Watson v Cade

In the other action brought by the plaintiff against the superintendent of the hospital, the question has arisen whether the detention of the plaintiff in the hospital continued to be lawful or became unlawful by reason of a failure to comply with the requirements of s. 42 and particularly those of sub-s. (4) thereof. If that question were relevant to the present action, it would be difficult to resolve it because the evidence in this action does not include the details of what took place after the plaintiff's admission to the hospital. But, in my opinion, this is of no importance. It is plain that the present defendant could not be affected by any decision that might be made as to the subsequent failure at the hospital by other persons to comply with the provisions of the Act. He is not liable, in my opinion, for the subsequent detention of the plaintiff, whether it was lawful or not. It cannot be said that any act of his was, in a relevant sense, a cause of the subsequent detention. This is, in my opinion, a stronger case for refusing to treat the subsequent detention as a consequence of the defendant's act for which he is liable than was the case of Harnett v. Bond [1] , to which I was referred. Notwithstanding later developments in the law concerning remoteness of damage and liability for the "direct consequences" of an act, I am of opinion that the reasons given in that case [1] for the conclusion that the defendant Bond was not liable for what occurred after the plaintiff had been returned to the licensed house, where it became the responsibility of others to determine whether he should be detained or not, have not been invalidated by later decisions and are applicable, a fortiori, to the present case.

1. [1925] A.C. 669. 2. [1925] A.C., at pp. 682, 686 and 689.

In this case there was no contumelious disregard by the defendant of the plaintiff's rights. The conduct of the defendant was not insolent, vindictive or malicious. There was no lack of courtesy in his treatment of the plaintiff.

The evidence did not show that the plaintiff suffered any pecuniary loss by reason of the defendant's acts. It is true that he had patients waiting for consultations with him and no doubt these people had to go away without seeing him on that day. But the inability of the plaintiff to continue with his practice was not something for which the defendant was responsible. At the most, the defendant's acts could have caused a postponement of the consultations which otherwise the defendant would have had on 25th July. But it was what occurred afterwards at the hospital that was the real cause of the disruption of the plaintiff's practice.

The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. The damages are at large. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account. But in all the circumstances of this case I think that an award of a fairly small amount of damages is proper. The greater part of any distress of mind suffered by the plaintiff was the consequence of the subsequent events for which the defendant is not responsible. I assess the damages at $200.

I order that judgment be entered for the plaintiff for $200 damages and for his costs of the action. I make the usual order as to the exhibits.

Aug. 4 Walsh J . delivered the following written judgment: -

At the hearing of this action it was agreed by the parties that the evidence given at the trial of Watson v. Marshall should be treated, so far as it was relevant, as evidence in this action. The reasons for judgment in the former case, which I have published today, give an account of the circumstances in which the plaintiff was taken, on 25th July 1967, from his rooms in East Melbourne to the Royal Park Hospital, of which the defendant, Dr. Cade, was the superintendent. I wish to incorporate in these reasons all those parts of my reasons in the other case which are relevant to the present action.

I find that when the writ was issued on 28th September 1967, the plaintiff was a resident of the State of New South Wales and the defendant was a resident of the State of Victoria and I hold, therefore, that this Court has jurisdiction to entertain the action. My reasons for this finding are stated in my judgment in the other action.

This is an action for trespass to the person and false imprisonment. The plaintiff, having been admitted to the hospital on 25th July, remained there until 1st August. He claims that throughout that period he was detained there wrongfully by the defendant. The defendant, whilst not admitting that he detained or imprisoned the plaintiff, has pleaded justification. His statement of defence refers to sub-ss. (1), (2), (4) and (5) of s. 42 of the Mental Health Act 1959-1969 Vict. (the Act). It refers also to s. 64 (1) and to s. 103.

In addition to the evidence given in the other action, I heard evidence in this action called on behalf of the defendant from the defendant himself, from Dr. Elizabeth Ross, who had admitted or authorized the admission to hospital of the plaintiff on 25th July 1967, from Dr. Chesler, a psychiatrist who worked at the hospital, and from Mr. Howell, who was then the secretary of the hospital. The plaintiff and his wife gave some additional evidence and he called Dr. Albiston, a psychiatrist. Some additional documentary evidence was admitted, including a report made in August 1967 to solicitors then acting for the plaintiff, by Mr. Conway, a psychologist.

In the evidence there was some conflict upon the question whether the opinion formed by Dr. Cade, when he examined the plaintiff on 26th July 1967, that he was suffering from "highly systematized delusions of persecution" and from a condition called paranoia and similar opinions of Dr. Ross and Dr. Chesler were correct assessments of his condition. Since, upon the view that I take of the provisions of the Act as applied to the facts of this case, it is not necessary for me to resolve that conflict, I do not intend to examine closely the expert evidence of the witnesses who expressed opinions about the condition of the plaintiff at that time. But I make the following findings, which could have a bearing upon the legal consequences flowing from the formation by the defendant on 26th July of the opinion that the plaintiff ought to remain in the hospital for observation and required treatment and from the detention of the plaintiff in the hospital for some days thereafter. I find that the defendant (who was a highly qualified and very experienced psychiatrist) acted in good faith and honestly and that he believed genuinely that the plaintiff's condition was such that he ought to remain in the hospital. I find also, although it is doubtful whether this is relevant to the action as framed, which includes no claim based on negligence, that in forming his opinions upon the material then before him and without making further inquiries, the defendant did not fail to exercise reasonable care.

I find that the admission of the plaintiff to the hospital was lawful. I find that the three documents to which s. 42 (1) refers were produced and that they were in accordance with the requirements of the Act and of the Regulations made under it. Any errors of fact contained in the particulars set out in the documents had no invalidating effect upon them or upon the admission of the plaintiff to the hospital. It is to be noticed that s. 42 (1) does not require any specified person to authorize an admission or to examine the person to whom the documents relate before admitting him. But, in fact, the plaintiff was examined by Dr. Ross (then Dr. Arnold), who was then a qualified medical practitioner with some experience in psychiatry, although she had not yet completed her specialist training in that field. I find, although once more the relevance of this finding is doubtful, that she formed the opinion honestly and in good faith that the plaintiff was suffering from a condition of paranoid psychosis.

Although there was some uncertainty in the evidence as to what documents were included in "the case records" of the plaintiff, I find that the opinion of the defendant was endorsed on the request for admission and was entered in the plaintiff's case records, in accordance with s. 42 (5). I find that the secretary of the hospital performed the duties imposed on him by s. 60 (1) of the Act. Notwithstanding that on the report, exhibit 11, the date 14th August 1967 is typed (having been put there, I think, as a result of some error), I find that the superintendent fulfilled the requirements of the Act and of the Regulations concerning the making of a report to the Chief Medical Officer. Subject to one question which has yet to be considered, I am satisfied that the admission of the plaintiff into the hospital and his detention in it during the whole of the period for which he was detained were expressly authorized by the provisions of the Act (ss. 42 and 64).

The question which remains for consideration is whether the defendant complied with the requirement of s. 42 (4) that every person admitted under s. 42 "shall without delay be examined by the superintendent". The plaintiff was admitted on 25th July, about the middle of the day. The defendant examined him on the morning of 26th July. It was not proved that it was not possible for the defendant to see the plaintiff on 25th July. The plaintiff said that he had asked that the superintendent should see him on that day but it was not proved that this request had been communicated to the defendant. The defendant knew on 25th July that the plaintiff had been brought to the hospital. The evidence shows that there was a regular practice that patients who were admitted on one day were seen by the superintendent on the following morning. According to Dr. Ross and Dr. Chesler this was the routine of the hospital. But in cases in which it was thought desirable to do so, the doctor attending to the admission of a patient would call upon the superintendent to consider the case. In the present case, Dr. Ross felt no such doubt as made her think it advisable to consult the superintendent and it appears that the defendant himself did not perceive, in anything which he knew of the matter on that day, any reason to depart from the usual practice of seeing new patients on the following morning.

The hospital admitted about 3,500 patients per year, of whom about two-thirds were voluntary patients and the remaining one-third were "recommended" patients. On an average there were nine or ten admissions per day. On any day there might be an admission of several recommended patients and it appears from the register that on 25th July 1967 there were six of those patients. The superintendent had many duties. It would not be practicable for him to go immediately to examine every patient as soon as he or she was brought to the hospital. It would not be useful for him to go to see such a patient merely for the sake of putting in an appearance and without spending sufficient time with him or her to make a reliable assessment.

In my opinion, the words "without delay" as used in s. 42 (4) have not a rigid meaning. They should not be read as requiring that no more time should elapse between admission and examination than is necessary, in a physical sense, for the superintendent to go to see the patient. What is required, in order to comply with the provision, must depend upon the circumstances. It is not possible to specify a period of time and to say that an examination within that period satisfies this provision and an examination outside it does not. In my opinion, it should not be held that an examination must necessarily be made on the day of admission. A person might be admitted so late in the day as to make impracticable an examination of him or her on that day. I do not think that this provision should be construed as imposing a more stringent obligation than that which is imposed by the proviso of s. 12 (1) of the Mental Health Act, 1958 N.S.W.. I have come to the conclusion that it is proper to find, in the circumstances of this case, that the examination was made "without delay" within the meaning of s. 42 (4). Coupled with the conclusions which I have stated earlier that conclusion has the consequence that I find that the defendant has shown that the detention of which the plaintiff complains in this action was authorized by the Act and his action must fail.

If I had found that the plaintiff was not examined "without delay", some interesting questions would have had to be answered. Although it is not necessary for me to decide these questions I propose to make some observations upon them.

If I had held that the plaintiff had not been examined by the defendant "without delay", it would have been necessary to consider whether that failure to observe the requirements of s. 42 would have deprived the defendant of the benefit of the authority given by that section for the admission and detention of the plaintiff. There was evidence, which I accept, that if the defendant had examined the plaintiff on the day of his admission, the same opinion would have been formed and the same action taken as were formed and taken on the following day. It may be suggested therefore that there was in fact no causal relationship between the detention of the plaintiff and the fact that he was examined on the following day and not on the day of admission and that if a breach of the requirement of s. 42 (4) was committed, it had no practical consequence and could not affect the lawfulness of the detention of the plaintiff. I need not determine whether or not that is a correct view of the operation of s. 42. But I think it is proper to say that I am satisfied that in fact the plaintiff was not prejudiced as a result of not being examined by the superintendent on 25th July.

It was submitted, also, that any right which the plaintiff could obtain in respect of a failure by the defendant to act in accordance with s. 42 (4) could only be a right to sue for breach of statutory duty, for which the plaintiff has not sued. Such a breach would not, according to the argument, affect the lawfulness of the admission of the plaintiff into the hospital. With that I agree. Then it was submitted that such a breach would not affect the lawfulness of any part of the detention of the plaintiff, the whole of which would still be authorized by s. 42 and by s. 64. I am disposed to disagree with that submission but need not express a concluded view upon it.

Then it was argued that if a failure to examine "without delay" could make any part of the detention of the plaintiff unlawful, this could affect only the interval of time between the time at which, in the judgment of the Court, the examination should have been made and the time at which it was made in fact. Once it had been made, sub-s. (5) (b) would operate to authorize detention, for a period not exceeding twenty-one days. That subsection would operate in respect of the examination made by the defendant, even if this had taken place later than sub-s. (4) required. This argument is attractive. It would be an odd result that if an examination had been delayed the superintendent should then be without any justification for not discharging the patient at once, although of opinion that he ought to remain for further observation or that he required treatment. Again I need not express any concluded view on this question.

It was submitted that, even if the admission or the detention of the plaintiff had not been shown to be authorized, the defendant was not responsible, under the maxim respondeat superior or otherwise, for anything done by Dr. Ross (then Dr. Arnold) or by other persons employed at the hospital, including the wardsmen who had physical control over the plaintiff; and it was submitted that it had not been proved that the defendant personally had confined the plaintiff or committed any wrong against him. With these submissions I do not agree. It is true that Dr. Ross and the other members of the staff of the hospital were not servants of the defendant. But if it had been held that what occurred was not authorized by the Act, I think that the defendant would have been responsible for the detention of the plaintiff, at least from the time when the defendant endorsed, on the request for the admission of the plaintiff, his opinion that the plaintiff should remain in the hospital.

As I indicated at the hearing of the action, the evidence that it was the ordinary practice that patients were not examined until the day after their admission has caused me some concern. I do not question the honesty of the opinions given in evidence to the effect that this practice worked satisfactorily and that the risk was very small that it might cause a person to be detained overnight who ought not to be so detained. I am conscious that in the administration of a mental institution, an ordered programme for the carrying out of the duties of the superintendent and those of members of the staff is needed in the interests of practical efficiency. Nevertheless, I suggest that the Minister and the Mental Health Authority may think it proper to give consideration to the taking of steps to ensure, as far as it is possible to do so, that "recommended" patients are not detained overnight or for any considerable length of time, without having been examined by a qualified psychiatrist who has had some years of experience in that field. The responsible authorities may think fit to consider whether or not the requirement in s. 42 (4) that the superintendent (by definition this includes a deputy superintendent) must examine the patient "without delay" may create in some hospitals a practical difficulty which may be lessened without reducing the safeguards, provided by the Act, against unnecessary detention, by an amendment allowing the examination in accordance with s. 42 (4) to be made by some other psychiatrist of specified qualifications and experience. In any event, it may be thought desirable that s. 42 (4) should define more clearly the time within which the examining doctor is to conduct the examination rather than imposing in mandatory terms an obligation to do so "without delay".

I wish to make it clear that in making the foregoing suggestions I am not to be taken as implying any reflection upon or criticism of the defendant or of Dr. Chesler or Dr. Ross. I do not suggest that the examination made by Dr. Ross was not carried out in a competent manner or that an assessment different from hers might have been made in this case by a senior psychiatrist. So far as the defendant is concerned, I am satisfied that he was fully conscious of the responsibilities resting upon those who have to decide whether or not a patient ought to remain in a mental institution and that he would not and did not make such decisions lightly or without thought of their consequences. I have been impelled to make some suggestions by the thought that, whilst it may be impossible for practical reasons for a superintendent or his deputy to attend promptly to all cases, it may be that an unnecessary detention of a person could occur in a case in which it would not occur if an experienced psychiatrist examined that person very shortly after his or her arrival at the hospital. Although this may be unlikely, any practical measure that could reduce the possibility of such an occurrence must be worthy of consideration. As already mentioned, s. 42 (1) does not require that anyone should make an examination after the arrival at the hospital and before the admission of a person who has been recommended for admission. The safeguards provided against a wrongful admission and detention consist of the requirement that the admission be recommended by a medical practitioner (who need not be a psychiatrist) and of the procedures set out in sub-ss. (4) and (5). It is possible that these safeguards could be improved without detracting from the effective operation of s. 42 for the important purposes it is designed to achieve.

In the present case, the acts of which the plaintiff complains were authorized by the Act and his action must be dismissed.

I direct that there be judgment in the action for the defendant and I order that the plaintiff pay the costs of the defendant. I make the usual order as to the exhibits.