The Liability of Providers of Mental Health Services in Negligence

In Hunter and New England Local Health District v McKenna the High Court considered the question of the liability in tort of a mental health provider for the actions of someone whom it had briefly treated. After involuntarily detaining the individual under relevant legislation, the service released the individual into the care of a friend. The person released killed his friend. The High Court allowed an appeal against a finding of the New South Wales Court of Appeal that the mental health service provider had owed, and had breached, legal obligations to the family of the person killed, denying compensation to the family on the basis that the service provider did not owe family members a duty of care. It will be argued that the High Court was wrong to deny that a mental health service provider could owe, or did owe, a duty of care to victims of those to whom the service provider provided services. The Court reached its decision utilising reasoning contrary to that of other cases which have involved questions of the liability of public authorities. The decision travels the well-worn path of denying that a public authority owes a duty of care to the public that it serves by asserting the inconsistency of obligations more apparent than real. The decision shows judicial reluctance to hold public authorities to the legal standards expected of other service providers, a reluctance that must be challenged.