Today’s question asks:

As committee members of a charitable foundation that provides peer support to individuals with mental health conditions, what, if any, liability exists for (1) individual committee members) or (2) the charitable foundation, if someone (not a committee member) provides peer support under the name of the charity, and the situation ultimately ends negatively. For example, peer support is a attempted but a person dies by suicide. Could the family of the deceased take legal action against the charitable foundation or its committee members?

Once again it is worth remembering that a poor outcome is not proof of negligence. Many people involved in health services, including mental health, try their best but the outcome is not always ideal. A person may be getting help from the best health professional in the business but he or she may still take their own life. That does not prove that there has been inadequate care. We can say that the mere fact that the ‘situation ultimately ends negatively’ would not mean that the ‘family of the deceased [could] take legal action against the charitable foundation or its committee members’. What is critical is the facts and what happened.

Negligent care

We’ve all heard stories of people being flippant or silly or calling someone’s bluff in these situations. The story of the medical professional who tells the person to cut their wrist along, not across the vein. Someone who says to someone threatening suicide ‘oh go on then, either do it or don’t we haven’t got all day’. So maybe a person employed or volunteering with this charity says something that drives a person to suicide – they add the straw that breaks the camel’s back (so to speak). That may be negligent and unprofessional and that may allow someone to sue. The question is always whether such conduct was, or is ever reasonable, and whether it was that conduct that ’caused’ the person to take their own life and both of those points would require expert mental health opinions.

Failure to warn

There could be negligence if a person presented in crisis and the peer support worker failed to recognise that crisis and act upon it, eg if the person was threatening suicide then it may be negligent not to call an ambulance, or police, or the person’s health practitioner or other support person. There may be liability if the person threatens to harm someone else and the peer support worker does not act on that eg if the person indicates he or she is going to go home and kill their family and then themselves (Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976)).

In Australia, the position is not clear. In Hunter Area Health Service v Presland [2005] NSWCA 33 and Hunter and New England Local Health District v McKenna [2014] HCA 44 it was held that the defendant did not owe a duty of care to detain a patient who killed someone when released. In Presland it was the patient who sued for the trauma caused to him when he killed his brother’s fiancé whilst suffering a mental illness; in McKenna it was the family of the deceased. In both cases the plaintiffs alleged the defendant was negligent in not continuing the patient’s involuntary detention under Mental Health legislation. Those cases turned on the wording of the Act and the principles that limit the use of involuntary detention to a last resort. Doctor’s may not be willing to apply the principals of the Act if they could be liable for the actions of a patient once released.

In Stuart v Kirkland-Veenstra [2009] HCA 15 police were not liable for the death of Mr Veenstra after they found him in a car with a pipe from the exhaust into the vehicle. They formed the view that Mr Veenstra was not displaying signs of mental illness and whilst he may have been contemplating suicide, he had not attempted suicide as the vehicle’s engine was not on and had not been on – the bonnet was cold to touch. The police determined, and the High Court agreed, that the conditions set out in the Mental Health Act 1986 (Vic) s 10 (now repealed) that provided for police detention were not established and therefore the police had no power to detain. Absent a power to detain they could not stop Mr Veenstra from going home and later, taking his own life.

A peer support person cannot involuntarily detain a person and is not, I infer, a mental health professional so their capacity to diagnose a mental illness, or to know what to do about it is limited. I assume however they receive some training and by taking on the role they must owe a duty of care, within the limits of their role, to the people they are supporting. That duty must be consistent with other statutory obligations including the privacy principles. There is no breach of privacy to release information that is otherwise confidential where that is required to prevent an imminent risk of harm (Privacy Act 1988 (Cth) s 16A – personal information can be released where ‘the entity reasonably believes that the … disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety’).

Even if there is no general duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15) and whilst each case would turn on its own facts, I can imagine that a peer support person would, in some circumstances, have a duty to warn police, or the person’s treating health professional, or the person’s next of kin, if there are genuine concerns for the person’s, or another person’s welfare. So if a person said ‘I’m going to kill myself’ and the peer support person believed that this was a statement of their actual intention, then I think it would at least be arguable that there was a duty to take some action such as calling police, a treating practitioner, a family member, or at least escalating the matter within the foundation for someone else to take the necessary action.

Committee members

Would action lie against committee members? That depends on how the charity is structured. If it is unincorporated then it has no legal standing so the only people that can be sued are the directors. If it is an incorporated association then it is a legal person separate from the directors and can sue and be sued in its own name. That is the whole point of incorporation. The Directors of BHP are not personally liable for the debts of BHP and if someone got hit by a car owned by BHP and driven by a BHP employee, it would be BHP and not the chair of the BHP Board that would be liable. The same is true for a small incorporated association.

Where an association is incorporated the directors have a duty to ensure that the organisation is solvent that is it can pay its debts. They also have duties under Work Health and Safety legislation to manage the association so that it does not pose a risk to workers and others (Model Work Health and Safety Act 2011 s 27). A director who informs him or herself of the business and as part of the committee decision making takes reasonable steps to ensure that there is proper training in place and that the volunteers and staff are reasonably managed (without being supervised every minute) will not be personally liable even if a staff member or volunteer is negligent. The vicarious liability belongs to the association, so the director’s duty is to ensure there is proper insurance and management in place.

Conclusion

The short answer is therefore that the family of a deceased person could take legal action against the charitable foundation if there is evidence that the person providing the peer support was negligent in his or her approach – that they failed to provide the support in accordance with the foundation’s training and procedures and/or that the foundation’s training and procedures did not reflect good mental health practice within the limits of the service provided. I can also envisage, though it’s not certain, that there could be negligence if the person communicated to the peer support person that they intended to hurt themselves, or others, and the peer support worker took no steps to seek further assistance or to warn others if they were in danger.

Assuming the foundation is incorporated, committee members will only be liable for their management decisions. They are not personally liable for the negligence of their staff or volunteers. The whole point of incorporation is to create a legal entity separate from the staff, volunteers and directors and it is the legal entity that can sue – and be sued.