The importance of least restrictive care: the clinical implications of a recent High Court decision on negligence

Abstract

Objective: This paper aims to explain the meaning and implications for practice of the High Court of Australia’s finding in the negligence case, Hunter and New England Local Health District v McKenna [2014] HCA 44. Method: The facts of the case and the law of negligence are reviewed before reporting the Court’s decision. Results: The High Court found that the obligation upon doctors to provide the least restrictive option for care that was imposed by the, then applicable, Mental Health Act 1990 (NSW) was inconsistent with an obligation that might otherwise be imposed by a common law duty to have regard to the interests of those with whom a psychiatric patient may come into contact if not detained. Conclusions: The Court’s finding underlines the importance of clinicians documenting their clinical reasoning around why their negotiated management plan was the option least restrictive of the patient’s freedom and most protective of his or her human rights.