Civil Liability Amendment Bill
Debate resumed from an earlier hour.
Ms SYLVIA HALE [2.42 p.m.]: I said earlier that this bill is appalling because it attempts to stigmatise the mentally ill as a dangerous section of the community. It seeks to deprive them of their equal rights under the law. It provides no real resolution of the problems that confront mentally ill people because of the fundamental lack of resources available to them within the hospital environment and, more particularly, outside that environment. There are too few resources, too few community services and too few psychiatric services available to them. That is the essence of the problem we should be dealing with rather than some bogus measure that panders to the worst instincts of the tabloid press. We should be confronting this problem, not offering solutions that merely serve to deprive people of their rights and further stigmatise them.
This legislation has been created specifically to interfere with current cases that have followed on from a high-profile precedent. This is a blatant case of the legislative arm of government interfering with the judicial wing, and it should not be permitted. Legislation should apply only to acts committed after the Act was passed. Applying it retrospectively to cases before the courts would be a complete misuse of parliamentary power, and it would be done for political purposes only. It must be opposed in principle for that reason, if no other.
The Government's argument in regard to wrongful birth hinges on the moral assertion that a healthy baby, no matter the circumstances of its conception, must be a good thing. That may be a potentially sustainable argument in a moral sense but in practical and financial terms there are clear arguments for doctors to be made liable for the consequences of their mistakes. They should not be allowed to be freed from the consequences of their errors. The argument itself is a slippery slope. For example, if all births are inherently good, should women be forced to go through with unwanted pregnancies? Should rape victims be required to bear children conceived by force? If not, then why should not those who effectively cause unwanted pregnancies be made responsible for the financial consequences of their actions?
I suggest that this applies even more when a woman, or a couple, seek sterilisation because their economic circumstances are such that they cannot afford to raise further children; they just do not have the money to do so. In that situation it is quite reasonable to suppose that in seeking sterilisation they are acting in the best interests of whatever children they have or may have in the future. It is a rational choice not to have more children. To deny compensation to the parents of a child born as a result of medical negligence is to commit that child to a life of deprivation. To deny compensation is to deprive a child born in circumstances where the parents cannot raise it appropriately of the right to an adequate life. It is the child, not the parents, who loses out in those circumstances—not only the child who was conceived after sterilisation but also any existing children.
People who decline to have a child because of impecunious circumstances should be entitled to damages to compensate for the costs of raising a child. This is not to say they will not value that child, or that the child is not a blessing, but the parents who are obliged to raise the child should certainly be compensated for the costs they have incurred because of the negligence of the medical profession. The Greens oppose this bill on a number of grounds, but particularly for the way it discriminates against the mentally ill. We say this legislation is aimed at appeasing the tabloids and puts a bandaid on the very real problems that confront the mentally ill in our community. It is not responsible, well thought out, considered legislation; it is simply a knee-jerk reaction.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [2.49 p.m.]: I oppose the Civil Liability Amendment Bill. The precedent of the Parliament interfering in the courts is going too far. The rights of individuals must be protected, and it is not our job to interfere in cases. The idea of society being regulated by tort law has its inherent problems. Certainly, in medical liability cases it is clear that the use of tort law to get quality control by fear, if one wants to call it that, is an effective solution to quality control in medicine. Interestingly, today I was notified that the Australian Competition and Consumer Commission has given approval for drug companies to hide what payments they make to doctors. That may seem totally unrelated, but the fact is that drug companies pay doctors' expenses and organise conferences.
Then in negotiations they choose whom they will sponsor to speak at those conferences. I have attended conferences where the speaker who was sponsored was the leading researcher of the drug company and had done research extravagantly favourable to that company. That effectively set the tone for the entire meeting as the keynote speaker said that his company's drug was marvellous, and the whole weekend, which was supposedly an academic weekend, turned into a drug marketing exercise. If one is talking about quality control in medicine and secrecy, this case, although it has nothing directly to do with the legislation, shows that the need for quality control in medical education and feedback in a non-adversarial frame is important. Also, the idea that other factors distort medical quality control does not enter into it.
This bill seeks to address the outcome of two recent court cases, the Presland case and the Melchior case. Both cases are different; they are only united by the fact that they are being dealt with under the Civil Liability Act, they involve medical negligence and they have both sparked popular outrage. Both matters have been misreported with relevant facts omitted to suit the arguments being advanced. I will attempt to give the full and pertinent facts of both cases. The Presland case involved the killing of Kelley-Ann Laws in a suburb of Newcastle called Jesmond. Kevin William Presland, a 38-year-old electrician, was charged with her murder. Kelley-Ann Laws was the fiancée of Presland's brother. The death took place on 4 July 1995, hours after Presland was discharged from James Fletcher psychiatric hospital. Presland had been assessed by Dr Jacob Nazarian and was released into the care of his brother. Hours later Presland killed his brother's fiancée. Presland was charged with murder but was found not guilty on the grounds of mental illness. Following the trial he spent 18 months in the Long Bay prison hospital.
Subsequently, Presland successfully sued the Hunter Area Health Service for negligence and was awarded $225,000 damages for pain and suffering and $85,000 for loss of earnings. The basis of the claim was that the Hunter Area Health Service, through Dr Nazarian, was negligent in not detaining Presland under the provisions of the Mental Health Act. Presland went to John Hunter Hospital covered in blood due to a fight he had just had with a work mate, Blake, at Blake's home. Presland believed that Blake was inciting one of his pet rats to attack him. A fight ensued in which Blake hit Presland with a cricket bat. Police, who suspected Presland was suffering from mental illness, then took him from John Hunter Hospital to James Fletcher psychiatric hospital to be assessed. The case went before Justice Michael Adams in the Supreme Court, who said of Dr Nazarian:
It is clear that Dr Nazarian's attitude was that unless there were frank psychotic symptoms or suicidal intentions expressed at the time of the interview, he would not detain a patient.
Nazarian also said:
I cannot go and jump on everyone and put everyone on the wards because yesterday he was suicidal.
He went on to add that that included murderers. The point is that the doctor assessed Presland on how he presented at that time. It was a question of protecting the person from himself or others, and in a sense that is judged against the denial of liberty, which is taken seriously in society. From the practical point of view of a stressed doctor assessing patients in a short time, if there is a shortage of mental health beds the bar gets raised higher as to who gets admitted. Doctors who know that they will have to discharge a patient whose psychiatric state they may well be aware of are under a lot of pressure to give more weight to the denial of liberty and less weight to the argument that a person is at least a danger to themselves or others.
The mental health inquiry that I was responsible for setting up showed that there was a big shortage of mental health beds in New South Wales compared to the situation in other States and comparable jurisdictions. Worse than that, the home support services—which made the number of beds less critical and meant that fewer mental health beds were necessary because people would not get to such an extreme position—were in an even worse state than the number of beds alone suggested. So the State has some responsibility for this situation. There is a shortage of mental health beds which, consequently, puts doctors under pressure. If the proof of the pudding is in the eating, it would seem from the outcome that the doctor made an error of judgement. At the time the patient was presumably thinking mainly about the state of his body, having been hit by a cricket bat. That may have concentrated his mind on the immediate and resulted in a more down-to-earth, oriented, at times black, place. He then had to undergo many mental examinations, which would have been administered by Dr Nazarian, who made an error of judgement.
The question is whether doctors should be personally liable for such matters to the extent of huge damages being awarded. If so, the premiums paid by doctors simply cannot meet that degree of liability, because they are effectively running a huge welfare system from a very small payment base. Many doctors are leaving their profession because of medical negligence, and it is why I have said in this House on several occasions—and I do not want to flog the point now—that we need a system where some risk is accepted in medical cases. We also need a more open system so that mistakes are identified quickly and corrections put in place. In that way we succeed at a preventive level, rather than ask, "What about the $1 million case where you make a quadriplegic better off than he would have been if he were not a quadriplegic by the application of huge amounts of money after a very inefficient and expensive process?"
This bill will not affect the Presland award of damages because it is not retrospective. I note that the Liberal Party intends to move an amendment to make the legislation retrospective. That is a bad idea. Honourable members may recall the Kable bill, which attempted to keep Kable in gaol without regard to the decision of the courts. Indeed, the Parliament tried to usurp the court's decision by passing special legislation to keep one extremely dangerous individual in gaol. That individual is not in gaol and apparently is not doing anybody any harm. In fact, I could tell the House what that individual is doing at the moment, which might surprise some honourable members. I will not support the Opposition's amendment. I note also that the Government is appealing the damages awarded in the Supreme Court. It would be an abuse of process for the Government, on the one hand, to appeal and, on the other hand, to pass legislation to make the appeal redundant.
A Brisbane woman, Kerry Melchior, went to Dr Stephen Cattanach, an obstetrician and gynaecologist, to have a tubal ligation. She told the doctor that she had her right fallopian tube removed during an appendectomy when she was 15 years old. In 1991 the doctor operated only on the left tube. In 1997 she gave birth to a healthy son. She then successfully sued the Queensland health department in a Brisbane court for medical negligence and was awarded $103,672 for pain and suffering and $105,000 for the cost of raising the son until he reached 18 years. The award of $105,000 was appealed in the High Court by the Queensland health department and was dismissed. I have a more than casual interest in medical matters. The doctor took the woman's word that she did not have a right fallopian tube—presumably, it was taken out with her appendix. If it was a nasty appendectomy a considerably more aggressive approach may have been needed to check the position of the right fallopian tube—if there was one—and to isolate and sever it to stop any ova going down it. There may even have been a lot of scarring.
The doctor had the choice of either taking the woman's word that she did not have a right fallopian tube or doing a more extensive procedure, which could not have been hidden from the patient because of extra scarring and a more painful operation. Most patients complain about doctors not listening to them. The doctor could have done an extensive dissection on the right-hand side and subjected her to more pain and, possibly, prolonged her stay in hospital. If she were correct in her assertion that she did not have a right fallopian tube an operation on that side would have been unnecessary. At any rate, the court ruled that the doctor was negligent, which I dispute, although I am not cognisant of all the facts. Is it unreasonable for her to be awarded damages for raising the child? I ask for a more extensive change to medical liability. If in this case there was negligence it was of a minor nature—that is, the doctor made a judgment about the information the patient gave him about her right tube, assuming he was not just careless in not ligating the tube on the right-hand side.
My principle would be along the lines of Gilbert and Sullivan's "let the punishment fit the crime". For a minor error of judgment the punishment should fit the crime. The amount of error in medicine very rarely corresponds to the consequences. One may make a tiny error with huge consequences or a gross error with minimal consequences. That is why a more sensible means to deal with medical liability needs to be developed. This bill is a poor way to deal with liability and that is why these matters should be left to the courts. If there is to be a more comprehensive approach taken to medical liability, so be it. It is almost analogous to the workers compensation and personal injury claims that we dealt with yesterday. It was said that we do not want lawyers advertising what the law is because the number of cases could be reduced by simply not telling people about the law. Although this is an unsatisfactory situation we are simply singling out ways to fix it with a band-aid. I do not believe that this sort of legislation should be used to fix these problems. Therefore, I oppose the bill.
The Hon. Dr PETER WONG [3.04 p.m.]: I congratulate the Government on introducing the Civil Liability Amendment Bill. I also congratulate the Minister for Justice on giving the crossbenches a very good briefing note. In essence, there are two factual cases. In one case, a man killed a woman after he was discharged from a psychiatric ward. He was subsequently found not guilty of murder by reason of insanity and sued the hospital for negligently discharging him. He was awarded substantial damages for pain and suffering and lost earnings during his detention as a forensic patient. It is not the role of doctors to keep patients in hospital for as long as possible. It is impossible to predict how a patient will behave after he or she has been discharged from hospital. A patient's mental state during hospitalisation could be totally different after discharge.
The second case is one where the High Court decided for the first time that where a healthy child is born following a failed sterilisation the child's parents can recover damages for the costs of raising that child. Again, medically speaking, there is a well-recognised failure rate of tubal ligation. I cannot see why the birth of a child is an injury or a burden to a parent. In particular, nowadays parents often take a wrong turn and have an abortion—with which I do not agree. It is ridiculous for people to try to claim compensation from a doctor. I totally support the bill.
The Hon. JON JENKINS [3.06 p.m.]: I understand the problem that the Civil Liability Amendment Bill is trying to address. These difficult problems delve into the very inexact medical and psychiatric sciences. The test really should be of a reasonable expert in that field, not one of the theoretical perfect practitioner. There is an element of risk in everything we do and I believe that compensation should be reserved for those cases of gross preventable negligence or some sort of accepted strict liability. I must admit that I would have more sympathy for denial if the compensation had gone to the victim in this case rather than the perpetrator of the crime, regardless of whether he was mentally incapable at the time. I would have some sympathy if that were the case. In fact, I asked whether the amendment could be amended to indicate that desire, but I am told that it cannot be.
Accordingly, I support the bill. It is a good thing that the Government is continuing to review civil liability legislation. I encourage it to continue with this process, rolling back many of the restrictive practices that have been imposed on the good citizens of this State as a result of outrageous litigation. I support the freeing up of activities that allow people to participate in manyfold recreational activities, including access to our national parks and State forests, which have been prevented by the civil liability legislation.
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [3.08 p.m.], in reply: The Civil Liability Amendment Bill continues the Government's tradition of responding rapidly and effectively to community concerns about the courts' expansion of the law of torts. The bill directly addresses issues arising from two recent cases that have caused considerable community concerns. In the first case a man killed a woman after he was discharged from a psychiatric ward and was found not guilty of murder by reason of insanity, and sued the hospital for negligently discharging him. He was awarded substantial damages for pain and suffering and lost earnings during his detention as a forensic patient. The amendments concerning public authorities and mentally ill persons prevent a similar decision being made again. This bill will specifically protect people who are the victims of unlawful acts. Such victims need to be sure that they will not be required to pay damages to the attackers, regardless of the mental state of those attackers.
In the second case, the High Court decided for the first time that where a healthy child is born following a failed sterilisation the child's parents can recover damages for the costs of raising that child. There is a strong moral objection to such damages because they classify the birth and existence of a child as an injury to the child's parents. This moral objection was voiced by the community, which expressed serious concerns about the decision of the High Court. The amendments will prevent the recovery of damages for the rearing of a healthy child. In addition to addressing these two recent cases, the bill makes some minor amendments to the proportionate liability provisions of the Civil Liability Act in the interests of national consistency. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
Clauses 1 to 4 agreed to.
Schedules 1 and 2 agreed to.
The Hon. GREG PEARCE [3.12 p.m.], by leave: I move Opposition amendments Nos 1 and 2 in globo:
No. 1 Page 11, schedule 3 , proposed clause 15 (3), line 26. Omit "However,". Insert instead "Except as provided by subclauses (4)-(6),".
No. 2 Page 11, schedule 3 , proposed clause 15. Insert after line 32:
(4) Section 54A (as inserted by the amending Act), in its application to proceedings commenced before 13 November 2003, applies only for the purposes of:
(a) any decision of a court in the proceedings that is made after the commencement of this clause, and
(b) any decision of a court on an appeal in connection with those proceedings that is made after the commencement of this clause (even if the appeal was instituted before the commencement of this clause).
(5) When section 54A applies under this clause for the purposes of the decision of a court, the decision is to be made as if section 54A had always applied to the civil liability with which the decision is concerned.
(6) Subclauses (4) and (5) have effect only in so far as the legislative power of the Parliament of New South Wales permits.
The Opposition has moved these amendments for consistency and to ensure that the bill, when it becomes law, reflects the community's concerns in this area. Before I comment on the amendments, I reject the most outrageous comments of Greens member Ms Sylvia Hale in relation to this bill. Ms Sylvia Hale has not been a member of this place for very long, but one would hope that a woman with her experience could temper her comments and listen to the arguments and views of the community. Her outrageous comments were quite defamatory of Government members and Opposition members. No-one here disputes issues of resources and the need to assist the mentally ill. However, for her to have made such outrageous comments—she alleged that this sort of legislation discriminates against the mentally ill—is offensive to all of us. She should review the way she goes about some of these things. This bill is designed to close a loophole that was identified in the case of Presland, which allowed a convicted felon to profit from his offence. It is not discriminating against the mentally ill. This fellow had committed murder and this bill will bring into line the situation where the murderer has been able to—
The Hon. Dr Arthur Chesterfield-Evans: Killer.
The Hon. GREG PEARCE: The honourable member is right, the killer has been found not guilty for a particular reason. The Opposition has moved these amendments to ensure that—
The CHAIRMAN: Order! The Hon. Sylvia Hale is reminded that interjections are disorderly at all times. This debate has been conducted politely, without interjections, and that is the way it should continue.
The Hon. GREG PEARCE: The Opposition believes that these amendments are important because the bill is retrospective. I draw the attention of the Committee to the speech of the Minister for Health in the other place. He clearly indicated that the bill is retrospective and that at least two cases comparable to Presland are currently on foot, to which the bill will apply. This bill was specifically introduced after the Government mistakenly claimed that the prior civil liability legislation would ensure that these sorts of claims could not be made. The bill was introduced to correct the problem and we want to ensure, if it is going to be retrospective, that it extends to Presland. The law has to be changed so that anyone in the same position will be affected in the same way. I commend the amendments to the Committee.
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [3.16 p.m.]: The Government does not support Opposition amendments Nos 1 and 2. The provisions relating to unlawful acts by mentally ill plaintiffs will apply to proceedings commenced before the bill was passed, but not to proceedings that have already been determined by a court and are awaiting appeal. Therefore, the amendments will not apply to the appeal in the Presland case. The Government considers that the Presland decision was flawed and, even on the legal principles argued in that case, believes it is appropriate to let the Presland appeal run its course to allow the decision to be rigorously tested by the appeal judges. Regardless of the outcome of that appeal, the community can be confident that it will have no precedent value, as amendments proposed in the bill will ensure that there cannot be a repeat of the decision made in the Presland case. The bill will apply to two other cases similar to Presland's that are currently before the courts and have not been determined. If the State loses the Presland appeal, the Attorney General will consider strategies to require Mr Presland to repay the money awarded to him.
In relation to the more general issue relating to the mentally ill, it is important to remember that the bill the Government is advocating be passed is designed to protect victims of unlawful conduct. It will ensure people who act in self-defence or who are otherwise victims of unlawful conduct will not find themselves paying substantial damages to those who attack them or who invade their homes. The Civil Liability Act already ensures that persons injured while acting in self-defence will not be liable to pay damages to his or her attacker. The Act also prevents criminals who are injured in the course of committing a serious offence from recovering damages for their injuries. These rules are based on the principle that persons cannot be allowed to benefit from illegal conduct or from inflicting injury on others. Therefore, these protections should apply regardless of the mental state of a person engaging in the unlawful conduct. It would be unfair to make a victim of an unlawful act pay damages to his or her attacker for pain and suffering or lost earnings because the attacker was mentally ill or could not be convicted of the attack.
The bill recognises that mentally ill people who commit criminal acts are not criminally culpable and therefore treats them slightly differently from criminals. While criminals are not entitled to any damages for injuries sustained in the course of committing an offence, section 54A allows mentally ill people injured in the same circumstances to recover damages for their medical and future care needs.
Question—That the amendments be agreed to—put.
The Committee divided.
Mr Della Bosca
Reverend Dr Moyes
Ms Cusack Mr Catanzariti
Miss Gardiner Mr Obeid
Ms Parker Ms Tebbutt
Question resolved in the negative.
Schedule 3 agreed to.
Schedule 4 agreed to.
Title agreed to.
Bill reported from Committee without amendment and passed through remaining stages.