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This article was first published in the Health Law Bulletin as: Maddison Summerhayes, “Deliberate, fraudulent, negligent diagnosis of mental illness and an absence of consent on admission to a mental health ward: Stewart v Hames” (2022) 30(1) HLB 16.

Introduction

The case involved a claim by the plaintiff, Mr Stewart, against Rockingham Hospital, (the Hospital)¹ for fraudulently or negligently making an involuntary patient order against Mr Stewart whilst he was a patient in the Hospital.² A total of 68 claims were made against 10 defendants (the Defendants).³ The claims arose from Mr Stewart’s stay as a  patient  at  the  Hospital  from 17 September 2013 until 2 October 2013 and events occurring after his discharge.⁴

Mr Stewart’s claims against the Defendants included: fraudulent concealment of falsified medical records, occupiers’ liability, deceit, absence of consent to admission to a mental health ward, reprisals, misfeasance in public office, intentional infliction of emotional distress, conspiracy, fraudulent medical misdiagnosis, negligent misdiagnosis, false imprisonment, assault and battery, and fraudulently falsifying an involuntary order.⁵

The heart of Mr Stewart’s claim was that he was fraudulently and/or negligently misdiagnosed with a mental illness and subsequently falsely imprisoned under ss 29 and 43 of the Mental Health Act 1996 (WA) (“MHA”).⁶ He further claimed that the Defendants’ misdiagnosis was intended to prejudice him in any complaints he made to the police or in litigation, by being stigmatised as having a mental illness.⁷

Judge Bowden of the Western Australian District Court (the Court) considered each  legal  element  of  Mr Stewart’s claims and held that he had not satisfied the Court that his diagnosis of mental illness (that gave rise to an involuntary patient order) was not widely accepted by the doctors’ peers as competent professional practice.⁸

Background

On 17 September 2017, Mr Stewart voluntarily attended the Emergency Department (ED) of the Hospital with concerns regarding thyroid issues and a possible panic attack or heart attack.⁹ Two senior medical officers (“SMOs”) assessed him and formed the impression that he was suffering from a manic episode with eccentricity/mania.¹⁰

It was recommended Mr Stewart be voluntarily admitted to the mental health unit of the Hospital, Mimidi Park (“Mimidi”).¹¹

Mr Stewart was admitted to Mimidi as a voluntary patient on 18 September 2013. He alleged that he was not advised he was being admitted to the mental health unit and gave no informed consent to that admission.¹² On 19 September 2013 Mr Stewart suffered an injury to his shoulder when he restrained a male co-patient who had attacked an elderly female patient in Mimidi.¹³ Following the assault, he was taken by a nurse to the ED for a shoulder x-ray.¹⁴ Mr Stewart repeatedly demanded that the nurse call the police regarding the assault.¹⁵ The nurse made a call about placing Mr Stewart on “forms” — the process to have him admitted as an involuntary patient.¹⁶ Mr Stewart then fled the Hospital to a nearby house to call the police.¹⁷ He was brought back to the Hospital by the police, and he was reviewed by a senior medical officer at or about midnight  on  19  September 2013.¹⁸ On 19 September 2013, Mr Stewart was placed on a “Form 1” under the MHA which enabled the Hospital to detain Mr Stewart until he was assessed by  a psychiatrist.¹⁹

On 20 September 2013, Mr Stewart made complaints to the Hospital regarding his placement under a Form 1 and the failure of the staff to call the police.²⁰ Mr Stewart was reviewed by a psychiatrist and declared an involuntary patient on the basis that he was having a manic episode.²¹ Mr Stewart was subsequently placed under “Form 6” per s 43(2)(a) of the MHA, meaning the psychiatrist may make him an involuntary patient and he be detained in an authorised hospital as an involuntary patient.²² This was on the basis that he was having a manic episode.²³

Throughout the course of his stay at Mimidi, Mr Stewart admitted that he had faked chest pains and a coma to avoid taking his medication.²⁴ He was restrained and forcibly injected with medication after refusing to take his oral medication.²⁵ Mr Stewart was ultimately discharged from the Hospital on 2 October 2013.²⁶

It was not until the following year that Mr Stewart went on to request access to his medical records in March 2014.²⁷ The  Hospital released only part of Mr Stewart’s medical records under the Freedom of Information Act (1992) (WA) (“FOI Act”) and then released further redacted medical records in September 2014.²⁸

Throughout 2014, Mr Stewart made several complaints against the Hospital.²⁹ These complaints included a formal complaint to the Minister of Health in Western Australia in 2014.³⁰

Mr Stewart subsequently asserted that several reprisals were carried out against him after he contacted the Hospital in March 2014 in relation to his medical records.³¹ An example of a reprisal allegedly carried out against Mr Stewart included a reference to one of the Hospital staff “contacting the Police on 6 March 2014 to have him arrested and brought back into the Hospital”.³²

Defendants’ claim

The Defendants’ argued that the involuntary patient order made against Mr Stewart by the Hospital was properly made and that even before Mr Stewart had made complaints or witnessed the assault, an emergency department doctor was already concerned about his eccentricity/hypomania with a differential diagnosis of a manic episode with grandiose delusions.³³

Plaintiff’s claims, legal issues & decisions

Claim 1 — Fraudulent concealment of the falsified medical records

Summary of Mr Stewart’s claim

Mr Stewart alleged that the Defendants fraudulently concealed his medical records.³⁴

Mr Stewart applied for his medical records under the FOI Act.³⁵ He received medical records in two tranches; the first not being complete and heavily redacted and the second still redacted.³⁶

Mr Stewart alleged that the medical records were redacted/falsified deliberately to show him in a bad light and to support false diagnosis.³⁷ He argued that this amounted to fraudulent conduct by the Hospital to either disadvantage him in his complaints/proceedings in relation to his hospitalisation, or, as a retaliation to his complaints about the Hospital and his threats to go to the media and sue the Hospital.³⁸

Decision

Mr Stewart alleged that there was continued fraudulent concealment of the names and particulars in his medical records during pre-discovery.³⁹ The Court determined that Mr Stewart did not disclose a cause of action and that he had a copy of both the redacted and unredacted notes at trial.⁴⁰

Mr Stewart alleged the defendants fraudulently concealed the names and particulars in the notes when redacting the medical records.⁴¹ The Court referred to Peters v The Queen (1998)⁴² as authority for the proposition that in order to act fraudulently, the Defendants had to have intentionally created a situation where Mr Stewart’s interests were prejudicially affected knowing they had no right to do so.⁴³ The Court considered whether the Defendants had the knowledge, intent or belief that the acts they performed were dishonest according to the standards of ordinary honest people⁴⁴ per Peters v The Queen⁴⁵ and Macleod v The Queen (2003).⁴⁶

The evidence indicated that the relevant employee of the Hospital who was responsible for redacting parts of the medical records stated that her decisions relating to the redacted material were made solely on the criteria of the FOI Act.⁴⁷ The concerns underpinning the redaction were based on the release of personal information under cl 3 Sch 1 of the FOI Act.⁴⁸

The Court found that the Defendant via its employees were not acting fraudulently in relation to the FOI application⁴⁹ and held that there was no merit in any aspect of the claim.⁵⁰

Claim 2 – Duty of care and negligence

Summary of Mr Stewart’s claim

Mr Stewart alleged Mimidi was “dangerously unsafe” in an occupier liability claim.⁵¹ Mr Stewart claimed that the occupier of the Hospital automatically owed a duty of care to any person on the premises and that this duty was breached by the Hospital by placing an extremely violent male patient amongst female patients.⁵² Mr Stew- art claimed the assault and his resulting injury were foreseeable.⁵³

Decision

The Court outlined the following elements of an occupier liability claim:

Scope of duty

• Section 5 of the Occupiers’ Liability Act 1985 (WA)⁵⁴ (“OLA”) specifies the duty of care required by an occupier as: “the care which an occupier of the premises is required . . . to show towards a person entering on the premises in respect of the dangers which are due to the state of the premises . . . be such care as in all the circumstances of the case is reasonable to see that that person will not suffer any injury or damage by reason of such danger.”⁵⁵

Had the duty been  breached?

• The Court considered whether a reasonable person in the Hospital’s position would have foreseen that their conduct involved a risk of injury to the plaintiff.⁵⁶ Ultimately, the Court held it was reasonably foreseeable in that it was not farfetched or fanciful that a patient in a mental health ward may behave violently and assault another patient and that a fellow patient may be injured coming to the aid of a patient being assaulted.⁵⁷

Reasonable response to the  risk

• The Court held that the existence of a foreseeable risk of injury does not in itself dispose of a question of breach.⁵⁸ The response to a foresee- able risk is to be judged by the criteria of reasonableness.⁵⁹
• The mere failure to eliminate a reasonably foreseeable risk does not of itself establish negligence — foreseeability of the risk of injury and likelihood of the risk occurring are two different things.⁶⁰
• Mr Stewart submitted that the Hospital should have employed more security guards and that violent male patients be housed separately to females.⁶¹

The Court held that there was no evidence put forward to establish the burden on the Hospital of eliminating the danger or harm and it was therefore not possible to reach a conclusion as to whether the duty of care was discharged.⁶² Ultimately, the Court dismissed this claim, stating that Mr Stewart “failed to satisfy me that a reasonable person in the tenth defendant’s position would have responded to the risk by taking one or both of the measures he suggests. His claim therefore fails.”⁶³

Claim 3 – Deceit

Summary of Mr Stewart’s claim

Mr Stewart claimed that he was deceived into staying at Mimidi in that he was told he “could leave at any time.”⁶⁴

Decision

The Court outlined the elements of the tort of deceit per Magill v Magill [2006]⁶⁵ noting as follows:

• firstly, the defendant makes a false representation;
• secondly, the defendant knowingly makes the representation with the knowledge that it is false, or was reckless or careless as to whether the representation was false or not;
• thirdly, the defendant intended that the representation be relied upon by the plaintiff;
• fourthly, the plaintiff acted in reliance of the false representation; and
• fifthly, the plaintiff suffered loss and damage caused by the reliance of the false representation.⁶⁶

The Court rejected Mr Stewart’s evidence that he relied on a specific doctor’s representations to agree to his admission to the Hospital.⁶⁷ In addition, the Court was not satisfied that Mr Stewart suffered damage by relying on the representation as the Court was not satisfied that he was misdiagnosed.⁶⁸ This claim was dismissed.⁶⁹

Claim 4 — No consent

Summary of Mr Stewart’s claim

Mr Stewart claimed he was not advised that Mimidi was a mental health ward and argued that he did not give informed consent for his admission.⁷⁰

Decision

The Court referred to ss 95 to 98 of the MHA when considering the definition of informed consent, noting that these sections in effect restate the common law.⁷¹ In considering whether the consent was freely and voluntarily given, the Court noted that this required Mr Stew- art to be capable of understanding the matters involved in the decision.⁷² Interestingly, the Court noted that sufficient time is required to enable a decision to be made and that a failure to resist treatment does not of itself constitute consent.⁷³

The evidence indicated that an apology was made by the Hospital in response to Mr Stewart’s complaints, where the Hospital acknowledged it was not made clear to Mr Stewart that he was informed of his admission to a mental health unit.⁷⁴ The Court held that an apology is not an express or implied admission nor relevant to determine, or admissible as evidence of, fault or liability by the defendants, per ss 5AF and 5AH of the CLA.⁷⁵ The Court ultimately found that shortly after Mr Stew- art’s admission to the mental health ward, Mr Stewart voluntarily stayed and impliedly consented to being treated and hospitalised and knew he was free to leave at all times until he was placed on a “Form 1”.⁷⁶ In this respect, the Court  held  that  during  the  short  time  Mr Stewart was unaware Mimidi was a mental health ward was difficult to determine, but likely to be minutes at most.⁷⁷ During this time the Court held that Mr Stewart did not suffer any damage in this time and on this basis, the claim was  dismissed.⁷⁸

Claims 5 — false imprisonment, 6 — fraudulently falsifying an involuntary order document, and 7 — assault, were all dealt with by the Court under the heading “Claim 11”

Claim 8 — Reprisals

Summary of Mr Stewart’s claim

Mr Stewart claimed he was a whistleblower per the Public Interest Disclosure Act 2003 (WA) (“PIDA”) as he had complained about events in the Hospital to the Minister and hospital authorities.⁷⁹

Mr Stewart claimed reprisals were taken against him in contravention of the PIDA which provided him with a civil right of action.⁸⁰

Decision

The Court held that there was no evidence that any of the disclosures made by Mr Stewart were made to any of the persons specified by s 5(3) of the PIDA as being a proper authority.⁸¹ Accordingly, the claim under the PIDA was dismissed.⁸²

Claim 9 – Misfeasance in public office

Summary of Mr Stewart’s claim

Mr Stewart alleged that the Minister of Health failed to investigate his complaints and therefore committed misfeasance of his public office.⁸³

Decision

The Court outlined the elements of misfeasance in public office as set out in the decision of Northern Territory of Australia v Mengel (1995).⁸⁴ The elements required were as follows:

1. there must be an invalid or unauthorised act or omission;
2. the act or omission must be done maliciously;
3. the act or omission must be done by a public officer;
4. the act or omission must be done in the purported discharge of the public office’s public duties; and
5. the act or omission must cause harm.⁸⁵

The Court reviewed this claim and held that there was no merit in any of the complaints made by Mr Stewart towards the then minister.⁸⁶ The claim was accordingly dismissed.⁸⁷

Claim 10 — Intentional infliction of emotional distress

Summary of Mr Stewart’s claim

Mr Stewart claimed that the Defendants intentionally inflicted emotional distress on him whilst he was a patient in the Hospital and post-admission. This claim overlapped with claims 5, 6, 7, 8, 9, and 11.⁸⁸

Decision

The law relating to the intentional infliction of harm in WA is based on the decision in Wilkinson v Downton [1897].⁸⁹ It was pointed out in Giller v Procopets (2008)⁹⁰ that Wilkinson is limited to cases where the plaintiff suffered physical harm.⁹¹

After reviewing the arguments and the law, the Court found that the claim by Mr Stewart, based on the intentional infliction of emotional distress, was an attempt to extend the Wilkinson v Downton [1897]⁹² tort of intentional infliction of harm.⁹³ The Court noted that, because Mr Stewart suffered mental harm and not emotional harm, his claim was not recognised as being part of the common law.⁹⁴ Accordingly this claim was also dismissed.

Claim 11 — Misdiagnosis — medical negligence

Summary of Mr Stewart’s claim

Claims 5, 6, 7 and 11 were described as “the heart” of Mr Stewart’s action.⁹⁵ The core of Mr Stewart’s claim was that he was falsely and fraudulently diagnosed with a mental illness and as a result, the s 29 MHA referral and s 43 MHA involuntary order were fraudulently made.⁹⁶

Mr Stewart claimed that because of the above, he was falsely imprisoned in the Hospital and subjected to assaults and batteries by being forcefully injected with drugs.⁹⁷ This claim was also based an allegation of medical negligence based on the medical misdiagnosis of mental illness by the Hospital.⁹⁸

Decision

Mr Stewart alleged that there was a deliberate or fraudulent misdiagnosis in that the Defendants knew he did not have a mental illness but deliberately diagnosed him with a mental illness for one or all of the following reasons:

1. concealment of the assault and associated events due to the Defendants’ negligence and therefore did not want him to report the assault to the police;
2. Mr Stewart’s intention to sue the Hospital and its staff; and
3. Mr Stewart’s intention of contacting the media.⁹⁹

Mr Stewart alleged that the Defendants knew that by diagnosing Mr Stewart with a mental illness, he would be stigmatised and less likely to be believed.¹⁰⁰ Mr Stewart also alleged that to support the misdiagnosis, doctors copied each other’s notes and misinterpreted/lied about Mr Stewarts medical history.¹⁰¹ Alternatively, Mr Stew- art alleged a negligent misdiagnosis.¹⁰²

The Law

Duty and standard of care

The Court cited Rogers v Whitaker¹⁰³ as the relevant authority stating the common law standard of care as “reasonable care and skill”.¹⁰⁴ The Court also noted the statutory standard of care for health professionals set out in s 5PB of the Civil Liability Act 2002 (WA) (CLA)¹⁰⁵ which states that “an act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that at the time of the act or omission is widely accepted by health professionals, his peers as competent professional practice.”¹⁰⁶

The Court determined that an analysis was required of competent professional practice by the Defendants’ peers per Bolam v Friern Hospital Management Committee (1957).¹⁰⁷ The Court referred to several Western Australian common law cases  and  determined  that  Mr Stewart was required to prove the following:

1. that the acts of the Defendants were not in accordance with the practice at that time/widely accepted by his peers as competent professional practice; and
2. that the Defendant’s acts breached the duty of care owed at common law having regard to the provisions of the CLA.¹⁰⁸

The Court noted that the initial issue was whether  Mr Stewart had satisfied the Court whether it was more likely than not, that the diagnosis made by the Defendants was fraudulent or negligent.¹⁰⁹ The Court then observed the chronology of events of the case predating Mr Stewart’s admission to the Hospital.¹¹⁰

The Court also questioned Mr Stewart’s credibility as a witness noting that his evidence raised concerns as to his honesty, truthfulness, reliability, and accuracy.¹¹¹ In this respect, the Court  was  not  prepared  to  accept  Mr Stewart’s evidence unless it was supported by objective evidence which the court found credible or inherently probable.¹¹²

Decision

Ultimately, it was held that Mr Stewart failed to satisfy to the Court whether it was more probable than not that his diagnosis of mental illness was wrong.¹¹³ Further, it was decided that Mr Stewart failed to satisfy the Court that the diagnoses made in relation to the Form 1 referral and the Form 6 involuntary patient order were not in accordance with widely accepted practice by the doctors’ peers.¹¹⁴

The Court also rejected Mr Stewart’s allegation that the doctors were acting to cover up the assault and to punish him for his conduct in his threats to sue the Hospital, go to the police, the Minister, or the media.¹¹⁵

It was decided that the issue at hand was not whether the Court considered that Mr Stewart had a mental illness  at the time, but rather whether it was more probable than not that the diagnosis was wrong.¹¹⁶

Ultimately, it was decided that Mr Stewart had not satisfied the Court that he was deliberately or negligently misdiagnosed with mental illness and the claims for false imprisonment assault, battery and fraudulently falsifying an involuntary order fell away and were dismissed.¹¹⁷

Claim 12 — Conspiracy

In relation to this claim, the Court held that the “idea that there was some overarching conspiracy by the medical and administration staff to misdiagnose for any reason is not sustainable.”¹¹⁸ In this respect, it was observed that the emergency doctor referred Mr Stewart to the psychiatric team and a diagnosis of hypomania or mania was made prior to the assault or subsequent complaints.¹¹⁹ For these reasons, the Court held there was no merit in claim 12.

Conclusion

The plaintiff’s claims were all ultimately dismissed. Bowden DCJ gave the following reasons for the Court’s decision:

. . . Mr Stewart has failed to satisfy me that the acts, being the diagnosis made in relation to the Form 1 referral s 29 MHA and the Form 6 involuntary patient order s 43(2)(a) MHA, were at the time of those acts, acts that were not in accordance with the practice that was widely accepted by the doctors’ peers as competent professional practice at the time of those acts.

I reject Mr Stewart’s submission that the doctors were acting to coverup the Skane assault and/or to punish him  or his wife inter alia for their conduct in complaining or threatening to sue, or go to the police or the Minister or the media.

The question is not whether I consider Mr Stewart had a mental illness at the time he was diagnosed. The issue is whether Mr Stewart has satisfied me that it is more probable than not that the diagnosis that he had a mental illness was wrong. Mr Stewart has not satisfied me that he was deliberately or negligently misdiagnosed with a mental illness. Accordingly, the claims for false imprisonment, assault and battery, and fraudulently falsifying an involuntary order fall away and are dismissed.¹²⁰

Stewart v Hames¹²¹ is an example of a case where a self-represented litigant had been given the opportunity to air all grievances against several defendants.

Of specific relevance, this case demonstrates some of the elements involved in the making of an involuntary detention order under the MHA. The importance of proper process in making such an order is clear, given the impact of an involuntary patient order in taking away aspects of a person’s autonomy. This is especially so in a case, like the present, when the recipient of such an order believes it to be falsely and/or maliciously made. Mr Stewart had the chance to air these grievances before the Court in a systematic and formal way, with each of his claims being carefully considered.

76. Above n 1, at [310].

77. Above n 1, at [311].

78. Above n 1, at [311]–[12].

79. Above n 1, at [56]–[57].

80. Above n 1, at [57].

81. Above n 1, at [434]–[35].

82. Above n 1, at [436].

83. Above n 1, at [58].

84. Northern Territory of Australia v Mengel (1995) 185 CLR 307; (1995) 129 ALR 1; [1995] HCA 65;

85. Above n 1, at [463].

86. Above n 1, at [486].

87. Above n 1, at [489].

88. Above n 1, at [59].

89. Wilkinson v Downton [1897] 2 QB 57; [1895-9] All ER Rep 267; (1897) 13 TLR 388; (1897) 45 WR

90. Giller v Procopets (2008) 24 VR 1; (2008) 40 Fam LR 378; [2008] VSCA 236; BC200810874 at [454].

91. Above n 1, at [498].

92. Above n 89.

93. Above n 1, at [500].

94. Above n 1, at [500]. Bowden DCJ cited reasons given by Neave JA in Giller v Procopets (2008) 24 VR 1 at 454 [2008] VSCA 236; BC200810874.

95. Above n 1, at [590].

96. Above n 1, at [54]-[55].

97. Above n 1, at [55].

98. Above n 1, at [596].

99. Above n 1, at [591].

100. Above n 1, at [592].

101. Above n 1, at [593].

102. Above n 1, at [596].

103. Rogers v Whitaker (1992) 175 CLR 479; (1992) 109 ALR 625; BC9202689.

104. Above n 1, at [599] citing Rogers v Whitaker (1992)  175 CLR

105. Civil Liability Act 2002 (WA) s 5PB(1). Similar provisions exist in other similar state and territory

106. Above n 1, at [601].

107. Above n 1, at [603]. Bowden DCJ citing Bolam v Friern Barnet Hospital Management Committee (1957) 1 BMLR 1; [1957] 2 All ER 118; [1957] 1 WLR

108. Above n 1, at [605].

109. Above n 1, at [610].

110. Above n 1, at [626].

111. Above n 1, at [614].

112. Above n 1, at [625].

113. Above n 1, at [1316].

114. Above n 1, at [1317].

115. Above n 1, at [1318].

116. Above n 1, at [1319].

117. Above n 1, at [1319].

118. Above n 1, at [588].

119. Above n 1, at [588].

120. Above n 1, at [1315]-[19].

121. Above n 1.