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The Duty of Care Owed by Police to a Person at Risk of Suicide

In Stuart v Kirkland-Veenstra [2009] HCA 15, the High Court of Australia considered the duty of care owed by police to a person at risk of suicide in the community where the duty was alleged to arise in common law or as a consequence of a power conferred on police by the Mental Health Act 1986 (Vic) to detain and arrange for a psychiatric examination of the person. The High Court considered the principles relevant to determining the legislative intention of the specific provisions of the Mental Health Act and whether the existence of a discretion to exercise a power was inconsistent with existence of a statutory duty. The High Court also examined whether a person who appears to have been contemplating suicide was “mentally ill”. Concerns arise from the decision in the context of the difficulties in assessing suicidal intent and satisfying the statutory requirement of “mental illness” to enable a person who is at risk to be detained for the purposes of an assessment.