Friday, 15 May 2009

No general duty to rescue

We're not usually interested in discussions of negligence torts law, but this case might have implications in the Magistrates' Court. In Stuart v Kirkland-Veenstra [2009] HCA 15, the High Court considered if police officers owe a duty of care to prevent a person from committing suicide.

The Victorian Court of Appeal previously held that a duty of care existed.

The High Court disagreed.

Gummow, Hayne and Heydon JJ decided the Mental Health Act 1986 s 10 provides a statutory power to police to detain people who appear mentally ill if they reasonably believe the person is likely to harm themselves, at [81]. (That's a paraphrase of the legislation: see the judgment for the detailed exploration of the power.)

They emphasised that the section bestowed power that may be used, at [82]. They considered that the duty purportedly imposed on the police was properly categorised as a duty to exercise that statutory power, rather than a common-law duty to prevent self-harm.

They then discussed statutory duties, at [112]. They said it takes more than the existence of a statutory power and a reasonable foreseeability that harm will occur if the power isn't exercised, to establish a duty to exercise that statutory power.

Instead, a court will look at who can control and prevent harm occurring. In this case, it was Mr Veenstra who controlled the risk of harm to Mr Veenstra, at [114]. That was important in deciding there was no common-law duty to exercise the power under s 10.

In their joint decision, Gummow, Hayne and Heydon JJ said:

[88] Personal autonomy is a value that informs much of the common law. It is a value that is reflected in the law of negligence. The co-existence of a knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law. As Dixon J said in Smith v Leurs, '[t]he general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third.' It is, therefore, 'exceptional to find in the law a duty to control another's actions to prevent harm to strangers.' And there is no general duty to rescue.

French CJ considered there was no power under s 10 available to the police, because the police had no reason to believe Mr Veenstra was mentally ill, as defined in the Act. He reasoned that a stated intention to commit suicide didn't automatically equate to mental illness. There was no reason to believe Mr Veenstra was mentally ill. So the police had no power to detain him. And, they couldn't be under a duty to use a power not lawfully available to them.

Crennan and Keiffel JJ said the common law didn't oblige anyone to protect someone else from self-harm, at [127], though legislation might. But at [147], they too observed that s 10 required the police reasonably believe a person was mentally ill before they had any power to act. They too said recent attempts or an intention to commit suicide didn't mean a person was mentally ill. That meant the police didn't have any power to detain Mr Veenstra. And because that power wasn't available, there was no question about whether or not the police should've exercised it.

The Victorian Government Solicitor's Office (VGSO) describes the history of the case, and analyses the High Court's decision, on its website.

Another perspective is available from ABC Radio National's Law Report.

It's interesting to consider this judgment in light of a Coroner's decision delivered two days ago. The Age reported the Coroner criticised two police officers who left a man on the Sturt Highway, about 12 km out of Mildura. Paul Carter was intoxicated, and the police were taking him to his father's house when he asked them to let him out and walk. Soon after he was killed by a truck, after deliberately twice running in front of trucks with the intention of getting hit.

It's difficult to know precisely what the Coroner said. I can't find Coronial findings online (let me know if they are available somewhere), and it might be The Age hasn't covered all the nuances of the finding.

And of course, Coronial findings focus on different legal issues to determining liability in negligence law.

But it seems there might be some difference between the Coroner's findings and the reasoning of the High Court.

And no doubt we'll see more litigation on the scope and content of police officers' duties to protect members of the public.


Anonymous said...

This judgment handed down by the High Court is a disgrace. It is reasonable to believe that someone attempting suicide is mentally ill. The police should have apprehended him and brought him to the hospital for assessment to determine if he was mentally ill not not. The Court held that suicide or attempted suicide is does not equate to mental illness. Yet statistics show that most people who die by suicide have a major mental illness and the dsm lists depression and bipolar disorder as having symptoms of thoughts of suicide.

Cecile Masingue said...

I have to disagree with you when you say that 'statistics show that most people who die by suicide have a major mental illness'. Where have you gotten your statistics from? The Court was correct when they stated that suicide does not equate with mental illness. Intertwining the two is a common misconception in society, which is inappropriate. If you look at the definition in the Mental Health Act (the same Act used in this case) you will see that a mental illness must be an internationally recognised illness. So someone who is emotionally distressed (ie maybe financial, marital problems, etc) does not necessarily have an internationally recognised mental disability. Some people who have full mental capacity are just fragile, emotional and consider the 'death choice'.
- A report published in 2002 based on data provided to the WHO reported that “whilst on the one hand, suicide is found in association with a variety of mental disorders, on the other hand, no single mental disorder is found in association with suicide"
- A further 2009 study analyzing data from individuals in Canberra and concluded that despite research indicating the extent to which suicidality and depression co-exist, the present study shows that people can experience suicidal thoughts and behaviours independently of depression, just like people can experience depression without anxiety or suicidal symptoms.