Liability for failure by police to detain potentially suicidal and dangerous persons: Kirkland-Veenstra v. Stuart.

The author scrutinises the ramifications of the important decision by the majority of the Victorian Court of Appeal in Kirkland-Veenstra v Stuart [2008] VSCA 32 against the backdrop of the New South Wales Court of Appeal decision in Hunter Area Health Service v Presland [2005] NSWCA 33. He argues that in principle the imposition of civil liability upon police officers who fail to take a potentially suicidal or dangerous person pursuant to their statutory powers for examination or assessment is an appropriate accountability mechanism likely to improve the quality of policing in the public interest.

Key words: civil liability; civil liberties; dangerousness; mental illness; police accountability; policing discretion; psychiatric injuries; s 10 of the Mental Health Act 1986 (Vic); suicidality.

Introduction

The decisions of Adams J in Presland v Area Health Service [2003] NSWSC 754 and then of the New South Wales Court of Appeal in Hunter Area Health Service v Presland [2005] NSWCA 33 raised important issues arising from a failure on the part of psychiatrists and psychiatric wings of hospitals to exercise their statutory powers of coercion to detain psychotically unwell patients who pose a danger to themselves or others (see Freckelton, 2003; Scott, 2006). The focus of the Presland decisions was upon the entitlement of such a patient to gain compensation for reasonably foreseeable psychiatric injuries sustained as a result of violent acts committed during a period of psychotic illness after a failure to be detained.

The next and not wholly compatible phase in such litigation is Kirkland-Veenstrav Stuart [2008] VSCA 32; Stuart v Kirkland-Veenstra [2008] HCATrans 217, where Victorian police officers were sued by a widow for a failure by police to take a psychiatrically unwell man for assessment, pursuant to their statutory powers, after they discovered him in a remote place apparently contemplating suicide. He subsequently took his life and it was contended on behalf of his surviving wife that had the police properly invoked their statutory powers and/or acted in such a way as to comply with their duty of care toward him, he would not have died.

The majority decision in Kirkland-Veenstra by the Chief Justice of Victoria and the President of the Court of Appeal is very significant as it explores the extent of the liability of those possessed by virtue of statute of the capacity to protect vulnerable people with mental illnesses against the consequences of their psychotic symptomatology. While in Hunter Area Health Service v Presland [2005] NSWCA 33, the New South Wales Court of Appeal declined to permit the mentally ill plaintiff to recover, principally because a person is not permitted to profit from their criminal conduct (actio non oritur ex turpi causa), but also for public policy reasons, in Kirkland-Veenstra v Stuart [2008] VSCA 32 the majority in the Victorian Court of Appeal permitted recovery and did not find that public policy reasons militated to the contrary. This opens the door to civil actions by persons with psychiatric disorders and those who are injured by them, as well as by dependents, for failure of those with statutorily-endowed powers, such as to detain them or to maintain them as inpatients, to discharge their duties of care to take assertive steps to avoid foreseeably adverse consequences.

This article analyses the incompatibility of the two decisions, the public policy issues that underlie the differences, and the likely direction of future judicial decisionmaking in the area.