Legal liability for psychiatrists' decisions about involuntary inpatient status for mental health patients

The decisions by the High Court in Hunter and New England Local Health District v McKenna [2014] HCA 44 and by the majority of the New South Wales Court of Appeal in Hunter Area Health Service v Presland (2005) 63 NSWLR 22 create a high level of immunity for psychiatrists and the institutions in which they provide services from tortious liability for failure to impose involuntary detention or maintain involuntary detention of persons who, after release, engage in violent conduct. This column scrutinises the development of Australian law in such matters, including the public policy issues. It argues that the law has gone too far in denying a duty of care on the basis of both the least restrictive principle that is inherent in the power (as against duty) to detain involuntarily and in seeking to avoid the creation of a defensive mindset in psychiatrists or a distortive influence upon their decision-making.