SWANSON v KEDESH REHABILITATION SERVICES LTD [2010] NSWCA 25 (24 June 2010)

Last Updated: 28 June 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
SWANSON v KEDESH REHABILITATION SERVICES LTD [2010] NSWCA 25


FILE NUMBER(S):
2009/298162

HEARING DATE(S):
2 & 15/03/2010

JUDGMENT DATE:
24 June 2010

PARTIES:
A - Simon Swanson
R - Kedesh Rehabilation Services Limited

JUDGMENT OF:
Beazley JA Macfarlan JA Handley AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 5335/2004

LOWER COURT JUDICIAL OFFICER:
Gibb DCJ

LOWER COURT DATE OF DECISION:
19/12/2008


COUNSEL:
A - Mr M R Aldridge SC & Ms E Welsh
R - Mr P Menzies QC & Ms K Burke

SOLICITORS:
A - Brydens Law Office (Mr L Hagipantelis)
R - Colin Biggers & Paisley (Mr G Creighton)


CATCHWORDS:
Negligence - duty of care - drug rehabilitation - residential facility - voluntary program - alleged breach by omission - no duty to "ensure" safety of resident - resident going on leave without medication – self-harm while on leave - no failure of reasonable care.

LEGISLATION CITED:


CATEGORY:
Principal judgment

CASES CITED:
RTA v Dederer [2007] HCA 42, 234 CLR 330

TEXTS CITED:


DECISION:
Appeal dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

09/298162

BEAZLEY JA

MACFARLAN JA

HANDLEY AJA

24 June 2010

SWANSON v KEDESH REHABILITATION SERVICES LIMITED

CATCHWORDS

Negligence - duty of care - drug rehabilitation - residential facility - voluntary program - alleged breach by omission - no duty to "ensure" safety of resident - resident going on leave without medication – self-harm while on leave - no failure of reasonable care.

HEADNOTE

On 21 April 2002 the appellant, who suffered from drug and alcohol addiction, depression, and a mixed anti-social and borderline personality disorder was discharged, drug-free, after several weeks in the Caritas Unit at St Vincent's Hospital. He was admitted voluntarily the same day to Kedesh House near Wollongong to take part in its eight weeks Drug Rehabilitation Program. One of the aims of this program, which its residents agreed to accept, was to make them take responsibility for their own medication in order to fit them for independent drug-free living in the community. The appellant's medication suppressed his symptoms without curing his underlying condition.

The appellant was permitted to leave Kedesh for the weekend on Friday 3, 10 and 17 May. On such occasions residents were expected and encouraged, before departing, to collect the medication they would need while away from Kedesh. The appellant collected his medication before leaving on 3 and 10 May, but failed to do so on 17 May. His movements over that weekend were a matter of speculation but he failed to return on the Sunday evening and about 5 p.m. on Monday 20 May he jumped off the Berkeley Road overpass near Kedesh and sustained serious injuries.

The appellant sued Kedesh in contract and tort to recover damages for his personal injuries alleging that it had failed to "ensure" that he did not proceed on weekend leave without his medication. It was alleged that without access to his medication he became psychotic, and acting on “voices”, jumped off the overpass.

The appellant did not establish that he had missed any of his doses of medication in the days before he went on leave on 17 May. There was no evidence that he was suffering from any cognitive impairment which affected his capacity to collect his weekend medication, or that there was anything about his behaviour to warn staff that he might be at risk of self harm while on leave. The appellant's case was that the respondent should have ensured that its residents took their medication while at Kedesh and collected the weekends dose before going on leave. The trial Judge gave judgment for the defendant. On appeal: HELD dismissing the appeal (1) The appellant’s case was based on a breach of duty by omission; (2) He had failed to identify the physical step or steps the defendant should have taken to discharge its duty of care that it had failed to take; (3) The defendant did not have a duty to "ensure" a particular result, its duty was to take reasonable care for the safety of its residents: RTA v Dederer [2007] HCA 42, 234 CLR 330 applied; (4) Residents, including the appellant, were reminded at the end of the last session on Friday 17 May that they should collect their medication before leaving; (5) Reasonable care did not require anything more in the circumstances.

ORDERS

Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

09/298162

BEAZLEY JA

MACFARLAN JA

HANDLEY AJA

24 June 2010

SWANSON v KEDESH REHABILITATION SERVICES LIMITED

Judgment

1 BEAZLEY JA: I agree with Handley AJA.

2 MACFARLAN JA: I agree with Handley AJA.

3 HANDLEY AJA: This is an appeal by the plaintiff from the judgment entered by Gibb DCJ for the defendant in an action for personal injuries. With few, presently immaterial, exceptions there was no challenge to the Judge’s findings of primary fact.

4 On 21 April 2002 the appellant was discharged from the Caritas Unit at St Vincent’s Hospital and the following day he was admitted, as a volunteer, to the respondent’s residential Drug Rehabilitation Program at Kedesh House. Kedesh, which had been operating for 20 years, is located in Berkeley, a suburb of Wollongong south of the City. The appellant had been committed to St Vincent’s Hospital on 25 February 2002 after being found by police on the far side of the fence at the Gap talking about jumping off. He ceased to be an involuntary patient on 3 April but remained at St Vincent’s until a place could be found for him in a rehabilitation program.

5 The appellant was a dual diagnosis patient because of his drug and alcohol addiction and his mental illness. St Vincent’s, which had the appellant under observation and treatment for about seven weeks, diagnosed him with depression linked to poly-substance abuse, and a mixed antisocial and borderline personality disorder.

6 The Judge accepted this diagnosis (red 85, 97), which was supported by Dr Brown (red 126-7) and rejected the diagnosis of drug induced psychosis favoured by medico-legal psychiatrists called in the appellant’s case. While at St Vincent’s the appellant was prescribed Fluvoxamine for his depression and Risperidine for his antisocial and borderline personality disorder (t 2/3/10 p 3). He remained on this medication during his time at Kedesh. These drugs do not cure the underlying conditions. They only provide some relief from the symptoms (red 133).

7 The rehabilitation course at Kedesh lasted eight weeks (Red 39). Although admission was voluntary, the appellant was not permitted, under the house rules, to take leave on the first weekend. He was permitted to go on leave on the weekends of 3-5 May and 10–12 May returning as required before 8 p.m. each Sunday.

8 He went on weekend leave again on Friday 17 May but failed to return on Sunday evening. His movements over that weekend are a matter of speculation but at 5 p.m. on Monday 20 May he jumped off the F6 Berkeley Road overpass, hit the embankment and rolled down to the edge of the Freeway sustaining serious injuries.

9 The Judge found that the appellant collected his medication for the weekend before leaving Kedesh on Friday 3 and Friday 10 May, but left without it on Friday 17 May.

10 The appellant brought proceedings against Kedesh in the District Court to recover damages for its alleged negligence and breach of contract. The appellant’s case at trial and in this Court was that the respondent’s duty of care required it to “ensure” that he did not leave Kedesh on 17 May for weekend leave without his medication. Without access to medication he became psychotic to the point where he acted on the “voices” in his head and jumped off the bridge. Kedesh was therefore legally responsible for his injuries.

11 The Judge found, on the basis of some of the expert evidence, that it was probable that the appellant jumped when he was suffering from a psychosis triggered by his drug use that weekend (red 129). In my judgment, in the absence of any evidence that the appellant took illegal drugs that weekend, and since Wollongong Hospital did not test his blood or urine, this can be no more than a plausible hypothesis.

12 Kedesh was not a psychiatric hospital and it had no medical practitioners or psychiatrists on staff, although a psychiatrist would visit as required to attend to residents. It operated on the basis of rules described as Resident’s Responsibilities (blue 2/770-779) which the appellant accepted and signed (blue 2/731). Residents were admitted on a voluntary basis, and could not be detained against their will. A resident who committed breaches of the rules faced disciplinary action and possible expulsion.

13 Kedesh offered a non-medical structured cognitive behaviour therapy program which provided significant counselling support for the residents (red 38).

14 The program attempted to address residents’ psychological addiction to drugs. Its overt object was to make them accept responsibility for managing their own medication to prepare themselves for independent drug free living in the community (red 40). The rules made them responsible for taking their medication (red 43, blue 2/774).

15 There was accommodation for 19 residents, 13 male and 6 female (red 39). Up to four men shared a bedroom (red 38). On admission residents were required to surrender all medication which was held for them in the office under lock and key. They could obtain their doses of medication on request at meal times and bedtime. To do this they had to go to the window at the office counter and, if necessary, ring the bell to attract attention.

16 The person on duty would obtain the resident’s medication, which the external pharmacist supplied in a Webster Pack. This was a plastic pack which contained the resident’s medication for a week with marked compartments for each day, and sub compartments for each dose. The person on duty would give residents their dose by expelling it from the Webster pack into their hands.

17 Residents had to take their medication immediately watched by the staff member. This was to ensure that it was taken, and not discarded, stockpiled, or traded. The staff member was then supposed to mark the resident’s drug record sheet to indicate that the required dose had been supplied and taken. These arrangements complied with NSW Health Department guidelines (red 49, 52, blue 2/ 858).

18 Residents leaving on Friday afternoons for weekend leave were required to collect their weekend supply before leaving. This would be supplied from their Webster pack in plastic blisters marked with the dose times. They were also asked to return their key and sign themselves out on the Sign Out book kept near the front door close to the office.

19 The last group session on Friday afternoons was known as roundup. It was the practice of staff conducting this session to conclude by reminding residents to collect their medication before leaving for the weekend. The Judge found that this reminder was given at roundup on Friday 17 May (red 66, 80). Despite this the appellant left without collecting his medication or signing the Sign Out book. He had collected his medication on the two preceding Fridays before going on leave (red 21). He said (red 21) that “If you’ve been in an institute all week and you’re given leave, all you think about is getting your bag and going.”

20 There is very little information about the physical layout of Kedesh, and there is no plan in evidence. There must have been at least six bedrooms for the residents, and possibly others for staff. There was also an office, a large kitchen, a lounge room and some bathrooms. A large shed had been erected in the backyard for group meetings (red 38-9). The house must have been quite large. The evidence does not reveal the number and location of the external doors and whether there was more than one frontage to a public street.

21 The Court does not know what opportunities staff had to observe the departure of residents going on leave, and whether there was any further opportunity to remind them to collect their medication.

22 The medication sheet maintained by Kedesh for the appellant (blue 2/761) appears to show that he missed some doses. The person on duty was supposed to date and initial the appropriate space to record the giving and ingestion of the relevant dose. It appears from this record that one dose was missed in the week ending Friday 3 May and another in the following week. The doses at dinner time on Wednesday 15 May and at breakfast time on Thursday 16 also appear to have been missed.

23 On Friday 17 May the appellant failed to collect his weekend medication which was found the following week in his Webster pack (blue 2/733). The appellant relies on the doses missed during the week to establish slackness in the system. Kedesh did not have any procedure for regular reviews of its medication sheets to detect and follow-up non-compliance.

24 Mr Aldridge SC for the appellant alleged that this slackness, particularly in the last week, caused or contributed to the appellant's failure to collect his weekend medication on Friday 17 May. Moreover the appellant went on leave with diminished levels of his medications in his blood stream. These matters led to his relapse and his jump from the road bridge.

25 However the absence of the required entries in the appellant's medication sheet for some of his doses was equivocal. The person on duty may have handed out the medication but failed to make the appropriate entry. There was evidence that this occurred: Ward (black 308-9), Buckingham (black 404, 406, 411). The appellant said that he always took his medication (red 20, 56), but the Judge found that in many respects he was an unreliable witness.

26 Any staff member handing out a resident’s medication could see immediately if earlier doses had been missed (black 309, 407). After Kedesh learnt of the appellant's injuries Mr Ward checked his Webster pack (blue 2/733). He did not note that other missed doses were still there and he was not asked about that. One may infer that he would have commented if doses from the previous week were still there. The appellant did not establish on the balance of probabilities that any of his doses were missed during that last week.

27 Staff who became aware that a resident was not taking his medication would raise the matter with the clinical director or manager, but their focus was on the resident’s behaviour and any problems. Matters of that nature would be raised at staff handovers at the end of the morning, afternoon, and night shifts (red 69-70).

28 The appellant’s behaviour problems in the last week were limited to minor sleep disturbance, and some disruption in a group on Thursday (red 69-70). The Judge accepted medical evidence that a review of the contemporary records at Kedesh did not disclose anything that would alert staff to a deterioration in his condition or behaviour during that week (red 70). There was no evidence that he was suffering from any cognitive impairment which affected his capacity to collect his weekend medication (red 23). His behaviour changed very little while he was at Kedesh (red 55).

29 The Judge found (red 87) that on Friday 17 May “There were no warning bells ringing and no signs that reasonably ought to have caused the defendant to apprehend any risk.” In particular there was no evidence that the appellant’s mental state had deteriorated and he might be at risk of self harm (red 73, 76).

30 Patients with mental health problems are often unreliable in taking their medication. The Judge accepted evidence from Dr Bell that there is only about 80% compliance in these cases (red 77). Thus an occasional missed dose would not be a cause for concern.

31 Kedesh’s response to a resident who was not collecting his or her medication was “to work with that client” to help them put a system in place that would remind them to take their medication. Staff would not assume the responsibility of finding the client and getting him or her to take their medication (red 70).

32 The Judge accepted evidence from Dr Bell that “if treating clinicians encouraged patients’ dependency and [they] sense that [they] need to be cared for, this frequently leads to an exacerbation of symptoms” (red 65). She also accepted his evidence that any change to Kedesh’s program “to alter the allocation of responsibility threatened to compromise the very basis on which such therapeutic communities operate” (red 65).

33 There was no attack on the Kedesh program as a whole. In particular there was no evidence that it was an unsafe system and should not have been offered to former drug users, including dual diagnosis users seeking rehabilitation. The appellant's case was that the system should have been modified to ensure that residents took their medication while at Kedesh, and before going on leave.

34 The Judge held that Kedesh’s duty was to implement its rehabilitation program with due care and skill and to make the appellant's medication available to him immediately and appropriately on request (red 65).

35 The appellant relied on the missed doses on the Wednesday and Thursday of the last week, and the failure of Kedesh staff to monitor his compliance with his medication program, and follow up any missed doses as breaches of its duty of care.

36 This part of the appellant's case failed because it was not established, on the balance of probabilities, that those doses were actually missed. In any event Kedesh's program did not provide for the active monitoring of medication compliance and the immediate follow-up of missed doses. As the Judge found any system for automatic follow-up would encourage dependence and undermine the program which made residents responsible for their own medication.

37 The appellant was assessed by St Vincent's as a suitable candidate for the program offered by Kedesh, and there was no expert evidence that he was not suitable.

38 He had been drug-free for many weeks before his admission to Kedesh. He admitted himself voluntarily, albeit to comply with a condition of his bail. He was competent legally and mentally and able to commit himself contractually to the Kedesh rules including the Resident’s Responsibilities.

39 The appellant’s other case on appeal was that Kedesh's duty was to "ensure" that he did not leave on 17 May for the weekend without his medication.

40 The Judge noted that the appellant’s experts did not identify "what physical steps or procedures should have been put into place" to "ensure" that he did not leave that Friday without his medication (red 27, 63, 65).

41 As previously noted there was no evidence about the physical layout of the Kedesh property and in particular no plan.

42 In this state of the evidence the appellant's case that Kedesh had a duty to "ensure" that the appellant did not leave without his medication must fail. The Court does not know what Kedesh would have been required to do to perform that duty and cannot determine whether a duty of reasonable care required that step or those steps to be taken.

43 The appellant's submission that Kedesh had a duty to "ensure" that the appellant did not go on weekend leave without his medication must also fail for legal reasons (RTA v Dederer [2007] HCA 42, 234 CLR 330, 338, 346, 348, 354, 356). Kedesh could have no duty to ensure a particular result. Its duty was to take reasonable care for the safety of its residents.

44 Kedesh was not entitled to impose physical restraints to prevent the departure of a voluntary resident such as the appellant. Its programme and its rules were based on residents such as the appellant accepting responsibility for their own medication. The appellant’s experts on the other hand maintained that it had responsibility for a resident’s medication and should have exercised it (red 41).

45 However the Judge accepted Dr Bell's evidence (red 65) that modification to the program's structure to alter the allocation of responsibility threatened to compromise the very basis on which such therapeutic communities operate and that any such modification "might make things worse" (red 65).

46 The appellant's case is based on a breach of duty by omission. The Court cannot find that there was such a breach by Kedesh without first finding what reasonable care required it to do.

47 As previously noted the appellant's evidence at the trial failed to address this critical issue.

48 The appellant admitted himself to Kedesh to participate in its rehabilitation program. The Judge found that Kedesh exercised reasonable care and skill in the provision of this program.

49 The appellant did not establish on the balance of probabilities that he missed any of his doses of medication during the four and half days prior to his departure on leave after lunch on Friday 17 May, or that reasonable care required it to promptly follow up any missed doses.

50 At the end of roundup that Friday the appellant, and the other residents, were reminded of the need to collect his medication before leaving. The question is whether reasonable care required Kedesh to do anything further to encourage the appellant to ask for his medication.

51 On the face of it a clear timely reminder to a competent drug-free adult of the responsibility he had voluntarily accepted to collect his medication before leaving was a reasonable step for Kedesh to take, and such a reminder was given.

52 The appellant’s case failed to address the issue of what further, useful, step Kedesh was reasonably required to take to comply with its duty of reasonable care. In my judgment the appeal fails on this ground and should be dismissed with costs.

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LAST UPDATED:
24 June 2010