before and the relationship. Dr Nazarian said that the plaintiff did not strike him as being depressed. He said, according to Dr Nazarian, that it was okay for him to go home and Allan Presland added, "We're a big family, we will look after him". Dr Nazarian said that he tried to convince the plaintiff to stay, saying words to the effect "It is too early to leave the hospital, how about if you rest here?" He said that the plaintiff's response was that he "would rather go and rest at home" and that when he asked whether he had support, Allan Presland repeated his observation about being a big family that could look after him. This matter strikes me as being so significant that a note would have been made of it had the exchange actually occurred. I am satisfied that it did not. Dr Nazarian said that he tried to approach this matter another way by saying to the plaintiff that his head needed attending to but got the response, "Oh we will go to the GP. We have got a good GP. The GP can look after that". I am also sceptical that this was said, having regard both to the lack of a note and to the circumstances. I repeat that I am quite sure that Allan Presland was anxious for his brother to stay in hospital, since he believed that he needed help and that, this being so, I do not accept that he would have suggested that his brother would be better off at home, let alone contradicting the doctor's advice that he should stay in hospital. On every other occasion when the question of staying in the hospital had been raised by medical staff, the plaintiff had responded positively. I do not believe that he had changed his mind. Dr Nazarian confirmed that the conversation ended with his explaining the drug and alcohol counselling service available at Kirkwood House adjacent to the hospital. He said that, whilst the plaintiff and his brother were in the room, he telephoned Kirkwood House and made an appointment for the plaintiff to be immediately assessed. Both the plaintiff and his brother denied that this was done and I note that the clinical record does not mention making an appointment. In the end, I am unable to determine whether such an appointment was, indeed, made. I am inclined to think that it was, but after the plaintiff and his brother left Dr Nazarian's office, since otherwise Allan Presland's behaviour at Kirkwood House does not make sense and I do not think that this is a matter about which he would be confused.
90 Dr Nazarian said that he carried out a mental state examination. No note either of the elements or the fact of such an examination was made by him. He said that although he did not do so formally, he considered the plaintiff's history, his coherence of speech, whether he appeared depressed or indifferent, whether he was restless or agitated, calm or distracted by external stimuli, whether he acted inappropriately, whether his speech was normal or accelerated and whether there were any signs of thought disorder. He said that the plaintiff was calm and co-operative (an important observation inconsistent with the suggestion that the plaintiff was resistant to exploring sensitive issues). He was not restless, his speech was coherent and relevant. The plaintiff said that he was tired. Dr Nazarian asked him how he had slept and said that the plaintiff said that he had slept well, although initially he had problems with sleep because he had been late coming into the hospital. Dr Nazarian said that he did not raise the issue about the plaintiff fearing to close his eyes because the devil might get him. He said, however, that he discussed the issue of the plaintiff being afraid to sleep indirectly because "If you ask direct questions the patients deny it and close the matter" (yet, he asked a direct question about suicidal thoughts - see below). He said that he did this by asking the plaintiff how he slept. If this is correct, it follows that Dr Nazarian regarded this as an important question, as it obviously was, but made no note about the matter. If he had seen the nursing note - and he should have - I find it impossible to accept he would not have recorded that he had asked about sleep and noted the plaintiff's answer, especially in light of Dr Sheng's note about continuing psychotic symptoms. The plaintiff's tiredness, his sleep, his feelings at the hospital, what had happened at the hospital, how his head felt are not mentioned in the notes, either explicitly or implicitly. These were obviously important matters. I am of the view that Dr Nazarian did not ask how the plaintiff slept, and I do not accept his explanation for not exploring the matter mentioned in the nursing notes. Dr Nazarian said, in relation to the delusions, that he could not elicit any when he followed a line of enquiry about whether the plaintiff was feeling safe to go home, safe about walking in the streets and safe about working. In the circumstances, these questions seem to me to be most unlikely to elicit the kind of delusional fear relating to rats and Mr Blake's behaviour and seeing the devil which were actually the matters troubling the plaintiff. So far as his hallucinations, if any, were concerned, Dr Nazarian said that he took account of his "whole behaviour" and also asked him about hearing voices and he said the plaintiff denied it. Dr Nazarian said "I asked him in a, sort of, whether there were strange things happening to him…at the time of the interview". He also asked him whether he had any strange experiences the previous night or the previous day or so but that the plaintiff denied it. He said this denial is reflected in his note of "No psychotic features". However, there is no such note. The only note in this regard is "Diagnosis:- No psychotic illness". I do not believe that the conversation referred to is reflected in this note. The matter is so obviously crucial and the plaintiff's denial (if he gave one) so plainly important that I do not accept that Dr Nazarian would have failed to note it or otherwise thought that the note "no psychotic illness" was remotely sufficient in light of the notes already made by others. I am satisfied that Dr Nazarian did not make a note of the conversation or its effect because he, in fact, did not make any inquiry: the conversation did not occur. Moreover, I think that, so far from a denial, it is probable that any inquiry would have elicited a response consistent with those that had already been made by the plaintiff to earlier interlocutors. Dr Nazarian concluded that he could not see any psychotic illness, nor a psychiatric disorder. He said that "the only thing which was obvious, there was alcohol and drug abuse, and personal problems". He did not see any psychotic illness or a psychiatric disorder, in my opinion, because he did not conscientiously look for them. I regret to say that I think that Dr Nazarian was merely going through the motions and, even then, only some of them.
91 Allan Presland was able to give information about some of the plaintiff's odd behaviour in the weeks preceding 3 July but did not disclose it to Dr Nazarian. However, it seems to me that Dr Nazarian made no attempt or no serious attempt to question Allan Presland about his knowledge of that history. It is obvious that he should have done so. So far as the plaintiff is concerned, Dr Nazarian was aware that there had been a fight with a work colleague, but he did not ask about the details, saying that he checked them with Allan Presland, although he did not know whether he had been present at the time and did not ask. Dr Nazarian, as I have mentioned, asked the plaintiff if "he would feel safe about going home" although this is not recorded in the notes. He also said that he asked whether he felt that "he was at risk of harming himself" and responded, "It's okay". This is scarcely a responsive answer. The question itself implicitly signals that denial is appropriate or even sought. As with a number of other matters to which I have already adverted and which I mention below, Dr Nazarian should have asked open-ended questions which could not be responsively answered by a simple yes or no. The presence of suicidal thoughts is so important a consideration, not only for the patient's well-being and care and because of the issues specified in the Act, but also because the issue had been specifically raised by Allan Presland's call to the hospital during the night, that Dr Nazarian should have not only explored the issue but made a note about it. Even accepting (as I do not) that Dr Nazarian raised it with the plaintiff, not getting some information from Allan Presland about the reasons that he made the call, was, I think, incompetent. In the end, Dr Nazarian relies, in substance, upon his unaided recollection. I have concluded that Dr Nazarian did not ask the plaintiff about the risk of suicide and, at all events, if he did so in the terms deposed to, he did so incompetently.
92 I have mentioned Dr Nazarian's evidence that Allan Presland was harassing staff to release his brother from the hospital and the plaintiff had said that he wished to go with his brother. In those circumstances, it seems to me self-evident that he should have interviewed the plaintiff in the absence of Allan Presland, or attempted to do so, because the possibility that he was being overborne by his brother should have been obvious. Yet Dr Nazarian said that he did not see the importance of ascertaining whether it was the plaintiff's independent wish to leave or whether it was his brother's. The fact that he neither did do so nor sees why it was important to do so is part of the picture which supports my adverse opinion of his competence.
93 Dr Nazarian said that he saw the plaintiff in what he described as a "duress situation". His consultation was not an ordinary one: he felt "under duress". Dr Nazarian said that he asked the plaintiff why he wanted to leave and the plaintiff said that he "wanted to be at home, he felt that everything was finished, it was over, he was feeling okay, he wanted to be at home". Although Dr Nazarian said that he made a note of him wanting to go back to work and wanting to be with his family, no note to this effect was made. Dr Nazarian said, in substance, that as the plaintiff was a voluntary patient seeking to leave, he did not feel it necessary to take, or attempt to take, a full history but rather to review his case to establish whether he might be a risk to himself or to others or (at that time) there was a risk to his reputation if he should be released. He said there was a personal history taken by Dr Sheng but a full history "could not be taken" because, as Dr Nazarian saw it, "I was dealing with a crisis situation which was in front of me and a duress situation so it wasn't like in a situation where I am…assessing everything in a quiet room". On the other hand, Dr Nazarian conceded that the plaintiff answered the questions that he was asked and did not refuse to answer any questions which were asked. Dr Nazarian said that he could not have prevented the plaintiff from walking out if he had wished to do so and, when it was pointed out that neither he nor his brother did walk out, but sat in his room, he responded: "But what they were presenting was different, their behaviour, his behaviour was different. If the day before he was accepting admission and saying, 'Yes, I want to stay', when I saw him - he didn't want to stay - that's the difference". The notes do not so much as hint that this was the plaintiff's attitude, let alone the attitude of Allan Presland. I do not wish to suggest that Dr Nazarian has fabricated it. Rather, I think that he has extensively reconstructed events rather defensively, having regard to the horrific aftermath of the plaintiff's release.
94 It seems to me that there were a number of obvious points which Dr Nazarian should have explored with the plaintiff and which appeared on the records in the file which Dr Nazarian had read shortly before he interviewed the plaintiff. Those matters included what his actual feelings were at the time of his fight, what threats he made and why he made them, why he head butted the security door and attacked the fence, why Bill [Blake] warned him to keep away from his family, why be believed he hit him with a cricket bat, why and in what circumstances the police came and handcuffed him, whether he thought if he closed his eyes he would die and what was the nature of that feeling and how long he had it and whether he still had it, the extent to which people looked like someone he knew, although they were strangers, his feelings when he was brought to John Hunter Hospital that he was dead and in a hearse and later being taken to the morgue when he went for a CT scan, his auditory hallucinations, why he threatened to kill both Bill's rats and his family, what he thought about rats (having regard to Mr Mazun's note of "a bizarre delusional system regarding rats"), whether he still felt that his problem was a "battle between the devil and the good fellow", where and when had he seen the devil, why he did not want to go to sleep and so on. These matters were, one way or another, put to Dr Nazarian as appropriate for him to have raised with the plaintiff. In substance, Dr Nazarian said that he did not do so in any specific way because he thought that the plaintiff would simply deny these feelings or thoughts and seek to present himself as relatively normal in order to go home. He said that he approached these issues in various indirect ways and was satisfied that they did not present any current problem. I do not propose to set out Dr Nazarian's evidence on this topic but I thought that what he said and the way he said it (making all due allowance for his language difficulties) was quite unconvincing. I am satisfied that Dr Nazarian did not seek to explore these matters because he saw his role as ascertaining whether the plaintiff appeared then and there to be frankly exhibiting any psychotic or suicidal symptoms and that, as he was apparently calm and rational, did not think he should go further and explore the likelihood that, in fact, this appearance was deceptive. I have already said that I do not believe that either the plaintiff or his brother had indicated, let alone demanded, that the plaintiff must be released. It follows that the underlying basis for Dr Nazarian's explanation for not exploring the matters that I have mentioned is absent and his explanation must fall away also.
95 On the whole of the evidence, I have formed the view that, more probably than not, had the plaintiff been asked in appropriate, non-leading and non-threatening ways about the matters which were exhibited on the notes made by Dr Sheng, Mr Mazun and the ward nurse, the plaintiff - especially if he was seen alone - would have disclosed further details which would have been extremely significant (and, having regard to the medical evidence to which I will refer in due course) decisive on the question whether he should have been treated as an involuntary patient.
96 Furthermore, Dr Nazarian should have been informed of the plaintiff's trip to the police station and, had he been so informed, should have asked about how this came about. I think it probable that the plaintiff's answers would have been likely to reveal a significant level of mental disturbance. Dr Nazarian repeatedly referred to obtaining confirmatory responses from Allan Presland with respect to the plaintiff's assertions about going home, feeling safe, the circumstances of the fight, his personal and work situation but did not enquire about the relationship between the plaintiff and his brother, how frequently they communicated, whether he was present at any of the relevant events, whether he was prepared to look after him and how he proposed to do it. There was no guidance about what he should do if the plaintiff started to exhibit unusual or bizarre symptoms again. Yet Dr Nazarian placed great reliance upon Allan Presland's apparent agreement with what the plaintiff was saying. This bespeaks indifference, if not incompetence. Dr Nazarian had no recollection of seeing the police escort form but he was, of course, aware that the police had been involved in bringing the plaintiff to the hospital. He failed to make any inquiry of the plaintiff or his brother about this matter, nor - as I think in the circumstances would have been reasonable, especially if he thought the plaintiff did not wish to be forthcoming about the events that gave rise to his admission - did he make any inquiries about the police escort form, which he knew or ought to have known should have been provided. Dr Nazarian said that he did not inquire from the plaintiff about each symptom and each event "because if I go and ask direct questions the answer would be 'No' and it would be over". He said that the best way was to proceed by way of indirect questioning which was by "asking him about his life…his work…his relationship…and…about his family". However, the Doctor was unable to suggest a way by which the indirect questions which he proposed could shed any light upon the symptoms and events which he said he wished to avoid because he thought the plaintiff might bring the interview to an end. It seems to me that, if the plaintiff did so, that would be cogent evidence that he was, indeed, a mentally disordered person, having regard to the history of the previous fifteen hours or so.
97 Dr Nazarian said, as to the note that the plaintiff "thought he was dead and in a hearse" when he arrived at John Hunter Hospital, that it merely reflected that the plaintiff was frightened and did not reflect any anxiety and commented that this "wasn't the matter in fact that I was dealing with". Whilst agreeing that medicine in general and psychiatry in particular is a highly specialised area of learning, this opinion is so patently silly, especially in light of the note about the plaintiff's remark about suicide, that I think it is a mere rationalisation for the doctor's failure to take the matter up.
98 Dr Nazarian agreed that the plaintiff had been violent the night before he saw him, and had threatened even more serious violence, but considered that the way in which "he put it to me, it was socially driven, it wasn't psychotically driven". Dr Nazarian added: "When I assessed him…going to his family, I didn't see any risk factors - he had the social support, he was making good (sic) plans about his future". He said that he did not ask him directly about whether he still saw his problem as being a battle between the devil and the good fellow because he said he could not find any psychotic symptoms and did not know whether he had concluded that his problem was still as he had earlier described it. Dr Nazarian said that, had the plaintiff been actively hallucinating, acutely delusional or totally disorganized, "that would have been a different matter". Dr Nazarian said that he thought that, if there was a psychosis present, it would have come out in delusions, in incoherent speech or other psychotic behaviour in the interview, pointing to the fact that the plaintiff was sitting next to him talking calmly and quietly. However, I think it worth noting that when the plaintiff described to Dr Sheng what he thought his problem was and when he told the nurse that he was frightened of sleeping because the devil might get him, he was also quiet and co-operative, as when he thought he had died and was in the morgue. Typical of Dr Nazarian's approach was that he did not ask about the rats because, as he said, "It…wouldn't have been useful…because it would have come to a denial [and] if you continue denying I cannot do anything". This conclusion was based upon Dr Nazarian's assertion that the plaintiff wished to leave the hospital. I have already said that I do not believe this evidence. But, even if it were true, I do not see why the question ought not to be asked. It is clear that Dr Nazarian's attitude was that unless there were frank psychotic symptoms or suicidal intentions expressed at the time of his interview, he would not detain a patient. As he put it -
"I cannot go and jump on everyone and put everybody in the wards because yesterday he was suicidal, his Honour.
HIS HONOUR: Or murderous?
A. Yes."
99 But, it seems to me, these characteristics were very relevant to an assessment on the following day whether the patient is a mentally ill or a mentally disordered person. Dr Nazarian said that he did not know what the reference in the Psychiatric Nursing History to the plaintiff's "bizarre delusional system regarding rats" was based on but said he did not ask about the rats, since he asked about whether his work colleague would accept him back at work. This reasoning is obscure, to say the least, but at all events, since Mr Blake was not the plaintiff's employer (and I do not believe that the plaintiff would have said that he was) the reasoning is faulty. So far as the note about the threat to kill was concerned, Dr Nazarian said that it was made under the effects of alcohol. There was no evidence of that at all and, in so far as there was any information, it was to the contrary. Dr Nazarian said: "I asked him about his work and whether the boss will accept him and whether he was safe there and his answer was that he was. So you're talking about going back to the rat, you know. That's as much information as I could get out of him then". It was not "as much information as [he] could get out of him then": it was as much information as was responsive to the questions that were asked. However, Dr Nazarian's explanation is based upon a mistaken assumption, which Dr Nazarian never explored, although he should have and, I am convinced, an assumption which was dangerous. The question was not whether the plaintiff felt safe about returning to work. The delusion about the rats occurred at Blake's house; it was about whether Mr Blake and his family were safe. As to the sentence quoted above, it should be evaluated in the light of the fact that neither the plaintiff nor Allan Presland refused to answer any questions.
100 Although Dr Nazarian said that he asked the plaintiff about whether he was having any unusual experiences and "sort of seeing things, hearing things" and that the plaintiff denied this, there is no reflection of such an enquiry in his notes and I do not believe that it was made. I also think that it was inadequate to confine the area of discourse to the immediate present, given the history. Dr Nazarian said that he told the plaintiff, in effect, that it would be good for him to stay in the hospital and that his response was that he would rather go home, which was also his brother's view. I do not believe that a conversation like this occurred.
101 I note from the Doctor's statement, which is undated but apparently made shortly after 25 July 1995, he states that the plaintiff "denied having delusions or hallucinations". It is difficult to know what to make of this, since the Doctor did not ask a question to which this would have been an answer. It is important to note that the statement was prepared at the request of the police and, of course, in light of the tragic death of Ms Laws at the plaintiff's hand. It is inescapable that the Doctor must have considered whether or not he was right to have released the plaintiff when he did. It seems to me significant that, although Dr Nazarian says that he was informed by the nurses that the plaintiff intended to leave the hospital and that he found him sitting with his brother with his bag already packed to leave (this plainly being an assumption), the statement never adverts to any indication given to Dr Nazarian in the interview that he did not want to stay in the hospital and wanted to leave, nor give the slightest intimation that the Doctor was under any difficulty in properly assessing the plaintiff or that the plaintiff was hesitant or evasive in respect of any information the Doctor sought. It may be that Dr Nazarian now believes that his interview was significantly curtailed by what he described as "duress" but his failure to mention this consideration in his statement to the police - considering the purpose for which the statement was obviously provided - reinforces my view that this is very much an ex post facto rationalisation.