Duty of Care

Duty of Care - doctor patient shaking hands

Introduction

Whether or not a duty of care exists is determined at common law (that is by Court made rules) in most cases. 1

Generally, duty of care is not at issue when the relationship is one of a health professional and their patient. That is, it is a recognised relationship at law in which a duty of care has been found. The Courts often need to do little more than recognise that a duty of care exists (and then move on to other parts of the negligence claim).

The content of such a duty has been described as requiring a health professional to exercise reasonable care and skill in the provision of advice and treatment in all the ways that a doctor or other health professional relates to his/her patients. It extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. 2

There are however some situations in which determining whether a duty of care is owed by a health practitioner needs more detailed analysis. These include for example, when someone is claiming that there existed a duty to third parties, duty regarding pure mental harm, duty regarding pure economic loss, and duty in the cases of statutory authorities. In such cases, a detailed analysis of duty of care will have to be taken, or special statutory provisions applied.

What is considered in a ‘detailed analysis’ is briefly set out below, followed by some examples to illustrate different circumstances and approaches to duty of care.

Establishing a duty of care on first principles

In order to determine whether a duty of care exists in a relationship that has not previously been recognised by the Courts, a detailed examination of the relationship is necessary.

The Court will consider:

  •  whether it was reasonably foreseeable (or in other words ‘not unlikely’) that harm may occur to the class of people to whom the plaintiff belongs (for example, partners of patients) if the defendant were to do something wrong; 3 (For more information about reasonable foreseeability click here).
  • relevant relationship factors between the Plaintiff and Defendant that may (or may not) give rise to a duty of care. For example, the Court may consider the inability of the Plaintiff to protect him or herself from harm (i.e. their ‘vulnerability’), control by the Defendant over the situation/risk, knowledge by the Defendant of risk, and or how close (proximate) the relationship was (this is not just limited to physical proximity); and
  • any broader policy implications of finding a duty of care. 4

Example: Duty of Care to third parties

Duty to third parties
While health practitioners owe a duty of care to their patients, they do not owe a duty to everybody.

They also do not have a general duty in the law of negligence to come to the rescue of strangers, in actual or potential danger or peril. (Note a duty may arise in certain circumstances – see Lowns v Woods) 5.

But when an established category of duty does not exist, this is not necessarily the end of the question. A detailed analysis of the relationship will be necessary in order to determine if a duty existed.

This section provides examples of contexts in which third parties (non-patients) have claimed that a duty of care was owed to them.

Duty has been found

Examples of relationships in which a duty of care to a non-patient have been found include:

  • a duty to a non-patient in an emergency (in specific circumstances in which a doctor was asked to come to the aid of a boy suffering an epileptic fit and the doctor was close geographically to where the boy was, a direct request for assistance had been made, there was nothing impeding the doctor from giving assistance (i.e. he had no other patients to attend to), and the doctor knew of the harm that could arise if the boy was not treated quickly); 6
  • duty to a patient’s sexual partner (in circumstances in which the patient had a sexually transmissible disease – HIV; the duty of the doctor was held to be to counsel the patient in relation to their obligations to disclose their HIV status to their sexual partners). 7
  • duty to third parties present during a consultation (in circumstances in which the patient and her parents relied on information provided by the doctor about experimental treatment available to treat cancer in the United States. The parents subsequently took out a bank loan to fund the daughters trip to, and treatment in, the United States. The treatment was available in Australia. Duty of care was found to exist in relation to the parents because there existed a relationship of trust and confidence, and they had relied upon his advice). 8

Duty has not been found

Examples of relationships in which a duty of care to a non-patient have not been found include:

  • Doctors do not owe a duty of care to parents who are suspected of sexually abusing their children, whether or not those allegations are true. 9 The Courts have held on policy grounds that such a duty cannot exist as it would conflict with the duty owed to the child to thoroughly investigate any allegations and to protect the child from harm. It might also create ‘defensive practices’ which would impede proper and thorough investigation.

Duty unresolved/not tested

There are also questions of duty of care that have not yet been resolved or remain untested in Australia.

For example,

  1. does a health practitioner owe a duty of care to warn a third party of a patient’s intended criminal activity or threats of harm?

While a duty to warn does exist in the United States, the issue of duty of care in such circumstances has not been tested in the Australian Courts. In such a case, the circumstances would be most important.

Nevertheless, it might be that a health practitioner is unlikely to be held liable for breaches of confidence for contacting the relevant authorities (for example, the police) if they were concerned about a patient posing a serious risk of harm/death to another. 10

Note, other areas of the law are also relevant. That is, there does exist statutory duties requiring mandatory reporting in certain circumstances to prevent or address certain harm to third parties. For example, mandatory reporting by professionals in relation to suspicion that a child may be at risk of significant harm is required under statute in all states and territories of Australia.

2.   Is there a duty to protect third parties from suffering harm at the hands of a patient?

Again, there is no superior Court authority or statutory provisions that answer this question clearly.

However, in Simon v Hunter and New England Area Health Service [2012] NSWDC 19 it did appear such a duty was assumed – but was very much reliant on the circumstances of the case.

In Simon, a man who suffered severe and chronic mental illness was released into the care of his friend who had agreed to drive him from NSW back home to Victoria. The patient killed his friend on the way. Judge Elkaim in briefly mentioning duty of care, distinguished the case from those where it has been said that a duty of care does not normally extend to cover the acts of third parties 11 as:

“the third party here is one known to the defendant and being specifically used to perform a service on behalf of the defendant, namely to deliver Mr Pettigrove to Victoria to receive ongoing care.” 12

There was however no detailed analysis of duty of care in the case, as the focus was upon issues of breach and causation – which failed.

In cases that concern a failure to warn, or a failure to protect third parties from harm by a patient, one can only conclude that a first principles approach would be taken to consider the issue in the circumstances of any new action brought in negligence.

Example: Mental Harm

Mental Harm - Duty of Care
Cases in which the Plaintiff’s injury consists of ‘pure mental harm’ (eg. depression), 13 that is not consequential  on some other physical injury require special consideration in relation to duty of care. They provide an example of when statutory provisions are relevant to determining duty of care.

In NSW, Victoria, SA, WA, the ACT and Tasmania, legislation provides that the defendant will not owe a duty of care to the plaintiff unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a mental harm if reasonable care were not taken. (In Queensland and the NT, the common law applies).

In determining whether a person of normal fortitude would have suffered ‘pure mental harm’ in the circumstances of the case, each of the six jurisdictions with legislative provisions require regard to be had to:

  1. whether or not the mental harm was suffered as the result of a sudden shock;
  2. whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger;
  3. the nature of the relationship between the plaintiff and any person killed, injured or put in danger;
  4. whether or not there was a pre-existing relationship between the plaintiff and the defendant. 14

Note the plaintiff need not be of ‘normal fortitude’ themselves, if it is reasonably foreseeable that a person of normal fortitude would have suffered harm.

Note also that these factors do not affect the duty of care of the defendant to the plaintiff if the defendant knew or ought to have known that the plaintiff is a person of less than normal fortitude.

Important cases that relate to psychiatric harm in non-medical contexts are Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35; and Wicks v State Rail Authority of New South Wales [2010] HCA 22.

For the purposes of this brief discussion, it is noted that

1.  Tame v New South Wales; Annetts v Australian Stations Pty Limited stand as authority in Queensland and the Northern Territory where there are no statutory provisions regarding the matter of ‘pure mental harm’; and is still relevant in other states and territories. The two cases heard together, held that the test for duty of care in cases of pure mental harm is one of reasonable foreseeability. Reference may be had to the some of the other factors listed above to help determine reasonable foreseeability, but none are necessary or sufficient to give rise to a duty of care.

2. Wicks is helpful in interpreting the application of the legislative provisions that exist in other states and territories. While ‘normal fortitude’ is now a statutory requirement in assessing reasonable foreseeability (which was not wholly supported in Tame; Annetts), it was held that the other elements named in the statutes may be considered, but do not exclude the finding of a duty of care or the award of damages if they do not exist. That is, the Court reiterated in Wicks that none are necessary or sufficient to determine the question of duty of care in pure mental harm cases. The focus again  should be reasonable foreseeability. 15

For further understanding of the legal considerations surrounding ‘pure mental harm’ in the law of negligence you can read the summaries of these cases below (noting again they are not cases that took place in a health or medical context).

NOTE: Establishing that there was a duty of care is just the first step in a negligence claim. The other elements of negligence must also be proven to exist…

Find out more

Notes:

  1. The ‘common law’ refers to rules made by the Courts by way of judgments.
  2. Rogers v Whitaker (1992) 175 CLR 479, [5]. Per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ.
  3. Chapman v Hearse (1961) 106 CLR 112.
  4. The consideration of reasonable foreseeability, relationship factors, and policy describes the current multi-factorial approach in Australia to establishing a duty of care as it has developed since cases such as Sullivan v Moody (2001) 207 CLR 562 at 579-580 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, and discussed in great detail in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at 676 and [102]-[104] per Allsop P.
  5. See Lowns v Woods (1996) Aust Torts Reps [81] – [376].
  6. See Lowns v Woods (1996) Aust Torts Reps [81] – [376].
  7. BT v Oei [1999] NSWSC 1082 at [64]-[65] and [98].
  8. McCann v Buck, [2000] WADC 81. Note the action nevertheless failed as breach of duty was not established.
  9. Sullivan v Moody (2001) HCA 59.
  10. Sonia Allan and Meredith Blake, The Patient and the Practitioner: Health Law and Ethics in Australia (2014), pp 199, 306-307; Loane Skene, Law and Medical Practice: Rights, duties, claims and defences, 3rd ed, LexisNexis Butterworths, Sydney, 2008, [9.51]. See also UK authority W v Egdell [1990] 1 All ER 835.
  11. Specifically Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256.
  12. Simon v Hunter and New England Area Health Service [2012] NSWDC 19 at [75] per Elkaim SC DCJ.
  13. In New South Wales, Victoria, the Australian Capital Territory and Tasmania the respective statutes require that a plaintiff suffer a recognised ‘psychiatric illness’. See Civil Liability Act 2002 (NSW) s31; Wrongs Act 1958 (VIC) s75; Civil Law (Wrongs) Act 2002 (ACT) s35(1); Civil Liability Act 2002 (TAS) s33.
  14. Civil Liability Act 2002 (NSW) s32; Wrongs Act 1958 (Vic) ss72 and 74; Civil Liability Act 1936 (SA) s33; Civil Liability Act 2002 (WA) s5S, Civil Law (Wrongs) Act 2002 (ACT) s34; Civil Liability Act 2002 (TAS), s 34.
  15. Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60 at 76-77.